Maryland. On the same day a patent issued from the land-office to Charles Beatty for the land described in said certificate, which land is within the limits of the city of Washington, and was taken up by Beatty as a vacancy; but Beatty never had actual possession thereof, nor ever claimed to make division thereof with the city commissioners as an original proprietor pursuant to the statute of Maryland, 1791, chapter 45. In fact, the same land had been held and claimed by David Burnes, in his own right, for more than five years before the passing of the statute aforesaid, as included in the lines of a grant made as early as 1720. The plaintiff offered evidence, however, that the land included in Beatty's patent was without the lines of the land to which Burnes was, under his grant, really entitled, and that it was vacant land of the state of Maryland. The warrant under which Beatty's patent was obtained was, before the location, within the limits of Washington, in part located upon and applied to other lands of the state of Maryland, not within the said city, or the county in which it was situate while belonging to Maryland. Burnes in his life-time, and before the statute of 1791, chapter 45, made a conveyance of the land in controversy, as an original proprietor, to certain trustees for the purposes named in that statute, and received of the city commissioners, on account of parts of the same land appropriated to city purposes, the sum of $7,343.82, in various sums, paid between October, 1792, and June, 1796; and also received $1,000 on account of other parts of said land, which he sold and conveyed to individuals. Burnes died in May, 1799, and administration of his estate was granted in Prince George's county, in the same year, to his widow, who died in January, 1807. In April, 1803, administration of his estate was granted to the defendant by the orphans' court of Washington county, in the District of Columbia. Beatty died some time before May, 1805, and in that month administration of his estate was granted to the plaintiffs. The present action is brought to recover the money so received by Burnes, upon the ground that it was the proceeds of the sale and disposition of land included in Beatty's patent. No demand or claim was ever made by Beatty on Burnes, or his administrators, in his life-time, for the same money, although both parties, from the year 1791, until their respective deaths, lived within the limits of the District of Columbia, and within two miles of each other - nor did the plaintiffs ever make any demand or claim upon the defendant until February, 1810. Under these circumstances, the court below were of opinion that the plaintiff could not sustain the action, and upon that direction the jury found a verdict for the defendant.

It is contended by the plaintiffs in error that the direction of the circuit. court was erroneous. 1. Because the plaintiff's intestate had a good and valid title to the land surveyed under his patent, and was therefore entitled, under the fifth section of the Maryland statute of 1791, to the money received by the defendant's intestate therefor. 2. That this right was not barred by the statute of limitations.

In support of the first point the plaintiffs contend that the land belonging to the state did not, by the cession of the territorial jurisdiction under the statute of 1791, pass to the United States, and was consequently liable to be appropriated by individuals under warrants pursuant to the laws of Maryland. That until 1801 the jurisdiction of Maryland continued over the whole ceded territory, and titles, therefore, might legally be acquired therein according to the public laws; and the patent of Beatty, being obtained in pursuance of those laws, gave him a complete and valid title.

On the other hand, the defendant denies each of these positions, and further contends that the plaintiffs are without the purview of the fifth section of the act of 1791, because that section extends only to titles then existing, and Beatty's title did not commence until April, 1792.

It is not necessary to consider the correctness of the positions urged by the respective parties as to this point, because we are of opinion that the case may well be decided upon the second point.

§ 1162. Action for money had and received is within the statute of limitations of Maryland.

The action for money had and received is clearly embraced by the statute of limitations, and it is incumbent upon the plaintiffs to show that the present case forms an exception to its operation.

It is contended that the present suit, being a statute remedy, is not within the purview of the statute of limitations. But we know of no difference in this particular between a common law and statute right. Each must be pursued according to the general rule of law, unless a different rule be prescribed by statute; and where the remedy is limited to a particular form of action, all the general incidents of that action must attach upon it. Upon any other construction it would follow that the case would be without any limitation at all; for it would be quite impossible, upon any acknowledged principles, when a right had assumed the shape of a claim in personam, to attach to it a limitation which exclusively applied to the reality. Now the statute of limitations has been emphatically declared a statute of repose, and we should not feel at liberty to break in upon its general construction by allowing an exception which has not acquired the complete sanction of authority.

It is further contended that, by the operation of the act of 1791, chapter 45, Burnes must be considered as a mere trustee of Beatty, and trusts are not within the statute of limitations. We are of a different opinion. The land in controversy was claimed by Burnes in his own right, and adversely to the plaintiff's intestate. The money was received by him for his own use and in his own right as an original proprietor. He never admitted or acknowledged the title of the plaintiff, and no claim or demand was ever made upon him in his life-time. So far, then, from being received in trust, it was expressly received under a peremptory denial of any trust or right in the opposite party. Nor was the statute meant to make the adverse possessor without title a trustee for the party having title. It only substituted the action of assumpsit for the ordinary legal remedy by ejectment, and the adverse possessor of the land could no more be deemed a trustee of the money than he could be deemed a trustee of the land itself, for the benefit of the rightful owner, against whom he held by an adverse title.

