Act of March 22, 1836, Ses. Acts 1835-6, ch. 62, p. 42. 21. § 1. In all actions which may be hereafter brought in any of the courts of this commonwealth, founded upon the judgment or judgments of any court in either of the states, districts or territories of the United States, it shall and may be lawful for the defendant or defendants in any such action, to shew, that by the laws of the particular state, district or territory, within which such judgment or judgments may have been rendered, a recovery in such action would have been barred had the same been instituted in any of the courts of such state, district or territory: and to this end, he or they may plead any act or acts limiting the recovery on judgments which may exist and be in force in any such state, district or territory, and which might or could have been pleaded had such action been brought in any court thereof; which plea shall have the same effect, and none other, that it would have, had the action in which it may be pleaded been brought in the courts of the state, district or territory, in which the judgment may have been rendered. 22. § 2. In all such actions which may hereafter be brought in any of the courts of this commonwealth against any person or persons who shall have been actually and bona fide resident within the commonwealth for ten years after such judgment may have been rendered, and before the commencement of the action thereon, such person or persons shall be entitled to the benefit of any act or acts, and all parts of acts now in force within this commonwealth limiting recoveries upon judgments rendered in the courts thereof, as fully and to the same extent, as if the judgment or judgments upon which such action may be founded, had been rendered in any of the courts of said commonwealth. Act of April 3-August 1, 1838, ch. 95.* 66 23. § 1. In actions of debt or upon the case, grounded upon any simple contract, no acknowledgment or promise made hereafter, by words only, shall be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of the act, entitled an act for limitation of actions, for preventing frivolous and vexatious suits, concerning jeofails, and proceedings in civil cases," passed February twenty-fifth, eighteen hundred and nineteen, or to deprive any party of the benefit thereof, unless such acknowledgment or promise shall be made or contained by or in some writing to be signed by the party chargeable thereby; and that where there shall be two or more joint contractors, or executors or administrators of any contractor, no such joint contractor, or executor or administrator, shall lose the benefit of the said act, so as to be chargeable in respect or by reason only of any written acknowledgment or promise made and signed by any other or others of them: Provided, That in actions to be commenced against two or more such joint contractors, or executors or administrators, if it shall appear at the trial or otherwise, that the plaintiff though barred by the before recited act, or this act, as to one or more of such joint contractors, or executors or administrators, shall nevertheless be entitled to recover against any other or others of the defendants, by virtue of a new acknowledgment or promise, or otherwise, judgment may be given and costs allowed for the plaintiff as to such defendant or defendants against whom he shall recover, and for the other defendant or defendants against the plaintiff: And provided also, That every such written pro *See act of parliament 1828, c. 14, § 1, &c. "An act for rendering a written memorandum necessary to the validity of certain promises and engagements." To take effect Jan. 1, 1829. [9 Geo. 4, c. 14.] This act was introduced in the house of peers by lord Tenterden, C. J., K. B., from which the above act is taken. See note to Roberts v. Roberts, 3 C. & P. 296; and Towler v. Chatterton, 6 Bing. 258. * Act of April 3-August 1, 1838, ch. 95. mise or acknowledgment shall be held and taken to be a drawing down of the original debt or contract to the date of the said promise or acknowledgment. 