Act of March 8, 1819. R. C. ch. 119. the following fees, viz.: for making a return to the certiorari, the same fee as for a copy of a patent; and for entering the substance of the decree in the margin of the record, twenty-five cents. Act of February 25, 1819-January 1, 1820. R. C. ch. 128. 1. § 1. All writs of formedon in descender, remainder or reverter, of any lands, tenements or hereditaments whatsoever, hereafter to be brought upon any title or cause heretofore accrued, or which may hereafter fall or accrue, shall be sued out within twenty [fifteen, act of 5th February 1831, Ses. Acts 1830-31, c. 30, § 1, p. 98, Sup. R. C. c. 201, p. 261,] years next after such title or cause of action accrued, and not afterwards; and no person or persons who now hath or have, or hereafter may have, any right or title of entry, into any lands, tenements or hereditaments, shall make any entry but within twenty [fifteen, Ibid.] years next after such right or title accrued; and such person shall be barred from any entry afterwards.(1) Oct. 1748, c. 1, 5 Stat. Larg. 415; Dec. 1792, c. 76, R. C.; 21 Jac. 1, c. 16. (1) A court of equity considers an equitable claim to land as barred when the right of entry is lost. Cholmondeley v. Clinton et al. 2 Jacob & Walker, 138; Elmendorf v. Taylor et al. 10 Wheat. 152. Although the statute of limitations does not apply in terms to courts of equity, yet the period of limitation which takes away a right of entry or an action of ejectment, has been held by analogy to bar relief in equity, even where Act of February 25, 1819-January 1, 1820. R. C. ch. 128. 2. § 2. Provided nevertheless, That if any person or persons entitled to such writ or writs, or to such right or title of entry as aforesaid, shall be or were under the age of one and twenty years, feme covert, non compos mentis, [or] imprisoned, (3) at the time such right or title accrued, or came to them,(a) every such person, and his or her heirs, shall and may, notwithstanding the said twenty [fifteen, act of 5th Feb'y 1831,] years are or shall be expired, bring and maintain his action, or make his entry, within ten [five, Ibid.] years next after such disabilities removed, or the death of the person so disabled, and not afterwards. [All writs of formedon in descender, remainder or reverter, of any lands in that part of this commonwealth which lies west of the Alleghany mountains, hereafter to be brought upon any title or cause heretofore accrued, or which may hereafter fall or accrue in that part of this commonwealth, of any lands situated there, shall be sued within seven years next after such title or cause of action accrued, and not afterwards; and that no person or persons who now hath or have, or hereafter may have, any right or title of entry into any lands, shall make an entry but within seven years next after such right or title accrued; and such person or persons shall be barred from any entry afterwards: Provided nevertheless, That if any person or persons entitled to such writ or writs, to such right or title of entry as aforesaid, shall be or were under the age of twenty-one years, feme covert, non compos mentis, or imprisoned, at the time such right or title accrued or came to them, every such person, and his or her heirs, shall and may, notwithstanding the said seven years are or shall be expired, bring and maintain his or her action, or make his or her entry, within three years next after such disabilities removed, or the death of the person so disabled, and not afterwards. Act of March 30, 1837, Ses. Acts 1836-7, c. 8, § 10, p. 11, 12.] 3. 3. In all writs of right and other actions possessory, any person may maintain a writ of right, [or any other possessory action, act of Feb. 5, 1831,] upon the possession or seisin of his [or her] ancestor or predecessor, within [twenty-five years, Ibid.] next before the teste of the writ; but no person shall maintain a real action upon his own possession or seisin, but within [twenty Ibid.] years next before the teste of the writ. March 1661, act 72, 2 Stat. Larg. 97; Aug. 1734, c. 6, 4 Stat. Larg. 402; 1bid. and 32 Hen. 8, c. 2.* Every claimant who asks relief of a court of equity ought to exhibit his claim within a reasonable time, so that in giving him a decree the court may not do injustice to the defendant. Atkinson v. Robinson, 9 Leigh, 393. (3) So much of the act for limitation of actions, &c., as contains any saving whereby persons not within this commonwealth at the time when their right or title to any action or entry accrued, are protected from the operation of any of the provisions of the said act made for the limitation of entries or actions, shall be and the same is hereby repealed; and henceforth such entries shall be made, and such actions brought within the same time, and not thereafter, as if the persons having title thereto had been within the commonwealth when such right or title accrued. Act of March 