§ 80. It has accordingly been long established, that where the liability of the defendant is created not merely by the act of the parties, but by the positive requisitions of a statute, the plaintiff is not barred. Thus, where debt was brought on the statute of tithes, for carrying away the corn, the defendant pleaded for the last three years non debet, and for the residue, the statute of limitations; and the plaintiff thereupon demurring, and the record being read, all the judges held, that the statute did not extend to the action. Thus, again, in another of the old cases, an action of debt for an escape was -held not to be reached by the statute, both because it was not founded upon any lending or contract, and was founded on a specialty, namely, on statute law. The construction has been applied to one of a class of statutes in this country which have now become common, in the case of Bullard v. Bell,8 by Mr. Justice Story. The learned judge held, that the statute of limitations of New Hampshire (which, in respect to specialties, is a transcript of the statute of James), did not apply as a bar to an action of debt, against a stockholder of a bank, under the provisions of its charter, imposing a personal responsibility upon the shareholders, for the notes of the institution, in case they should be dishonored. This judgment was accompanied by the following opinion:

"I agree at once to the position, that the bills of the bank are to

form of action may be founded upon a specialty, namely, the record of the judgment; in the other form it is founded on a contract. In one case the statute is not pleadable, in the other it is. Ibid. Debt lies on all specialties to recover a demand for money secured thereby. It lies upon bonds, whether for the payment of moneys or performance of any other act; upon recognizances, and upon judgment, and decrees. It lies, also, upon statutes, where an action of debt is given by statute; and where the statute provides for the payment of a sum of money, or gives a penalty or forfeiture on the doing of a forbidden act, but does not mention any mode of recovering it. 1 Saund. R. 288, note 1; Browne on Actions at Law, 345; White v. Parkin, 12 East, R. 578. [But an action of debt for a penalty due under a by-law made by virtue of a charter is an action of debt grounded upon a contract without specialty, and is barred by 21 Jac. 1, c. 16, § 3, if not commenced within six years after the penalty becomes due. The Master, Warden, &c. v. Loder, 6 Eng. L. & Eq. Rep. 309.]

1 Cro. Car. 513. [The duties imposed on vessels passing from, to, or by Ramsgate, by statute (32 Geo. III. c. 74, § 81), are not within the statute of limitations, being a specialty. Shepherd v. Hill, 32 Eng. L. & Eq.]

2 Jones v. Pope, 1 Saund. R. 38. An action founded upon a statute, such as debt for an escape, cannot be barred. Per Curiam, Ward v. Reeder, 2 Har. & M'Hen. (Md.), R. 154; [Lane v. Morris, 10 Geo. 162.]

3 Bullard v. Bell, 1 Mason (Cir. Co.), R. 243.

be considered originally as the debts of the corporation, and not of the corporators; and, except from some special provision by statute, the latter cannot be made answerable for the acts or debts of the former. They are altogether, in law, distinct persons, and capable of contracting with each other. But the corporators are not strangers to the corporation. On the contrary, the law contemplates a privity between them; and upon that privity has created an obligation on the corporators, under certain circumstances, to pay the debt of the corporation. Nothing can be better settled than that an action of debt lies for a duty created by the common law, or by custom. A fortiori it must lie, where the duty is created by statute. Whatever is enjoined by statute to be done, creates a duty on the party, which he is bound to perform the whole theory and practice of political and civil obligations rest upon this principle. When, therefore, a statute declares, that, under certain circumstances, a stockholder in a bank shall pay the debt due from the bank, and those circumstances occur, it creates a direct and immediate obligation to pay it. The consideration may be collateral or not; but it is not a subject-matter of inquiry, and to deny that it is a duty on the stockholder to pay the money, is to deny the authority of the statute itself; for a duty is nothing more than a civil obligation to perform that which the law enjoins. the law has declared, that the stockholders shall be specific sum, and it imposes on them a duty so to do. the court say, that debt does not lie, since there is defendant to pay the plaintiff a determinate sum of money? There is no room, under this view of the case, for entertaining any question as to collateral undertakings. The law has created a direct liability, a liability as direct and cogent, as though the party had bound himself under seal to pay the amount, in which case debt would undoubtedly lie. The law esteems this an obligation created by the highest kind of specialty. Indeed, if debt would not lie in this case, it is inconceivable how assumpsit could. There is no pretence of any express promise; and if a promise is to be implied, it must be because there exists a legal liability, independent of any promise sufficient to sustain one. Now, the very notion of a collateral undertaking is, that there exists no legal liability independent of the promise to create a duty. And if there exists a duty sufficient to raise a promise, then it is sufficient to sustain an action of debt." 1

