chusetts, 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.1

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.2

1 Battles v. Forbes, 18 Pick. (Mass.) R. 532; 19 Id. 578.

2 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 constitution, 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; Cox v. Brown, 6 Jones, (N. C.) Law, 100; Phares v. Walters, 6 Clark (Iowa), 106; Kilbourn v. Lockman, 8 Id. 380; Wright v. Keithler, 7 Id. 92; Martin v. Martin, 35 Ala. 560; Holcombe v. Tracy, 2 Minn. 241; Smith v. Packard, 12 Wis. 371; Fiske v. Briggs, 6 R. I. 557; Callaway v. Nolley, 31 Mis. 393; Beesley v. Spencer, 25 Ill. 216; Howell v. Howell, 15 Wis. 55; Elliot v. Lochnane, 1 Kansas, 126; Root v. Bradley, Id. 437. It has been held, however, in Arkansas, that the statute of 1844 does not apply to causes of action which had

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; 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 of limitation.2 The result of this awakening sense of the importance of adhering more rigidly to the letter and true meaning of these statutes has been a gradual restoration of the more guarded and rational construction which for a period uninterruptedly succeeded the act of limitations of 21 James I. The views generally, indeed invariably, entertained by our State courts of the present day, it will be seen in the

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 in Missouri, Ohio, and California. Ridgley v. Steamboat Reindeer, 27 Mis. (6 Jones,) 442; McKenney v. McKenney, 8 Ohio, (N. s.) 423; Scarborough v. Dugan, 10 Cal. 305. 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; Paddelford 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 upon pre-existing 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; Right v. Martin, 11 Ind. 124; Sprecker v. Wakely, 11 Wis. 432; Hill v. Kricke, Id. 442; Baldro v. Tolmie, 1 Oregon, 176; Garfield v. Bemis, 2 Allen, (Mass.) 445. Nor take away rights acquired by possession. Knox v. Cleveland, 13 Wis. 245. If, however, the cause of action be not already barred, the statute extending the time will apply. Winston v. McCormick, 1 Smith, (Ind.) 8; Chandler v. Chandler, 21 Ark. 95. 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., 3 Gill & Johns. (Md.) R. 394.

2 Ibid.

reports, are responsive to those expressed as long since as the year 1812, by Mr. Justice Livingston, of the Supreme Court of the United States." "The court disclaims all right or inclination to put on statutes of limitation, which are found to be among the most beneficial to be found in our books, any other construction than their words import. It is as much a duty to give effect to laws of this description, with which courts, however, sometimes take great liberties, as to any other which the legislature may be disposed to pass. When the will of the legislature is clearly expressed, it ought to be followed, without regard to consequences; and a construction derived from a consideration of its reason and spirit should never be resorted to but where the expressions are so ambiguous as to render such mode of interpretation unavoidable." "A statute of limitations," says Mr. Justice Story, "instead of being viewed in an unfavorable light as an unjust and discreditable defence, should have received such support from courts of justice as would have made it, what it was intended emphatically to be, a statute of repose." 2 Mr. Justice M'Lean, in giving the opinion of the Supreme Court of the United States, in 1830, says: "Of late years, the courts in England and in this country have considered statutes of limitations more favorably than formerly. They rest upon sound policy, and tend to the peace and welfare of society. The courts do not now, unless compelled by the force of former decisions, give a strained construction, to evade the effect of those statutes." 8

1 Fisher v. Harnden, Paine, (Cir. Co.) R. 61.

2 Bell v. Morrison, 1 Peters, (U. S.) R. 360.

8 M'Cluny v. Silliman, 3 Peters, (U. S.) R. 270. See also Richmond v. Maryland Ins. Co. 8 Cranch, (U. S.) R. 84; Beatty v. Burnes, Id. 98; Bradstreet v. Huntington, 5 Peters, (U. S.) R. 407. As to the corresponding views entertained by the State courts, see post, chap. on New Promises and Acknowledgments. There is a perfect coincidence between the views expressed by courts, both American and English, at the present day, and those expressed by Sir Orlando Bridgman, "one of the most eminent lawyers about the period of the Restoration." In Benyon v. Evelyn, Orl. Bridgman's Judgments, 363 (Anno 1664), he says, in referenee to the limitation of actions: "It is better to suffer a particular mischief than a general inconvenience; and such a one must happen if way be given to equitable constructions against the letter of the act, which is that they shall be sued within six years after the cause of action. But it rests not there, but adds, 'and not after,' which negative words are the strongest that can be in law." Wilk. on Lim. 52. The volume of Bridgman's Reports was printed from the MSS. of Mr. Hargrave, and first appeared in 1823. They embrace the period between 1660 and 1667. Mr. Fonblanque speaks of these reports, of which Mr. Hargrave had lent him the MSS., as far exceeding Carter's in copiousness, depth, and correctness. 2 Treat. on Eq. 172, n. See "Reporter's Chron. Arranged," by Wallace, p. 41: Philadelphia, 1845. [Phillips