The court are, therefore, of opinion that the statute of limitations is a good bar, and, therefore, that the judgment must be affirmed.

§ 1163. When an action is deemed commenced.—Where, by its charter, a corporation is given a summary method of collecting debts by the issuing of an execution, without having an action commenced by the service of process and the prosecution of the suit to judgment, the action is deemed commenced when the execution is issued. So held where the charter of a bank authorized the clerk of the general court or county to issue an execution against the debtor of the bank upon proof by affidavit of certain officers of the bank of a demand and nonpayment. Bank of Columbia v. Sweeney,* 2 Pet., 671; Bank of Columbia v. Sweeney,* 2 Cr. C. C., 704.

§ 1164. Application of particular statutes.- The act of congress of 1825 (4 Stat. at Large, 102), which exonerates sureties after two years, does not apply to a case where a running ac

count is kept at the post office department between the United States and a postmaster, in which all postages are charged to him and credit is given for all payments made, the balance due from the postmaster being thrown on the last quarter. Jones v. United States, 7 How., 681. § 1165. The thirty-fourth section of the judiciary act only embraces property laws, and laws concerning personal rights, and not mere forms of procedure. Read v. Miller, 2 Biss., 14. § 1166. The act of Virginia of 1792, to regulate proceedings on judgments, is substantially and technically a limitation on judgments. Ross v. Duval, 13 Pet., 45.

1167. The Kentucky act of 1809 extended to the lands west of Tennessee river, together with all other laws of the state, as soon as the restrictions of the Indian treaties were removed, and extended there before that subject to the restriction of said treaties. Porterfield v. Clark, 2 How., 76.

§ 1168. The statute of limitations of Indiana allows the defendant to plead the statute of his residence at the time his liability is incurred. So held in an action brought in Indiana against an obligor on an administrator's bond given in Maryland, defendant's former place of residence,

to which he pleaded the statute of Maryland. Maryland ex rel. v. Todd,* 1 Biss., 69.

§ 1169. Corporations.- A foreign corporation has no rights in Nevada to the benefit of the statute of limitations. Mining Co. v. Taylor, 10 Otto, 37.

§ 1170. A religious corporation can plead the statute of limitations in New York. So held in an action in New York to recover certain lands to which the defendant, a corporation, set up the statute. Harpending v. Dutch Church, 16 Pet., 455 (§§ 57–64).

§ 1171. A foreign corporation cannot plead the statute of limitations in an action commenced in New York. So held in an action brought by a New York corporation in New York against a Pennsylvania corporation, which operated a railroad within New York. Tioga R. R. Co. v. Blossburg, etc., R. Co.,* 20 Wall., 137, affirming Blossburg R. Co. v. Tioga R. Co.,* 5 Blatch., 387.

$1172. The Virginia statute of limitations bars the action whatever may be the character or condition of the plaintiff, unless it comes within one of the exceptions. The Bank of the United States being a party to a contract made at Richmond, acting by its agents who resided there, at a banking house established by it there, and that being the place of performance, is not a non-resident within the meaning of the exception. So held in an action brought by the Bank of the United States on a note indorsed by defendant. The note was discounted at a branch bank at Richmond and was there protested for non-payment in December, 1821. The action was commenced in 1828. The Virginia statute of limitations barred the action after five years, but excepted from its effects persons beyond seas and out of the country. The bank's main office was in Pennsylvania. Judgment was given for defendant. Bank of the United States v. McKenzie,* 2 Marsh., 393.

§ 1173. Limitation by contract.- A limitation prescribed by contract is not to be construed like that prescribed by statute. Semmes v. Hartford Ins. Co., 13 Wall., 158.

§ 1174. The limitation of a right to sue by contract is extinguished by a disability which deprives the party of power to bring an action within the time limited. Such limitation does not become operative upon the removal of the disability. Semmes v. Hartford Ins. Co., 13 Wall., 161.

§ 1175. A condition contained in a policy of insurance, that no suit or action of any kind against the company shall be sustained under the policy, unless the action be commenced within twelve months after the loss shall occur, and in case an action shall be commenced after that time, the lapse of time shall be conclusive evidence against the validity of the claim, is valid, and the courts will not sustain suits brought after the limitation accrues. Riddlesbarger v. Hartford Ins. Co., 7 Wall., 386.

