Traer v. Clews, 115 U.S. 528 (1885) - [PDF Document] (2024)

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6 S.Ct. 155

115 U.S. 528

29 L.Ed. 467

TRAER and another

v.

CLEWS.1

Filed November 23, 1885.

Henry Clews, the defendant in error, on January 17, 1878,brought this

suit in the circuit court of Linn county, Iowa, against John W.Traer and

others, to recover the value of 50 shares, of $1,000 each, ofcapital stock

in the Cedar Rapids North western Construction Company, andthe

dividends which had been declared thereon. The stock had beenoriginally

subscribed and owned by Clews. The construction company was

organized in 1870. The dividends sued for were declared, $10,000in

December, 1873, and $500 in January, 1874, and were in thetreasury of

the company ready to be paid out to the holder of the stock. OnNovember

28, 1874, Clews was adjudicated a bankrupt, and his stock inthe

construction company, with the dividends which had beendeclared

thereon, passed to J. Nelson Tappan, trustee of his bankruptestate. In

February, 1875, the construction company went into voluntarydissolution

and liquidation, and John W. Traer, John F. Ely, and WilliamGreen were

appointed trustees to settle up its affairs and divide itsassets among its

stockholders, according to their interest therein. Traer,knowing that the

dividends above mentioned had been declared, and the samebeing

unknown to Clews and Tappan, his trustee in bankruptcy, on March4,

1876, for the consideration of $1,200, through the interventionof oneArmstrong, who did not disclose his agency, purchased ofTappan, the

trustee, the 50 shares of stock above mentioned. Traer alleged,and it

appeared, that the purchase was made by him for his wife, Mrs.Ella D.

Traer. Afterwards, on December 6, 1877, Tappan, thetrustee in

bankruptcy, assuming, as it may be supposed, that the saleof the stock

made at the instance of Armstrong was void for fraud, sold allhis claims

and demands on account of the stock to Clews, who, on January17, 1878,

brought this suit. John W. Traer and others, who had beenofficers andtrustees of the construction company, were madedefendants to the

original petition. The defendants demurred to the petition onthe ground

that it did not state facts sufficient to entitle the plaintiffto the relief

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demanded. The court overruled the demurrer. Afterwards, theplaintiff

having discovered that, on March 4, 1876, the stock in theconstruction

company had been assigned to Ella D. Traer, on October 28,1879,

amended his petition by making her a party defendant to hissuit. Upon

final hearing in the circuit court for Linn county the suit wasdismissed as

to all the defendants except John W. Traer and Ella D. Traer,and

judgment was rendered against them for $15,000. Traer andhis wifeappealed from this judgment to the supreme court of Iowa,which affirmed

the judgment of the circuit court. By the present writ of errorTraer and

wife ask a review of the judgment of the supreme court ofIowa.

N. M. Hubbardand Chas A. Clark, forplaintiffs in error, John W. Traer

and another.

[Argument of Counsel from pages 529-533 intentionallyomitted]

L. DeaneandFrank G. Clark, for defendantin error, Henry Clews.

WOODS, J.

1 The defendant in error questions the jurisdiction of thiscourt. As the record

shows that the plaintiff in error dispute the validity of atransfer to the

defendant in error of the property in controversy, made to himby a trustee inbankruptcy, appointed under and deriving hisauthority from the bankrupt act,

and as the question is made whether the suit is barred by thelimitation

prescribed by the same act, we are of opinion that thejurisdiction of the court

to decide these questions is clear.Factors' Ins.Co.v.Murphy, 111 U. S. 738;

S. C. 4 Sup. Ct. Rep. 679;New Orleans R.Co.v.Delamore, 114 U. S. 501; S.

C. 5 Sup. Ct. Rep. 1009.

2 The record does not leave it in doubt that the purchase byTraer from Tappan ofthe rights incident to the stock in theconstruction company belonging to the

bankrupt estate of Clews was brought about by thefraudulent practices of

Traer. As stated by the supreme court of Iowa, he was astockholder, officer,

and trustee of the construction company, and had been, from thefirst, actively

engaged in the management of its affairs. As trustee he wassolely intrusted

with the custody of the assets, books, and papers of thecorporation, and had

full and complete knowledge of all matters pertaining to theassets and business

of the company. He knew that the plaintiff or his bankruptestate was entitled todividends amounting to at least $10,500,received by Traer upon entering upon

the discharge of his duties as trustee. The assets of thecompany, much of them

being in money, he held as a trustee for the stockholders,being so constituted

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by the act of dissolution of the corporation. Hemisrepresented the value of

these assets to both Tappan and Clews, and induced them tobelieve that the

sum to which they were entitled did not greatly exceed $1,200 invalue, the

amount of the consideration of the assignment of the stock byTappan. He

employed attorneys and agents to negotiate for the purchase ofthe stock, who

concealed from Tappan that the purchase was made for Traer orhis wife. These

agents knew that they were making the purchase for Traer or hiswife, andneither of them at any time was a good-faith purchaser. Inall of the transactions

connected with the purchase of the stock Traer acted as theagent of his wife,

who knew that her husband was a trustee holding the assets forthe

stockholders of the construction company, and knew their value,and was

guided in her purchase by his advice and direction. She knewthat Tappan was

ignorant of the value of the assets, and she had knowledge ofthe devices used

by her husband to secure the purchase of the stock anddividends. By means of

these fraudulent devices she purchased from Tappan, for theprice of $1,200,property which the state circuit court foundto be of the value of $15,000. The

charge of fraud made in the petition was therefore fullysustained.

3 Among other defenses pleaded by Ella D. Traer was thefollowing: 'That

plaintiff's pretended right of action herein accrued infavor of plaintiff's

assignor, J. Nelson Tappan, as trustee in bankruptcy ofplaintiff's estate, more

than two years before the commencement of this suit against thisdefendant,

and more than two years before she was made a party defendantherein, andthat this action is fully barred as to her by theprovisions of the act of congress

in that behalf, and was so barred before she was made a partydefendant herein.'

This plea sets up the bar prescribed by the second section ofthe bankrupt act,

now forming section 5057 of the Revised Statutes, whichdeclares: 'No suit,

either at law or in equity, shall be maintained in any courtbetween an assignee

in bankruptcy and a person claiming an adverse interest touchingany property

or rights of property transferable to or vested in suchassignee, unless brought

within two years from the time the cause of action accrued foror against suchassignee.' The suit was brought against John D.Traer within two years after the

fraudulent purchase and transfer of the stock and dividends, butMrs. Traer was

not made a party to the suit until after the lapse of threeyears and a half from

the time of the purchase and transfer. The question is presentedby one of the

assignments of error whether, upon the circ*mstances of thiscase, the suit was

barred as to Mrs. Traer.

4 The amended petition filed in the case on October 28, 1879,the day after Mrs.Traer had been made a defendant, averred thatJohn W. Traer, while holding

the office of trustee of the construction company, falselyrepresented to Tappan

that there were no dividends due the estate of Clews from thestock held by him

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in the construction company, and falsely and fraudulentlyconcealed from him

the true condition of the company with the intent ofundervaluing the stock and

dividends declared thereon; that Traer and his wife employed oneArmstrong to

purchase for Mrs. Traer the said stock and dividends; thatArmstrong took from

Tappan an assignment of the certificate of stock to Mrs. Traer;that he

forwarded the certificate to one Howard, whom Traer and his wifehad

previously employed, and Howard, following theinstructions of Traer and hiswife, carried the certificate to theheadquaters of the construction company at

Cedar Rapids, and demanded of Traer, as trustee, the dividendsand interest

thereon; whereupon Traer paid over to Howard, his own and hiswife's

attorney, the sum of $11,913.75 on account of said dividends andinterest, and

Howard, while pretending to act for Armstrong, 'carefullyconcealed, from

those who might inform the said plaintiff's trustee inbankruptcy, and from the

papers and receipts, that he was acting as the attorneyfor John W. Traer and

Ella D. Traer his wife,' and that after receiving said sum ofmoney, andreceipting the vouchers prepared by Traer, as trustee, hepaid back the money

to Traer and his wife, less the amount of his own share asco-conspiratory and

attorney. Afterwards, it was alleged, Traer transferred thestock to his wife

upon the books of the company. These averments show, not only afraudulent

concealment of the value of the stock and dividends from Tappanby Traer,

acting as agent for his wife, but a carefully devised plan bywhich the payment

of the dividends to Mrs. Traer was concealed from Tappan, and notrace of such

payment left upon the books and vouchers of theconstruction company.Subsequently, and before the trial of thecase, the following amendment was

made to the petition: 'That as to the matters and things hereinset forth as a

cause of action against the said Ella D. Traer, the saidfraudulent transactions

with which she was connected and her part therein werestudiously concealed

from the plaintiff and his assignor, and he had no means ofdiscovering the

same, nor had his assignor any means of discovering the sameuntil the same

were disclosed upon the examination of John W. Traer, as witnessin this

action, on the twenty-fourth day of September, 1879; that theplaintiff and his

assignor did not know of the said fraud and the fraudulent actsof the defendant

Ella D. Traer until the same were made known on the saidexamination.' No

issue was taken on this amendment.

5 The state court having entered a general finding and judgmentagainst the

defendants, John W. Traer and Ella D. Traer, his wife, the factsset out in the

pleadings of the plaintiff, so far as they are necessaryto support the judgment,

must be taken as established by the evidence. The question is,therefore, do thefacts alleged constitute a good reply to the pleaof the two-years limitation filed

by Mrs. Traer? We think they do. The fraud by which Mrs.Traer succeeded in

purchasing from Tappan for $1,200 property to which he hadthe title worth

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$15,000, must necessarily have been a fraud carried on byconcealment from

Tappan of the true value of the property purchased. Such is theaverment of the

plaintiff's pleadings. But not only was fraudulentconcealment in accomplishing

the fraudulent purpose averred, but also a studious concealmentfrom the

plaintiff, Clews, and Tappan, the trustee, of theconnection of Mrs. Traer with

the fraud, and their want of means to discover the fraud, untilit was revealed by

the examination of John W. Traer, on September 24, 1879. Thecase issubstantially the same, so far as the question now in handis concerned, as that

ofBaileyv. Glover, 21 Wall. 342. The avermentof fraudulent concealment in

that case was, as shown by the report, as follows: 'The billalleged that the

defendants kept secret their said fraudulent acts, andendeavored to conceal

them from the knowledge, both of the assignees and of the saidWinston & Co.,

creditors of the bankrupt, whereby both were prevented fromobtaining any

suflicient knowledge or information thereof until within thelast two years, and

that, even up to the present time, they have not been able toobtain full andparticular information as to the fraudulentdisposition made by the bankrupt of

a large part of his property.' The court in that case, upondemurrer, held in

effect that these averments were sufficient to take the casefrom the operation

of the same limitation which is set up in the present case. Indelivering the

judgment of the court, Mr. Justice MILLER said: 'We holdthat, when there has

been no negligence or laches on the part of a plaintiff incoming to a knowledge

of the fraud, which is the foundation of the suit, and when thefraud has been

concealed, or is or such character as to conceal itself, thestatute does not beginto run until the fraud is discovered by orbecomes known to the party suing or

those in privity with him.'

