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This provision is founded upon the section of the Revised Statutes, (2 R. S. 3d ed. 395, sec. 31,) which enacts that “all actions upon any statute made, or to be made, for any forfeiture or cause, the benefit and suit whereof is limited to the party aggrieved, or to such party and the people of this state, shall be commenced within three years after the offence was committed, or the cause of action accrued, and not after."
The alterations of phraseology in the proposed provision, are designed to carry out the distinction between a liability created by statute, and a penalty or forfeiture, as that distinction is explained in the note to section 71, subdivision 2; (p. 99—102 ;) and with this view, the loose and general language of the Revised Statutes " for any forfeiture or cause," is restricted to penalties and forfeitures alone.
§ 73. Within two years :
1. An action for libel, slander, assault, battery, or false imprisonment.
This provision differs from those of the Revised Statutes, (2 R. S. 3d ed. 394, sec. 19, 20,) in this, that the latter place actions of assault and battery within the limitation of four years, actions for slander, (or “for words spoken, slandering the character or title of any person,” or “whereby special damages are sustained,”') within the limitation of two years, and actions of libel, within that of six years. The remarks in the note to the fifth subdivision of section 71, (p. 102,) are applicable to all these cases, and shew, in our opinion, the propriety of placing them all within the same limitation, and that, not exceeding the time mentioned in this section.
2. An action upon a statute, for a forfeiture or penalty to the people of this state.
Same as 2 R. S. 3d ed. 395, sec. 29.
$74. Within one year :
1. An action against a sheriff or other officer, for the escape of a prisoner arrested or imprisoned on civil
This section is the same as 2 R. S. 3d ed. 394, sec. 21; excepting that the words “arrested or” are introduced in consormity with the construction given to a similar provision, in 1 R. L. of 1813, p. 427, sec. 28; where the word "imprisoned," alone was used. In a case which arose under that statute, it was contended, that the term “imprisoned” did not apply to the escape of a person arrested, merely, before his commitment to prison; but the supreme court held otherwise. (Roe v. Beakes, 7 Wend. 459.)
$ 75. In an action brought to recover a balance due upon a mutual, open and current account, where there have been reciprocal demands between the parties, the cause of action shall be deemed to have accrued from the time of the last item in the account, on the adverse side.
This section is founded upon the following provision of the Revised Statutes:-" In all actions of debt, account or assumpsit brought to recover any balance due upon a mutual, open and current account, the cause of action shall be deemed to have accrued from the time of the last item proved in such account.” (2 R. S. 3d ed. 394, sec. 23.)
While the proposed provision is not intended to alter, in substance, the section just cited, it contains several variations in phraseology, which it is proper to notice.
First. It omits the forms of actions referred to in that section.
Second. It introduces the words " where there have been reciprocal demands between the parties," —with a view to obviate the obscurity, in which the existing statute has been involved, by loose expressions on the part of the courts, and to conform it to what is undoubtedly its true construction. In the case of Kimball v. Brown, 7 Wend. 322, it was contended that, under the terms “mutual, open and current account," one item of an account within six years before suit brought, drew after it items beyond six years, so as to protect the latter from the operation of the statule. But the court held that it did not, and that there must have been mutual accounts and reciprocal demands between the parties. Some doubt, however, was thrown upon this construction, by the very loosely considered opinion of the supreme court, in Chamberlin v. Cuyler, 9 Wend. 126, where an item in an account within six years, was held to take items beyond six years out of the statute. In that case, the defendant was sued in 1829, on a demand accruing in 1826; and he proved an account against the plaintiff, by way of set off, consisting of items, some of which accrued in 1826, others in 1822, • and others in 1818. Upon this state of facts, the court decided that the items accruing in 1826, drew after them the previous charges, and saved them from the operation of the statute; and regarded the rule as being, – that if there is a lapse of six years between the items, it shall cease, as to such charges, to be considered an open account; but where, from the commencement to the termination of the account, charges have been made at least as often as once in six years, and the last item is within six years anterior to the commencement of the suit, the whole account is to be allowed.” And this construction, which is in obvious violation of the principle on which the provision in question was founded, has been more recently attempted to be explained, but is in fact, overruled, in Edmondstone v. Thomson, 15 Wend. 554; and the true sense of the statute is there re-asserted; namely, that it referred to mutual, open and reciprocal accounts. To put an end, if possible, to all doubt on the subject, the most explicit language is used in the section proposed.
