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38. The privilege of the maxim, nullum tempus, &c. has been extended, in England, to the lessees of the crown. Thus, A, having a lease from the crown for ninety-nine years, and having been out of possession for more than twenty years, recovered, notwithstanding, in ejectment; for it was adjudged, that A's possession was that of the king, against whom the want of possession could not be legally objected. But it was otherwise, if the crown granted the reversion, as, in that case, the privilege did not follow the grantee.1 In Illinois, it was adjudged to extend to the State Bank. By the act creating that institution, it was declared that it should belong to the State of Illinois; and, therefore, a debt due to the bank was due to the State, and consequently not barred by the statute. But it was held in North Carolina, that, though no laches are imputed to the State, yet it is not the case as to those bodies to whom the execution of a public trust is committed; and, therefore, where the county court brought an action of assumpsit against a treasurer of public buildings, the statute was a bar. In Ohio, it was held, that the statute runs against a town or city. apply to the State as to individuals; but before their enactment, the presumption of payment in analogy to the statute of limitations was not applicable to demands in the name of the State. People v. Supervisors of Columbia County, 10 Wend. (N. Y.) R. 363. [In Massachusetts, also, the State stands upon the same footing with individuals. Rev. Stat. c. 119, § 12; Id. c. 120, § 20. That no time runs so as to bar the rights of the State, see also Com. v. Hutchinson, 10 Barr, (Penn.) 466; Gore v. Lawson, 6 Leigh, (Va.) 258; State v. Joiner, 23 Miss. (1 Cush.) 500; Brimfield v. Carter, 2 Kelley, (Ga.) 143; Com. v. Johnson, 6 Barr, (Penn.) 136; Duke v. Thompson, 16 Ohio, 34; Hill v. Joselyn, 13 S. & M. (Miss.) 597; Walls v. McGee, 4 Har. (Del.) 108; Bledsoe v. Doe, 4 How. (Miss.) 13; Wilson v. Hudson, 5 Yerg. (Tenn.) 398; Wright v. Swan, 6 Port. (Ala.) 84; Levasser v. Washburn, 11 Gratt. (Va.) 572. But this principle has no application where a party seeks to enforce his private rights by a writ of mandamus in the name of the State. Moody v. Flemming, 4 Ga. 115. But if the State and a party be jointly interested in a security, the statute is no bar to either. Glover v. Wilson, 6 Barr, (Penn.) 290. In New York, under 1 R. L. 184, § 1, it seems that the State is not barred by an adverse possession of forty years. The People v. Arnold, 4 Comst. (N. Y.) 508. But under Stat. 1788, c. 43, and Stat. 1801, c. 187, a suit brought in the name of the people to set aside a patent granting land is barred. People v. Clarke, 5 Selden, (N. Y.) 349. And in Texas, the State may be barred if the occupant of land be permitted to remain in possession for a period of time fixed by the laws as imparting dominion over it. Jones v. Borden, 5 Texas, 410.]

1 Lee v. Norris, Cro. Eliz. 331. [The statute does not run against the grantee of the State while the State has title. Kennedy v. Townley, 16 Ala. 239; Hartley v. Hartley, 3 Met. (Ky.) 56.

2 State Bank of Illinois v. Brown et al., 1 Scam. (Ill.) R. 106; [Mahone v. Central Bank, 17 Geo. 111.]

3 Armstrong v. Dalton, 4 Dev. (N. C.) R. 568.

Lessee of Cincinnati v. First Presbyterian Church, 8 Ohio, R. 298; [Kennebunk v. Smith, 9 Shep. (Me.) 445; City of Alton v. Ill. Tr. Co., 12 Ill. 38.]