6 So in the case ofRosenthalv. Walker,111 U. S. 185, S. C. 4 Sup. Ct. Rep. 382,

the plaintiff averred that 'both the said Carney and thedefendant kept

concealed from him, the said plaintiff, the fact of the saidpayment and transfer

of the aggregate sum of $30,000, * * and the fact of the sale,transfer and

conveyance of the said goods, * * * and that he, the saidplaintiff, did not obtainknowledge and information of said matteruntil the twenty-ninth day of

November, 1879, and then, for the first time, the saidmatters were disclosed to

him, and brought to his knowledge.' These averments were heldsufficient on

exception to the petition to take the case out of the barprescribed by section

5057 of the Revised Statutes. The case ofBaileyv.Gloverhas never been

overruled, doubted, or modified by this court. On the contrary,inRosenthalv.

Walkerit was reaffirmed, and was distinguished fromthe case of Woodv.

Carpenter, 101 U. S. 135, relied on by the appellants. Theauthorities cited arein point, and fully support our conclusionthat, upon the pleadings and

evidence, the suit of the plaintiff was not barred by thelimitation prescribed by

section 5057 of the Revised Statutes.

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7 The next contention of the appellants is that the transferexecuted by Tappan to

Clews was not a sale to him of a right of property in the stockof the

construction company, and of the dividends, but merely thetransfer of a right to

sue Traer and his wife for a fraud, and was therefore void. Theassignment was

as follows: 'In consideration of the sum of $1 to me paid byHenry Clews, the

receipt whereof is hereby acknowledged, and for other good andvaluable

considerations, I hereby sell, assign, transfer, and set overunto the said HenryClews any and all claims and demands of everyname, nature, and description

that I may now have or be entitled to on account of the fiftyshares of the

capital stock in the Cedar Rapids & NorthwesternConstruction Company,

which was subscribed for said Henry Clews.' This paper will not,in our

opinion, bear the construction put upon it by the appellants.Treating the

transfer to Mrs. Traer as void, its evident purpose is to assignto Clews

whatever property and rights were incident to the ownership ofthe stock. When

this paper was executed, the corporation known as theconstruction companyhad been dissolved, and its affairs were in thecourse of liquidation. The

ownership of the stock simply entitled the holder to aproportionate interest in

the unpaid dividends which had been declared before thedissolution of the

company, and to apro ratashare of the proceeds ofthe company's assets, and

in this consisted its sole value. The language of theassignment, by which

Tappan undertook to transfer to Clews all claims and demandswhich Tappan

then had or might be entitled to on account of the 50 shares ofstock in the

company which had been subscribed by Henry Clews, was aptlychosen toconvey the dividends which had been declared, and aninterest in the property

of the company in proportion to the 50 shares of stock. It didnot transfer a

mere right to sue Traer and his wife. That right was simply anincident to the

transfer of substantial and tangible property.

8 The rule is that an assignment of a mere right to file a billin equity for fraud

committed upon the assignor will be void as contrary to publicpolicy and

savoring of maintenance. But when property is conveyed, the factthat thegrantee may be compelled to bring a suit to enforce hisright to the property

does not render the conveyance void. This distinction is takenin the case of

Dickinsonv.Burrell, L. R. 1 Eq. 337. Thefacts in that case were that a

conveyance of an interest in an estate had been fraudulentlyprocured from

Dickinson, by his own solicitor, to a third party for thesolicitor's benefit, and

for a very inadequate consideration. Dickinson, ascertaining thefraud by a

conveyance which recited the facts, and that he disputed thevalidity of the first

conveyance, transferred all his share in the estate to trusteesfor the benefit ofhimself and children. The trustees filed abill to set aside the fraudulent

conveyance, upon repayment of the consideration money andinterest, and to

establish the trust. The master of the rolls, Lord ROMILLY, insustaining the

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bill, said: 'The distinction is this: If James Dickinsonhad sold or conveyed the

right to sue to set aside the indenture of December, 1860,without conveying

the property, or his interest in the property, which is thesubject of that

indenture, that would not have enabled the grantee, A. B., tomaintain this bill,

but if A. B. had bought the whole interest of JamesDickinson in the property,

then it would. The right of suit is a right incidental to theproperty conveyed.'

The master of the rolls then refers to the cases ofco*ckellv. Taylor, 15 Beav.103,andAndersonv.Radcliffe, El., Bl. & El. 806,where he says the same

distinction is taken.

9 The rule was expounded by Mr. Justice STORY in Comegysv.Vasse, 1 Pet.

193, as follows: 'In general it may be affirmed that merepersonal torts, which

die with the party, and do not survive to his personalrepresentatives, are not

capable of passing by assignment, and that vested rights adremand in re,

possibilities coupled with an interest, and claims growingout of and adherent tothe property, may pass by assignment.'InErwinv. U. S., 97 U. S. 392, Mr.

Justice FIELD, who delivered the opinion of the court, said:'Claims for

compensation for the possession, use, or appropriation oftangible property

constitute personal estate equally with the property out ofwhich they grow,

although the validity of such claims may be denied, and theirvalue may depend

upon the uncertainties of litigation or the doubtful result ofan appeal to the

legislature.' And seeMcMahonv.Allen, 35 N. Y.403, decided in the state

where the assignment in question was made. Weirev. City ofDavenport, 11Iowa, 49, andGrayv.McCallister, 50 Iowa, 498, decided in thestate where the

suit was brought. See also a discussion of the subject inGrahamv.Railroad

Co., 102 U. S. 148. Applying the rule established by theseauthorities, we are of

opinion that, so far as the question under consideration isconcerned, the

assignment of Tappan to Clews was the transfer, not merely of anaked right to

bring a suit, but of a valuable right of property, and wastherefore valid and

effectual.

10 It is next insisted by the plaintiffs in error that Clewsacquired no title to the

dividends and other property which Tappan attempted to transferto him,

because (1) he had not been discharged as a bankrupt atthe time of the transfer,

and (2) because Tappan had no authority to sell the stock andits dividends for a

bond or obligation to pay, as the evidence shows was thecase, but only for

cash. Whether Clews had been discharged at the date of the transfer to him is

immaterial. After his adjudication as a bankrupt, and thesurrender of his

property to be administered in bankruptcy, he was just asmuch at liberty topurchase, if he had the means, any of theproperty so surrendered as any other

person. The policy of the bankrupt act was, after takingfrom the bankrupt all

his property not exempt by law, to discharge him from his debtsand liabilities,

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See note at end of case.

NOTE.

Statute of Limitations.

Statutes of limitations are statutes of repose, Hurley v. Cox, 2N. W. Rep. 705;

Letson v. Kenyon, 1 Pac. Rep. 562; Taylor v. Miles, 5 Kan. 499;Elder v. Dyer,

26 Kan. 604, and are enacted upon the presumption that onehaving a well-founded claim will not delay enforcing it beyond areasonable time if he has the

power to sue. Such reasonable time is therefore definedand allowed. But the

basis of the presumption is gone Whenever the ability toresort to the court has

and enable him to take a fresh start. His subsequent earningswere his own. A

bankrupt might often desire, out of the proceeds of hisexempted property, or

out of his means earned since his bankruptcy, to purchaseproperty which he

has surrendered to the assignee. This he might do, and there isnothing in the

letter or policy of the bankrupt act which forbid his doing sountil after his

discharge. For, having complied with the law, as it must bepresumed he has, he

is, after the lapse of six months, entitled, as a matter ofcourse, to his discharge.His right to purchase property surrenderedcannot, therefore, depend on his

actual discharge, and, in this respect, he stands upon the samefooting as any

other person.

11 As to the second ground upon which the validity of the titleof Clews is

questioned, it is sufficient to say that, by the bankrupt law,section 5062, Rev.

St., it is provided: 'The assignee shall sell all suchunincumbered estate, real and

personal, which comes to his hands, on such terms as hethinks most for theinterest of the creditors.' If, therefore, theplaintiffs in error occupied the

position of guardians for the creditors of the bankruptestate, and had the right,

in this suit, to question the administration of the trustee, thesection referred to

would be a sufficient answer to the exception taken to the saleby Tappan to

Clews of the property which is the subject of this controversy.We think,

therefore, that no ground is shown on which the title of Clewscan be

successfully assailed.

12 Other points have been raised and argued by counsel, but asthese do not

present any federal question, it is not our province orduty to pass upon them.

Murdockv. City of Memphis, 20 Wall. 590. Allthe federal questions presented

by the record were, in our judgment, rightly decided bythe supreme court of

Iowa. Judgment affirmed.

1

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been taken away; for in such a case the creditor has notthe time within which

to bring his suit that the statute contemplated he should have.Greenwald v.

Appell, 17 Fed. Rep. 140. The object of the statute is tosuppress fraudulent and

stale claims, and prevent them from showing up at greatdistances of time, and

surprising the parties or their representatives when all theproper vouchers and

evidence are lost, or the facts have become obscure from thelapse of time, or

the defective memory or death or removal of witnesses. Hurley v.Cox, 2 N. W.Rep. 705; Spring v. Gray, 5 Mason, 523.

