tice of which (from the lapse of time), it is extremely difficult to detect and expose.1 It is unquestionably the natural tendency of time, to obscure and extinguish the direct evidence of title. Statutes of limitation are intended to cure this defect, and supply the want of such evidence, or, as it was said by Lord Plunkett, chancellor of Ireland, their object is to repair the injuries committed by time.2 § 11. With regard to demands arising ex contractu, it would obviously be the greatest injustice, to subject persons against whom a demand of this nature is made of long standing, to discharge it, whether it be well, or whether it be ill founded; because, it is possible that it may have been already discharged, and the evidence of the discharge may have been lost.3 It is admitted, that a demand of this kind may be very old, and at the same time be very just; but then if it can be sustained, every demand, without any reference to its staleness, may be sustained, which experience has developed, would result in falsehood and perjury, and consequently in great injustice.* Every one must be sensible of the liability of a debtor to lose his receipts, or whatever other evidence he might, at the time, have had of payment; and it must be manifest, that there is much injustice in compelling him to preserve the acquittances which prove the debt to be satisfied, after a reasonable time.5 In a modern case in England, it was declared by one of the judges, that "long dormant claims have more of cruelty than of justice in them, and that Christianity forbids an attempt at enforcing the payment of a debt which time and misfortune have rendered the debtor unable to discharge." The very fact of acquiescence, or forbearance in him who has refrained to institute his claim is in itself a strong presumption that it was the result of a consciousness on his part that the claim is unfounded, or at least extremely questionable. Presumptions are always founded upon the ordinary course of things, and it is not very usual for a creditor to delay enforcing the payment of what has been for a considerable time due. 1 A prescription which was introduced into Scotland, in 1617, proceeded on the inconvenience arising from the loss of titles and the danger of forgery, as well as the multitude of lawsuits. Bell's Law Scot. 637. 2 [As to presumption of payment from lapse of time, see post, § 78.] 3 Clementson v. Williams, 8 Cranch (U. S.), R. 72. 4 Kames's Prin. Eq. 182. 5 Evans's Pothier, 404; Hellings v. Shaw, 7 Taunt. R. 608. 6 A'Court v. Cross, 3 Bing. R. 329. CHAPTER II. LIMITATIONS OF ACTIONS AT LAW. § 12. THE history of the limitation of actions at law in this country is, for very obvious causes, intimately connected with that of England. According to Bracton, " Omnes actiones in mundo, infra certa tempora, habent limitationem."1 Lord Coke, however, thinks that this general position will admit of several exceptions; and he says, that the limitation of actions was by force of divers acts of parliament; 2 and it seems to be now so understood. There was undoubtedly, at a very remote period in England, a stated time for the heir of the tenant to claim after the death of his ancestor; and, in case of non-claim before the expiration of the time (a year and a day), the claimant was without remedy. The extreme antiquity of the doctrine of fines, and its analogy to some modern acts of limitations, have already been referred to.5 § 13. Certain remarkable periods were at first fixed upon. By the statute of Merton, in the time of Henry III., the limitation in a writ of right, which was then from the time of Henry I., was reduced to the time of Henry II. Assizes of mortdauncestor were reduced from the last return of King John from Ireland, or to the twelfth year of his reign. Assizes of a novel disseisin, a prima transfretatione regis in Normaniam, which was 5 Hen. III., and which before that time had been post ultimum reditum Henric. III. de Britannica. By the statutes 1 & 2 Westminster, the writ of right was limited to the first coronation of Richard I.6 1 Bract. Lib. 2; 3 Cruise's Dig. 479. 2 2 Inst. 95; Co. Litt. 115; 4 Rep. 10. People v. Gilbert, 18 Johns. (N. Y.), R. 227; Wilcox v. Fitch, 20 id. 475; Wall v. Robson, 2 Nott & M'Cord (S. C.), R. 499. 45 Bac. Abr. 461; Spelm. Gloss. 32. • Ante, § 6. 6 Hale's Hist. Common Law, 122; Co. Litt. 114; 2 Inst. 94, 95. § 14. The period established by the last of the above statutes increased every day; and, consequently, as Lord Coke observes, "many suits, troubles, and inconveniences did arise, and therefore a more direct and commodious course was taken, which was to endure forever, and calculated so to impose diligence on, and vigilance in, him that was to bring his action, so that, by one constant law, certain limitations might serve, both for the time present, and for all times to come." 1 The course was first taken by the statute 32 Hen. VIII., ch. 2, in the year 1540,2 and was followed, between eighty and ninety years afterwards, in 1623, by the more matured and comprehensive statute of 21 James I., ch. 16, entitled "An Act for Limitation of Actions, and for avoiding of Suits at Law." The last statute was generally adopted by the original American States, when they were colonies; and, whenever it has been since superseded by other acts of limitation, which do not essentially vary from it in respect to land, they are to be construed as that statute, and all other acts of limitation founded on it, have been construed.4 § 15. But the period arrived when the statute of James, in so far as regards real property and the actions for the recovery of it, gave way to the views of a more liberal and enlightened age. The wellknown energetic and persevering efforts of Lord Brougham, to reform the anomalies and abuses of the English law, led to a commission, directed to five commissioners, in the year 1828, with instructions "to make diligent and full inquiry into the law of England respecting real property, and the various interests therein; and the methods and forms of alienating, conveying, and of assuring the titles thereto; and whether any and what improvements could be made therein, and how the same might be carried into effect." One of the most important and beneficial results of this commission was the statute of limitations of 3 & 4 William IV. ch. 27, in respect to the possession of land, actions for the recovery of it, &c.5 After the statute of James, and the abolition of military tenures in the reign of Charles II., the feudal relation of landlord and tenant ceased, an actual disseisin became almost impossible, and the doctrine of descents cast was no longer ap 1 2 Inst. 95. 