are tortiously taken, the statute will run from the taking, for that, in such a case, is the time of the conversion. Thus, where goods were taken on an execution, which was afterwards set aside for irregularity, an action of trover was brought, and the defendant pleaded the statute of limitations; it was held, that the execution being irregular, was a nullity, and that the time when the statute began to operate was from the first taking of the goods, and not from the time when the execution was set aside.1 So an unlawful disposition of property, rightfully in possession, being a conversion, the statute will run from such unlawful act.2 And the statute is also a bar to an action of trover commenced more than six years after the conversion, although the plaintiff did not know of the conversion, until within that period; the defendant not having practised any fraud, in order to prevent the plaintiff from obtaining that knowledge at an earlier period.3 305. Actions of replevin must be commenced and sued within the time prescribed by the statute, after the cause of action accrued, that is, after the unlawful possession of the goods. But the owner of goods is not barred by the statute of limitations, where they are held by another person, with the owner's permission.* Where property replevied was loaned to the defendant by the plaintiff, and held and used by him under and in virtue of such loan the one case it acts on the title, and, when the bar is perfect, transfers it to the adverse possessor, whilst in the other there is no such thing as an adverse possession, but the statute simply affects the remedy and not the debt. Jones v. Jones, 18 Ala. 248.] 1 Read v. Markle, 3 Johns. R. 516, and vide Badlam v. Tucker, 1 Pick. (Mass.) R. 397; [Kelsey v. Griswold, 6 Barb. (N. Y.) Sup. Ct. 436; Thomas v. Green, 6 Texas, 372; Same v. Brook, Id. 369.] 2 Dench v. Walker, 14 Mass. R. 499; Melville v. Brown, 15 Mass. R. 82. [Upon the sale of a slave by one who has only a life estate in him, a right of action accrues to the remainder-man. Coffee v. Wilkinson, 1 Met. (Ky.) 101. Where the defendant, in a replevin suit, pays the damages assessed against him, and the slave, the subject of the replevin suit, after the wrongful taking and during the pendency of the suit, is delivered of a child, the right of action for the child accrues at its birth. Houston v. Bibb, 5 Jones, Law, (N. C.) 83.] 8 Granger v. George, 5 Barn. & Cress. R. 149, and vide Short v. M'Carthy, 3 Barn. & Ald. R. 626, and Brown v. Howard, 2 B. & Bing. R. 73; [Johnson v. White, 13 S. & M. (Miss.) 584; Ward v. Dulaney, 23 Miss. (1 Cush.) 410; Jordan v. Thornton, 7 Geo. 517; Smith v. Newby, 13 Miss. 159; Clark v. Marriott, 9 Gill, 331. In an action of trover, an allegation of fraud in the conversion, fraudulently concealed by the defendant, and undiscovered by the plaintiff until a time within four years before the commencement of the suit, is not, in South Carolina, a good replication to a plea of the statute of limitations. Clarke v. Reeder, 1 Speers, (S. C.) 398; Simons v. Fox, 12 Rich. Law, (S. C.) 392; Fears v. Sykes, 35 Miss. (6 George,) 633.] * Ward v. Reeder, 2 Har. & M'Hen. R. 145. for more than the time limited before suit brought, such possession did not sustain the plea of the statute in an action of replevin; the plaintiff having no knowledge of any adverse claim of the defendant.1 306. The action of detinue, which lies against a man for the detention of goods that came to his possession by delivery or finding,2 and which, by the statute of James, must be brought within six years, though in some cases a proper remedy has fallen nearly into desuetude, on account of the wager of law, which, in this form of action, the defendant is allowed to avail himself of.3 The old writ of de rationabili parte bonorum, although concluding in the detinet, has been decided not to be within the statute of James, on the ground that it is an original writ in the register, and different from the common action of detinue.1 307. The statute may be pleaded to trespass quare clausum fregit for mesne profits, and the defendant may, in this manner, protect himself from all but within the time limited for the commence ment of the action.5 By the statute of James, trespass quare clausum, &c., must be brought within six years, and trespass to persons within four years of the trespass committed. But when the trespass to the person has been continued many years (as in the case of false imprisonment), and the statute is pleaded, the jury give damages only for the time within