24. Under the thirty-fourth section of the Judiciary Act of 1789, the acts of limitations of the several States, where no special provision has been made by Congress, form a rule of decision in.the courts of the United States; and the same effect is given to them as is given in the State courts.1 In accordance, besides, to a steady course of decisions for many years, the Federal judiciary feel it an incumbent duty carefully to examine and ascertain if there be a settled construction by the State courts of the statutes of the respective States, where they are exclusively in force; and to abide by and follow such construction, when found to be settled.2 There is no unwritten or common law of the Union. The rule of action is found in the different States, as it may have been adopted and modified by legislation and a course of judicial decisions. The rule of decision must be found in the local law, written or unwritten.3

v. Pope, 10 B. Mon. (Ken.) 163; Dickinson v. McCanney, 5 Geo. 486; Elder v. Bradley, 2 Sneed, (Tenn.) 247; McCarthy v. White, 21 Cal. 495. And see also Bodell v. Janney, § 194, note.]

1 M'Cluny v. Silliman, 3 Peters, (U. S.) R. 270.

2 Bank of United States v. Daniels, 12 Peters, (U. S.) R. 32. See also Woodworth v. Spalford, 2 McLean, (Cir. Co.) R. 168; Jasper v. Potter, Id. 579. "We are bound," says Mr. Justice Catron, in giving the opinion of the Supreme Court of the United States, "to conform to the decisions of the State courts of New York, in the construction of their acts of limitation." Harpending v. Dutch Church, 16 Peters, (U. S.) R. 455; [Porterfield v. Clark, 2 How. (U. S.) 76.]

Per Mr. Justice McLean, in Lorman v. Clark, 2 McLean, (Cir. Co.) R. 572.

CHAPTER III.

LIMITATIONS OF SUITS IN EQUITY.

25. IT requires but a partial familiarity with the rules and practice of a court of equity to be aware that laches and neglect have been invariably and decidedly discountenanced in that court; and that it was so from the commencement of its jurisdiction, and before any positive act of the legislature for the limitation of actions at law was promulgated. From the period when proceedings at law were subject to particular limitations, courts of chancery have, with striking uniformity, applied it in similar cases within the sphere of their jurisdiction.1 Sir Thomas Plummer, Master of the Rolls, after reviewing the cases in which lapse of time had been considered a bar in those courts, stated the effect of them to be, first, that they have ever, upon general principles of their own, even when there was no analogous statutable bar, refused relief to stale demands, where the party had slept upon his right; and secondly, that, after a bar has been fixed by statute to the legal remedy, the remedy in a court of equity has, in analogous cases, been confined to the same period. He then stated it to be clear, that, had the claim in question before him been the claim of a legal estate in a court of law, the remedy would have been barred by the statute of limitations; and it was therefore clear that, being an equitable claim, the remedy was equally barred in a court of equity.2

1 See Smith v. Clay, 3 Bro. Ch. R. 630; Bond v. Hopkins, 1 Sch. & Lefr. R. 413; Beckford v. Wade, 17 Ves. R. 96; Cholmondeley v. Clinton, 2 Jac. & Walk. Ch. R. 1; Kane v. Bloodgood, 7 Johns. (N. Y.) Ch. R. 90.

2 Cholmondeley v. Clinton, supra; [Bowman v. Wathen, 1 How. (U. S.) 189; Chapman v. Butler, 22 Me. 19; Phillips v. Rogers, 12 Met. (Mass.) 405. But when the court perceives that the party complaining has equitable rights, and that the remedy at law might have proved insufficient, or for other good reasons, it will not refuse relief although the claim has been outstanding for a long time. Ibid.; Mason v. Crosby, 1 Daveis, (U. S.) 303; Lunn v. Johnson, 3 Ired. (N. C.) Ch. 70. And see also Bancroft v. Andrews, 6 Cush. (Mass.) 493; Kimball v. Ives, 17 Vt. 430; s. c. 8 Law Rep. 265. On the other hand, even where claims are not barred by the statute of limitations, a court of equity will refuse to interfere after a considerable lapse of time, from consid