24. § 2. If any defendant or defendants in any action on any simple contract shall plead any matter in abatement to the effect that any other person or persons ought to be jointly sued, and issue be joined on such plea, and it shall appear at the trial that the action could not, by reason of the said recited act, or of this act, or of either of them, be maintained against the other person or persons named in such plea, or any of them, the issue joined on such plea shall be found against the party pleading the same. 25. § 3. The said recited act and this act shall be deemed and taken to apply to the case of any debt on simple contract, alleged by way of set-off on the part of any defendant, either by plea, notice, or otherwise. 26. § 4. No action shall be maintained whereby to charge any person upon any promise hereafter made, after full age, to pay any debt contracted during infancy, or upon any ratification after full age, of any promise or simple contract made during infancy, unless such promise or ratification shall be made by some writing signed by the party to be charged therewith, or by agent, or some other person legally authorized to do the same. The statutes of limitations are very beneficial, and of the greatest importance, inasmuch as they are statutes of repose. Ld. Kenyon, C. J. in Doe v. Jones, 4 T. R. 308; Wilmot, J. in King v. Walker, 1 Wm. Bl. 287; Yeates, J. in Jones v. Moore, 5 Binney, 580; Tolson v. Kaye, 3 Brod. & Bing. 217; Story, J. in Spring et al. v. Gray et al. 5 Mason, 523; and Lewis et al. v. Marshall et al. 5 Peters's R. 470, 477. They are entitled to the same respect with other statutes, and ought not to be explained away. They were not enacted to protect persons from claims fictitious in their origin, but from ancient claims, whether well or ill founded, which may have been discharged, but the evidence of discharge may be lost. Marshall, C. J. in Clementson v. Williams, 8 Cranch, 74; and see Ld. Eldon in Baillie v. Sibbald, 15 Ves. jun. 192. They may, however, often be the only means of sheltering a party from paying an unjust debt; and it is, therefore, in such cases very honest and conscientious to avail one's self of their protection. Tomlin's adm'r v. How's adm'r, 1 Gil. R. 7. The commonwealth is not bound by the acts of limitations, without express words. Nimmo's ex'r v. The Com. 4 H. & M. 57. It is a conceded principle that no time runs against the commonwealth, unless where the legislature has thought proper to allow it. See Seekright ex dem. Gore v. Lawson et al. 8 Leigh, 458. Instruments under seal, as bonds, &c., are not within this statute, which therefore cannot be pleaded in suits thereon. But if the bond, &c., be suffered to lie dormant for twenty years, payment may be presumed; and 'tis the duty of the court so to instruct the jury. See Oswald et al. v. Leigh, 1 T. R. 270. This presumption of payment may be rebutted by proof of an acknowledgment of the debt; or of payment of interest; or of part payment of the debt within the twenty years. The principle upon which the presumption of payment arises from the lapse of time is a reasonable principle, and may be rebutted by any facts which destroy the reason of the rule. See Eustace v. Gaskin's ex'r, 1 Wash. 188; Dunlop & Co. v. Ball, 2 Cranch, 180, 184; Hillary v. Waller, 12 Ves. jun. 266. Partial payment, or payment of interest, may be proved by an endorsement to that effect in the handwriting of the obligor, or made by his directions; or by an endorsement in the hand of the obligee, provided it appears by extrinsic evidence that the endorsement was made within twenty years, at a time when it was against the obligee's interest to make such acknowledgment. See Roseboom v. Billington, 17 Johns. R. 182, where the case of Searle v. Lord Barrington, (2 Str. 827, 2 Ld. Ray. 1370, 3 Bro. P. C. 593,) is critically examined, and this question fully considered, by Spencer, C. J. 184-7. See 9 Geo. 4, c. 14, § 3. : The preceding principles have been applied to instruments not under seal, as promissory notes, &c. Wells v. Washington's adm'r, 6 Munf. 532. But the defendant cannot rely on the presumption of payment after five years, (the statutory limit,) and before twenty he must plead the statute. See Tomlin's adm'r v. How's adm'r, 1 Gil. R. 1, 7-8. In the case of The Marquis de Belloir v. Lord Waterpark, (Jan. 5, 1822,) Cor. Abbott, C. J. The C. J. was of opinion that the principles of presumptive payment applied to bonds, &c., did not apply to cases provided for by the statute, as a bill of ex20 change, &c.