Third. The words “on the adverse side," in the last line, have been introduced, in connection with the item accruing within six years, to meet what is supposed to be the meaning of the statute. It is true, that in one case, the supreme court held, that if there were mutual accounts current, and any one item, on either side, were proved to have arisen within six years next before the suit brought, this would draw after it both accounts, and take the case out of the statute of limitations. (Sickles v. Mather, 20 Wend., 74.) The case does not seem to have been very fully considered, on this point; and, with becoming deference to the authority of the court by which it was decided, the decision does not seem to be sustained, either by the principle on which the statute is founded, or by the sense of the previous cases. The object of the statute, as construed by the courts, in the cases already cited, was to require that the accounts should be reciprocal, in order to found a presumption in favor of items beyond six years. It cannot reasonably be said, that items on the same side of the account within six years, should carry with them items of a previous date. It is the last item on the adverse side, which alone, according to sound justice and the fair construction of the existing statute, should be regarded as evidence of an admission that the account is open and unpaid ; and to put an end to all doubt on the subject, it is deemed advisable, expressly to
provide that such shall be the rule. § 76. An action upon a statute for a penalty or forfeiture, given in whole or in part to any person who will prosecute for the same, must be commenced within one year after the commission of the offence; and if the action be not commenced within the year, by a private party, it may be commenced within two years thereafter, in behalf of the people of this state, by the attorneygeneral, or the district attorney of the county where the offence was committed.
Same as 2 R. S., 3d ed., 395, sec. 30. § 77. An action for relief, not hereinbefore provided for, must be commenced within ten years after the cause of action shall have accrued.
This section is a substitute for the article of the Revised Statutes, “ of the time of commencing suits in courts of equity,” (2 R. S., 3d ed., 398, 399,) and provides for all the cases
heretofore known as suits in equity, excepting for relief on the ground of fraud ; which case has been already provided for, in the sixth subdivision of section 71. In that case, as well as in those embraced in this section, the periods of limitation are the same as those now existing ; the only difference being, that by the present statutes, they are applied to the form, while by the proposed section they are made to depend upon the substance of the remedy. This will be more apparent, from an examination of the provisions of the existing statutes, which are as follows:
“ Whenever there is a concurrent jurisdiction in the courts of common law, and in courts of equity, of any cause of action, the provisions of this title, limiting a time for the commencement of a suit for such cause of action, in a court of common law, shall apply to all suits hereafter to be brought for the same cause, in the court of chancery.” (2 R. S., 3d ed., 398, sec. 49.),
“But the last section shall not extend to suits, over the subject matter of which a court of equity has peculiar and exclusive jurisdiction, and which subject matter is not cognizable in the courts of common law.” (Ibid., sec. 50.)
“ Bills for relief, on the ground of fraud, shall be filed within six years after the discovery, by the aggrieved party, of the facts constituting such fraud, and not after that time.” (2 R. S., 3d ed., 399, sec. 51.)
“ Bills for relief, in case of the existence of a trust not cognizable by the courts of common law, and in all other cases not herein provided for, shall be filed within ten years after the cause thereof shall accrue, and not after.” (Ibid., sec. 52.)
§ 78. The limitations prescribed in this title shall apply to actions brought in the name of the people of this state or for their benefit, in the same manner as to actions by private parties.
Same as 2 R. S., 3d ed., 395, sec. 28.