rupt laws, though the grand career of England, as a commercial State, may not be said to have fairly commenced before the accession of Elizabeth; and the declaration of the statute of James I. c. 3, that the system of granting monopolies - one unfavorable to general commerce was contrary to the ancient and fundamental laws of the realm, preceded a short period only, the salutary regulation by statute of limiting a precise time for the commencement of actions ex contractu.

§ 19. It has been suggested, notwithstanding, that the litigation of debts of long continuance was discouraged and restrained in England, practically, before the statute of James.. The wager of law, which was allowed in the action of debt upon simple contract, it has been urged, furnished this restraint, and accounts, it has been very rationally supposed, for the long postponement of a statute of limitations of personal actions upon contract. The action of assumpsit did not come into general use till after Slade's case,1 which was decided in 44 Eliz. (1603). Before then, debt was the ordinary remedy in cases of simple contract, and the effects of the apprehension that the debtor would avail himself of his privilege in that action of waging his law, would be, first, that creditors would obtain a specialty, or higher security for their debts, by which the privilege would be excluded; and, secondly, that demands of long standing would be kept out of courts of justice, since, in relation to them, the defendant would have less difficulty in discharging himself by his wager of law.2

§ 20. The benefit to the plaintiff of the saving in the statute of James, of his being "beyond seas," in connection with that of the savings of the disabilities of infancy, coverture, and imprisonment,

1 4 Co. R. 91.

2 See Wilkinson on Limitations, who cites as authority Lord Ch. Baron Gilbert. When an action of debt is brought against a man upon a simple contract, and the defendant pleads nil debet, and concludes his plea with this formula-"And this he is ready to defend against him the said A. B., and his suit, as the tourt of our lord the king here shall consider," &c., he is said to wage his law. He is then required to swear he owes the plaintiff nothing, and bring eleven compurgators, who will swear they believe him. This mode of trial is trial by wager of law. It could be had only in actions of debt on simple contract, and action of detinue. In consequence of this right of the defendant, now, actions upon simple contract are brought in assumpsit; and, instead of bringing detinue, trover has been substituted. See 2 Bouv. Law Dict.; Stephens on Plead. 124, 250; 3 Black. Com. 341.

was subsequently, by the statute of 4 Anne, c. 16, extended to the absence "beyond seas" of the defendant.

§ 21. The statute of James, in respect to personal actions, was pronounced by Lord Holt to be one of the best of statutes.1 The true time within which such actions must now be brought in England, is mainly regulated by that statute.2 Where any difference appears between the provisions of that statute in respect to personal actions, and those of the American statutes of limitation, it is, it will be seen, more in words than in substance, the end of all of them being one and the same. If the periods of limitation be different in different countries or States, and in different actions, yet, as the statutes are drawn with slight variations of phrase, and all being in pari materia, the object and intention being the same, they require a uniform construction.1 The American acts of limitations, as they relate to personal actions of every kind, are either an exact transcript of the statute of James, or a revision and modification of it; and, that the mere change of phraseology in the revision of a statute before in force will not work an alteration in the law previously declared, unless it indisputably appear that such was the intention of the legislature, has been expressly decided.5

§ 22. The statutes of limitation, in this country, not being retrospective, and being applied only to a right of action which is to commence in futuro, are not considered as impairing vested rights, or the obligation of contracts. They rather establish that a certain lapse of time shall amount to the evidence of the transfer of property, or of the performance of a contract, than to take away the one, or dispense with the other. In prescribing the evidence which shall be

1 7 Mod, R. 112.

2 Brown on Actions at Law, 59.

So stated by Huger, J., in delivering the opinion of the court in Cook v. Wood, 1 M'Cord (S. C.), R. 141.

Per Abbott, C. J., in Murray v. E. India Co., 5 B. & Ald. R. 204. And see 3 Gill & Johns. (Md.), R. 394.

6 Taylor v. Delancy, 2 Caines' Ca. Err. (N. Y.), 143; Yates's case, 4 Johns. (N. Y.), R. 317, 359; Brown (matter of), 21 Wend. (N. Y.), R. 316; Theriat v. Hart, 2 Hill (N. Y.), R. 380.