1. WHEN STATUTE BEGINS TO RUN. Where statute of limitationsprovided

that in cases where the cause of action had already accrued atthe passage of the

act a party should have the whole period prescribed by the act,after its passage,

in which to commence action, and by another act of the samelegislative session

it was provided that said statute and others should take effectat a day

subsequent to the date of their actual passage and approval bythe governor, itwas held that the period of limitation did notbegin to run until the statute took

effect, as provided in the second act. Schneider v. Hussey, 1Pac. Rep. 343;

Rogers v. Vess, 6 Iowa, 408.

(1)Agents. As a general rule the statute of limitationsdoes not commence to

run in favor of an agent and against his principal until theprincipal has

knowledge of some wrong committed by the agent in consistentwith the

principal's rights. Perry v. Smith, 2 Pac. Rep. 784; Greenv. Williams, 21 Kan.

64; Auld v. Butcher, 22 Kan. 400; Kane v. Cook, 8 Cal. 449; Ang.Lim. § 179

et seq.;Wait, Act. & Def. 238. But it has been heldthat where an agent is

appointed to collect money and remit, after deducting hisreasonable charges,

and fails to do so after a reasonable time, the statute oflimitations commences

to run.

Page 542-Continued.

Mast v. Easton, 22 N. W. Rep. 253. See Stacy v. Graham, 14 N. Y.492; Lilliev. Hoyt, 5 Hill, 395; Hart's Appeal, 32 Conn. 520;Campbell's Adm'rs v. Boggs,

48 Pa. St. 524; Denton's Ex'rs v. Embury, 10 Ark. 228; Estes v.Stokes, 2 Rich.

Law, 133; Mitchell v. McLemore, 9 Tex. 151; Hawkins v. Walker, 4Yerg. 188.

The fact that the principal did not know when the claim wascollected, and

hence did not know that the agent had failed in the performanceof his duty, and

that a right of action had accrued, will not affect the runningof the statute. Mast

v. Easton, 22 N. W. Rep. 253; co*ck v. Van Etten, 12 Minn. 522,(Gil. 431.)

(2)Bankruptcy. The statute of limitations is no bar toproof in bankruptcy if it

had not run against the claim at the commencement of theproceedings in

bankruptcy, In re McKinney, 15 Fed. Rep. 912; and no lapseof time will

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prevent the proof of the claim before the register, up tothe final distribution of

dividends. If it is so barred by the statute before theadjudication, it will remain

barred, and the claim cannot be proven. In re Graves, 9Fed. Rep. 816.

(3)Bills, etc. In a suit by the drawee of a bill ofexchange against an indorser,

where such bill was drawn by the treasurer of the United States,and the name

of the payee forged, the statute of limitations does not beginto run untiljudgment has been obtained by the United Statesagainst the drawee.

Merchants' Nat. Bank of Baltimore v. First Nat. Bank ofBaltimore, 3 Fed. Rep.

66.

(a) Claims Payable on Demand. Where no time is specifiedwithin which a loan

of money is to be repaid, the presumption of the law is that itwas to be paid on

demand, and the statute of limitations commences to run from thetime of the

loan. Dorland v Dorland, 5 Pac. Rep. 77; Ang. Lim. § 95. On adue-bill without

day of payment a cause of action accrues on delivery, and thestatute begins to

run. Douglass v. Sargent, 4 Pac. Rep. 861. See Palmer v. Palmer,36 Mich. 487;

Herrick v. Woolverton, 41 N. Y. 581; Wheeler v. Warner, 47 N. Y.519; Stover

v. Hamilton, 21 Grat. 273; Bowman v. McChesney, 22 Grat. 609. Inan action

to recover from a bank a general deposit, the statute does notcommence to run

until a demand, unless the demand has been in some way dispensedwith.

Branch v. Dawson, 23 N. W. Rep. 552. And the same is true of an'especial

deposit.' Smiley v. Fry, (N. Y.) 3 N. E. Rep. 186.

(4)Bonds. (a)Administrator's Bond. Theliability of a surety on an

administrators or executor's bond is not fixed, and no cause ofaction arises

thereon until there is a judicial ascertainment of the defaultof the principal, and

from this time the statute of limitations begins to run.Alexander v. Bryan, 4

Sup. Ct. Rep. 107. This judicial ascertainment must be somethingmore than

the mere auditing of the accounts. There must be a decreeordering payment, on

which process to collect can issue against the principal.Id.

(b)Appeal-Bonds. The statute commences to run in favor ofsureties on an

undertaking on appeal from the date of the affirmance of thejudgment to which

it relates. Clark v. Smith, 6 Pac. Rep. 732; Crane v. Weymouth,54 Cal. 480;

Castro v. Clarke, 29 Cal. 11. suit on guardian's bond when theperson ceases to

be guardian, Probate Judge v. Stevenson, 21 N. W. Rep.348; and in case of a

default,

Page 542-Continued.

a right of action first accrues to the ward when amount of suchdefault is

ascertained by the court in the settlement of the guardian'sfinal account, and

from this time the statute runs. Ball v. La Clair, 22 N. W. Rep.118.

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(d)Public Officer's Bond. The statute does notcommence to run in favor of

sureties on the bond of a public officer until the liability oftheir principal has

been fixed. Lawrence v. Doolan, 5 Pac. Rep. 484. And ithas been held that

where an assessment of damages for a right of way is paid to asheriff, the

statute begins to run against an action on sheriff's bond torecover such

assessment when the time fixed by law for appeal has expired.Lower v. Miller,

23 N. W. Rep. 897.

(5)Book-Accounts. On the settlement of a book-account ithas been held that

the statate of limitations begins to run from the time theaccount is settled, and

not from the time of the discovery of facts showing that suchsettlement was

fraudulently made. Kirby v. Lake Shore & M. S. R. Co., 14Fed. Rep. 261. On

an open, mutual account the statute does not commence to rununtil the date of

the last item charged. Hannon v. Engelmann, 5 N. W. Rep. 791.Where an open

account is closed by an agreement that certain parties shallassume payment,the statute runs from the date of such agreement.Hammond v. Hale, 15 N. W.

Rep. 585. But where the items of an account are all chargedagainst one party it

is not a mutual account, Fitzpatrick v. Henry, 16 N. W. Rep.606; Butler v.

Kirby, 53 Wis. 188; S. C. 10 N. W. Rep. 373; Ang. Lim. §§ 148,149; and each

item will stand, as regards the running of the statute, asthough it stood alone.

Courson's Ex'rs v. Courson, 19 Ohio St. 454. See Blair v. Drew,6 N. H. 235;

Smith v. Dawson, 10 B. Mon. 112; Craighead v. Bank, 7 Yerg. 399;Lowe v.

Dowborn, 26 Tex. 507; Cottam v. Partridge, 4 Man. & G. 271;Williams v.

Griffiths, 2 Cromp., M. & R. 45; Tanner v. Stuart, 6 Barn.& C. 603; Bell v.

Morrison, 1 Pet. 351.

(6) Contribution. On an action for contribution by one of thesureties on a note,

against whom a judgment has been taken for the full amount, thestatute begins

to run from the date of the payment of such judgment. Preston v.Gould, 19 N.

W. Rep. 834. See Lamb v. Withrow, 31 Iowa, 164; Johnston v.Belden, 49

Iowa, 301.

(7) Conversion. The statute commences to run against an actionfor conversion

from the date of such conversion. Doyle v. Callaghan, 7 Pac.Rep. 418.

(8) Corporation—Municipal. In an action against amunicipal corporation for

damages for an injury caused by defective sidewalk, the statutebegins to run

from the time when such claim is disallowed, or the failure ofthe council to act

on the matter amounting to a disallowance. Watson v. City ofAppleton, 22 N.

W. Rep. 475. It was held by the supreme court of Ohio in PerryCo. v. RailroadCo., 2 N. E. Rep. 854, that where a railroad companyhad injured a county

bridge, that the statute did not begin to run against aclaim on the part of the

county against the railroad company for damages until after thebridge had

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been restored to its former condition by the countycommissioners.

(9) Corporations—Stockholders. In an action against astockholder to subject

his unpaid shares of stock to satisfaction of a judgment againsta corporation,

the statute begins to run when the cause of action against thecorporation

accrued. First Nat. Bank of Garrettsville, Ohio, v. Greene, 17N. W. Rep. 86;

affirmed on rehearing, 20 N. W. Rep. 754; Baker v. Johnson Co.,33 Iowa, 155.See Prescott v. Gonser, 34 Iowa, 175;

Page 542-Continued.

Beecher v. Clay Co., 52 Iowa, 140; S. C. 2 N. W. Rep. 1037.Where one

corporation transferred to another all its property, except itsfranchise, and such

other corporation assumed to pay all debts, and a creditor ofthe grantor, whose

claim of action arose before the conveyance was executed, butnot yet barred

by the statute of limitations, brought suit at law againstthe grantor, andobtained judgment on which an execution was issued,but returned unsatisfied,

and then, after the time fixed by the statute of limitations hadrun since the

cause of action arose against the grantor, brought suit inequity against the

grantor and the grantee, it was held that the claim was neitherbarred by laches

nor the statute of limitations. Fogg v. St. Louis, H. & K.R. Co., 17 Fed. Rep.

871. As to an action by stockholder suing in his own name forbenefit of all

stockholders against directors for misappropriation, etc., seeinfra, (31, a.)

(10) Co-Tenants. The statute does not run as against tenants incommon until

actual ouster. Hume v. Long, 5 N. W. Rep. 193. A quitclaim deedby one tenant

in common will not set the statute running as against othertenants in common.

Moore v. Antell, 6 N. W. Rep. 14; Hume v. Long, 5 N. W. Rep.193.

(11) Covenant. The statute of limitations commences to runagainst a covenant

from the time substantial damage is sustained. Post v. Campau, 3N. W. Rep.

272. Where land, the paramount title being in another, isconveyed withcovenant of seizin, the covenant is broken on thedelivery of the deed, and the

statute begins to run. Sherwood v. Landon, 23 N. W. Rep. 778;Matteson v.

Vaughn, 38 Mich. 373.

(12)Decedents, Estates of. The statute commences torun against a rejected

claim on the estate of a decedent from the time of its actualrejection. Bank of

Ukiah v. Shoemake, 7 Pac. Rep. 420. A claim against an estate isnot barred

because not presented for allowance in time, when, at thattime; there was no

claim which could be presented for allowance against the estate.Ford v. Smith,

18 N. W. Rep. 925.

Where a cause of action accrues to a person's estate after hisdeath, the statute

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of limitations commences to run from the date of the accrual,Hibernia S. & L.