the statute.6 308. Actions for criminal conversation, &c., and beating or imprisoning wives or servants, per quod consortium, vel servitium, amiserunt, though they are within the statute of James, yet it has been a question, whether the limitation be six or four years. In an action by the husband for criminal conversation with his wife, the defendant pleaded not guilty within six years, to which there was a demurrer. The question was, whether the action was tres 1 Callis v. Tolson, 6 Gill & Johns. (Md.) R. 81. [But if the property is sold upon an agreement to pay the price in instalments, the property to remain the vendor's till paid for, the vendee, after six years' possession from the time when the last instalment was due, may plead the statute. Barton v. Dickens, 48 Penn. St. 515.] 2 3 Black. Comm. 152. Sel. N. P. 667; and see ante, Ch. II. § 19. [In detinue for title deeds, the statute does not begin to run until the title to the property has been adjudged to belong to the real owner, as until then the possession is not to be deemed as adverse to such owner. Plant v. Cotterill, 5 Hurl. & Nor. 430.] 4 Arch. Plead. 29. 5 Runnington on Ejectment, 444; [Hill v. Myers, 46 Penn. St. 15.] 63 Mod. R. 111. See ante, § 193. pass and assault, or case. If the former, the plea was bad, because it ought to have been brought within four years; if the latter, it was good. The court held it to be an action on the case. And in another case of the same description, the court seemed to have considered the action as an action on the case; but decided that, had the action been in form trespass, still a plea of "not guilty infra sex annos," not having been specially demurred to, would be good on general demurrer; and it was said by the court, if the defendant take the longer period, and plead "not guilty within six years," and the plea be not specially demurred to, it will be good either way of considering it, for the greater period includes the less.2 A learned writer has considered actions for criminal conversation, &c., as actions upon the case in principle, though he has classed them under the head of actions of trespass. His reasons are, first, that the wrongs complained therein are not direct, but consequential; secondly, that the plaintiff may declare for them by bill with a quod cum, which is not allowed in trespass ; thirdly, that in these actions, the plea of the statute of limitations is "not guilty within six years," and not as in trespass and assault, "within four years"; and lastly, that although the plaintiff should not recover forty shillings damages, he is, nevertheless, entitled to full costs. It will be found, says one of the learned editors of Starkie on Evidence, upon examination of the American cases, on this subject, that no settled form of action is adopted, but that case and trespass are brought indifferently.* 309. As in pleading the statute in actions upon contract, the better mode of pleading is actio non accrevit infra sex annos, for the reason that the plea of non assumpsit, &c., may be insufficient, as the promise may have preceded the cause of action;5 so is the first1 Cook v. Sayer, 2 Wils. R. 85. 2 Macfadzen v. Olivant, 6 East, R. 388. In New Hampshire, in an action for criminal conversation with the plaintiff's wife, the declaration was in the common form, and the question was, whether the action was trespass, which is barred by the statute of that State, if not commenced within three years next after the cause of action, or case, the limitation to which is six years. The court were of opinion that the action was, in effect, an action on the case, and that the plea that the defendant is not guilty within three years before the commencement of the action was not a good bar. Sandborn v. Neilson, 5 N. Hamp. R. 314. 3 Tidd's Practice, 5. Metcalf's Ed. of Starkie on Evidence, vol. iii. p. 1308, n. 1. [When a daughter is seduced, the cause of action accrues, not at the time of the seduction, but when the loss Hancock v. Wilhoite, 1 Duval, (Ky.) 313.] occurs. See preceding chapter. mentioned plea to be preferred to the plea of "not guilty" within six years, in actions upon tort, as the action may be for the consequences of the act originating the tort. Thus, to a declaration in an action on the case founded in tort, a plea of not guilty of the supposed grievances in the declaration mentioned, within six years before the action, was held bad on special demurrer.1 Where the plaintiff complained, in a plea of trespass, for that the defendant, with force of arms, assaulted and seduced the