amended bill making new parties has no relation to the commencement of the suit, for the purposes of the statute, and the statute will avail them at the period when they are made defendants. Until the defendants are made parties to the bill, the suit cannot be considered as having been commenced against them. It would, say the Supreme Court of the United States, " be a novel and unjust principle to make the defendants responsible for a proceeding of which they had no notice, and when a final decree in the case could not have prejudiced their rights." 1

331. But a bill filed by one creditor, as plaintiff, in behalf of himself and others, will prevent the statute from running against any of the creditors, who came in under the decree. Every creditor has, after the filing of a bill, an inchoate interest in the suit, to the extent of its being considered as a demand, and to prevent his being shut out, because the plaintiff has not obtained a decree within the six years.2

332. In Stafford v. Bryan,3 in the New York Court of Chancery, the suit was not commenced until nearly eight years after the acknowledgment and promise; and although the complainant commenced two suits in the Supreme Court in the mean time, one of which was discontinued, and in the other he was nonsuited because he could not then prove sufficient to take the case out of the statute, it was held by the chancellor that neither of those suits could avail anything.

1 Miller v. M'Intyre, 6 Peters, (U. S.) R. 61. [If during the pendency of a suit in chancery, any new matter or claim is set up by the complainant, the defendant may insist upon the benefit of the statute until the time when the new claim is presented. Dudley v. Price, 10 B. Mon. (Ky.) 84. Even though founded upon papers previously made exhibits in the case. Christmas v. Mitchell, 3 Ired. (N. C.) Ch. 535.]

2 Sterndale v. Hankinson, 1 Simon, Ch. R. 393; and 2 Con. Eng. Ch. R. 197.

3 Stafford v. Bryan, 1 Paige, (N. Y.) Ch. R. 239.

CHAPTER XXIX.

OF REAL PROPERTY AND THE LIMITATION OF REAL ACTIONS.

333. No code or system of jurisprudence has ever prescribed a title to property in land, which more evidently foreshows a highly civilized condition of society than that established by the municipal law throughout this country. The possession of the landowner by the local law of every State is, at least to every intent and purpose, as near to being allodial as was that of the Roman landholder under the jurisprudence of Justinian. All understand that the term "allodial" is used to denote property in land absque aliquo inde reddendo, or of undivided dominion; and that it is thus essentially distinguishable from the term tenure, which is significant of an estate retained by a superior.1 The peculiar qualities of allodial land are alienation at the will of the owner, availableness as security for the performance of private contracts, liability to be taken and sold by creditors in extinguishment of their claims against dishonest, contumacious, or bankrupt debtors, and in short, fitness to meet both the natural wants of individuals, and the exigencies of society.2 Between these concomitants of land-title, and those of the land-title introduced into Southern and Western Europe by the barbarians of the North, who subverted the empire of Rome, there was nothing consentaneous. The latter were those of dependency, vassalage, and prohibition. The right of the feudal possessor, of whatever grade, consisted alone in the usufruct, or profits yielded by the land, either in a state of nature, or under a state of rude and immethodical cultivation. The superior right, the jus proprietatis, or (according to the expression used by the early English lawyers) the feudum dominans, or (according to that used by modern lawyers) the fee, remained in the lord, or principal military conqueror, from whom the limited and incum

1 The Roman land-owner did not hold of any superior. This possession was perfectly allodial, and wholly independent; and tenures were equally strangers to the English before the feudal policy was introduced. 1 Brown's Civil Law, Ch. III. 23 Kent's Com. 497.

bered right was in the outset derived. Such a project of the law of landed property formed by degrees, after the Norman conquest, an anomalous complexedness in the English law in respect both to titles to possession of, and property in, land, and the judicial methods of enforcing them. The existence of the latter, after having been lingeringly prolonged in the country of their nativity, for a very considerable period, has, within a few years, received a decisive and fatal blow. And yet (the fact is strange, if not incomprehensible) those relics of a barbarous age still give a feudal aspect to the otherwise sightly and striking fabric of American jurisprudence. No lawyer, it is presumed, is disposed to detract from the intrinsic merit discoverable in the piles of learning which have accumulated upon the feudal constitution, or will cease to admire the dignity and proportion, under which attractive qualities it has been exhibited by the illuminations of Fearne, Hargrave, Blackstone, and other fixed and inextinguishable "gladsome lights" in English jurisprudence. But (and more especially is it so in our country) new social exigencies, different interests, and an entire revolution in public sentiment, it is to be supposed, would render a continued adherence to judicial forms, proceeding from such a source, offensive, as well as incongruous and disadvantageous. Certainly, an overweening respect for them, in those whose condition enables them to exert control or influence over legislation, conflicts with the obvious maxims of prudential civil administration, and is not justified, even by the policy (social necessity) upon which the ancient feudal framework itself was reared upon the dispersed fragments of Roman civilization.