Soc. v. Conlin, 7 Pac. Rep. 477; Tynan v. Walker, 35 Cal. 634;although there

was no person in existence competent to sue, and continues torun from such

date without cessation, Tynan v. Walker, 35 Cal. 634; for wherethe statute of

limitations once begins to run, no subsequent disability willstop its running.

Oliver v. Pullam, 24 Fed. Rep. 127.

(13)Dower. The statute of limitations does notcommence to run against an

action to recover dower until there is an adverse possession ofthe land. Felch v.

Finch, 3 N. W. Rep. 570; Phares v. Walters, 6 Iowa, 106; Starryv. Starry, 21

Iowa, 254; Rice v. Nelson, 27 Iowa, 153; Sully v. Nebergall, 30Iowa, 339.

(14)Fraud. The statute of limitations does not runagainst an action based on a

fraud until the discovery of the fraud. Perry v. Wade, 2 Pac.Rep. 787; Clews v.

Traer, 10 N. W. Rep. 838; Voss v. Bachop, 5 Kan. 59. And it wasrecently held

by the supreme court of Pennsylvania, in the case ofHughes v. First Nat. Bank

of Waynesburg, 1 Atl. Rep. 417, that where government bonds weredeposited

with a bank for safe-keeping and afterwards pledged by the bankas collateral

security for its own debts, and actually sold by the holder,

Page 542-Continued.

that the putting off of the depositor or his representative fromtime to time with

promises to return the bonds so pledged, the interestbeing paid in the meantime, is such fraud and concealment as willtoll the running of the statute of

limitations. Where by actual fraud the debtor keeps his creditorin ignorance of

the cause of action, the statute does not begin to run until thecreditor had

knowledge, or was put upon inquiry with means of knowledge, thatsuch cause

of action had accrued. Mere silence or concealment, however,will not toll the

running of the statute when the relation existing between theparties is simply

that of debtor and creditor. Stewart v. McBurney, 1 Atl. Rep.——. The

question of discovery of fraud is a question of fact and must beproperlypleaded. Johnson v. Powers, 13 Fed. Rep. 315. Wheremoney is procured to be

paid out upon fraudulent representation, the cause ofaction is presumed to have

arisen, and the statute of limitations begins to run when thefraud was

committed, Barlow v. Arnold, 6 Fed. Rep. 351; but suchpresumption may be

avoided by alleging and proving the time of the discovery of thefraud. See

Carr v. Hilton, 1 Curt. 390; Field v. Wilson, 6 B. Mon. 479;Carneal v. Parker,

7 J. J. Marsh. 455; Baldwin v. Martin, 3 Jones & S. 98;Erickson v. Quinn, 3

Lans. 302; Mitf. & T. Eq. Pl. 356; Story, Eq. Pl. § 754. Ithas been held that thestatute of limitations does not begin to runagainst an equitable action for relief,

on the ground of fraud, until the aggrieved party has discoveredthe facts

constituting the fraud, or has information of such a nature aswould impress a

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reasonable man with the belief that a fraud had been committed,and would,

upon diligent inquiry, lead to the discovery of the facts.O'Dell v. Burnham, 21

N. W. Rep. 635. See Carr v. Hilton, 1 Curt. 390; Kennedyv. Green, 3 Mylne &

K. 699; Hovenden v. Lord Annesley, 2 Schoales & L. 607;Martin v. Smith, 1

Dill. C. C. 85; Bailey v. Glover, 21 Wall. 342; First Mass.Turnpike Corp. v.

Field, 3 Mass. 201; Homer v. Fish, 1 Pick. 435; Rice v. Burt, 4Cush. 208; Kane

v. Bloodgood, 7 Johns. Ch. 90; App v. Dreisbach, 2 Rawle, 287;Reeves v.Dougherty, 7 Yerg. 222; Haynie v. Hall, 5 Humph. 290;Kuhn's Appeal, 87 Pa.

St. 100.

(15)Implied Contract. Where a cause of action isbased on an implied contract,

the statute does not begin to run until after the circ*mstancesfrom which the

obligation is inferred arose. Goodnow v. Stryker, 14 N. W. Rep.345.

(16)Judgment. Where suit is brought upon a judgmentafter a return of nulla

bonaupon the execution writ, the statute of limitations,it was held,

commenced to run at the time of the return of the execution, andnot the entry

of the judgment. Taylor v. Bowker, 4 Sup. Ct. Rep. 397.

(17)Leasehold—Assignment. In a suit between theassignor and assignee of a

leasehold, for rent accruing, and paid by the assignorsubsequent to the

assignment, the statute of limitations begins to run in favor ofthe assignee from

the time the assignor paid the accrued rent, and not from thetime assignor

made default in the payment of the same. Ruppel v. Patterson, 1Fed. Rep. 220.

(18)Married Woman. Where the statute makes the wife aswell as the husband

liable for necessary family expenses, the liability of the wifecontinues as long

as there is a right of action against the husband. Frost v.Parker, 21 N. W. Rep.

507.

(19)Minor or Ward—Suit after Majority. The statute oflimitations commences

to run against an action by a ward to recover lands sold by hisguardian at thetime of ward's attaining majority. Seward v. Didier,20 N. W. Rep. 12. See

Spencer v. Sheehan, 19 Minn. 338, (Gil. 292;)

Page 542-Continued.

Miller v. Sullivan, 4 Dill. 340; Good v. Norley, 28 Iowa, 188,(overruled by

Boyles v. Boyles, 37 Iowa, 592;) Holmes v. Beal, 9 Cush. 223;Norton v.

Norton, 5 Cush. 524; Arnold v. Sabin, 1 Cush. 525; Howardv. Moore, 2 Mich.

226; Coon v. Fry, 6 Mich. 506. Where the party who should bringan action forthe seduction of a minor is the person whoseduces her, the statute of

limitations will not begin to ran until after such minor attainsher majority.

Watson v. Watson, 18 N. W. Rep. 605. A party having a right topursue her

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demand on attaining her majority cannot tack her subsequentdisabilities by

successive covertures, in order to prevent the operation of thestatute of

limitations. Gaines v. Hammond's Adm'r, 6 Fed. Rep. 449.

(20)Mortgage. The statute of limitations commences to runagainst an action to

foreclose a mortgage when the cause of action accrued. Herdmanv. Marshall,

22 N. W. Rep. 690; Cheney v. Cooper, 14 Neb. 415; S. C. 16 N. W.Rep. 471.

(21)Nuisance. It has been held that the statute oflimitations commences to run

against an action for erecting and maintaining a nuisance by agas company at

the time of erection of the gas-works. Baldwin v. OskaloosaGas-light Co., 10

N. W. Rep. 317. But the general doctrine is that in anaction for damages and

abatement of a nuisance the statute of limitations will not beconsidered to have

begun to run until some injury has been caused by thealleged nuisance. Miller

v. Keokuk & D. M. Ry. Co., 16 N. W. Rep. 567; Powers v.Council Bluffs, 45

Iowa, 652. Every continuance of a nuisance is in law a newnuisance. Ramsdale

v. Foote, 13 N. W. Rep. 557. See Baltimore 8 P. R. Co. v. FifthBaptist Church,

2 Sup. Ct. Rep. 719. And where, in an action for damages, and toabate a

nuisance, since the cause of action accrued, the statute oflimitations has run,

but damage has continued to be done within the timeprovided by statute, the

action is not barred. Drake v. Chicago, R. I. & P. R. Co.,19 N. W. Rep. 215.

See McConnel v. Kibbe, 29 Ill. 483; Bowyer v. Cook, 4 Man., Gr.& S. 236.

(22) On Coming into State. On removal to another state thestatute oflimitations commences to run, on a cause of actionalready accrued, from time

of arrival in state. Edgerton v. Wachter, 4 N. W. Rep. 85;Hartley v. Crawford,

11 N. W. Rep. 729; Harrison v. Union Nat. Bank, Id. 752.

(23) Order or Warrant on County Treasury. The statute oflimitations begins to

run against a county warrant when it is presented to the properauthority, and

indorsed 'not paid for want of funds.' Carpenter v. District Tp.of Union, 12 N.

W. Rep. 280. Where a town clerk has duly paid an order, and isentitled tocredit for it at his next settlement, the statute oflimitations begins to run at the

date of such settlement. Dewey v. Lins, 10 N. W. Rep. 660. SeePrescott v.

Gonser, 34 Iowa, 175.

(24)Partnership—Accounting. In case of partnershipeach partner is entitled to

an accounting upon dissolution, and statute will run from thatdate, Near v.

Lowe, 13 N. W. Rep. 825; but it does not begin to run against apartnership

until the dissolution thereof, or until a sufficient time haselapsed after ademand for an accounting and settlement. Richards v.Grinnell, 18 N. W. Rep.

668.

(25)Promise to Pay, etc. Where a cuase of action, barredby the statute of

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limitations, is revived by written admission, that removes thebar; the statute

runs anew from the date of the admission. Bayliss v. Street, 2N. W. Rep. 437.

From the time of the acknowledgment of a debt undercirc*mstances that

indicate a willingness or liability to pay the same,

Page 542-Continued.

the statute of limitations begins to run. Green v. Coos BayWagon Road Co., 23

Fed. Rep. 67. Where a debtor promised to pay 'as soon as able,'the statute of

limitations began to run as soon as he had pecuniary ability topay; and the

question of when that ability arose is for the jury. Tebo v.Robinson, 2 N. E.

Rep. 383.

(26)Rape. The statute of limitations commences to runagainst action for rape

at time of its commission. Van Der Haas v. Van Domselar, 10 N.W. Rep. 227.

But seesupra, (19.)

(27)Real Estate—Adverse Possession. Adverse possession ofreal estate, to set

the statute of limitations running, must be open, notorious,continuous. Mauldin

v. Cox, 7 Pac. Rep. 804. Mere entry upon land is not sufficient,without open,

adverse possession, to stop the running of the statute. Donovanv. Bissell, 19 N.

W. Rep. 146. Going upon wild land, digging, and hunting for acorner and

boundary lines, driving cattle on the land, and employinga man to 'break' in the

following spring, are notsuch going into possession as will setthe statute oflimitations in operation so as to carry a titleby virtue of adverse possession.