Gospel Society v. Wheeler, 2 Gallis. (Cir. Co.), R. 105. A retrospective law is one which takes away or impairs vested rights; or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions already past. Id. Also, see Calder v. Bull, 3 Dallas (Penn.), R. 386; Bush v. Van Kleek, 7 Johns. (N. Y.), R. 447.

received in its courts, and in giving effect to that evidence, a State is clearly within the limits designated by the Constitution of the United States.1 Without destroying, therefore, and simply prescribing a period in which a right may be enforced; and withholding merely the remedy, after the lapse of an appointed time, for reasons of private justice and public policy, a statute of limitations, it has been uniformly considered, is no violation of the sacredness of private rights.2. The difference between the obligation of a contract, and the remedy to enforce it, is that they originate at different times. The obligation to perform is coeval with the making of the contract, and operates anterior to the time of performance. The remedy, on the other hand, cannot be applied to a contract until it is broken; and then it is applied to enforce a preexisting obligation.3

Reasons of sound policy, say the Supreme Court of the United States, have led to the adoption of limitation laws by State legislatures, and their validity cannot be questioned. The time and manner of their operation, the exceptions to them, and the acts from which the time limited shall begin to run, will generally depend on the sound discretion of the legislature, according to the nature of the titles, the situation of the country, and the emergency which leads to their enactment. Cases, however, say the court, may occur, where the provisions of the law on these subjects may be so unreasonable as to amount to a denial of a right, and to call for the interposition of the court. If the legislature of a State should pass an act by which a past right of action shall be barred, and without any allowance of time for the institution thereof in future, it would be difficult to reconcile such an act with the express constitutional provisions in favor of the rights of private property. So if in a State, where six

1 Id., and Sturges v. Crowninshield, 4 Wheat. (U. S.), R. 122.

2 Ogden v. Saunders, 12 Wheat. (U. S.), R. 349. [Jones v. Jones, 18 Ala. 248; Wintermire v. Westover, 4 Ker. (N. Y.), 16.]

3 [Gospel Society, &c., supra.]

Jackson v. Lamphire, 3 Peters (U. S.), R. 280.

5 Besides the foregoing authorities, see Betzhoover v. Yewell, 1 Gill & Johns. (Md.), R. 212; Charlestown Bridge v. Warren Bridge, 11 Peters (U. S.), R. 420; Eckstein v. Shoemaker, 3 Whart. (Penn.), R. 15; Ward v. Kilts, 12 Wend. (N. Y.), R. 137; Van Rensellaer v. Livingston, id. 490; Blackford v. Peltier, 1 Black. (Ind.), R. 96; Frey v. Kirk, 4 Gill & Johns. (Md.), R. 509; Cook v. Wood 1 M'Cord (S. C.), R. 139; Hawkins v. Barney, 5 Peters (U. S.), R. 485; Gospel Society v. Wheeler, 2 Gallis. (Cir. Co.), R. 141; Call v. Haggar, 8 Mass. R. 423.

years, for instance, may be pleaded in bar to an action of assumpsit, a law should pass declaring that contracts already in existence, and not barred by the statute, should be construed to be within it, such law, without doubt, would be deemed unconstitutional. In the State of New York, where a right to sue at law before the Revised Statutes took effect, the time within which a suit will be barred depends upon the statute which existed previous to that time; but where the right to commence the suit accrued since that period, the time within which the suit is to be brought must be regulated by the Revised Statutes. In an action of assumpsit, in Massachusetts, on a note made by the defendant payable on demand, the defendant relied on the statute which was pleaded before the Revised Statutes of that State went into operation. The plaintiff sought to avoid the plea by bringing the case within those statutes, c. 20, § 9, which provides that the time of a defendant's absence from the State, shall not be taken as any part of the time limited for the commencement of an action. It was held, that the rights of the defendant were fixed before the last statute was passed, and that he could not thereby be deprived of them.2

All the cases go to show, that statutes of limitation, as they are usually intended to be applied, can never be considered as being of that class of laws, which are so expressly interdicted by the constitutional and paramount law of our country.3

1 Van Hook v. Whitlock, 3 Paige (N. Y.), Ch. R. 409; People v. Supervisors of Columbia County, 10 Wend. (N. Y.), R. 363; [Calkins v. Calkins, 3 Barb. (N. Y.), S. Ct. R. 305.]

2 Battles v. Forbes, 18 Pick. (Mass.), R. 532; 19 id. 578.

8 Baker v. Jackson, 1 Paine (Cir. Co.), R. 559; Le Roy v. Crowninshield, 2 Mason, 169. The terms of 45th section of the Revised Statutes of New York, are explicit, that the provisions of the statute shall not apply to "cases where the right of action shall have accrued, or the right of entry shall exist before the time when this chapter takes effect as a law; but the same shall remain subject to the laws now in force. See Jackson v. Brooks, 14 Wend. (N. Y.), R. 649. By § 29 of the Act of Limitations of Vermont: "The provisions of this chapter, which alter or vary the law now in force relative to the limitation of actions, shall not apply to any case where the cause of action accrues before this chapter shall take effect and go into operation; and in all cases where the cause of action accrues before this chapter takes effect, the laws now in force, limiting the time for the commencement of suits thereon, shall continue in operation." It was held in New Hampshire, that an act of the legislature repealing an act of limitations, was, with respect to all actions pending at the time of the repeal, which were previously barred, to be retrospective and contrary to the State constitution. Woart v. Winnick, 3 N. Hamp. R. 473. The legislature have no authority, under the constitu