—that the statute must be resorted to by those who wished to avail themselves of its effect. 1 D. & R. 16; and see Jackson ex dem. v. Sackett et al. 7 Wend. 94-98; Hopkirk v. Page, 2 Bro. & B. 36. Though the courts of chancery are not expressly bound by the periods prescribed in the acts of limitations, yet they adopt them by analogy to the rules of law. Harrison v. Harrison, 1 Call, 428; Smith v. Clay, 3 Bro. Ch. R. note, 639-40; Stackhouse v. Barnston, 10 Ves. jun. [466], 1 Sch. & Lef. 428; Medlicott v. O'Donel, 1 Ball & Beatty, 166, 167; Kane v. Bloodgood, 7 Johns. Ch. R. 90; Cholmondeley v. Clinton, 2 Jacob & Walker, 138, 1 Tur. & Rus. 107; Taylor v. Elmendorf, 10 Wheat. 152-168. An equitable title to land asserted against the holder of the legal title, is barred by an adversary possession of more than twenty years held by the claimant of the legal title, the claimant of the equity having full knowledge of such possession from its commencement, and being under no disability. Cresap v. M'Lean et al. 5 Leigh, 381. "The statute of frauds and the statute of limitations were both so much objected to at the time when they were passed, that the judges appeared anxious to get them off the statute-book; but in later times they have become desirous to give them their full effect." Per Best, C. J. in Proctor v. Jones, 2 Carr. & Pay. 532, (M. T. 1826); Robinson v. Hook, 4 Mason, 150, 153; M'Cluny v. Sillirman, 3 Peters's Rep. 270. The statute of limitations cannot be insisted on in equity, without being pleaded, or in some form, relied on as a defence in the pleadings. Hickman v. Stout, 2 Leigh, 6. In cases of concurrent jurisdiction, such as accounts, bailments, &c., courts of equity construe the stat. of lim. as courts of law do, and create no other exception, than those created by the statute. Courts of equity, in such cases, act in obedience, and not merely in analogy to the law. Sherwood v. Sutton, 5 Mason's R. 143. To a bill of discovery in aid of an action at law, this stat. may be pleaded; and the plea need not deny the usual allegation that defendant has in his power book &c., unless it is alleged that such book &c. if produced would shew a promise made within six [5] years. M'Gregor v. East India Co. 3 Simon, 452. An account of administration, demanded after a great lapse of time, held a stale demand, and therefore denied. Parker's adm'r v. Rucker, 5 Leigh, 149; and Carr's adm'r v. Chapman's legat. 5 Leigh, 164. I do not consider ex'rs and adm'rs such fiduciaries as come within the definition of strict technical trustees. Pr. Carr, J. 173. If a trust be created by the act of the parties, the possession of the trustee is the possession of the cestui que trust, and no length of such possession will bar. But a trustee constituted by the law, as an ex'r or adm'r, or a trustee by the decree of a court does not stand in that relation; there is no confidence between the parties; their rights are adverse. Pr. Brooke, J. 185, and Hayes et al. v. Goode et al. 7 Leigh, 452. The delay of legatees for eight years to institute a suit to surcharge and falsify the settled accounts of an executor, is not sufficient ground for refusing relief, especially as one of the complainants was a female, and under age when the settlement was in progress, though probably of full age when it was returned to the court of probate and recorded. Handly v. Snodgrass et al. 9 Leigh, 484. See Parsons v. M'Cracken & wife, Ibid. 495, where it was held that length of time (twenty years) and acquiescence