Brown v. Rose, 7 N. W. Rep. 133. It does not commence to run infavor of an

adverse possession of lands until after the issuance of thepatent to such lands.

Ross v. Evans, 4 Pac. Rep. 443. It does not run against theowner of unoccupied

lands until some one assumes to take adverse possession; andthis rule applies

as well to an assignee in bankruptcy, who, under the statute,(U. S. Rev. St. §

5057,) must bring suit within two years, as to the originalowner. Gray v. Jones,

14 Fed. Rep. 83. An action to set aside an assignment orconveyance ofproperty made to hinder or delay creditorsshould ordinarily be brought within

the same time after the right accrues as an action at law torecover possession of

the same property. Hickox v. Elliott, 22 Fed. Rep. 13.

(28) Salary. The statute begins to run against an action torecover salary of a

public officer from time of expiration of his term ofoffice. Griffin v. County of

Clay, 19 N. W. Rep. 327. Where an employe's wages are due at theend of each

month, the statute of limitations begins to run against anaction to recover themat the date when they should have been paid.Butler v. Kirby, 10 N. W. Rep.

373; Davis v. Gorton, 16 N. Y. 255; Rider v. Union India R. Co.,5 Bosw. 85;

Turner v. Martin, 4 Rob. 661; Mims v. Sturtevant, 18 Ala. 359;Phillips v.

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Broadley, 11 Jur. 264.

(29) Tax, Illegal—Mandamus. Statute of limitations begins to runagainst

mandamusto compel the refunding of illegal tax from thetime of the payment

thereof. Beecher v. Clay Co., 2 N. W. Rep. 1037.

(30) Tax Title. The statute of limitations does not begin to runin favor of theholder of a tax deed by merely recording the same.To avail himself of the

benefits of the statute, his possession must be actual andadverse, and continued

for the statutory period. Baldwin v. Merriam, 20 N. W. Rep.250.

(a)Against Owner of Land. The statute of limitationscommences to run against

defense to tax deed from date of sale. Shawler v. Johnson, 3 N.W. Rep. 604.

See Clark v. Thompson, 37 Iowa, 536. In Wisconsin it is heldthat the fact that

the tax deed issued is void does not prevent the running of thestatute in favor

of the holder. Peck v. Comstock, 6 Fed. Rep. 22. See Edgerton v.Bird, 6 Wis.527; Hill v. Kricke, 11 Wis. 442; Knox v. Cleveland, 13Wis. 245; Lawrence v.

Kenney, 32 Wis. 281; Wood v. Meyer, 36 Wis. 308;

Page 542-Continued.

Marsh v. Supervisors, 42 Wis. 502; Philleo v. Hiles, Id. 527;Oconto Co. v.

Jerrard, 46 Wis. 324; Milledge v. Coleman, 47 Wis. 184; S. C. 2N. W. Rep.

77.

(b)Against the Holder of Tax Deed. The statutecommences to run against one

claiming under a tax deed from date of treasurer's deed, wherereceived when

entitled to demand the same, Bailey v. Howard, 7 N. W. Rep. 592;Barrett v.

Love, 48 Iowa, 103; otherwise, from time when entitled to deedand not from

date of actual execution and delivery. Hintrager v. Hennessy, 46Iowa, 600.

The statute commences to run against deed without date from dayof its

delivery, McMicheal v. Carlyle, 10 N. W. Rep. 556; for the realdate of a deed

is the date of delivery, Jackson v. Schoonmaker, 2 Johns. 234;or from the date

of filing same for record. Griffith's Ex'r v. Carter, 19 N. W.Rep. 903; Cassady

v. Sapp. 19 N. W. Rep. 909; Eldridge v. Kuehi, 27 Iowa, 160. Butthe person

purchasing at tax sale must demand and record his deedwhen he is entitled to

do so. Hintrager v. Hennessy, 46 Iowa, 600.

(c) On Failure of Tax Title. Where tax sale is set aside, or thetitle acquired

fails, the purchaser has a lien for taxes paid, with interest,Harber v. Sexton, 23N. W. Rep. 635; which he may enforce byproceedings to foreclose the same,

Peot v. O'Brien, 5 Neb. 360; Pettit v. Black, 8 Neb. 52; Wilhelmv. Russell Id.

120; Miller v. Hurford, 11 Neb. 377; S. C. 9 N. W. Rep. 477;Towle v. Holt, 14

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Neb. 222; S. C. 15 N. W. Rep. 203; Reed v. Merriam, 18 N.W. Rep. 137;

Zahradnicek v. Selby, 19 N. W. Rep. 645; Sturges v.Crowninshield, 4 Wheat.

122; and the statute of limitations does not begin to runagainst the right to

enforce such lien until the tax deed fails. Schoenheit v.Nelson, 20 N. W. Rep.

205; Bryant v. Estabrook, Id. 245; Otoe Co. v. Brown, Id.274.

(31) Trusts. It is a general rule that neither lapse of time,nor the rule ofanalogy, nor any defense analogous to thestatute of limitations can be set up by

a trustee of an express trust. Preston v. Walsh, 10 Fed. Rep.315; Etting v.

Marx's Ex'r, 4 Fed. Rep. 673 This rule applies only to pure ordirect trusts.

Newsom v. Board of Com'rs, (Ind.) 3 N. E. Rep. 163. Yet,when the

circ*mstances require it, especially when the rights of thirdpersons intervene, a

court of equity will enforce against the cestui quetrustit* own peculiar maxim,

vigilantibus et non dormientibus jura subserviunt. Id.Hence, when the legal

title to realty is in one person, and the real interest is inanother, the statute oflimitations will not run as betweenthe parties until there is a renunciation of the

trust, or until the party holding the legal title by some act ordeclaration asserts

a claim adverse to the interests of the real owner. Reihl v.Likowski, 6 Pac.

Rep. 886. But where there is a conflict of claim between trusteeand his cestui

que trust, and the party having the legal estate holdsadversely, the statute of

limitations will protect the only having the legal title, andwho is sought to be

converted into a trustee by a decree founded upon fraud, breachof trust, or

some inequitable advantage obtained by him. Taylor v. Holmes, 14Fed. Rep.

498.

(a) Misappropriation, etc. Where a person misappropriates trustfunds, the

statute commences to run from the actual misappropriation, or atfurthest from

the discovery of the fact by the use of reasonable diligence bythe party entitled

to its benefit. Pierson v. McCurdy, 2 N. E. Rep. 615; Same v.Same, 33 Hun,

520. It has been held that an action by a stockholder, suing inhis own name for

the benefit of all the stockholders, to recover against thedirectors of a

corporation for property lost or stolen through the misconduct,negligence,carelessness, and inattention of such directors, is inthe nature of complaint in

an equitable action against the directors,

Page 542-Continued.

as trustees,—one of which courts of equity have jurisdiction,Brinckerhoff v.

Bostwick, 1 N. E. Rep. 663; Robinson v. Smith, 3 Paige, 222;Heath v. Erie Ry.

Co., 8 Blatchf. 347; Brinckerhoff v. Bostwick, 88 N. Y. 52; andthe statute oflimitations will begin to run as in other casesof breach of corporate trust. See

Pierson v. McCurdy,supra.

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(b)Resultant, Constructive, Implied Trusts. The statute oflimitations will run in

favor of the trustee of a resultant or constructive trust fromthe time he

disavows the obligations of the trust. German-American Seminaryv. Kiefer, 4

N. W. Rep. 636; Otto v. Schlapkahl, 10 N. W. Rep. 651;Strimpfler v. Roberts,

18 Pa. St. 283; Gebhard v. Sattler, 40 Iowa, 152; Smith v.Davidson, 40 Mich.

632. Where a trust arises by implication out of the agreement ofparties, and

there is no conflict of claim, or adverse possession between thetrustee andcestui que trust, statutes of limitation do notapply. Taylor v. Holmes, 14 Fed.

Rep. 498.

(32) Verbal Contract to Convey. Where money has been paid on averbal

contract to convey land, the statute does not begin to runagainst an action to

recover the same until the date of demand or refusal to convey.Tucker v.

Grover, 19 N. W. Rep. 62; Clark v. Davidson, 53 Wis. 317; S. C.10 N. W.

Rep. 384. See Thomas v. Sowards, 25 Wis. 631; N. W. U. P. Co. v.Shaw, 37Wis. 655.

(33) Wrongful Act. Where a wrongful act has beencommitted, in the absence of

fraud the statute begins to run as soon as the wrong iscommitted, although the

plaintiff may be ignorant that a cause of action hasaccrued, Dee v. Hyland, 3

Pac. Rep. 388; Jordan v. Jordan, 4 Greenl. 175; Thomas v. White,3 Litt. 177;

for the statute does not protect plaintiffs who are ignorant ofthe facts necessary

to enable them to bring suits, unless that ignorance isoccasioned by some

improper conduct on the part of the defendant. Froley v. Jones,52 Mo. 64;Wells v. Halpin, 59 Mo. 92. Failure to credit a paymenton a judgment is not a

fraud, and the statute of limitations begins to run from thedate of the payment.

Shreves v. Leonard, 8 N. W. Rep. 749. See Gebhard v. Sattler, 40Iowa, 153;

Brown v. Brown, 44 Iowa, 349; Phoenix Ins. Co. v. Dankwardt, 47Iowa, 432;

Higgins v. Mendenhall, 51 Iowa, 135.

2. COMPUTATION OF TIME. In the absence of any statutoryprovision

governing the computation of time, where an act is required tobe done a certainnumber of days or weeks before a certain otherday, upon which another act is

to be done, the day upon which the first act is to be done mustbe excluded

from the computation, and the whole number of the days or weeksmust

intervene before the day fixed for the second act. Ward v.Walters, 22 N. W.

Rep. 844; Pitt v. Shew, 4 Barn. & Aid. 208; Mitchell v.Foster, 4 Perry & D.

150; Queen v. Justices of Shropshire, 8 Adol. & E. 173;Zouch v. Empsey, 4

Barn. & Aid. 522; Hardy v. Ryle, 9 Barn. & C. 603; Juddv. Fulton, 4 How. Pr.