Here, then, liable to pay a How then can

a duty on the

1 See Van Hook v. Whitlock, 3 Paige (N. Y.), Ch. R. 409. [Atwood v. R. I. Ag.

§ 81. But there is a distinction between the liability directly imposed by a statute, and one simply having relation to it. As, in the case of the assignment of a debt, by the commissioners of a bankrupt, the assignment being by virtue of act of parliament, a plea of limitation would avail; because the debt was created and the obligation imposed, by the act of the parties, both before the assignment and the statute; and it is an invariable rule, that when the time of limitation begins to run, nothing subsequent will stop it.1 So, where the South Sea Company (in whom the estates of the directors were vested by act of parliament), filed a bill to which the statute of limitations was pleaded. It being argued that the claim of the plaintiffs was a matter of record, and consequently the debt not within the statute, the Lord Chancellor held the law to be clearly otherwise; and he compared it to the case of an assignee, under a commission of bankruptcy, who, though he claims under the acts concerning bankrupts, and also by virtue of the assignment, which is under the great seal, yet, as he stands only in the place of the bankrupt, against whom the statute of limitations is pleadable, so is he (the assignee), liable to be barred thereby. So assumpsit will lie against a trading corporation, upon a bill of exchange, when the power of drawing and accepting is recognized by statute.3

Bank, 1 R. I. 376; Jordan v. Robinson, 3 Shep. (Me.), 167; Lane v. Morris, 8 Geo. 468. In New York (2 R. S. 298, § 31), it is provided that "an action upon any statute made or to be made for any forfeiture or cause, the benefit and suit whereof is limited to the party aggrieved, or to such party and the people of this State, shall be commenced within three years after the offence committed or the cause of action accrued, and not after; and where an action was brought against a stockholder of an incorporated trading company, the charter of which provided that the stockholders should be liable for its debts, and that a creditor might, after judgment, obtained against the corporation, and execution returned unsatisfied, sue any stockholder, it was held, that the above limitation of three years did not apply (overruling Freeland v. McCullough, 1 Denio, 414); but that the liability not being created by the statute, was within the general provision of the statute limiting to six years all actions of account, assumpsit, or on the case, founded on any contract or liability express or implied. Corning v. McCullough, 1 Comst. (N. Y.), 47. The form of the action in this case was assumpsit. In Bullard The learned judge (Jones), who gave the opinion, discusses the nature of the liability created by the statute, at much length, and expresses views not easily to be reconciled with the doctrine of the latter case.]

v. Bell, it was debt.

1 Coply v. Dorkmique, 2 Lev. R. 166. [That there are exceptions to the rule, see post, § 196, note.]

2 3 P. Wms. R. 14.

3 Murray v. East Ind. Co. 5 Barn. & Ald. R. 204.

§ 82. For the same reason that the time of limitation is not pleadable to a liability imposed by statute, it is not pleadable to a liability founded on a judgment of court.1 Thus, in an action on the case against a sheriff, for that he levied such a sum of money upon a fieri facias, at the suit of the plaintiff, and did not bring the money into court, at the day of the return of the writ, per quod, etc.; the court held, that if the fieri facias had been returned then, the action would have been grounded on the record, and it is the sheriff's fault that the writ was not returned, and that the judgment was the foundation of the action. So in the Supreme Court of the State of New York, in error on certiorari to' a justice's court. The action in the court below was founded upon a judgment rendered before another justice, six years before the present suit, and the only question raised was, whether a suit on a judgment in a justice's court was barred by the statute of limitations? Van Ness, J., " Whether a justice's court is strictly a court of record, it is not material to determine in this case; for if it be not, it is settled that a judgment rendered in it is conclusive evidence of a debt, and the merits of such a judgment, while it remains in force, cannot be overruled, or controverted in an original suit at law, or in equity; and it is as final, as to the subject-matter of it, to all intents and purposes, as a judgment in this court." He therefore concluded, that an action of debt upon a judgment in a justice's court, is not barred by the statute of limitations, and so also