in the manner of executing the will, are sufficient grounds for dismissing the bill. The statute does not run in favour of trustees against cestui que trust, &c. so long as the confidence may fairly be presumed to continue. But it runs both in equity, and at law, in favour of desseisors and tortfeasors. Harrison v. Harrison, 1 Call, 428. The possession of the defendant must have been fiduciary as to the plaintiff or those under whom he claims, to prevent the operation of the statute. Spottswood v. Dandridge et al. 4 H. & M. 139; Redwood v. Riddick et ux. 4 Munf. 222. See Cholmondeley v. Clinton, 2 Merivale, 360; Decouche v. Savetier, 3 Johns. Ch. R. 21516-17. An attorney at law, who collects money for his client, and fails to account therefor, may avail himself of the statute of limitations: he not being such a trustee, in whose favour the statute does not run. Kinney's ex'rs v. M'Clure, 1 Randolph, 284. The act of limitations bars the remedy; though it does not extinguish the debt. It remains due in conscience, and is a good consideration for a new promise. This promise may be express or implied. An acknowledgment of the debt as existing and remaining due, is a circumstance from which the law will imply a new promise. But where this acknowledgment is accompanied by circumstances, or declarations, that shew that the party meant to insist on the benefit of the statute, no promise can possibly be implied without violating the truth of the case. See Trueman v. Fenton, 2 Cowp. 548; Bryan v. Horsman, 4 East, 599, which recognized the rule, that an acknowledgment revived the original debt. But see Coltman v. Marsh, 3 Taunt. 380; Rowcroff v. Lomas, 4 Mau. & Selw. 457; and Swan v. Sowell, 2 Barn. & Ald. 760, in which the court are very restless under the authority of Bryan v. Horseman, &c., and manifest their approbation of the rule which has been recognized in the following cases: Jones et al. v. Moore, 5 Binney, 573; Danforth v. Culver, 11 Johns. R. 146; Lawrence v. Hopkins, 13 Johns. R. 288; Clementson v. Williams, 8 Cranch, 72; Sands v. Gelston, 15 Johns. R. 511, 519; Roosevelt v. Mark, 6 Johns. Ch. R. 266; Fries v. Boisselet, 9 Serg. & Raw. 123; Witzell v. Buzzard, 11 Wheat. 309; Hudson v. Carey, 11 Serg. & Raw. 10. A' Court v. Cross, 3 Bing. 329. Defendant said, on being arrested for a debt of more than six years old, "I know that I owe the money, but the bill I gave is on a threepenny receipt stamp, and I will never pay it." Held, not such an acknowledgment as would revive the debt against the plea of the statute of limitations. Where to a plea of the statute of limitations, the plaintiff replies a promise within six years, and proves a promise to pay when of ability, made three years after the original cause of action accrued, and within six years of the commencement of the action, Held, by Best, C. J. and Gaselee, J. that he must also prove the defendant's ability. J. Burrough and Parke, dissentientibus. Scales v. Jacob, 3 Bing. 638. In assumpsit brought to recover a sum of money, the defendant pleaded the stat. of lim. on which issue was joined. The plaintiff proved the following acknowledgment by defendant within six years: "I cannot pay the debt at present, but I will pay it as soon as I can:" Held, not sufficient to entitle plaintiff to a verdict, no proof being given of the defendant's ability to pay. Opn. of court pronounced by Ld. Tenterden, C. J. Tanner v. Smart, 6 Barn. & Cres. 603; Gould v. Shirtley, 2 Moore & Payne, 581; Haydon v. Williams, 7 Bing. 163; Hancock v. Bliss et al. 7 Wend. 267. There must be a positive promise. Roberts v. Roberts, 3 C. & P. 296; Fearn v. Lewis, 6 Bing. 349. The acknowledgment, to take a case out of the operation of this stat. must be an unequivocal and positive recognition of a subsisting claim in favour of the plaintiff; it must be an admission of a previous subsisting debt, which he is liable and willing to pay; and must not be accompanied by circumstances repelling the presumption of a promise to pay the debt. Purdy v. Austin, 3 Wend. 