298; Small v. Edrick, 5 Wend. 137; Rankin v. Woodworth, 6 Pen.& W. 48;Wood. Lim. 107, § 56. It is said in the case of Ganahlv. Soher, 5 Pac. Rep. 80,

that the time of a minor's minority is calculated from the firstminute of the day

on which he is born to the first minute of the day correspondingwhich

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completes the period of minority; and, in calculating the timewithin which he

may thereafter bring an action, as he attains majority on thefirst minute of a

day, the whole of that day is to be calculated as the first dayof the time within

which he may bring the action.

3. WHAT PREVENTS THE RUNNING. The statute of limitations doesnot

cease to run merely because the creditor is involved inlitigation with thirdparties,

Page 542-Continued.

upon the issue of which the individual right to the debt isdependent. Gaines v.

Hammond's Adm'r, 6 Fed. Rep. 449. A cause of action forconversion which

would be otherwise barred by the statute is not kept alive byevery

intermeddling with the property which treated by itself mightgive a cause of

action. Kinsely v. Stein, 18 N. W. Rep. 115.

(1)Acknowledgment or New Promise. Acknowledgment orpromise to pay

debt, made after the debt is barred, will revive it, Rolfe v.Pillond, 19 N. W.

Rep. 970; but will not revive except by an express promise, orby such an

acknowledgment of the indebtedness as reasonably leads to theinference that

the debtor intended to renew his promise or to waive the benefitof the statute.

Denny v. Marrett, 13 N. W. Rep. 148; Whitney v. Reese, 11 Minn.138, (Gil.

87;) Brisbin v. Farmer, 16 Minn. 215, (Gil. 187.) Anacknowledgment ofindebtedness will not be presumed where theaccompanying circ*mstances are

such as to leave it in doubt whether the party intended toprolong the time of

legal limitation. City of Fort Scott v. Hickman, 5 Sup. Ct. Rep.56. To take a

debt out of statute the acknowledgment must be clear andunequivocal, and

consistent with a promise to pay, Landis v. Roth, 1 Atl. Rep.49; Richardson v.

Brecker, 1 Pac. Rep. 433; uncertainty as to acknowledgment orindentification

of the debt is fatal. Burr v. Burr, 26 Pa. St. 284. See Millerv. Baschore, 83 Pa.

St. 356.

A promise to pay, after the statute of limitations has run, willnot revive a tort;

but a promise made before the statute has run, onconsideration that no suit

should be brought, will stop the running of the statute.Armstrong v. Levan, 1

Atl, Rep. 204.

(a)Promise in Writing. Where an unqualified promise,in writing, to pay is

required to remove the bar of the statute of limitations, thewords 'I think I see

my way clear to pay you the $200 and interest I owe you. * * * Iam in hopes

another two years will enable me, from my present income, toclear off all

pressing debts. * * * Rest assured that not a day ofpecuniary freedom will pass

over my head without your hearing from me,'—is not such promise.Pierce v.

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Seymour, 9 N. W. Rep. 71. A promise to pay 'when able,' 'as soonas possible,'

'when I can,' or 'as soon as he could,' have been held to beconditional in

Colorado: Richardson v. Brecker, 1 Pac. Rep. 433; Illinois:Horner v. Starkey,

27 Ill. 13; Connecticut: Norton v. Shepard, 48 Conn. 142;Vermont: Cummings

v. Gassett, 19 Vt. 310; New Hampshire: First Cong. Soc. v.Miller, 15 N. H.

522.

Where a debtor wrote, 'I am sorry that you have had to pay thenotes of Frank

Pillond and myself, upon which you were surety for us. I cannotat this time

pay you the money, but propose to pay you my share, whichI am told is about

$413. I hope to be able to pay you soon, but will let you knowwhat I can do in

a few days;' held to take the debt out of the statute. Rolfe v.Pillond, 19 N. W.

Rep. 970. Also, 'If I ever get able I will pay you every dollarI owe to you and

all the rest. You can tell all as soon as I get anything to paywith I will pay. As

for giving a note it is of no use; I will pay just as quickwithout it,'—held thatthis acknowledged an 'existing liability,'and took case out of statute. Devereaux

v. Henry, 19 N. W. Rep. 697.

(2)Absence from the State and Non-Residence. Absence fromthe state

suspends the operation of the statute as to resident ornon-resident debtors.

Whitcomb v. Keator, 18 N. W. Rep. 469; Hedges v. Roach, 21 N. W.Rep. 404;

Satterthwaite v. Abercrombie, 24 Fed. Rep. 543; Hennequin v.Barney, Id. 580;

Fowler v. Hunt, 10 Johns. 465; Milton v. Babson, 6 Allen,322;

Page 542-Continued.

Rockwood v. Whiting, 118 Mass. 337. But the absence of amortgagor from the

state does not suspend the running of the statute oflimitations, as to the

mortgage securing a debt. Watt v. Wright, 5 Pac. Rep. 91. It hasbeen held that

a statute providing that 'the time during which a defendant is anon-resident of

the state shall not be included in computing the period oflimitation,' has no

reference to non-resident corporations who come into such stateon business,and can, by the laws of the state, sue and be suedthere. McCabe v. Illinois

Cent. R. Co., 13 Fed. Rep. 827.

(a) Temporary Absence. Where a statute provides that if, when acause of

action shall accrue against any person, he shall be out of thestate, the action

may be commenced within the term limited after such person shallreturn to or

remove to the state, applies to the temporary absence of aresident of the state,

although during such absence a summons might be served byleaving it at hisusual place of abode. Parker v. Kelly, 21 N. W.Rep. 539. See Ruggles v.

Keeler, 3 Johns. 263; Milton v. Babson, 6 Allen, 322; Brown v.Bicknell, 1 Pin.

226. And it has been held that where a person leaves a state inwhich he resides,

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under the employment of the general government, with theintention of

returning as soon as his employment terminates, but retains noproperty or

business interest in the state, he is a non-residentwithin the meaning of the

statute, although his wife remains in the state for a portion ofthe time; and the

statute of limitations will not run in his favor during hisabsence. Hedges v.

Jones, 19 N. W. Rep. 675. See Penley v. Waterhouse, 1 Iowa, 498;Savage v.

Scott, 45 Iowa, 133; Hackett v. Kendall, 23 Vt. 275; Sleeper v.Paige, 15 Gray,349; Ware v. Gowen, 111 Mass. 526.

(b)Removal from and Return to State. Where a cause ofaction has accrued

prior to the removal of a debtor from a state into anotherstate, and he remains

in such other state a sufficient length of time to avail himselfof the statute of

limitations in such state, his return to the first state willnot revive the cause of

action, when it is provided by statute in the first state that'where a cause of

action has arisen in a state or territory out of this state, orin a foreign country,and by the laws thereof an action cannot bemaintained by reason of the lapse

of time, an action thereon shall not be maintained in thisstate.' Osgood v. Artt,

10 Fed. Rep. 365. The reason for this is, that as soon as aresidence was taken

up in the second state, a cause of action accrued in that stateagainst the debtor,

and as soon as the cause of action accrued the statute oflimitations of that state

began to run. But, in the absence of the exceptionallegislation, the debtor

would be required to reside continuously within the first statefrom the time the

cause of action arose until the statute in that state hadcompletely run. Chenot v.

Lefevre, % J. Gilman, 637.

(3) Commencement of Action. The statute ceases to run in favorof a defendant

who is a non-resident of the district when complainant hasobtained process

against him, or done all that is necessary to obtain process,and not before.

Bisbee v. Evans, 17 Fed. Rep. 474. And it is said that where anaction has been

commenced on a claim, however defective, it stops the running ofthe statute of

limitations. Smith v. McNeal, 3 Sup. Ct. Rep. 319. But, wherethe law furnishes

a party with a simple method of proceeding against an ultimatedebtor, hecannot prevent the running of a statute of limitationsagainst him by attempting

to collect his debts by a circuitous legal proceeding. Glenn v.Dorsheimer, 23

Fed. Rep. 695.

Where the continuity of an action is interrupted by an intervalbetween the

returnday of one writ of summons and the issue of analiaswrit,

Page 542-Continued.

the institution of the action will not stop the running of thestatute during the

intervening time. Johnson v. Mead, 24 N. W. Rep. 665. And wherea case is

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brought in state court and removed to the federal court,where it is dismissed

without prejudice because plaintiff 'believes he cannot obtain afair trial in the

federal court,' another action in the state court will be barredif the original

action would have been barred. Archer v. Chicago, B. & Q. R.Co., 22 N. W.

Rep. 894.

A debtor who procures and keeps in force an injunction againstthe collectionof a debt which he ought to pay, until it is barredat law by the statute of

limitations, will not be allowed to avail himself of the bar ina court of equity.

Union Mut. Life Ins. Co. of Maine v. Dice, 14 Fed. Rep. 523. Ithas been held

that, under the statute of California, where the supervisors ofa county all

resigned to prevent the service of summons in a suit against thecounty, it did

not prevent the statute from running. Nash v. Eldorado Co., 24Fed. Rep. 252.

(a)Defense or Counter-Claim. It is said that the statutedoes not run against a

claim set up as a defense, and on which defendant is entitled torely, while such

suit is pending. Becker v. Wing, 21 N. W. Rep. 47.

(4)Estates of Decedents. Death of debtor suspends therunning of the statute

until an administrator is appointed. Nelson, Adm'r, v. Herkel,Adm'r, 2 Pac.

Rep. 110; Toby v. Allen, 3 Kan. 399; Hanson v. Towle, 19 Kan.273. See

Whitney v. State, 52 Miss. 732; Briggs v. Thomas' Estate, 32 Vt.176; Etter v.

Finn, 12 Ark. 632. A request by the executor of the estate of adeceased person

for delay, to save the bar of the statute of limitations infavor of such estate,must be for a definite time agreed on by theparties, or fixed by reference to

some designated event which may occur, and thereby render theperiod certain.

Simply requesting 'that you do not enforce your claims,' andpromising that he

'will not avail himself of the statute applicable to executors,'etc., is insufficient.

Pulliam v. Pulliam, 10 Fed. Rep. 53.

The statute of limitations does not run against a claim againstthe estate of a

decedent from the time when presented for allowance untilrejected. Nally v.McDonald, 6 Pac. Rep. 390. The statute does notrun against a claim presented

and allowed. German Savings & Loan Soc. v. Hutchins, 8 Pac.Rep. 627. Filing

a claim against the estate of a decedent is not 'proving,'within the meaning of

the statute of limitations. Willcox v. Jackson, 1 N. W. Rep.536.

