LIGHTERMEN. See CARRIERS; MARITIME LAW. LIMITATIONS.* In Bankruptcy, see DEBTOR AND CREDITOR, B, III. Limitation Clause in Insurance Policies, see INSURANCE, A, VII.] I. GENERAL PRINCIFLES, $$ 1-199. 1. Constitutionality of Statutes of Lim- 2. Lex Fori, $$ 35-55. 3. Pleading and Proof, §§ 56-115. 4. What Causes the Statute Affects, 5. State Statutes in United States 6. Miscellaneous Principles, §§ 171-199. II. WHEN THE STATUTE BEGINS TO RUN, S$ 200-291. III. LIMITATIONS IN EQUITY (EXCLUSIVE OF 1. Effect of the Statute, §§ 292–310. 2. Laches, 311-397. 3. Fraud, § 398-437. 4. Mistake, SS 438-443. 5. Mortgages, § 444-469. 6. Trusts, $ 470-502. IV. LIMITATIONS AT LAW (EXCLUSIVE OF V. LIMITATIONS IN CRIMINAL CASES, §§ 557- VI. LIMITATIONS IN ADMIRALTY, §§ 586 606. VII. LIMITATIONS IN REAL ACTIONS, §§ 607 899. 1. Simple Adverse Possession in Actions at Law, $$ 607-728. 2. Adverse Possession in Suits in Equity, SS 729-771. 3. Possession under Color of Title, $$ 772-832. 4. Adverse Possession of Vacant Property, SS 833-866. 5. Tenants in Common, §§ 867-886. 6. Tacking Possession, §§ 887-899. VIII. THE STATE, SS 900-936. IX. REMOVAL OF THE STATUTORY BAR, 1. Acknowledgment and New Prom- 2. Part Payment, §§ 996-1001. X. SUSPENSION OF THE RUNNING OF THE XI. DISABILITIES AND EXCEPTIONS, §§ 1095 1157. XII. MISCELLANEOUS CASES, SS 1158-1200. I. GENERAL PRINCIPLES. 1. Constitutionality of Statutes of Limitation. SUMMARY - Exceptions as between resident and non-resident creditors, § 1.— Shortening period, §2.-Judgments of other states, § 3.- Compact between Virginia and Kentucky, § 4. § 1. A provision contained in a statute of limitations, that in case the defendant is out of the state the statute of limitations shall run against a non-resident creditor, but not against a resident creditor, is constitutional. So held in an action brought by a corporation resident in New York against a citizen of Wisconsin, in the latter state. The defendant demurred on the ground that it appeared on the face of the complaint that the claim was barred by the statute of limitations. The statute contained an exception suspending the running of the statute in favor of resident creditors as against non-residents. Chemung Canal Bank v. Lowery, 5, 6. §2. A state legislature has power to pass an act shortening the time within which to commence an existing cause of action. Such an act is not unconstitutional, provided a reasonable time is allowed within which to commence an action. So held where a town had, in 1857, i-sued bonds with coupons attached. At that time the limitation provided in which to commence actions on coupons was twenty years. By act of 1872 the period was reduced to six years, but actions then accrued might be brought within one year after the passage of the act if they would otherwise be barred if not brought within that period. Koshkonong v. Burton, $ 7-12. *Edited by CHARLES F. BEACH. JR., ESQ., of New York City. VOL. XXII — 12 177 § 3. An action was brought by the Bank of the State of Alabama to recover of one Dalton, then a citizen of Mississippi, the amount of a recovery had in a court in Alabama in 1843. The action was commenced in 1846. The defendant pleaded the statute of limitations of 1844 which barred suits on judgments obtained out of the state before the act was passed, unless suit was brought thereon within two years after the date of the act. The plaintiff replied that the defendant had been and continued a citizen of Alabama up to the date of issuing the proThe court held that the act of 1790, which declares that full faith and credit shall be given to the records and judicial proceedings of one state in the others, did not prevent a state from passing acts of limitation to bar judgments rendered in another state. Bank of the State of Alabama v. Dalton, § 13, 14. cess. § 4. Joshua Barney brought an action of ejectment against Hawkins to recover a part of a tract of land in his possession within the limits of Barney's patent. Both claimed under Virginia patents, Barney's being the elder. The premises had been in possession of defendant and his grantor since 1796, down to the commencement of the suit in 1817. It was held that the limitation act of Kentucky, known as the seven years' law, was constitutional, and was not prohibited by the compact between that state and Virginia. Hawkins v. Barney, §§ 15-18. [NOTES.-See §§ 19-34.] CHEMUNG CANAL BANK v. LOWERY. (3 Otto, 72-78. 1876.) ERROR to U. S. Circuit Court, Western District of Wisconsin. STATEMENT OF FACTS.- The Chemung Canal Bank, a New York corporation, sued Lowery, a citizen of Wisconsin, on a judgment rendered more than ten years before the commencement of the action. The defendant demurred on the ground that it appeared upon the face of the complaint that the action was barred by the statute of limitations. Judgment for defendant on the de murrer. Opinion by MR. JUSTICE BRADLEY. The errors assigned in this case are substantially two: First, that the statute of limitations cannot be set up by demurrer; and, secondly, that the statute on which the defense is founded is unconstitutional in this, that it unjustly discriminates in favor of the citizens of Wisconsin against the citizens of other states; for, if the plaintiff had been a citizen of Wisconsin, instead of a citizen of New York, the statute would not have applied. § 5. Under the statutes and decisions of Wisconsin the statute of limitations may be set up by demurrer. As to the first assignment, it is undoubtedly true that the statute of limitations cannot, by the English practice, be set up by demurrer in actions at law, though it may be in certain cases in suits in equity. And this rule obtains wherever the English practice