187; Bradley v. Field, 3 Wend. 272. The acknowledgment ought to be clear and explicit in relation to the subject or demand to which it refers. Stafford v. Bryan, 3 Wendell, 533, in error. S. C. 2 Paige, 45. The principle clearly to be deduced from the decisions of this court on the statute of limitations is that in addition to the admission of a present subsisting debt, there must be either an express promise to pay, or circumstances from which an implied promise may fairly be presumed. Moore v. The Bank of Columbia, 6 Peters's R. 86, sup. ct. U. S. Jan'y T. 1832; and Hancock v. Bliss et al. 7 Wend. 267; Brydges v. Plumptre, 9 D. & R. 746; Pierce, ex'r v. Brewster et al. 12 Moore, 515. Whether the admission of the debt amounts to a promise to pay, is a question proper to be left to the jury, &c. Ibid. Defendant, after having denied the existence of a debt demanded of him, replied, to an assertion by the plaintiff, that he, (plaintiff,) had docu ments in his possession which would prove it, that "it is of no use for me to look at them, for I have no money to pay it now:" Held, not sufficient to take the case out of the act of limitations. The legal effect of such conversations, as to how far they are to be considered as admitting debts to be due, or amounting to promises to pay them, is a question rather for the determination of the court than the jury. Snook et al. v. Mears, 5 Price's Eq. Rep. 636. In debt on a promissory note negotiable at bank, by holders against endorser, the endorser pleads the general issue, with leave to give the stat. of lim. in evidence; and at the trial, the plaintiffs prove a conditional promise made by the endorser to pay the debt within the period of limitation: Held, such conditional promise does not suffice to take the case out of the stat. unless performance of the condition be shewn. Farmers Bank v. Clarke, 4 Leigh, 603; and see Hellings v. Shaw, 7 Taunt. 608; and Beale v. Nind, (Trin. T. K. B. 1821,) 4 Barn. & Adolph. 568; Butcher v. Hixton, 4 Leigh, 519; Dothwait v. Tilburt, 5 Maw. & Selw. 75; Frost v. Bengough, 1 Bing. 266; Clark, adm’x v. Hougham, 2 Barn. & Cres. 149. This doctrine does not apply to torts, see Hurst v. Parker, 1 Barn. & Ald. 92; 2 Chitty's R. 249, S. C.; Orthout v. Thompson, 20 Johns. 277. But see First Mass. Turnpike v. Field et al. 3 Mass. R. 201; Homer v. Fish et al. 1 Pick. R. 435; Jones v. Conway et ux. et al. 4 Yeates, 109, and the remarks of Best, J. in Clark v. Hougham, 2 Barn. & Cress. 149. Devise in trust for payment of debts, does not revive a debt, on which the statute of limitations had taken effect by the expiration of the time before the testator's death." Burke v. Jones, 2 Ves. & Beam. 275. See the elaborate opinion of Sir Thos. Plumer, vicechancellor, and see Brown's adm'r v. Griffiths, 6 Munf. 450; Fergus, ex'r v. Gore, 1 Scho. & Lefr. 109. The acknowledgment of a debt by one or more of the partners of a mercantile firm, after the dissolution thereof, is competent to do away the bar of the act of limitations, in an action brought against the firm, but 'tis not evidence of the existence of the debt. Shelton v. Cocke, Crawford & Co. 3 Munf. 191; Smith v. Ludlow, 6 Johns. R. 267. If there be several partners, and one of them after the co-partnery is dissolved, assumes a partnership debt, but afterwards pleads the act of limitations jointly with the other partners, the assumpsit may be given in evidence; for the plea of non-assumpsit admits that the defendants did once assume. Brockenbrough v. Hackley, 6 Call, 51. See Baker v. Starkpoole, 9 Cowen, 420; Patterson v.Choate, imp. with Patterson, 7 Wend. 441; Austin et al. v. Bostwick et al. 9 Day, 496. See Bell v. Morrison et al. 1 Peters's Rep. S. C. 351; Levy v. Cadet, 17 Serg. & Raw. 126. Though a partnership is dissolved, and one partner sells his interest to the other, who undertakes to pay the partnership debts-an account rendered by the acting partner, or by his clerk, after the dissolution, shewing a balance due from the partnership, is binding on the retiring partner. Garland v. Agee's adın'r, 7 Leigh, 362. The case of Whitcomb v. Whiting, 2 Doug. [652,] is the leading one on this subject, and was followed by Jackson v. Fairbank, 2 Hen. Bl. 340; see Brandram et al. v. Wharton, 1 Barn. & Ald. 463-467, in which ld. Ellenborough, C. J. remarks that the case of Whitcomb v. Whiting, was full of hardship, and that he was not prepared to go beyond it. "Cases of hardship are quicksands in the law." Buller, J. See Atkins v. Tredgold, 2 Barn. & Cress. 