334. Without stopping to inquire, how it was originally with the Saxon government and civil policy in England, it is not questioned that the feudal system, in the rigid, military form, characteristic of Normandy, was, in less than a quarter of a century from the conquest, firmly established throughout England, after the example of the French, who had before, but more gradually, surrendered all their allodial lands into the hands of the king, who returned them to the owners as a beneficium or feud. Hence, the maxim of the Anglo-Norman law, that the king is the lord paramount and supreme proprietor of all the lands in the kingdom, and is not bound by services to any superior.2 But, al1 See Inman v. Barnes, 2 Gallis. (Cir. Co.) R. 313; Barnet v. Ihrie, 17 Serg. & Rawle, (Penn.) R. 174.

2 The king, however, cannot grant an allodial title, or grant land to which the reser

though such has ever been acknowledged as the fundamental principle of the English law of real property ever since the conquest, it has now become more of a fiction than a positive inconvenience; so that real estates are now held in England by a title free and unconditional, and essentially allodial. It was not, however, until the abolition of military tenures, in the reign of Charles II., that the feudal relation of lord and tenant entirely ceased to exist; and, consequently, the reported causes in the courts, from the Year Books (which are redundant with writs and pleadings in real actions) down to the period of the Restoration, are, to the student, more curious as historic memorials (like cumbersome ancient armor) than in fact useful. Among the reasons which have been assigned, by the learned and venerable commentator on American law, why a very large proportion of the matter contained in the old reporters, prior to the English revolution, is now "cast into the shade," is the disuse of the subtleties of special pleading and of real actions.1

335. Rules and maxims of the law of real property in England, which were once suitable and rational, have been appealed to and maintained, since the Restoration, to an extent beyond what is justified by the modern state of society, and the changes in the modifications of property. Many abuses have been corrected, and many improvements have been introduced by the judges. Statutes. have also been passed on the spur of the occasion, yet with but slight regard to harmony. In the time of the Commonwealth, a commission was appointed to consider of legal reforms, over which Sir Matthew Hale presided, and of which several other very eminent lawyers were members; but their labors were frustrated by the disordered state of the times: so that, from the reign of Edward I. till the issuing of the commission in the ninth year of the reign of George IV., there has been no general revision of the English law. The incidents of military tenure thus continued to vation of tenure is not annexed, even by the express words of absque aliquo inde reddendo. Wright on Tenures.

11 Kent, Comm. 487. "There is such a mass of intricate and obsolete law in all the old reporters, including even Plowden, Coke, and Saunders, as renders it eminently unadvisable for the student to attempt a continuous perusal of them." Warren's Law Stud. 840. "There is something proverbially repulsive in the form and structure of our early reports; which, to say nothing of their dreary black-letter, Norman French, dog Latin, are stuffed with all manner of obscure and ridiculous pedantries, scholastic as well as logical, involving the simplest points in endless circumlocutions and useless subtleties." Ibid.

be referred to in judicial argument, although long before abolished, and the manifest intention of parties to a deed continued liable to be defeated, because it was supposed, in law, that there must always be a tenant seized of the freehold to attend the lord's court, and to defend any real action that might be brought by an adverse claimant. Thus, too, much perplexity and confusion have been occasioned by the entire want of system in the various periods of limitation, and the incongruous variety of remedies allowed for the recovery of real property.1

336. The time at length arrived when the astounding number of real actions, and actions pertaining to the realty, enrolled in the annals of English jurisprudence, with the exception of a petty remnant, was, at a single blow, annihilated. Not longer since than the reign of William IV. (by the statute of 3 and 4 Will. IV. c. 27), all real and mixed actions, with the exception of the writ of right of dower, or the writ of dower, unde nihil habet, quare impedit,2 and ejectment, were utterly abolished; and, by the same statute, the right and title of the real owner of land are extinguished, and in effect transferred to the person whose possession is a bar to the remedy, at the end of twenty years, under the statute of 21 James I. c. 16.4 Thus, in the congratulatory language, and somewhat rapturous mode of expression, of a late English author, "The 'blessed amending hand,' to adopt the language of the famous Edmund Plowden, has grasped, as it were, the very heart-strings of the law. The statute for the limitations of actions, &c. (3 and 4 Will. IV. c. 27, s. 36), has swept away - shade of Fitzherbert! - indiscriminately, between fifty and sixty species of actions a most fertile source of difficulty and confusion to the reader of our ancient laws, leaving only six, or, at the most, nine (including the three real and mixed) forms of action now known or used in the common law." 5

1 Report of Real Property Commissioners.

2 The action of quare impedit is brought by a person complaining that he has been improperly deprived of ecclesiastical patronage, - an action now of rare occurrence in England, there having been but seven cases in which it was brought for the last fourteen years. Warren's Law Studies, 262.

3 See ante, pp. 12, 13, 14. And section xxxvi. of the statute referred to, in Appendix, p. xiv.

See ante, § 5. And section xxxiv. of the statute referred to, in Appendix, p. xiv. ; and Incorporated Society v. Richards, 1 Dru. & Warr. Ch. R. 258.

5 Warren's Law Studies, 24. "We will conclude," says Lord Coke, in closing his Institutes, "with the aphorism of that lawyer and sage of the law (which we have heard