A joint judgment against the deceased and others, obtainedduring his life-time,

may, upon his death, be prosecuted against his representativealone in

Michigan. U. S. v Spiel, 8 Fed. Rep. 143.

(a)Appointment of Administrator. No disabilityarising after a statute of

limitations has begun to run will suspend its operation,McDonald v. Hovey, 4

Sup. Ct. Rep. 142; and the bar of the statute of limitations isnot removed by the

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issuance of letters of administration on the estate of thedeceased debtor. Gaines

v. Hammond's Adm'r 6 Fed. Rep. 449. And this rule is notmodified by the fact

that it was not known that the decedent had any estate callingfor administration

until after the expiration of the statutory period oflimitation. Id.

(b)Devolution. Where the statute commences to run inlife-time of ancestor, its

operation is not arrested by his death and minority of hisheirs,

Page 542-Continued.

Darnall v. Adams, 13 B. Mon. 273; Haynes v. Jones, 2 Head,(Tenn.) 372; Ang.

Lim. § 196; and consequently the statute of limitations inejectment is not

arrested by the devolutionof the estate. De Mill v.Moffat, 13 N. W. Rep. 387.

See Hill v. Smith, 1 Wils. 134; Cotterell v. Dutton, 4 Taunt.826; Rhodes v.

Smethurst, 4 Mees. & W. 42; S. C. 6 Mees. & W. 351;Eager v. Com., 4 Mass.

182; Peck v. Randall, 1 Johns. 165; Demarest v. Wynkoop, 3Johns. Ch. 129;Jackson v. Wheat, 18 Johns. 40; Dillard v. Philson,5 Strob. 213; Byrd v. Byrd,

28 Miss. 144; Seawell v. Bunch, 6 Jones, Law, 197; Tracy v.Atherton, 36 Vt.

503; Reimer v. Stuber, 20 Pa. St. 458; Stephens v. McCormick, 5Bush, 181;

Ruff v. Bull, 7 Har. & J. 14; Pinckney v. Burrage, 31 N. J.Law, 21; Lewis v.

Barksdale, 2 Brock. 436; Walden v. Gratz, 1 Wheat. 292; Mercerv. Selden, 1

How. 37; Hogan v. Kurtz, 94 U. S. 773; Becker v. VanValkenburgh, 29 Barb.

324; Allis v. Moore, 2 Allen, 306; Currier v. Gale, 3 Allen,328; Keil v. Healey,

84 Ill. 104; Cozzens v. Farnan, 30 Ohio St. 491.

(5)Extension of Time. An agreement to extend or postponethe time of payment

of a claim, made without consideration, is void, and will notprevent the

running of the statute of limitations. Green v. Coos Bay WagonRoad Co., 23

Fed. Rep. 67. In German Savings & Loan Soc. v. Hutchinson,Ex., (Cal.) 8 Pac.

Rep. 627, an agreement made after the maturity of a note andmortgage, and

executed by the mortgagor to the mortgagee, after reciting theloan and

execution of the note and mortgage, and that the mortgagor wasdesirous ofextending the loan, provides 'that the time forthe payment of the said

promissory note shall be extended to, and the said noteshall not mature or be

payable until, the thirtieth day of December, 1874,provided that this agreement

shall not affect or impair any other covenant or condition inthe said promissory

note or mortgage, but that they shall remain in as full forceand effect as if this

agreement had not been made,' heldto be an agreementfor the renewal of the

note and mortgage.

(6)Fraud. Fraud, or the concealment of fraud,prevents the running of the

statute of limitations until it is discovered. McAlpine v.Hedges, 21 Fed. Rep.

689. Where a deed is executed for the purpose of defraudingcreditors,

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purposely kept off of record, and all the partiesconsidered in the transaction

keeping it perfectly silent, this is such fraudulent concealmentas relief may be

granted for in equity. McAlpine v. Hedges, 21 Fed. Rep. 689. SeeMeader v.

Norton, 11 Wall. 442; Carr v. Hilton, 1 Curt. C. C. 238;Vane v. Vane, L. R. 8

Ch. 383; Rolfe v. Gregory, 4 De G., J., & S. 576; Hovendenv. Annesley, 2

Schoales & L. 634; Buckner v. Calcote, 28 Miss. 568. Acontrary doctrine

prevails in Indiana. Boyd v. Boyd, 27 Ind. 429; Pilcher v.Flinn, 30 Ind. 202;Musselman v. Kent, 33 Ind. 458; Jackson v.Buchanan, 59 Ind. 390; Wynne v.

Cornelison, 52 Ind. 319; Hughes v. First Nat. Bank ofWaynesburg, (Pa.) 1 Atl.

Rep. 417.

(7)Mortgage. A mortgage will not keep alive the personalobligation to pay a

debt after the time when it would otherwise be outlawed.Lashbrooks v.

Hatheway, 17 N. W. Rep. 723; Michigan Ins. Co. v. Brown, 11Mich. 265;

Appeal of Goodrich, 18 Mich. 110; Powell v. Smith, 30 Mich.452.

(8)Negligence and Laches. Neglect of a person to do thatwhich is required of

him to be done to perfect his right against another will notprevent the running

of the statute of limitations against him. Lower v. Miller, 23N. W. Rep. 897;

Prescott v. Gonser, 34 Iowa, 175; Baker v. Johnson Co., 33 Iowa,151;

Hintrager v. Hennessy, 46 Iowa, 600; Beecher v. Clay Co., 52Iowa, 140; S. C.

2 N. W. Rep. 1037; First Nat. Bank of Garrettsville v. Green, 17N. W. Rep. 86.

Page 542-Continued.

(9)Note, etc. It has been held that the giving of a noteby the husband for

necessaries, for which the wife is equally liable, arrests therunning of the

statute of limitations until the maturity of the note, both asto the husband and

the wife. Davidson v. Beggs, 16 N. W. Rep. 135; Lawrence v.Sinnamon, 24

Iowa, 80. Also, that where a judgment is taken against thehusband alone for

necessaries, for which his wife was jointly liable, it does notextent limitation

against the wife until the expiration of such judgment. Polly v.Walker, 14 N.W. Rep. 137.

(10)Part Payment. It has been held that partialpayment stops running of

statute, whether made before, Engmann v. Estate of Immel, 18 N.W. Rep. 182;

see Mainzinger v. Mohr, 41 Mich. 687; S. C. 3 N. W. Rep. 183;Eaton v. Gillet,

17 Wis. 435; Williams v. Gridley, 9 Metc. 482; Sibley v.Lumbert, 30 Me. 253;

Newlin v. Duncan, 1 Har. (Del.) 204; 7 Wait, Act. &Def. 228, 301, 307; Pars.

Cont. 353, or after the statute has debarred the claim. Winchellv. Hicks, 18 N.Y. 558; Pickett v. Leonard, 34 N. Y. 175; Harper v.Fairley, 53 N. Y. 442;

Carshore v. Huyck, 6 Barb. 583; Graham v. Selover, 59 Barb. 313;First Nat.

Bank of Utica v. Ballou, 49 N. Y. 155; Ilsley v. Jewett, 2 Metc.168; Ayer v.

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Hawkins, 19 Vt. 26; Wheelock v. Doolittle, 18 Vt. 440; Emmons v.Overton, 18

B. Mon. 643; Walton v. Orbinson, 5 Ired. Law, 343; Schmucker v.Sibert, 18

Kan. 104; Shannon v. Austin, 67 Mo. 485; Carroll v. Forsyth, 69Ill. 127. But a

credit entered upon a note by the holder thereof does not revivea barred note,

under the construction of the statute of limitations in Georgia,unless he be

authorized by the defendant in writing to enter such credit.Stone v. Parmalee,

18 Fed. Rep. 280.

(a) Voluntary Payment.It has been held that voluntary partpayment is an

acknowledgment of the indebtedness, and an agreement to pay theresidue is

implied, Thomas v. Brewer, 7 N. W. Rep. 571; Harper v. Fairley,53 N. Y. 442;

Rolfe v. Pillond, 19 N. W. Rep. 970; Miner v. Lorman, 22 N. W.Rep. 265; yet

mere part payment of a debt, without words or acts to indicateits character, is

not evidence from which a new promise to take the debt out ofthe operations

of the statute of limitations may be inferred. Chadwick v.Cornish, 1 N. W.Rep. 55; Brisbin v. Farmer, 16 Minn. 215, (Gil.187.) A payment of interest on

a barred note by maker and indorsem*nt thereon by holder willtake it out of

the statute of limitations. Yesler v. Koslowski, (Wash. T.) 8Pac. Rep. 493.

(b)Enforced Payment. Enforced part payment will notaffect the running of the

statute, Thomas v. Brewer, 7 N. W. Rep. 571; yet a part paymentmade by sale

of a collateral by holder, and indorsed on note, will removebar. Sornberger v.

Lee, 15 N. W. Rep. 345; Wheeler v. Newbould, 16 N. Y. 392;Joliet Iron Co. v.

Sciota F. B. Co., 82 Ill. 548; Whipple v. Blackington, 97 Mass.476; Haven v.Hathaway, 20 Me. 345. It is said that where thestatute provides that a part

payment shall take the debt out of the statute, thepayment of a dividend by an

assignee of such debtor will not have that effect. Clark v.Chambers, 22 N. W.

Rep. 229; Marienthal v. Mosler, 16 Ohio St. 566; Stoddard v.Doane, 7 Gray,

387; Pickett v. King, 34 Barb. 193; Roosevelt v. Mark, 6 Johns.Ch. 266. But

the supreme court of Kansas hold, by a divided court, that suchpayment by

assignee does take cause out of statute. Letson v. Kenyon, 1Pac. Rep. 562;

citing Jackson v. Fairbank, 2 H. Bl. 340; Barger v. Durvin, 22Barb. 68.

(c)By Partner, Co-Surety, etc.At common law apayment made by one of the

debtors kept the demand alive as to both, and was equivalent toa new promise

by both. Mainzinger v. Mohr, 3 N. W. Rep. 183; Wyatt v.Hodson, 8 Bing. 309.