8, 1826, Ses. Acts 1825-6, c. 23, § 3, p. 24; Sup. R. C. 260. (a) A party who claims the benefit of this proviso (and of those of a like nature) can only avail himself of the disability existing when the right of action first accrued. See Fitzhugh v. Anderson et al. 2 H. & M. 306; Doe, d. George v. Jesson, 6 East, 80; Eager et ux. v. Com. et al. 4 Mass. R. 182; Demarest et ux. v. Wynkoop et al. 3 Johns. Ch. R. 129, 138; Jackson v. Wheat, 18 Johns. R. 40; Bunce et al. v. Wolcott, 2 Connect. R. (N. S.) 27; Thompson et al. v. Smith, 7 Serg. & Raw. 209; Faysoux v. Prather, 1 Nott & M'Cord, 296; Tolson v. Taye, 3 Brod. & Bing. 217; Doe dem. Lewis et al. v. Barksdale, 2 Brock. R. 441; Jackson ex dem. Swartwout et ux. v. Johnson, 5 Cowen, 74; Hudsons v. Hudsons et al. 6 Munf. 352. * Former acts of limitation of real actions; Oct. 1646, act 13, 1 Stat. Larg. 331; Mar. 1657, act 39, Ib. p. 451; Mar. 1661, act 72, 2 Stat. Larg. 97, by all which the limitation Act of February 25, 1819-January 1, 1820. R. C. ch. 128. Provided, That if any person who is or shall be entitled to any real action upon his or her own seisin or possession, were or shall be under the age of twentyone years, feme covert, imprisoned, or non compos mentis, at the time such action accrued, or shall accrue, every such person shall and may, notwithstanding the said twenty years are or shall be expired, bring and maintain such real action within five years after such disabilities removed, and not afterwards. Act of Feb. 5, 1831, Ses. Acts 1830-31, c. 30, § 2, p. 98; Sup. R. C. p. 262. [In all writs of right, and other actions possessory, hereafter to be brought to recover the seisin or possession of any lands lying west of the Alleghany mountain, any person may maintain a writ of right or other possessory action upon the possession or seisin of his or her ancestor or predecessor, within eighteen (2) years next before the teste of the writ; but no person shall maintain a real action upon his own possession or seisin but within fourteen years next before the teste of the writ: Provided, That if any person who is or shall be entitled to any real action upon his or her own seisin or possession, were or shall be under the age of twenty-one years, feme covert, imprisoned, or non compos mentis, at the time such action accrued, or shall accrue, every such person shall and may, notwithstanding the said fourteen years are or shall be expired, bring and maintain such real action within three years after such disabilities removed, and not afterwards: Provided nevertheless, That the provisions of this act shall not extend to, or be applied to any case or cases in which such writ or writs, or such right or title of entry as aforesaid, shall have heretofore accrued, and in which such writ or writs shall be sued, or such entry shall be made, upon cause of action, or right or title of entry heretofore accrued, within two years next after the commencement of this act; and that as to all such writ or writs which shall be sued, or entries which shall be made, within one [two years, act of March 15, 1838, Ses. Acts, c. 8, § 12, p. 20,] year from the commencement of this act, upon cause of action, or right or title of entry, heretofore accrued, the limitation thereof shall remain the same as if this act had never been passed. [Act of March 30, 1837, Ses. Acts 1836-7, c. 8, § 11, p. 12.] 4. § 4. All actions of trespass, quare clausum fregit, all actions of trespass, detinue,(b) actions sur trover,† and replevin for taking away of goods of all actions for lands was five years only. note. (2) Uninterrupted possession of real estate for 27 years, is not a sufficient ground for presuming a grant. The shortest period to which the statute limits the bringing a writ of right is 30 years. Bolling v. The Mayor, &c. of Petersburg, 3 Rand. 577. (b) In detinue, the act of limitations need not be pleaded; the defendant, under the general issue, may avail himself of continued possession and of those under whom he claims. Elam v. Bass's ex'rs, 4 Munf. 301; Garland v. Enos, Ibid. 504. The possession must be adversary as to the plaintiff, and those under whom he claims. Spotswood v. Dandridge, 4 H. & M. 139; Vaiden v. Ball, 3 Rand. 448. And a plaintiff may recover in detinue upon five years peaceable possession of a slave acquired without force or fraud. Newby v. Blakey, 3 H. & M. 57; Brent v. Chapman, 5 Cran. 358; Shelby v. Guy, 11 Wheat. 