trary, in Bulger v. Roche, in Massachusetts,1 where both parties resided during the whole period of the running of the statute in Nova

court declared, that, as by the laws of Virginia, five years bona fide possession of a slave constitutes a good title upon which the possessor may recover in detinue, such a title may be set up by the vendee of such possessor in the courts of Tennessee as a defence to a suit brought by a third party in those courts. The same had been previously ruled in this court in Brent v. Chapman, 5 Cranch, 358; and it is the rule in all cases where it is declared by statute that all rights to debts due more than a prescribed term of years shall be deemed extinguished, and that all titles to real and personal property not pressed within the prescribed time shall give ownership to an adverse possessor. Such a law, though one of limitation, goes directly to the extinguishment of the debt, claim, or right, and is not a bar to the remedy. Lincoln v. Battelle, 6 Wend. 475; Conflict of Laws, 582.

"In Lincoln v. Battelle, 6 Wend. 475, the same doctrine was held. It is stated in the Conflict of Laws, 582, to be a settled point. The courts of Louisiana act upon it. We could cite other instances in which it has been announced in American courts of the last resort. In the cases of De la Vega v. Vianna, 1 Barn. & Adol. 284, and the British Linen Company v. Drummond, 10 Barn. & Cres. 903, it is said, that, if a French bill of exchange is sued in England, it must be sued on according to the laws of England, and there the English statute of limitations would form a bar to the demand if the bill had been due for more than six years. In the case of Don v. Lipmann, 5 Clark & Finn. 1, it was admitted by the very learned counsel who argued that case for the defendants in error, that, though the law for expounding a contract was the law of the place in which it was made, the remedy for enforcing it must be the law of the place in which it is sued. In that case will be found, in the argument of Lord Brougham before the House of Lords, his declaration of the same doctrine, sustained by very cogent reasoning, drawn from what is the actual intent of the parties to a contract when it is made, and from the inconveniences of pursuing a different course. In Beckford and others v. Wade, 17 Vesey, 87, Sir William Grant, acknowledging the rule, makes the distinction between statutes merely barring the legal remedy and such as prohibit a suit from being brought after a specified time. It was a case arising under the possessory law of Jamaica, which converts a possession for seven years under a deed, will, or other conveyance, into a positive absolute title, against all the world, without exceptions in favor of any one or any right, however a party may have been situated during that time, or whatever his previous right of property may have been. There is a statute of the same kind in Rhode Island. 2 R. I. Laws, 363, 364, ed. 1822. In Tennessee there is an act in some respects similar to the possessory law of Jamaica. It gives an indefeasible title in fee-simple to lands of which a person has had possession for seven years, excepting only from its operation infants, feme coverts, non compotes mentis, persons imprisoned or beyond the limits of the United States and the Territories thereof, and the heirs of the excepted, provided they bring actions within three years after they have a right to sue. Act of November 16, 1817, ch. 28, §§ 1, 2. So in North Carolina, there is a provision in the Act of 1715, ch. 17, § 2, with the same exceptions as in the Act of Tennessee, the latter being probably copied substantially from the former. Thirty years' possession in Louisiana prescribes land, though possessed without title and malâ fide.

"We have mentioned those acts in our own States, only for the purpose of showing

1 Bulger v. Roche, 11 Pick. (Mass.), R. 36.

Scotia, where the right of action was extinguished by the local law, it was held, that the right of action, after a change of domicil of the defendant, by a removal to Massachusetts, was not thereby extinguished in the State tribunals; but might be pursued within the period prescribed by the statute of limitations of Massachusetts.1 Lord Brougham, in delivering his opinion in Don v. Lipmann, in the House of Lords, refers to this distinction taken by Judge Story, and calls it an "excellent" one. In that case it was said that by the law of Scotland, not the remedy alone was taken away, but that the debt itself was extinguished; but under the Scotch law of prescription, Lord Brougham said, there was no ground for the distinction, and that the debt was still supposed to be existing and owing, though the act of limitation of 1772, of Scotland, was strong with respect to the remedy to be enforced. The authority of Judge Story for the distinction, was likewise cited by the counsel in Huber v. Steiner, in the English Court of Common Pleas,2 and Chief Justice Tindal, in delivering the opinion, said, that undoubtedly the distinction, when taken with the qualification annexed to it by the author himself, appeared to be well founded. That qualification is, that the parties are resident within the jurisdiction all that period. "With such restriction," says Chief Justice Tindal, " it does indeed appear but reasonable, that the part of the lex loci contractus, which declares the contract to be abso