2 Appendix, p. i. 3 Appendix, p. iii. 4 Walden v. Heirs of Gratz, 1 Wheat. (U. S.), R. 292. 5 See the statute in Appendix, p. vi. and Comments, p. xvi. plicable as a limitation to a right of entry.1 So that, says a late English writer,2 whose remarks he makes in connection with the above. statute, we follow, "The distinction between rights of entry and rights of action was the difference between twenty years from the right accruing and fifty years from the seisin of the ancestor; between rights of action possessory and droiturel, was the difference between fifty and sixty years from the ancestor's seisin; a distinction entirely fanciful and arbitrary, which resulted from retaining the forms of the several remedies, when the substantial differences of the rights had long ceased to exist. The various dates from which the time was reckoned by the two statutes (real actions being limited from a positive possession, but entries from dispossession, a very equivocal circumstance), the disabilities which extended the period for entering, the violent and very unreasonable presumptions against adverse possessions, greatly lessened this distinction. And, in many cases, a right to enter remained, when a right of action was barred; but, supposing the adverse possession to commence at the moment the actual seisin ceased, and the claimant under no disability, he lost one right in twenty years, a second in fifty, and a third and last in sixty years, although, in an action on either of his rights, he recovered possession of the whole of his land." Such are the reasons given by an English jurist for the abolition of real actions by the above statute, with the exception of dower and quare impedit, by the terms of which land is only allowed to be recovered by ejectment.3 § 16. The limitation of actions founded upon contract has been for many years an important constituent of commercial law; yet it was not until the twenty-first year of the reign of James I., by the abovementioned statute of James, that any limitation to such actions was provided for in England by a positive enactment. Lord Ellenborough, in giving his opinion in Williams v. Jones, asserted, that, at common law, the plaintiff might have sued at any time, and that there was an unlimited right of suit until restrained by the statute referred to, the third section of which limits the bringing of actions ex contractu to six years. 1 Atkyns v. Horde, 1 Burr. R. 60. 2 Gibbon's Lex Temporis, London, 1835, p. 19. 3 See comments upon this statute, &c., in Appendix, p. xvi. 4 Williams v. Jones, 13 East, R. 449. § 17. As, according to the sentiment of Montesquieu, laws are illustrative of history, and history of the laws, it may not be out of place to cast a glance at the causes of this long delay in England, in prescribing a fixed and certain period as the ne plus ultra, beyond which no action upon a simple contract shall be instituted. Leaving the question which has been debated, whether the Saxons in England were subjected to feudal tenure, it is well enough known that the feudal system, in its most unmitigated form, was firmly fastened upon the English people by the Conqueror. It is as well understood, that a more ingenious contrivance, intended to repress the disposition natural to men to engage in mercantile traffic, and to baffle attempts to set in motion the wheels of commercial enterprise, could not easily have been devised. There is no occasion to trace the various gradual changes by which feudal tenure in England was reduced to landed estates absolute and unconditional (otherwise than by fiction of law), and essentially allodial. The desired end, it is plain enough, was achieved by the genius of commerce, which gave an importance to personal property, and occasioned the frequency of personal contracts of every description. "It is justified," says a learned writer and highly distinguished jurist, "by experience, that, as soon as the commercial spirit begins to acquire vigor, and to gain the ascendant, in any society, we immediately discover a new genius in its policy." 1 One of the fruits of this new genius in England was the third section of the above-mentioned statute, which prescribes a precise time within which an action for the recovery of a debt, and for the non-performance of a contract, shall be commenced. § 18. The progress towards maturity of the commercial law of England was moreover retarded by a number of adverse public events other than the establishment and continuation of the feudal polity, which, in a measure, may serve to account for the procrastination exhibited in legislative action in respect to the enforcement of the rights of creditors, and the barring of their remedies by neglect and lapse of time. We refer to the civil wars between the two houses of York and Lancaster, and the struggles in the reign of Henry VIII. in behalf of the doctrines of the Reformation. That reign is, however, distinguished for the first introduction of the bank 1 Park on Insurance. |