361. On the principle that such possession affords a complete bar under the stat. of limitations. If the statute does not run, the possession will not operate a bar. Clarke v. Hardiman, 2 Leigh, 347. So 20 years possession, gives a title to recover upon, in ejectment. Sticker v. Barney, 1 Ld. Ray. 741. The statute of limitations is a bar to an action of trover, commenced more than six Act of February 25, 1819-January 1, 1820. R. C. ch. 128. and chattels; all actions of account, and upon the case, other than such accounts as concern the trade of merchandize between merchant and merchant, their factors or servants; (c) all actions of debt, grounded upon any lending or contract without specialty; (d) all actions of debt for arrearages of rent; all [five] years after the conversion, though 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. Granger v. George, 5 B. & C. 149. In an action of assumpsit, the statute of limitations begins to run from the time the breach of promise takes place, and not from the time when the damage results from the breach of promise, and there seems to be no substantial difference between an action of assumpsit founded on a promise which the law implies, and an action on the case which is founded expressly on a breach of duty. Whatever be the form of action, the breach of duty is substantially the cause of action. See Howell v. Young, 5 B. & C. 259; 2 Car. & Pay. 238, S. C.; Short v. M'Carthy, 3 B. & A. 626; The Bank of Utica v. Childs, 6 Cowen, 238; Wilcox et al. v. Plumer's ex'rs, 4 Peters, 172. Can fraudulent concealment be successfully replied to the plea of the stat. of limitations? See Troup v. Smith's er'rs, 20 Johns. R. 33; and Sherwood v. Sutton, 5 Mason's R. 143; Leonard v. Pitney, 5 Wendell, 30. In an action for deceit in a sale of a chattel, there is the plea of the statute of limitations, a general replication thereto, and issue thereon joined: Held, the cause of action accrued at the time of the deceit practised, and the limitation begins to run immediately. It seems, that if the fraud was not discovered till some time after it was practised, and within the time of limitation, this would suffice to take the case out of the statute; but to enable the plaintiff to avail himself of such matter, he must plead it specially in his replication. Rice v. White, 4 Leigh, 474. On a plea of non assumpsit within five years, it was proved that within five years the defendant acknowledged the items in the plaintiff's account to be just, but said that he had some offsets; and that at a subsequent time, the defendant promised the plaintiff that he would settle all their differences and accounts fairly, and would not avail himself of the act of limitations: Held, this proof is not sufficient to justify the jury in finding for the plaintiff. Sutton v. Burruss, 9 Leigh, 381▼ (c) This exception, in favour of merchants' accounts, applies as well to actions of assumpsit as to actions of account; it comprehends all accounts current, which concern the trade of merchandize, between merchant and merchant. An account closed by the cessation of dealings between the parties is not an account stated, and it is not necessary that any of the items should come within five years. Mandeville v. Wilson, 5 Cranch, 18-19. See on this subject, Coster et al. v. Murray et al. 5 Johns. Ch. R. 522, 524-531; 20 Johns. 576. The case protected by the exception, is not every transaction between merchant and merchant; not every account which might exist between them, but it must concern the trade of merchandize. It is not an exemption from the act attached to the merchant, merely as a personal privilege; but an exemption which is conferred on the business as well as on the persons between whom that business is carried on. The accounts must concern the trade of merchandize, and the trade must not be, in ordinary traffic, between a merchant and any ordinary customer, but between merchant and merchant, &c. Spring et al. v. The ex'rs of Gray, 6 Peters, 151, 164; and see Watson v. Lyle's adm'r, 4 Leigh, 236; Toland v. Sprague, 12 Peters, 301, 333, and opinion of court by Barbour, J. Why these accounts were excepted, see Prof. Christian's opinion, Chris. Bank Law, 1 vol. 2 ed. 432; see Mitchell v. Cue, 2 Burr. 660; Powis et al. v. Powis, 6 J. B. Moore, 517. It is not necessary to revive a judgment by scire facias, for the purpose of issuing execution after a year and a day, where the execution has been suspended by agreement of the parties. Hiscocks et al. v. Kemp, 3 Adol. & Ellis, 676; 30 C. L. R. 182. Judgment recovered by D. P. &c. against F. in September 1810, and execution sued out in the same month, and another in October 1815, but neither returned; to a sci. fa. to revive the judgment against F.'s ex'r, sued out in July 1826, defendant pleads in bar this sec.; plaintiffs reply the two executions sued out in Sept. 1810, and Oct. 1815; on demurrer to this replication: Held, the statute is a bar to the scire facias. Fleming's ex'r v. Dunlop & Buchanan, surv. pr. 4 Leigh, 338; and see Deneale v. Stump's ex'rs, 8 Peters, 528. (d) Under the plea of nil debet, the act of limitations may be given in evidence. Murdock et al. v. Herndon's ex'rs, 4 H. & M. 200; and see 2 Munf. 254; Anony. cor. Holt, C. J. 1 Salk. 278; 1 L. Raym. 153. In Pearsall v. Dwight et al. 2 Mass. R. 87, Parsons, C. J. said, this was merely a dictum of Ld. Holt, and had been since