the difference between statutes giving title from possession, and such as only limit the bringing of suits. It not unfrequently happens in legislation, that such sections are found in statutes for the limitation of actions. It is in fact because they have been overlooked, that the distinction between them has not been recognized as much as it ought to have been in the discussion of the point, whether a certain time assigned by a statute, within which an action must be brought, is a part of the contract, or solely the remedy. The rule in such a case is, that the obligations of the contract upon the parties to it, except in well-known cases, are to be expounded by the lex loci contractus. Suits brought to enforce contracts, either in the State where they were made, or in the courts of other States, are subject to the remedies of the forum in which the suit is, including that of statutes of limitation." Blackburn v. Morton, 16 Ark. 384.]

1 "A doubt,” says Chief Justice Shaw, in this case, was intimated in Le Roy v. Crowninshield (2 Mason, Cir. Co. R. 151), whether, if the parties had remained subjects of the foreign country until the term of limitation had expired, so that the plaintiff's remedy would have been extinguished there, such a state of facts would not have presented a stronger case, and one of more serious difficulty. Such was the case in the present instance. But we think it sufficient to advert to a well-settled rule in the construction of the statute of limitations, to show that this circumstance can make no difference." [Way v. Sperry, 6 Cush. (Mass.), 239; Carpenter v. Wells, 21 Barb. (N. Y.),

2 Huber v. Steiner, 2 Bing. New R. 202 (5 Will. IV.).

lutely void at a certain limited time, without any intervening suit, should be equally rescinded by the foreign country, as the part of the lex loci contractus, which gives life to, and regulates the construction of the contract; both parts go equally ad valorem contractus, both ad decisionem litis." But in this case, which was in respect to a promissory note, the French law of prescription appertains only to the time and mode of instituting the remedy - ad tempus et modum actionis instituenda; and, therefore, the payee of promissory notes made in France, may sue the maker, if resident in England, during six years from the time they became due.1

1 See Taberrer v. Brintnall, 3 Har. (N. J.), R. 262; Beardsly v. Southmayd, 3 Green (N. J.), R. 171. [But in Alabama it has been held, that debts contracted in other States and barred there, are governed by the lex loci contractus, and not by the lex fori; and no reference is made to the distinction adverted to in the text. Goodman v. Munks, 8 Port. (Ala.), 84. So in Ohio by statute. Gordon v. Preston, Wright (Ohio), 341; Horton v. Horner, 16 Ohio, 145. And see also, Hays v. Cage, 2 Texas, 501; Davis v. Minor, 1 How. (Miss.), 183; Snoddy v. Cage, 5 Texas, 106. But Goodman v. Munks has since been overruled in Alabama, and the doctrine of the text declared to be the law. Jones v. Jones, 18 Ala. 248.]

CHAPTER IX.

WHAT ACTIONS AND DEMANDS EX CONTRACTU MAY BE BARRED.