1 [Dudley v. Lindsey, B. Mon. (1 Ken.), 486; Mitchell v. Mitchell, 8 Humph. (Tenn.), 359; Todd v. Crumb, 5 McLean, 172; Reddington v. Julian, 2 Carter (Ind.), 224. But where several joint debtors are sued, some of whom are not served with process, and judgment is obtained against all pursuant to the statute, such judgment does not prevent the running of the statute of limitations in favor of those defendants who were not served with process. Bruen v. Bokee, 4 Denio (N. Y.), 56. In Arkansas, the statute cannot be pleaded to a scire facias to revive a judgment, because it is not the commencement of an action. Brown v. Byrd, 5 Eng. (Ark.), 533. See also, Evans v. White, 7 Eng. (Ark.), 33. Otherwise in Maryland, Beanes v. Hamilton, 3 Gill (Md.), 275; and in Indiana, Simpson v. Lassalle, 4 McLean, 352. A judgment under the Mill Acts of Maine is not within the statute. Knapp v. Clark, 30 Me. (17 Shep.), 164. In North Carolina, judgments are barred by statute in ten years after the return day of the last execution. Butts v. Patton, 11 Iredell (N. C.), 262.]

2 1 Mod. R. 246. No statute limits the lien of a judgment in Pennsylvania, in favor of the heirs of a debtor. Brobst v. Bright, 7 Watts (Penn.), R. 124. 3 Pease v. Howard, 14 Johns. R. 479. [Otherwise now in New York, by statute. Carshore v. Huyck, 6 Barb. (N. Y.), S. C. 583.] It was said to have been resolved, that the statute was not a good plea against an attorney, that brings his action for fees, because they depend upon a record, and are certain. 1 Mod. 246. In the case of Rudd

it has subsequently been expressly held by the Supreme Court of New Hampshire. But by the Superior Court of South Carolina, it was held, that a judgment of a court of justice, for the trial of causes small and mean, is within the operation of the statute; the reason assigned being that such a judgment is not a matter of record.2 Though the Marine Court of the city of New York is a court of record for certain purposes, it does not act as such in the exercise of its jurisdiction between party and party; and consequently the statute of limitations is a good defence to an action in one of its judgments.3

§ 83. The rule that the statute is not pleadable to a judgment of court does not apply to a foreign judgment. A foreign judgment being prima facie evidence of the debt only, is considered of no higher nature than a simple contract, and a necessary consequence of this is, that the statute of limitations may be pleaded to it. In an action upon a judgment, obtained in the Supreme Court of Jamaica, Lord Mansfield says, "The question was brought to a narrow point; for it was admitted, on the part of the defendant, that indebitatus assumpsit would have lain, and on the part of the plaintiffs, that the judgment was only prima facie evidence of the debt. That, says he, being so, the judgment was not a specialty, but the debt only a simple contract debt. In a case before the King's Bench, in 1825, which was assumpsit on judgment obtained in one of the superior courts of

v. Birkenhead, Carth. 144, no such objection was made to the plea, in an action of assumpsit by an attorney; but in Oliver v. Thomas, 3 Lev. 367, where assumpsit was brought for fees, and money expended, and labor and pains in prosecuting divers suits, the defendant pleaded the statute, whereupon the plaintiff demurred; and it was argued, for the plaintiff, that this action being by several counts, or declarations, whereof one only was for fees, the statute was not pleadable to that count for fees only, because it arises upon matter of record, namely, his being attorney of record. But, by the whole court it was held, that the statute is pleadable to the count for fees; for the fees are not of record; and a case was cited, where it was so adjudged within two years before, whereupon judgment was given to the defendant.

1 Mahurin v. Bickford, 8 N. Hamp. R. 54.

2 Griffin v. Heaton, 2 Bail. (S. C.), R. 58.

8 Lester v. Redmond, 6 Hill (N. Y.), R. 590. [In Massachusetts, judgments of a justice of the peace are barred by statute. But the Police Court of Lowell was held to be a court of record, and its judgments not within the statute. Bannegan v. Murphy, 13 Met. (Mass.), 251. And in Maine, a judgment of the court of county commissioners is barred in six years. Woodman v. Somerset, 37 Me. 29.]

Pease v. Howard, 14 Johns. R. 479, and see Dupleix v. DeRoven, 2 Vern. R. 540. 5 Walker v. Witter, Doug. R. 1.