overruled. And see Chapple v. Dunston, 1 C. & J. 1, Holt's opn.; see Spring et al. v. Gray et al. 5 Mason, 504, 522-533. In debt on promissory note against H. & 1 Act of February 25, 1819—January 1, 1820. R. C. ch. 128. actions of assault, menace, battery, wounding and imprisonment, or any of them, which shall be sued or brought; shall be commenced and sued within the time and limitation hereafter expressed, and not after; that is to say: The said actions upon the case, other than for slander, and the said actions for account, and the said actions for trespass, debt, detinue and replevin for goods and chattels, and the said actions of trespass quare clausum fregit, within five years next after the cause of such action or suit, and not after;† and the said actions of trespass, of assault, battery, wounding, imprisonment, or any of them, within three years next after the cause of such actions or suits, and not after; and the said action upon the case for words, within one year next after the words spoken, and not after.(e) Oct. 1748, c. 9, 5 Stat. Larg. 513; 1792, c. 76, R. C.; 21 Jac. 1, c. 16, § 3. 5. § 5. Judgments in any court of record within this commonwealth, where execution hath not issued, may be revived by scire facias, or an action of debt brought thereon, within ten years next after the date of such judgment, and not after; or where execution hath issued, and no return(ƒ) is made thereon, the party in whose favour the same was issued, shall and may obtain other executions, or move against any sheriff or other officer, or his or their security or securities, for not returning the same, for the term of ten years from the date of such judgment, and not after. 1792, c. 76, R. C.(g) 6. § 6. Provided, That if any person or persons, entitled to such judgment, where execution hath not issued, or where execution hath issued, and no return made, (in either case,) shall be, or were under the age of twentyone years, feme covert, non compos mentis, [or] imprisoned,(1) at the time of B. his surety, the declaration counting on the note alone, B. pleads, severally, the stat. of lim., plaintiff replies generally, and issue: Held, that proof of an acknowledg. ment of the debt by H. the principal, within 5 years next before the action brought, does not sustain this issue on plaintiff's part. If in any case of an action of debt on simple contract, the plaintiff would rely on a subsequent acknowledgment, to take the case out of the stat. it seems, he must count on such subsequent acknowledgment; other wise, in an action of assumpsit. Butcher v. Hixton, 4 Leigh, 519; see Farmers Bank v. Clarke, 4 Leigh, 603, and remarks of the judges. + See note t on page 646. (e) See Serg. Williams's note (6) to Hodsden v. Harridge, 2 Saund. [63] [63 b. &c.] This section applies as well to corporations as to individuals. It has reference to the nature of the action, not to the character of the plaintiff. The Bank of the U. S. v. M'Kenzie, 2 Brock. R. 393. It seems that a forthcoming bond has not the force of a judgment, till it is returned forfeited, and filed in the clerk's office; and even after it is filed, it is only in a partial sense, that it has the force of a judgment, before execution upon it is awarded. This sec. (§ 5) does not bar a motion on a forthcoming bond of more than ten years standing. Lipscomb's adm'r v. Davis, adm'r, 4 Leigh, 303. (f) But if execution regularly issues, and is duly returned, a scire facias may issue, though more than ten years elapsed between the return of the execution, and the date of the scire facias. Gee v. Hamilton et ux. 6 Munf. 32. See Tidd. Prac. 1004; Archb. Prac. 2 vol. 72; Blayer v. Baldwin, 2 Wils. 82; and Lewis v. Smith, 2 Serg. & Raw. 142, 156. There is no limitation, by stat., to an action of debt or scire facias, upon a judgment, except only in the case of a judgment on which no execution has been taken out; and in cases of ex'rs and adm'rs, on a judgment against their testator or intestate. In all other cases these remedies are left as at the common law; and at common law, there was nothing like a limitation upon them, except the presumption of satisfaction, arising from a delay to proceed upon the judg ment for 20 years, which might be repelled by circumstances. Randolph v. Randolph, 3 Rand. 490, 493. (g) This section is prospective; it does not apply to judgments existing when it took effect. Lyons v. Gregory, 3 H. & M. 237; Day v. Pickett, 4 Munf. 104. (1) See act of March 8, 1826, c. 23, § 3, Ses. Acts 1825-6, p. 25, ante, note (3); also, act of Feb. 5, 1831, c. 30, § 3, Ses. Acts 1830-31, p. 98; Sup. R. C. 262, which provides that "so much of the act, entitled an act for the limitation of actions against persons acting in a fiduciary character, and their sureties, and for other purposes,' passed the eighth day of March, one thousand eight hundred and twenty-six, as applies to real or mixed actions, and all other acts and |