Page 542-Continued.

But the rule is different in most if not all the states.Marienthal v. Mosler, 16Ohio St. 566; Quinby v. Putnam, 28 Me. 419.In absence of a statute to the

contrary, part payment by one joint debtor will remove the baras to all.

National Bank of Delavan v. Cotton, 9 N. W. Rep. 926. SeeWinchell v. Hicks,

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18 N. Y. 558; Huntington v. Ballou, 2 Lans. 121. Money paid byone of two or

more joint debtors on contract, at request of others, stopsrunning of statute as

to all. National Bank of Delavan v. Cotton, 9 N. W. Rep. 926;Pitts v. Hunt, 6

Lans. 146; Whipple v. Stevens, 2 Fost. (N. H.) 219. Payment byone of two

joint obligors in presence of the other will take out ofstatute. Mainzinger v.

Mohr, 3 N. W. Rep. 183. But it has been held that proof ofpartial payment by

one partner, after the dissolution of the partnership, cannot beintroduced tostop the running of the statute of limitations.Cronkhite v. Herrin, 15 Fed. Rep.

888. And it has been held that a part payment or new promise byone co-surety

will not operate to keep alive the obligation as to a co-suretywho was not privy

to it, or in no way participated in it. Probate Judge v.Stevenson, 21 N. W. Rep.

348.

(11) War. The existence of war suspends the statute oflimitations as between

citizens of the adverse belligerent powers, but not as betweencitizens of thesame power. Cross v. Sabin, 13 Fed. Rep. 308. And itis said if the means

provided by law for the issuance and service of processexist, whereby injured

parties can commence suit, the court is not 'closed,'although the stated sessions

are not regularly held at the times appointed by law, and theprobabilities are

that a suit then brought would not be tried until after thecassation of hostilities.

Cross v. Sabin, 13 Fed Rep. 308. And it has been held that wherethe United

States has consented to be sued in the court of claims on acertain class of

claims, and a citizen is prevented from bringing a suit on sucha claim within

the time specified, by reason of his connection with theRebellion, he will be

barred. Kendall v. U. S., 2 Sup. Ct. Rep. 277.

4. SUIT—WHEN COMMENCED.Where the statute provides that asuit is

commenced by 'delivering of the original notice' to the properofficer, with

intent that it be served immediately, the delivery to suchofficer of a 'notice' in

which the appearance day is left blank, and to be filled by suchofficer on

service of the writ, is not such a commencement of an action aswill bar the

running of the statute of limitations. Phinney v. Donahue, 25 N.W. Rep. 126.Where a creditor filed a petition, and on the same daya notice was put in the

hands of the sheriff, who neglected to serve it, and deliveredit to plaintiff's

attorney, who lost it, it was held that no action was commenced.Wolfenden v.

Barry, 22 N. W. Rep. 915. A suit in law is not commenced, so asto avoid the

statute of limitations, until the writ is completed, with theintention of making

immediate service. Clark v. Slayton, 1 Atl. Rep. 113; Robinsonv. Burleigh, 5

N. H. 225; Graves v. Ticknor, 6 N. H. 537; Hardy v.Corlis, 21 N. H. 356;

Mason v. Cheney, 47 N. H. 24; Brewster v. Brewster, 52 N. H. 60.A suit inequity is not commenced, so as to avoid the statute oflimitations, until the bill

is filed in the clerk's office. Clark v. Slayton, 1 Atl. Rep.113; Leach v. Noyes,

45 N. H. 364.

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5.PLEADING AND PEACTICE.A plea of the statute oflimitations was

formerly regarded by the courts as dishonorable, and not to befavored. Hurley

v. Cox, 2 N. W. Rep. 705; Perkins v. Burbank, 2 Mass. 81; Willetv. Atterton, 1

Wm. Bl. 35. And to be made available to-day it must be speciallypleaded, in

absence of statute to the contrary. Zeilin v. Rogers, 21 Fed.Rep. 103; Brush v.

Peterson, 6 N. W. Rep. 287; Leavitt v. Oxford & GenevaSilver Min. Co. of

Utah, 1 Pac. Rep. 356; Grant v. Burr, 54 Cal. 298; Tarbox v.Supervisors, 33Wis. 445; Mead v. Nelson, 52 Wis. 402; S. C. 8 N. W.Rep. 895; Lockhart v.

Fessenich, 17 N. W. Rep. 302; Plumer v. Clarke, 18 N. W. Rep.467;

Page 542-Continued.

Morgan v. Bishop, 56 Wis. 284; S. C. 14 N. W. Rep. 369; Ward v.Walters, 22

N. W. Rep. 844; Clarke v. Lincoln Co., 54 Wis. 578; S. C.12 N. W. Rep. 20;

Wisconsin Cent. R. Co. v. Lincoln Co., 57 Wis. 137; S. C. 15 N.W. Rep. 121;

Crowe v. Colbeth, 24 N. W. Rep 478. But it was recently held bythe United

States circuit court for the district of California that aformal plea of the statute,

or of the special facts, is not necessary in equity to raise thedefense of laches,

neglect, or acquiescence. Lakin v. Sierra Buttes Gold Min. Co.,25 Fed. Rep.

337.

The statute of limitations, as a defense to an action, must bepleaded, or it will

be considered waived by the defendant. Phinney v. Donahue,(Iowa,) 25 N. W.

Rep. 126; Atchison & N. R. Co. v. Miller, 21 N. W. Rep. 451;Taylor v.Courtnay, 15 Neb. 196; S. C. 16 N. W. Rep. 842. The rulethat the statute of

limitations must be pleaded is limited to cases in which anopportunity to plead

it has been given. Dreutzer v. Baker, 18 N. W. Rep. 776; Heathv. Heath, 31

Wis. 223. See Morgan v. Bishop, 56 Wis. 284; S. C. 14 N. W. Rep.369; Gans

v. Insurance Co., 43 Wis. 108, 115; Waddle v. Morrill, 26 Wis.611; Harris v.

Moberly, 5 Bush, 556; Mann v. Palmer, 41 * N. Y. 177, 188.However, in some

states, it is unnecessary to plead the statute of limitationswhen it appears on

the face of the petition or bill that the cause of action wasbarred at the time thesuit was instituted. Baxter v. Moses, (Me.) 1Atl. Rep. 350; Hurley v. Cox, 2 N.

W. Rep. 705; Sturges v. Burton, 8 Ohio St. 215; Bissell v.Jaudon, 16 Ohio St.

498, 504; Delaware Co. v. Andrews, 18 Ohio St. 49; Peters v.Dunnells, 5 Neb.

460; Hurley v. Estes, 6 Neb. 386. The plea of the statute oflimitations is a plea

to the remedy, and to be governed by the lex fori. Star WagonCo. v.

Matthiessen, 14 N. W. Rep. 107; Townsend v. Jemison, 9 How.420;

McElmoyle v. Cohen, 13 Pet. 327. In absence of statutoryprovision to the

contrary, where parties to a suit fail at the proper time tointerpose the defenseof bar by the statute of limitations, itcannot be afterwards made available,

Welsh v. McGrath, 10 N. W. Rep. 810; Retzer v. Wood, 3 Sup. Ct.Rep. 164;

and it is not error, or an abuse of discretion, in trial courtto refuse to allow

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amendments setting up statute of limitations where suit isbetween original

parties. Morgan v. Bishop, 21 N. W. Rep. 263; Plumer v.Clarke, 18 N. W.

Rep. 467; Fogarty v. Horrigan, 28 Wis. 142; Eldred v. OcontoCo., 30 Wis.

206; Meade v. Lawe, 32 Wis. 266; Dehnel v. Komrow, 37 Wis.336.

As a rule the objection that the action was not commenced withinthe time

limited can only be taken by answer, Hurley v. Cox, 2 N. W. Rep.705; andcannot be raised by demurrer. State v. McIntire, 12 N. W.Rep. 593; State v.

Hussey, 7 Iowa, 409; State v. Groome, 10 Iowa, 308. But it hasbeen held that

where the statute of limitations is relied upon as a defense inan action of

ejectment, 'the objection that the action was not brought withinthe time limited

can only be taken by answer,' except wherethefactsby which the statute

operates as a bar are sufficiently stated in the complaint, whenthe objection

may be taken by demurrer, which will be considered as an answer.Paine v.

Comstock, 14 N. W. Rep. 910; Howell v. Howell, 15 Wis. 55.

Where no facts are alleged upon which to base the defense of thestatute of

limitations, such defense is not available to the defendant,Plumer v. Clarke, 18

N. W. Rep. 467; Smith v. Dregert, 18 N. W. Rep. 732;Morgan v. Bishop, 56

Wis. 284; S. C. 14 N. W. Rep. 369; Paine v. Comstock, 57 Wis.159; S. C. 14

N. W. Rep. 910; but where the statute is informallypleaded, evidence is not

thereby excluded. Haseltine v. Simpson, 17 N. W. Rep. 332. Thestatute is

sufficiently pleaded by reference in the answer to the sectionof the Code.

Packard v. Johnson, 4 Pac. Rep. 632. Where an action is foundedon fraud,

Page 542-Continued.

the petition should set forth when the fraud was discovered.Doyle v. Doyle, 7

Pac. Rep. 615; Young v. Whittenhall, 15 Kan. 579.

The plea of the statute of limitations cannot avail thirdpersons as against the

parties, Brigham v. Fawcett, 4 N. W. Rep. 272; and canonly be pleaded in barof a tax title by one who is, or claimsthrough, the true owner, Lockridge v.

Daggett, 2 N. W. Rep. 1023; yet an agent may plead the statuteof limitations

for his principal. King v. National Min. & Exp. Co., 1 Pac.Rep. 727. And it

has been held that where statute of limitations bars a cause ofaction against the

agent of an undisclosed principal, no suit can be maintainedagainst the

principal when he is discovered. Ware v. Galveston CityCo., 4 Sup. Ct. Rep.

337.

When the statute of limitations is set up as a defense, afinding that 'all the

allegations of plaintiff's complaint are true' is not a findingon the issue of the

statute of limitations. Lewis v. Adams, 7 Pac. Rep. 779. Whereplaintiff fails to

file a replication within the time allowed, where the answerincludes a plea of

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the statute of limitations, containing a negative pregnant, amotion by defend