§ 1176. Where a policy of insurance provided that no action should be sustained against the insurer founded thereon, unless brought within twelve months after the cause of action should accrue, and that the lapse of time, in case of such suit. should be deemed conclusive evidence against the validity of the claim set up, held, that a plea setting up such provision and the lapse of the time specified, in bar of an action on the policy, was a conclusive answer to the suit. The right to indemnity in case of loss, and the liability of the insurer therefor, do not, under such a provision, become absolute unless the remedy is sought within the period limited. The stipulation goes to the right as well as the remedy. Cray v. Hartford Fire Ins. Co., 1 Blatch., 280.

§ 1177. Presumption - Abandonment.- Payment and improvement of the property rebuts any presumption of abandonment arising from lapse of time. Piatt v. McCullough, 1 McL., 69.

§ 1178. Presumption of payment.- After the lapse of twenty years a presumption of payment may arise, and, under peculiar circumstances, even a shorter period will be sufficient. This presumption may be rebutted by circumstances excusing the making of a demand or the institution of a suit. The jury was so charged in an action on a promissory note which had

been due about twenty years. To rebut this presumption it was shown that defendant had lived under embarrassed circumstances, but his insolvency, or a demand either upon him or any other promisor, was not shown. A motion for a new trial made by plaintiff was refused. Denniston v. McKeen,* 2 McL., 253. § 1179. At common law a lapse of sixteen years raises a prima facie presumption of payment; after twenty years the presumption is conclusive. Didlake v. Robb, 1 Woods, 682.

§ 1180. Payment of a bond will not be presumed from lapse of time short of a period of twenty years. Cottle v. Payne,* 3 Day (Conn.), 289.

§ 1181. In an action on a bond payable in instalments the jury may infer payment of an instalment which is past due nineteen years and ten months, and ought to presume payment of one past due twenty years. Miller v. Evans,* 2 Cr. C. C., 72.

§ 1182. Lapse of time will authorize presumption of payment of a bond, notwithstanding the indorsement of a payment by the obligee, if such indorsement was not made with the privity of the obligor. Kirkpatrick v. Langphier,* 1 Cr. C. C., 85.

§ 1183. The lapse of twenty years creates a presumption of payment, if no interest has been paid in the meantime. If a shorter period is relied upon, the presumption should be fortified by circumstances. Goldhawk v. Duane,* 2 Wash., 323.

§ 1184. The effect of lapse of time upon a judgment is the presumption of payment, to dispel which facts must be shown which will be sufficient to warrant the court in laying the matter before the jury for their decision. Morris' Estate, Crabbe, 70.

§ 1185. The bar of the statute of limitations is founded upon presumption of payment, not a presumption of fact, but a conclusive presumption of law. In re Kingsley, 1 Low., 216.

§ 1186. Bankruptcy.- Courts of bankruptcy, like courts of equity, recognize statutes of limitations. In re Eldridge, 2 Hughes, 256.

$1187. Judgments. The act of limitations of Virginia of the 19th of December, 1792, page 107, is not a bar to a judgment, if execution has been issued thereon, and returned within ten years after the date of the judgment. Irwin v. Henderson, 2 Cr. C. C., 167.

§ 1188. National banks.- Under section 30 of the national bank act, approved June 3, 1864, providing that in case a greater than the specified rates of interest has been paid, the person paying the same may recover back twice the amount thus paid if action be commenced within two years from the time the usurious transaction occurred; no usurious interest paid more than two years prior to the commencement of the suit can be recovered, nor can it be credited on the principal of the note. National Bank of Madison v. Davis, 8 Biss., 100.

§ 1189. Miscellaneous.- No cognizance taken of tacit liens, when the circumstances raise a presumption that the lien was waived. Lapse of time alone will not make a demand stale. The Buckeye State, Newb., 111.

§ 1190. Where a testatrix gave her executors certain powers over real estate, and the only one qualifying died, and an administrator was appointed, and a judgment was obtained against the administrator, and a proceeding was brought to enforce the same, to which the administrator pleaded the statute of limitations, it was held that, as in Maryland an administrator did not succeed to the powers of the executors over realty, the plea interposed by him could not avail those who represented the real estate. Ingle v. Jones, 9 Wall., 486.

§ 1191. The statute of limitations cannot be set up as a defense to an action by the reclamation district to enforce the collection of the assessments. Reclamation District v. Hagar, 6 Saw., 567.

§ 1192. The plea of the statute of limitations to a bill in equity having been overruled and a demurrer to a bill of revivor having been allowed, held, on motion to amend the bill, that the judgment of the court on the plea of the statute previously filed by the defendants was conclusive on the parties who pleaded it, and their privies; that they could not again set up the same matter as a bar, though it might be done by new parties (not privies to the parties who made the plea) to the original, the supplemental or bill of revival, but that the staleness of the demand was no objection to the amendment of the bill. Fisher v. Rutherford, Bald., 188. § 1193. In allowing claims against a trust fund as between contending creditors, a claim upon a judgment of more than twelve years' standing must be rejected without the statute of limitations having been pleaded, as there was no time when the debtor or his administrator could plead it. Farmers' & Mechanics' Bank v. Melvin, 2 Cr. C. C., 614.