plaintiff's wife, whereby he lost the comfort of her society, &c., against the peace, &c., to his damage, &c.; whether this be trespass or case, the plea of not guilty, infra sex annos, is at any rate good on general demurrer.2 Where words are actionable in themselves, the time is reckoned from the speaking of the words, but where the special damage is the gist of the action, it is not sufficient for the defendant to aver in his plea, that he did not speak the words within six years, because, though that was the fact, the special damage which is the cause of action may have arisen within six years. It is therefore requisite that he should plead, that the cause of action did not accrue within that limitation.3 310. The plea of non cepit infra sex annos, in replevin, will not answer the detainer, and cannot be pleaded. And where the defendant pleaded not guilty, de captione prædicta infra sex annos jam ultimo elapsos; though it was urged, that this was the same as pleading non cepit, that if he did not take, he could not be guilty of the detainer; and that if this way of pleading was not allowed, the statute would, as to this action, be entirely evaded; yet the plea was held ill; for it was said, he ought to have answered to the detainer, as well as to the taking; that there might be a detainer without a taking; and that a thing might be lawfully distrained, although unlawfully kept.5 But these objections would not apply to the plea of actio non accrevit, &c. 1 Dyster v. Battye, 3 Barn. & Ald. R. 448. In an action on the case against an officer for not returning an execution, plea of "not guilty within," &c., instead of actio non accrevit, &c. bad; semble, Fisher v. Pond, 1 Hill, (N. Y.) R. 672. 2 Macfazden v. Olivant, 6 East, R. 387. 31 Starkic on Slander, 473, 474. Com. Dig. Plead. 1 Har. & McHen. (Md.) R. 145. 5 Bacon, Abr. Lim. of Act. CHAPTER XXVIII. JUDICIAL PROCESS. 311. ALL that is positively enacted in statutes of limitation generally, is, that the actions therein mentioned shall be commenced and sued within the time limited. "What act of the party commences the suit" is, therefore, a matter of judicial construction and decision, entirely. Formerly, in England, by the general rule in the court of King's Bench, the Bill of Middlesex, or latitat, was a process sufficient to avoid the statute. The statute, it was considered, did not intend to bar, unless the party had forborne during the time limited; and that if he sued out a latitat within the time for obtaining custody of the defendant, in order that he may declare against him, there is no forbearance on the part of the plaintiff, though, artificially, the bill upon the record is the first step.2 As a latitat was sufficient to suspend the statute in the King's Bench, so a capias was sufficient in the common pleas without suing out an original.3 1 The act of limitation of 32 Hen. VII. computes the prescription from the time run before the teste of the writs therein mentioned. But because that would not be a true criterion of the time of commencing suits, within the provisions of the statute of James, the legislature has in the latter purposely avoided mentioning the teste of writs, the exhibiting of bills, summoning, serving, &c., but leaves to every court to say "what act of the party commences the suit." Per Lord Mansfield, Henderson v. Whitaker, 2 Burr. R. 950. 2 Foster v. Bonner, Cowper, R. 454; Sid. R. 52; Carth. R. 232; 8 Mod. R. 109. 8 Haven v. James, Willes, R. 258; 15 Vin. Abr. 103. By the statute 1 & 2 Vict. § 2, all personal actions must now be commenced by writ of summons. The writ is now the commencement of the action, and as the record mentions the time when the first writ was issued, it seems to be now unnecessary to reply that a writ has been sued out within time, or to produce the writ in evidence. If, however, the plaint were levied in the first instance in an inferior court in proper time, and subsequently removed to the superior court, and to the declaration in the superior court the defendant plead the statute (as the uniformity process act does not in such case apply), the plaintiff should reply and show the proceedings in the inferior court, and the statute will be barred. To save the statute of limitations by issuing a writ, the plaintiff must, since the statute 2 Will. IV., c. 39, § 10, either arrest or serve the defendant, as the case may be, or proceed to or towards outlawry upon the writ, or get it properly returned and entered of record, and continued by other writs; also properly returned, and entered of record, as |