§ 23. It has, with the full force of truth, been remarked in reference to statute of limitations of Maryland, that "This is not the epoch, when that salutary protection, which the legislature has wisely thrown around us, as a safeguard against fraud and oppression, should be frittered away by judicial refinements and subtile exceptions that never entered into the contemplation of its enlightened framers; 1 and it has for many years been a subject of avowed and sincere regret with the most distinguished judges and eminent jurists of the age, that any constructive innovations were ever ingrafted upon acts

tion, to suspend the operation of a general law in favor of an individual. Holden v. James, 11 Mass. R. 396. [A statute of limitations may well apply to contracts in existence at the time of its passage, provided a reasonable time be allowed before the statute takes effect, or the debt is barred, within which creditors may institute their actions. Pierce v. Tobey, 5 Met. (Mass.), 168; Patterson v. Gaines, 6 How. (U. S.), 550; Pearce v. Patton, 7 B. Mon. (Ken.), 172; Sleeth v. Murphy, 1 Morris (Iowa), 321; West. Fel. R. R. Co. v. Stockett, 13 S. & M. (Miss.), 375; Beal v. Nason, 2 Shep. (Me.), 344; Bk. of Ala. v. Dutton, 9 How. (U. S.), 522; Webster v. Cooper, 14 How. (U. S.), 488; Winston v. McCormick, 1 Carter (Ind.), 56; Pritchard v. Spencer, 2 id. 486; De Cordova v. Galveston, 4 Texas, 470; Gilman v. Cutts, 3 Foster (N. H.), 376; Willard v. Harvey, 4 id. 344; Slater v. Cave, 3 Ohio (N. s.), 80; Briscoe v. Anketell, 28 Miss. (6 Cush.), 361; State v. Clark, 7 Ind. 468. It has been held, however, in Arkansas, that the statute of 1844 does not apply to causes of action which had accrued at the time of its passage. Calvert v. Lowell, 5 Eng. (Ark.), 147; Morse v. McLendon, id. 512. So also, in Kentucky, as to the effect of the Revised Statutes where the right of action had accrued previous to their passage. Ashbrook v. Quarle's Heirs, 15 B. Mon. (Ken.), 20. And see also, Didier v. Davidson, 2 Barb. (N. Y.), Ch. 477; Williamson v. Field, 2 Sand. (N. Y.), Ch. 533; Thompson v. Alexander, 11 Ill. 54; Brown v. Wilcox, 14 S. & M. (Miss.), 127; Boyd v. Baringer, 23 Miss. (1 Cush.), 269; Paddleford v. Dana, 14 Miss. 517; Clemens v. Wilkinson, 10 id. 97; Gordon v. Mounts, 2 Greene (Iowa), 343; Hinch v. Weatherford, id. 244; Dickerson v. Morrison, 1 Eng. (Ark.), 264; Lucas v. Tunstall, id. 448. But a statute extending the time of limitation will not revive causes of action already barred under preëxisting statutes. Wright v. Oakley, 5 Met. (Mass.), 400; Joy v. Thompson, 1 Doug. (Mich.), 373; Hawkins v. Campbell, 1 Eng. (Ark.), 512; Couch v. McKee, id. 484; Walker v. Bank of Miss. 2 id. 561; Clarke v. Bank of Miss. 5 id. 512; Robb v. Harlan, 7 Barr, (Penn.), 292; Forsyth v. Ripley, 2 Greene (Iowa), 181; McKinney v. Springer, 8 Blackf. (Ind.), 506; Davis v. Miner, 1 How. (Miss.), 183; Stopp v. Brown, 2 Carter (Ind.), 647; Wires v. Farr, 25 Vt. 41. If, however, the cause of action be not already barred, the statute extending the time will apply. Winston v. McCormick, 1 Smith (Ind.), 8. And see Royce v. Hardy, 24 Vt. (1 Deane), 620; Henry v. Thorpe, 14 Ala. 103; Cox v. Davis, 17 id. 714. In Louisiana it is held that where there is a change in the limitation, the time prior to the change is reckoned according to the law then in force, and the subsequent time according to the new statute. Deal v. Patterson, 12 La. Ann. R. 728.]

1 Per Dorsey, J., in delivering the opinion of the court, in Green, executor, v. Johnson et ux., Gill & Johns. (Md.), R. 394.