페이지 이미지
PDF
ePub

may reply the statute; or if it be given in evidence under a notice of set-off, it may be objected to at the trial.

65 ror] objection that the plaintiffs' [in Error] right to relief is bar“ red by the Statute of Limitations : for whatever might be the “ effect of the Statute if no connection existed between the two “ demands, it is clear as that of the plaintiffs' [in Error) by its pes culiar connection with the defendants' (in Error,) and the " agreement of the parties, operates an extinguishment, the stas tute cannot be brought to bear upon it.”

“ It is well settled, that to a plea of set-off, the plaintiff may “ reply the Statute of Limitations." Banks vs. Coyle, 2 Marsh. Rep. (Ky.)564.(per Boyle, Ch. J. delivering the Opinion of the Court.) & Vide (same point,) Gilchrist vs. Willitims, 3 Ibid. 235. 237.

A matter tbat is barred by the Statute of Limitations, cannot be set up as a discount. Madden vs. Madden, 2 Rep. Const. C. So, Car. 350.

The Statute of Limitations of the country where the remedy is sought, and not of the country where the Contract was inade, is the rule. Graves vs. Graves' Ex’or. 2 Bibb's Rep. 207.

In an action of Assumpsit, brought in this state, the defendant may set-off demands against the plaintiff, arising when both parties resided in the state of Connecticut, and which, if sued for there, would be barred by the Statute of Limitations in that state, provided six years have not elapsed since the plaintiff came into this state. Courts in this state in actions on foreign contracts, are not governed by the Statutes of Limitations in other states, where such contracts were made. Ruggles vs. Keeler, 3 Johns. Rep. 263.

The Statute of Limitations of another state is no defence to an action brought in this state [Connecticut], on a contract entered into in that other state, by parties residing there at the time. Medtury vs. Hopkins, 3 Connect. Rep. 472. Atwater's Adm’r. vs. Townsend, 4 Ibid. 47.

In the case of Bushnell vs. Brown's heirs, (4 Mari. Rep. N. S. 499, 500.) the plaintiff in the appeal insisted in the court below that the land sold to him was deficient in quantity, and he claimed an order of survoy“ to establish the deficiency to the legal exteot.” The order was refused, whereupon the plaintiff took a bill of exceptions and appealed to the Supreme Court; and Martin, J. in delivering the Opinion of the Supreme Court, said ; “ The order of sur

vey was refused because the plaintiff suffered one year to elapse

It was a question formerly, whether the statute extended to mariners' wages :-[2]

[ocr errors]

without complaining of this deficiency." (This is the time limita ed for bringing suit for any defect or deficiency in the thing sold, Vide Civil Code of Louisiana, Tit. 7. ch. 6. sect. 3. $1. Art. 2512.]

* We think the District Judge erred. It is true the plaintiff " could not have been heard on a suit against his vendors; but it “ does not follow that he could not use as a shield what he no " longer could use as a weapon. Qua temporalia sunt ad agendam, "perpetua sunt ad excipiendum."

[2] The Statute of Limitations of Massachusetts (which as to this point is a transcript of the statute 21 Jac. I. c. 16.) applies only to suits at common law for mariner's wages, and not to suits in the admiralty. Brown vs Jones, 2 Gallis. Rep. 477. (In this case STORY, J. who delivered the Opinion of the Circuit Court, said; (page 481.) “ It is not a little remarkable, that the Act of Con

gress regulating suits for mariner's wages in the admiralty, con"taios no limitation as to the time, within which such suits shall " be brought. And as the admiralty and maritime jurisdiction is exclusively confided to the courts of the United States, it would “ be very difficult to maintain, that a Statute of Limitations of a “ state could proprio vigore, apply to suits on the admiralty side " of these courts. The provision in the 24th section of the Judi"cial Act [24 Sept. 1789, ch. 20.] extends only to trials at Common Law; and in no other cases can state regulations or limitas “tions govern the Courts of the United States, unless they fall with. " in the principles of universal lair, which direct and limit the ap"plication of the lex loci."

The Statute of Limitations of a State is no bar to a suit on the admiralty side of the Courts of the United States. Willard & Ux. Adm'r. vs. Dorr, 3 Mason's Rep. 91. 93.

The Statute of Anne, (4 Án. ch. 16. 617.) limiting suits in the admiralty for seaman's wages to six years, is not a bar to such suits in the Courts of the United States. Ibid.

But, Courts of Admiralty will not entertain suits upon stale de. mands. Twelve years' delay, if unexplained, will affect a demand with the character of staleness. Willard & Ux. Adm'r. &c. vs. Dow: 3 Mass. Rep. 161. & Vide Same Case, Ibid. 95.

To a libel in the admiralty(a) by the seamen against the owaers for wages, the defendants pleaded the statute of limitations, viz. that it appeared by the libel that no suit was prosecuted for this matter within six years; whereas they should have pleaded directly, that no suit had been brought within six years after the cause of action accrued; and if the statute had been rightly pleaded it would have been a good bar : for, per Holt, Ch.J. Though the statute doth not extend to causes maritime, spiritual, or equitable, but only to duties at common law, yet

mariners' wages are a duty at common law, and if [ *95] sued *for at common law, the statute would have

been a good bar.