What might be the operation of the statute on private persons, in cases where the legal estate remains in the State, with an equitable interest in those persons, was considered by the late Chief Justice Tilghman, of Pennsylvania, a point involving important consequences, and would require great consideration, whenever it should call for a decision.1

39. Neither are the statutes of limitation of the States binding upon the rights of the government of the United States. In a writ of error from a judgment of the District Court, in Massachusetts, in the Circuit Court, before Mr. Justice Story, the original action was assumpsit, brought by the United States, for money had and received against the defendant in error, as administrator. The defendant pleaded: 1st. The general statute of limitations of Massachusetts; 2d. The statute limiting suits against executors. To these pleas the defendant demurred. The opinion of the learned judge was as follows: "The statutes of Massachusetts. could not originally have contemplated suits by the United States, not because they were in substance enacted before the Federal Constitution was adopted, on which I lay no stress; but because it was not within the legitimate exercise of the powers of the State legislature. It is not to be presumed that a State legislature mean to transcend their constitutional powers; and, therefore, however general the words may be, they are always restrained to persons and things, over which the jurisdiction of the State may be rightfully exerted. And if a construction could ever be justified, which should include the United States at the same time that it excluded the State, it is not to be presumed that Congress could intend to sanction an usurpation of power by a State, to regulate and control the rights of the United States. The mischiefs, too, of such a construction would be very great. The public rights, revenue, and property would be subject to the arbitrary limitations of the States; and the limitations are so various in these States, that the government would hold their rights by a very different tenure in each." "3 Agreeably to this construction was the following decis

1 Johnston v. Irwin, 3 Serg. & Rawl. (Penn.) R. 291. [Persons entering upon lands belonging to the State are to be deemed to be mere intruders; yet as against all other persons the entry will be a sufficient seisin to support a writ of right. Thomas v. Hatch, 3 Sumner, (U. S.) 170.]

2 Swearingen v. United States, 11 Gill & Johns. (Md.) 373.

8 United States v. Hoar, supra; [McNamee v. The United States, 6 Eng. (Ark.)

ion: B., a deputy commissary-general of the United States, received from M., a deputy quartermaster-general, the sum of ten thousand dollars, and acknowledged the same by a receipt signed by him, with his official description. The United States, it was held, could treat M. as their agent in the transaction, by making B. their debtor, and to an action brought against him for money had and received, the statute of limitations is no bar.1

40. In a case in the Supreme Court of New York, it was insisted that the rule does not apply to a claim which the United States takes as transferees from another, even though they acquired the legal interest. This, the court said, would no doubt be true, if the statute had begun to run against the claim while it was in the hands of the assignor; but in the case at bar it did not. The demand in question was a promissory note, of which the government of the United States became owner and holder before it became due; and the statute, therefore, was no defence to the action. But where before the transfer to the United States, of an instrument which was the evidence of debt, the term prescribed by the statute had elapsed, it can require no argument to show that the transfer of such claim to the United States cannot give it any greater validity than it possessed before the transfer.3

41. Though the United States is a stockholder in the Bank of the United States, and is so far a party in all suits to which the bank is a party, the doctrine of nullum tempus occurrit regi, does not apply to exempt the bank from the operation of the statute of limitations; for it is a settled principle, that where a sovereign becomes a member of a trading company, he divests himself, with reference to the transactions of the company, of the prerogatives of sovereignty, and assumes the character of a private citizen.1

1 United States v. Burford, 3 Peters, (U. S.) R. 12.

2 United States v. White, et al., 2 Hill, (N. Y.) R. 59.

3 Per Mr. Justice M’Lean, in giving opinion of the court, in United States v. Burford, 3 Peters, (U. S.) R. 30.

* Bank of the United States v. McKenzie, 2 Brockenb. (Cir. Co.) R. 393. [And so a city may be barred of their right to land, as in the case of removing so much of a building which projects into the street, by more than twenty-one years of open and notorious possession by the owner of the encroaching premises. City of Cincinnati v. Evans, 5 Ohio, (N. S.) 594; Lane v. Kennedy, 13 Ohio, (N. S.) 42. Of course, a municipality may plead the statute as well as an individual. County of Lancaster v. Brenthall, 29 Penn. St. 38.]