23. The case of Whitcomb v. Whiting, was fully sanctioned in the case of Perhain v. Raynal, Forsey & al. 2 Bing. 306, in which it was held, that an acknowledgment within six years by one of the joint makers of a promissory note, will revive the debt against the other, although he has made no acknowledgment, and signed the note only as surety. See Hathaway v. Haskill, 9 Pick. 42; Dean v. Hewit, 5 Wend. 257262. Slater v. Lawson, 1 Barn. & Adolph. 369. Payment by the executor of one of two makers of a joint and several promissory note, will not take the debt out of the statute of limitations, as against the surviving maker. Where a joint contract is severed by the death of one of the contractors, nothing can be done by the personal representative of the other, to take the debt out of the statute as against the survivor. This case is not distinguishable in principle from Atkins v. Tredgold, 2 Barn. & Cress. 25. Payment of interest within six years, by one of several joint contractors, takes the debt out of the stat. of limitations against all. Wyatt v. Hodson, 8 Bing. 309; Pease v. Hirst, 10 B. & C. 122. Endorsements on a promissory note, admitting the receipt of interest, are presumed to have been written at the time they bear date, as against the plea of the statute of limitations. Smith v. Battens, 1 Moo. & Rob. 341. See stat. 9, Geo. 4, ch. 14. To take the case out of the act of limita tions, it is not necessary that the acknowledgment of the existence of the debt should be made to the plaintiff-shewing an acknowledgment to a third person will be sufficient. See Price et al. v. Campbell, 2 Call, 120; Mountstephen v. Brooke, 3 B. & A. 141; Clark, adm'x v. Hugham, 2 B. & C. 149. The lex fori, and not the lex loci contractus, governs the time of limitations of actions. See Dupleix v. De Roven, 2 Vern. 540; Williams v. Jones, 13 East. 439-450; Nash v. Tupper, 1 Caines's R. 402, Livingston, J. dis. 413; Pearsall et al. v. Dwight et al. 2 Mass. R. 84; Dwight, adm'r v. Clark, 7 Mass. R. 515; Ruggles v Keeler, 3 Johns. R. 263; Decouche v. Savetier, 3 Johns. Ch. R. 217-219; Byrne v. Crowninshield, 17 Mass. R. 55; Le Roy et al. v. Crowninshield, 2 Mason, 151-158-180; and Jones's adm'r v. Hooke's adm'r, 2 Randolph, 303; M'Cluny v. Silliman, 3 Peters, 270; Hawkins et al. v. Barney's lessee, 5 Peters's R. 457; Lincoln v. Battille, 6 Wend. 475-85. Bank of U. States v. Donnally, 8 Peters's R. 361. The general principle adopted by civilized nations is, that the nature, validity and interpretation of contracts, are to be governed by the laws of the country where the contracts are made, or are to be performed. But the remedies are to be governed by the laws of the country where the suit is brought-by the lex fori. The remedy, in Virginia, must be sought within the time, and in the mode, and according to the descriptive characters of the instrument known to the laws of Virginia; and not by the description and characters of it, presented in another state. P. 372; and see Warren v. Lynch, 5 Johns. Rep. 239; Andrews v. Herriot, 4 Cowen, 508. The form of action relates to the remedy, and is governable by the lex fori. British Linen Company v. Drummond, 10 Barn. & Cress. 903, 21 Eng. C. L. R. 194; De La Vega v. Vianna, 1 Barn. & Adolph. 284, 20 Eng. C. L. R. 387; Trimbey v. Vignier, 1 Bing. N. C. 151, 27 Eng. Č. L. R. 336; Huber v. Steiner, 2 Bing. N. C. 202, 29 C. L. R. 304. But see act March 22, 1836, ch. 62, Ses. Acts, p. 42, giving effect to the lex loci contractus, &c. and Huber v. Steiner, 4 Moore & Scott, 328, 30 C. L. R. 348. |