prevails. But where the forms of proceeding have been so much altered as they have been in Wisconsin, further inquiry must be made. In the first place, by the Revised Statutes of that state, passed in 1858, in the title "Of proceedings in civil actions," it is declared that "the distinction between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished; and there shall be in this state but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action." R. S., 714. Secondly, that "all the forms of pleading heretofore existing are abolished." The act proceeds to declare that the first pleading on the part of the plaintiff is the complaint, which shall contain, amongst other things, "a plain and concise statement of the facts constituting a cause of action without unnecessary repetition." R. S., 721. It provides that the defendant may demur for certain causes, but that other defenses must be taken by answer. Id. Amongst the grounds of demurrer, one is, "that the complaint does not state facts sufficient to constitute a cause of action." In another title," Of the limitation of actions," it is provided that "the objection that the action was not commenced within the time limited can only be taken by answer." R. S., 819. But the supreme court of Wisconsin has decided, that, when on the face of the complaint itself it appears that the statutory time has run before the commencement of the action, the defense may be taken by demurrer, which, for that purpose, is a sufficient answer. Howell v. Howell, 15 Wis., 55. This case has been recognized in later cases (see Tarbox v. Supervisors, 34 Wis., 561), and must be regarded as expressing the law of the state. On the first hearing of the case of Howell v. Howell, some importance was attached to the fact that it was an equity case, in which class of cases a demurrer has been allowed for setting up the statute of limitations; but, on a rehearing, a more enlarged view was taken, and a demurrer was regarded as sufficient in all cases where the lapse of time appears in the complaint without any statement to rebut its effect, and where the point is specially taken by the demurrer. If the plaintiff relies on a subsequent promise, or on a payment, to revive the cause of action, he must set it up in the original complaint, or ask leave to amend. Without this precaution, the complaint is defective in not stating, as required by the statute, facts sufficient to constitute a cause of action. But, although defective, advantage cannot be taken of the defect on motion, or in any other way than by answer; which answer, however, as we have seen, may be a demurrer. As this is the law of Wisconsin, the circuit court of the United States for the western district of Wisconsin is bound by it; and, as the decision in the principal case accords therewith, the first assignment of error cannot be sustained. 6. A provision that in case defendant is out of the state the statute of limitations shall run against a non-resident creditor but not against a resident creditor is constitutional. The other assignment calls in question the constitutionality of the statute of limitations itself. The statute having prescribed the time within which various actions must be brought,-amongst others that "an action upon a judgment or decree of any court of record of any state or territory of the United States, or of any court of the United States," must be brought within ten years, it declares that "if, when the cause of action shall accrue against any person, he shall be out of the state, such action may be commenced within the terms herein respectively limited, after the return of said person into this state. But the foregoing provision shall not apply to any case where, at the time the cause of action shall accrue, neither the party against or in favor of whom the same shall accrue are residents of this state." R. S. Wis., 822. This statute may be expressed shortly thus: When the defendant is out of the state, the statute of limitations shall not run against the plaintiff, if the latter resides in the state, but shall if he resides out of the state. The argument of the plaintiff is, that, as the law refuses to non-residents of the state an exemption from its provisions, which is accorded to residents, it is repugnant to that clause of the constitution of the United States (art. 4, sec. 2) which declares that "the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states." It is contended that if the resident creditors of the state may sue their non-resident debtors at any time within six or ten years after they return to the state, non-resident creditors ought to have the same privilege, or else an unjust and unconstitutional discrimination is made against them. This seems at first view somewhat plausible, but we do not regard the argument as a sound one. There is, in fact, a valid reason for the discrimination. If the statute does not run as between nonresident creditors and their debtors, it might often happen that a right of action would be extinguished, perhaps for years, in the state where the parties reside; and yet, if the defendant should be found in Wisconsin,-it may be only in a railroad train,-a suit could be sprung upon him after the claim had been forgotten. The laws of Wisconsin would thus be used as a trap to catch the unwary defendant, after the laws which had always governed the case had barred any recovery. This would be inequitable and unjust. Beardsley v. Southmayd, 3 N. J. L. (Green), 171. It is also to be considered that a personal obligation is due at the domicile of the obligee. It is the duty of the debtor to seek the creditor, and pay him his debt, at the residence of the latter. Not doing this, he is guilty