42. THE rule of the civil law is that prescription only begins to run from the time when the creditor has a full and perfect right to prosecute his demand.1 The same rule holds, of course, in respect to the legislative acts of limitation of Great Britain and of those of the United States. The time limited, in other words, is to be computed from the time at which a right of entry accrues, and from the time at which a creditor is authorized first to commence a suit. If the contract is to pay money at a future period, or upon the happening of a certain event, the statute, it is very clear, is inoperative, until the specified period has elapsed, or the particular event has occurred; or if upon condition, not until the condition has been performed.2 In general, it may be said that it is a rule in courts of equity, as well as in courts of law, that the cause of action or suit arises when and as soon as the party has a right to apply to the proper tribunals for relief.3

43. Herein is presented a question, which, in a given case, might be of much moment, namely: Whether in the computation of time under the statute, the day on which the cause of action accrued is to be included or excluded. If there is to be no fraction of a day, the whole day upon which an act is done, or a liability incurred, must either be included in the computation, or it must 1 Evans's Pothier, 404.

2 2 Godb. 437; Fenton v. Emblers, 1 W. Bl. R. 353; Waters v. Earl of Thanet, 2 Gale & Dav. R. 166; Helps v. Wintherbotham, 2 Barn. & Adol. R. 431; Rhodes v. Smethurst, 4 Me. & W. R. 42; Freake v. Cranefeldt, 1 Mylne & Craig, Ch. R. 499; Arnold v. United States, 9 Cranch, (U. S.) R. 104; Miller v. Miller, 7 Pick. (Mass.) R. 133; Codman v. Rogers, 10 Id. 112; Jacobs v. Graham, 1 Black. (Ind.) R. 392, and other cases which will be cited in the course of the following chapter.

32 Story's Eq. Jur. § 1521 a. [The general rule, as stated in the text, is well settled; but the difficulty is to determine when the party has a right to apply to the proper tribunals for relief. And this question has, perhaps, given rise to as much litigation as any other arising under the statute of limitations, without, however, affording the means for extracting any general rule. Its solution must depend mainly upon the facts and circumstances in each particular case. Cases illustrative will be found in their appropriate places. As to what constitutes commencement of action, see post, § 312.]

be entirely excluded.1 Upon this point the decisions have been contradictory, and a distinction appears to have been taken in the earlier cases, in relation to it between the common law and the law-merchant. In the view of the latter, the day of the date of a bill of exchange, or of an acceptance, or of a promissory note, is excluded. But by the earlier decisions, in cases of a different nature, the day upon which a liability is incurred is included. It has been said by Lord Mansfield, that the certainty of a rule is of more importance than the reason of it; and the truth of the proposition as applied to the present subject appears plainly enough. It must be left to the reader to deduce a certain rule from the condition of the law upon the subject, as it now stands.

44. The case referred to in most of the subsequent cases, either with or without approbation, is that of Norris v. The Hundred of Gautris.3 That was an action on the statute of Hue and Cry, where the robbery was laid and proved to have been on the 9th of October, 13 Jac. I., and it was held that the action brought on the 9th October, 14 Jac. I., was too late. That is, the day of committing the offence is to be included. The words of the act were, "that no person shall take any benefit, &c., except he or they so robbed shall commence his or their suit or action within one year next after such robbery." It was held by Lord Mansfield and the whole court, in The King v. Adderley, that by the true construction of the statute, 20 Geo. II., a sheriff is not liable to be called upon to return process unless within six lunar months after the expiration of his office; and the day on which he goes out of office is to be reckoned as part of the six months. He cites as authority the case just mentioned of Norris v. Hundred of Gautris and Bellasis v. Hester.5 The statute of 21 James I. c. 19, enacts that a trader lying in prison two months, that is, two lunar months, after an arrest for debt, shall be adjudged a bankrupt; and it was held that the day of the arrest was included. Lawrence, J., was of opinion that it must be so included upon the authority of The

1 See observations of the court, in Sims v. Hampton, 1 Serg. & Rawle, (Penn.) R. 411; also of the court, in Windsor v. China, 4 Greenl. (Me.) R. 298; also of the Master of the Rolls, in Lester v. Garland, 15 Ves. Ch. R. 248; also of Washington, J., in Pearpoint v. Graham, 4 Wash. (Cir. Co.) R. 232.

2 Chitty on Bills; Story on Bills.

Hobart's R. 139; s. c. 1 Brownl. R. 156.

* The King v. Adderley, Doug. R. 463.

6 Bellasis v. Hester, 1 Lord Raym. R. 280.

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