§ 1194. A register of the treasury of the United States is entitled to a reasonable compensation as agent for disbursing the money appropriated for the contingent expenses of the treasury department, library of congress and other appropriations for public purposes, although at the same time he discharges the duties and receives the pay of register of the treasury, and such compensation is not barred by the statute of limitations. United States v. Nourse, 4 Cr. C. C., 151.

§ 1195. The governor and judges in the first stages of the territorial government of Michigan had power to adopt the laws of the respective states, but had no legislative authority. A

law adopted from Vermont in 1820 was adopted in the statute of limitations, in which the word "or" was used instead of the word "and," giving the benefit of the statute to a person beyond the limits of the state, whereas the Vermont statute required the person not only to be beyond the limits of the state, but of the United States. In 1825 a commission was appointed to revise the laws, and was authorized to alter or report new bills, etc. The report of the commission included the law in question, with others, and in 1827 all the laws in force were published by authority, there being no alteration in this act. There was another revision of the laws in 1833, which was again published by authority, making no alteration in this act. Held, that, under the circumstances, the court could not look back to the law of Vermont to correct any error on the first adoption of the law. Peck v. Pease, 5 McL., 486.

§ 1196. The twenty-second section of the original judicial act (act of 1789), limiting the period within which writs of error may be brought to five years after the rendition of the judgment or decree complained of, applies only to writs of error in law and does not extend to writs of error coram nobis. Strode v. The Stafford Justices, 1 Marsh., 162.

§ 1197. The act of New York entitled "An act limiting the period of bringing claims and prosecutions against forfeited estates," was not intended to bar those against whom the forfeiture had passed, but to bar the claims of strangers to the forfeiture, whose lands might have been sold by the commissioners under the supposition that they belonged to another whose estate had been forfeited. Fisher v. Harnden, 1 Paine, 55.

§ 1198. In an action on the case for fraudulent representations, tried before the court without a jury, held, that the fact that the action was brought two days only before the statute of limitations would have barred the suit was not per se an objection to the suit, but that it must operate in point of evidence upon the case, as lapse of time necessarily renders all testimony more obscure and less easy of precise ascertainment, from the frailness of memory, from subsequent changes of opinion, or from other circumstances. Sanborn v. Stetson, 2 Story, 481. § 1199. In a suit against executors, a paid legatee is not an incompetent witness by reason of interest, where payment has been made by the creditor voluntarily, with knowledge of the claim sued upon, and without a refunding bond, especially when a sufficient length of time has elapsed since the death of the testator to bar any suit against such legatee by creditors of the testator in case his legacy was improperly paid. Wilcox v. Phillips, 1 Wall. Jr., 47.

§ 1200. The act of Pennsylvania of March 25, 1813 (6 Smith's Laws, 61), merely repeals the act of March 11, 1800 (3 Smith, 421), which repealed the act of limitations of 1785, after two years from the date of the former act, except as to those who should bring their actions within the two years; and as to these, the act of 1800 continues in force. Fellows v. Pedrick, 4 Wash., 477.

LIQUIDATED DAMAGES.
See CONTRACTS, X, 2.

LIQUORS.

[See CONSTITUTION AND LAWS; CRIMES; INDIANS. As to Internal Revenue Laws, see REVENUE.]

§ 1. A license by the federal government to engage in the sale of intoxicating liquors is no bar to an indictment in a state court under a state law prohibiting the sale of such liquors. Pervear v. The Commonwealth, 5 Wall., 475.

§ 2. A person holding a license, granted by the United States, to engage in the wholesale liquor business in a particular state, is not empowered thereby to carry on such business in that state, if the laws of such state forbid the carrying on of such business within its borders. McGuire v. The Commonwealth, 3 Wall., 387.

§ 3. Sale on credit. The sixth and seventh sections of the statute of Michigan to regulate taverns, approved 23d of April, 1833, provided that "if any tavern-keeper shall trust any person other than travelers, above the sum of $1.25, for any sort of spirituous liquors, he shall

lose every such debt," and made void any note or security for the same. Held, that after the repeal of the law, such prohibited charges, made while it was in force, might be sued for and recovered. Bird v. Fake,* 1 Burn. (Wis.), 131.

§ 4. The act of the assembly of Virginia, December 26, 1792, section 13, which prevents a tavern-keeper from recovering more than $5 for liquors sold in one year, to one person residing less than twenty miles from such tavern, to be drank in the place where the tavern is kept, applies to boarders, unless such boarders have families or domiciles more than twenty miles from the place where the liquor was sold. Koones v. Thomee, 1 Cr. C. C., 290.