And upon a motion for a(b) prohibition to the admiralty, suggesting a contract at land, and a suit for wages thereon by the mariners against the owners, upon an outward-bound voyage, and that he had pleaded the statute of limitations in that court, which plea was rejected for that the statute did not extend to causes maritime, &c. And it was insisted for the prohibition, that the common law had a proper jurisdiction for mariners' wages, and that the suit might be as well brought for such wages in the courts of common law as the admiralty; so that the admiralty had at most but a concurrent jurisdiction in this case with the courts of common law, and that only by indulgence of law, which ought not to be extended so far as to suffer them to proceed in the admiralty otherwise than they might at common law.

But the statute of 4 Anne, c. 16. s. 17. enacts, that “all suits and actions in the court of admiralty for seamen's wages, shall be commenced and sued within six years next after the cause of such suits or actions shall accrue, and not after."[1]

[blocks in formation]

[1. Vide Note (B.) in the Appendix ; where decisions upon local and special Acts of Limitations of the several states, as distinguished from the general Acts of Limitations, are collected and arranged

*CHAP. V.

[ *96]

Of Actions on Torts.

ACTIONS on the case for torts, other than slander, must be brought withio six years of the cause of action accruing :[1

[1] An action on the case was brought for a deceit, the defendant pleaded not guilty within six years; and the plea held good. Oothoudt vs. Thompson, 20 Johns. Rep. 278.

Even though the plaintiff did not discover the fraud, until within six years prior to the bringing of the suit. Ibid. Troup vs. Smith's Ex'ors. 20 Ibid. 45. 48. & Vide Hamilton, Erecutriz, &c. vs. Shepperd, Admr. &c., 3 Murph. Rep. 115.

An action on the case was brought against the defendant for neglect of duty as a Deputy Sheriff, in not returning an execution in favour of the plaintiff against S. C., and for not paying over the money collected thereon. The Court said; “ The cause of action “ (if any exists) did not accrue against the officer till demand; and “ as the record shows the demand to have been made within six " years, and not before, the plea of the Statute of Limitations can"not avail the defendant.Hutchinson vs. Parkhurst, (In Error.) 1 Aik. Rep. 262.

Io Bree vs. Holbach, (Doug. Rep. 656.) Lord MANSFIELD said; “There may be cases too, which fraud will take out of the Statute " of Limitations."

If a grantor be liable on the ground of a fraud in pretending to have right when he had done, the Statute of Limitations is a bar in five years, (and not twenty years) after the fraud is discovered. Lewis, Executrix, &c. vs. Stafford, 4 Bibb's Rep. 321. (In Equity.)

Io an action on the case to recover damages for a fraud in the sale of a land warrant; Plea, Statute of Limitations ; Replication ; Fraud not discovered until within three years, &c. Held, that the cause of action accrued when the fraud was committed, and three years having elapsed from that time before suit brought, the plaintiff was barred ; Dot being within any of the savings of the statute. Hamilton, Executrix, &c. vs. Shepperd, Admr. &c. 3 Murph. Rep. 115.

actions for words, within two years after the words spoken.

In the case of Mussi vs. Lorgin, the younger, (2 Browne's Rep. 56.) it was Held, that if the jury believed there had been a fraud practised, the Statute of Limitations began to operate only from the time of its discovery. & Vide Homer vs. Fish & Al. 1 Pick. Rep. 435. Welles, Ex’or. &c. vs. Fish & Al. 3 Ibid. 74. Brown vs. Howard, 2 Brod. &. Bingh. Rep. 73.

In the case of Young vs. Williamson, (1 Har. & McHen. Rep. 145.) which was a suit in replevin for a negro, the defendant pleaded non cepit infra tres annos, and judgment was given in his favour.

In an action of replevin for a negro, the defendant pleaded actio non accrevit infra tres annos ; it appeared that there was a a consent that the defendant's grantor should use the negro ; the Court held that the statute did not run, and gave judgment for the plaintiff. Ward vs. Reeder, (In Error.) 2 Harr. & McHen. Rep. 145.

But in the case of Ratrie vs. Sanders, (2 Har. of Johns. Rep. 327.) where the defendant was in possession of, and holding a slave for the space of three years antecedent to the institution of an action of replevin against him for the slave ;--Held ; that the Statute of Limitations was a bar to the plaintiff's recovery, notwithstanding the property in the slave had been in the plaintiff, and the slave was by him loaned for an indefinite time to J. S., who, during that loan, sold the slave to the defendant; and although the suit was brought within three years from the time the plaintiff knew of such sale.

In replevin for a negro, where the Act of Limitatioos was relied on, the plaintiff, in order to prevent the operation of that act, prov. ed by a witness that the defendant, after the institution of the suit, şaid “that if the negro did not belong to him, he did not “ want him, and no property he had was bis, and that no law suit was necessary." A verdict was found, and judgment rendered for the plaiotiff ; and on appeal the judgment affirmed. Quimby vs. Wroth, 3 Harr. & Johns. Rep. 249.

The Act of Limitations may be pleaded in bar to an action against a common carrier for fraudulently embezzling goods committed to his care. Cook vs. Darby, 4 Munf. Rep. 444.

In an action against the defendant as a carrier, to which he pleaded the Statute of Limitations, the plaintiff offered to prove an assumpsit after the expiration of tbree years, which was opposed by

« 이전계속 »