of laches against the law of the creditor's domicile, as well as his own. But he evades this law by absenting himself from the jurisdiction. As long as he does this, the statute of limitations of that jurisdiction ought not to run to the creditor's prejudice. This cannot be said with regard to the non-resident creditor. It is not the laws of Wisconsin any more than those of China which his nonresident debtor contemns by non-payment of the debt and absence from the state; it is the laws of some other state. Therefore, there is no reason why the statute of limitations of Wisconsin should not run as against the nonresident creditor; at least there is not the same reason which exists in the case of the resident creditor. If the non-resident creditor wishes to keep his action alive in other states than his own, he must reduce it to judgment and revive that judgment from time to time. Each new judgment would create a new cause of action, and would prevent the operation of the statutes of limitation of other states. We are of opinion, therefore, that the law in question does not produce any unconstitutional discrimination; and we prefer putting the case upon this broad ground, rather than to examine into the rights of the plaintiffs as a foreign corporation doing business in Wisconsin. Judgment affirmed. MR. JUSTICE STRONG concurred in the judgment, but dissented from the opinion upon the second assignment. KOSHKONONG v. BURTON. (14 Otto, 668-680. 1881.) ERROR to U. S. Circuit Court, Western District of Wisconsin. STATEMENT OF FACTS.- The object of this action, which was commenced on the 12th day of May, 1880, is to recover the amount due on bonds, with interest coupons attached, issued on the 1st day of January, 1857, by the town of Koshkonong, a municipal corporation of Wisconsin, pursuant to authority conferred by an act of the legislature of that state. They were made payable to the Chicago, St. Paul & Fond du Lac Railroad Company, or its assigns, on the 1st day of January, 1877, at the American Exchange Bank, in the city of New York, with interest at the rate of eight per cent. per annum, payable semi-annually, on the presentation of the interest warrants at that bank on the 1st day of each July and January, until the principal sum should be paid. Of the bonds in suit, with their respective coupons, Burton became the owner by written assignment from the railroad company, indorsed upon the bonds, under date of November 16, 1857. None of the coupons have ever been detached from the bonds nor paid, except those maturing July 1, 1857, and January 1, 1858. The coupons are all alike except as to dates of maturity. They are complete instruments, capable of sustaining separate actions, without reference to the maturity or ownership of the bonds. Commissioners of Knox County v. Aspinwall, 21 How., 539 (BONDS, §§ 1413-18); Clark v. Iowa City, 20 Wall., 583; Amy v. Dubuque, 98 U. S., 470 (§§ 209-11, infra). The following is a copy of the one last due: "The town of Koshkonong will pay to the holder hereof, on the 1st day of January, 1877, at the American Exchange Bank, in the city of New York, $40, being for half-yearly interest on the bond of said town No. 22, due on that day. S. R. Crosby, clerk." The main question is whether the action, as to coupons maturing more than six years prior to its commencement, is not barred by the statutes of limitation of Wisconsin. The court below being of opinion that no part of plaintiff's demands was barred gave judgment for the principal of the bonds, with interest from the 1st day of January, 1877, at the stipulated rate of eight per cent. per annum until paid, and also for the amount of each coupon in suit, with interest from its maturity at the rate of seven per cent. per annum, the latter being the rate established by the local law in the absence of a special agreement by the parties. The present writ of error questions the correctness of that judgment, as well because it overrules the defense of limitation to coupons maturing more than six years before the commencement of this action, as because it allows interest upon the amount of each coupon from its maturity. The statutes of Wisconsin, in force when the bonds and coupons were issued, provided that "all actions of debt founded upon any contract or liability, not under seal" (except such as are brought upon the judgment or decree of some court of record of the United States, or of a state or territory of the United States), shall be commenced within six years after the cause of action accrued, and not afterwards; and that all personal actions on any contract, not otherwise limited by the laws of the state, shall be brought within twenty years after the accruing of the cause of action. R. S. Wis., 1849, secs. 14-22, pp. 644, 645. We remark that the foregoing provisions, without substantial change of language, were taken from the statutes of the territory of Wisconsin, adopted in 1839. Further, that the revision of 1849 did not, in terms, prescribe any limitation to actions upon sealed instruments. They were, therefore, embraced by the limitation of twenty years as to personal actions on contracts not covered by other provisions. The revision of 1849 was superseded by one made in 1858, which went into operation on the 1st day of January, 1859. By the latter, as modified by an act passed in 1861, civil actions, other than for the recovery of real property, were required to be commenced within the following periods: Actions upon judgments or decrees of courts of record of the state, and actions upon sealed instruments when the cause of action accrued in the state, within twenty years (R. S. Wis., 1858, ch. 138, sec. 15); actions upon the judgments |