§ 68. By the third section of the statute 21 James I. it is provided (and the acts of limitation in this country contain, at least substantially, the same provision, and therefore are subject to like construction 1), that all actions upon the case (other than for slander), actions of account, actions for trespass, debt, and detinue, shall be brought within six years next after the cause of such actions, and not after. The exception in the statute concerning the trade of merchandise, between merchant and merchant, and the limitations of actions upon torts, contained in the same section, are reserved for separate chapters.2

§ 69. The action of account, which is limited by the statute, is one of the most ancient at common law. It was a remedy resorted to in cases where there was a privity, as against a bailiff or receiver, or a privity in law, as against a guardian in socage; and it is more like a bill in equity for enforcing the execution of a trust, than an ordinary action. The first judgment is, that the defendant do account, which is usually called a judgment quod computet; whereupon, the defendant offering to account, the court assigns auditors to take and declare

1 Ante, § 21.

2 [The Tennessee statutes of limitations apply as well to motions made under a statute, as to actions, and where the time within which action may be brought is limited to six years, as in debt, for instance, a motion will be barred also. So when the time within which action may be brought is limited to three years, as in an action on the case against a sheriff for making an insufficient return, a motion under the statute relative thereto will also be barred. Prewett v. Hilliard, 11 Humph. (Tenn.), 423. The statute provides that the officer shall be liable on motion. Statutes of limitation are in aid of the common law, and furnish a general rule for cases that are analogous in their subject-matter, but for which a remedy unknown to the common law has been provided by statute. Thus they apply to a case where compensation is sought for damages for land taken for a railroad. Forster v. Cumberland Railroad Co. 23 Penn. St. R. 371.]

the account between the parties; and then the final judgment is, that the plaintiff do recover against the defendant so much as the latter is found to be in arrear.1 An extension of the remedy was for the benefit of trade and commerce, and it was allowed in mutual accounts between merchants; and any one naming himself a "merchant" might have an account against another, naming him a "merchant," and charging him as receiver.2 An account is the sole remedy at law, by one partner against his copartner, or copartners, unless there has been an express promise or covenant to account, or a settlement made and a balance actually struck by mutual agreement.3 It was at one time doubted whether an action of assumpsit would lie for the balance of an account, where there are items on both sides. It is now, however, established, that, though the items may be numerous, yet, if there be any thing due on one side, an action of assumpsit may be maintained for the balance. But courts of equity began to assume jurisdiction in matters of account at an early period, and to supersede the necessity of the old action of account, which began to decline; and it has, in England, almost, if not entirely, fallen into desuetude.5 Courts of equity, says the very learned writer referred to, have for a long time exercised a general jurisdiction in all cases of mutual accounts, upon the ground of the inadequacy of the remedy at law; and have extended the remedy to a vast variety of cases, to which

1 Cottan v. Partridge, 4 Man. & Grang. R. 285, per Tindal, C. J.

21 Story's Eq. Jur. 441. In Cottam v. Partridge, just cited, Tindal, C. J., said, that the only authority he had found where this action had been held to lie, between merchants, was in Fitzherbert's Natura Brevium, 117, D. See post, Chap. XV. on merchants' accounts, and Inglis v. Haigh, 8 Mees. & Welsb. (Ex.), R. 769.

3 See Ozias v. Johnson, 1 Binn. (Penn.), R. 191; Leonard v. Leonard, 1 Watts & Serg. (Penn.), R. 342; Andrew v. Allen, 9 Serg. & Rawle (Penn.), R. 241. [The statute is a bar to a bill filed for an account between partners. Prewett v. Buckingham, 28 Miss. (6 Cush.), 92.]

* 2 Saund. 127, Williams's note (d). An opinion was intimated by Lord Ellenborough, that an action of account was the proper mode of investigating a running account between a merchant and a broker, and that indebitatus assumpsit would not lie. Scott v. McIntosh, 2 Campb. R. 238. But it was afterwards decided, that if, upon dissecting an account, there appear money due upon certain items, assumpsit will lie, notwithstanding the items on each side may be numerous. In the latter case, Gibbs, C. J., observed, that "the foundation of an action of an account is, that the party wants an account, and is not able to prove his items without it." Tomkins v. Wiltshire, 1 Marsh. R. 115; s. c. 5 Taunt. R. 431. See also, 5 id. (note). See Inglis v. Hay, 8 Mees. & Welsb. (Ex.), R. 769; and post, Chap. XV. as to balance of account between merchants.

5 1 Story on Eq. Jur. 442.