tunity was offered by the use of ordinary diligence and due means to have arrested him, and unless two years and more have elapsed since that period to the time of finding the indictment, quære? United States v. White, 5 Cr. C. C., 38.

§ 580. Practice.- An indictment for perjury was filed within two years from the time the perjury was alleged to have been committed, on which a nolle prosequi was entered. Held, that a second indictment, filed within two years of the filing of the first, but more than two years after the date of the alleged perjury, was barred by the act of congress of April 30, 1790. United States v. Ballard, 3 McL., 469.

$581. Limitation may be given in evidence by the defendant under the general issue in a criminal cause; and the United States may give in evidence the fact that the defendant fled from justice, and therefore was not entitled to the benefit of the limitation. United States v. White, 5 Cr. C. C., 73.

§ 582. It is not sufficient ground for arrest of judgment that it appears upon the face of the indictment and the record that the indictment was not found within the time of limitation. Ibid.

§ 583. The court will not quash an indictment because it appears upon the record that the indictment was not found within two years after the offense was committed, for that would deprive the United States of the right to reply that the defendant was a person fleeing from justice, or to show it in evidence on the trial. The defendant may avail himself of the limitation either by special plea or by evidence upon the general issue. United States v. White, 5 Cr. C. C., 38.

§ 584. If it appears upon the whole record, upon an indictment for a misdemeanor, that the offense was committed more than two years before the indictment was found, the defendant may avail himself of that defense by a general demurrer. United States v. White, 5 Cr. C. C., 368.

$585. A former conviction and the statute of limitations are matters of defense and not cognizable under an application for discharge upon habeas corpus. In re Bogart, 2 Saw., 409.

VI. LIMITATIONS IN ADMIRALTY.

SUMMARY-Libel to reclaim a boat; delay, § 586..

§ 586. The court of admiralty will dismiss a libel filed to reclaim a boat where there has been long and unexcused delay. Thus, where the libelant sold a boat in 1874 for a certain sum down, and the balance was to be paid within thirty days, and the libel was filed in 1881 to recover the boat on account of a breach of the agreement, and the then owners had bought the boat in 1875, paying full value for it, and had ever since been in peaceable possession of the same, with the knowledge of the libelant, it was held that the court would not enforce the contract on account of laches. The Walter M. Fleming, § 587. [NOTES.-See §§ 588-606.]

THE WALTER M. FLEMING.

(District Court for New York: 9 Federal Reporter, 474-476. 1881.)

Opinion by BENEDICT, J.

STATEMENT OF FACTS.-The libel in this case, by reason of its curious and uncertain averments, presents questions that I pass over to determine the question raised by the evidence; namely, whether, upon the facts proved, a case is made calling for the interposition of this court to take the possession of the canal-boat, Walter M. Fleming, from Cornelius Vanolinda, who now has the same, and give it to the libelant. The facts are largely in dispute, according to the libelant's testimony. He being the owner and in possession of this boat in July, 1874, at Rochester, New York, made an agreement with one Charles Vanolinda to sell the boat for a certain sum, $150 down, and the balance within thirty days. The $150 was then paid by the buyer, and the boat was delivered to him, since which the libelant has seen nothing of the boat or the buyer until the commencement of this suit, and has received no part of the purchase money except the $150. What the full consideration was

agreed to be libelant does not recollect, but he thinks it was over $500, and he thinks that no bill of sale of the boat was ever given by him.

§ 587. Laches destroys the equity of a vendor.

.

Nothing of all this appears in the libel, which contains no allusion to either Charles or Cornelius M. Vanolinda; and makes one Wright the party defendant, with whom it is evident the libelant has no controversy. But assuming the libelant's recollection to be accurate, which evidently it is not in all respects, and assuming that the state of facts sought to be made by the libelant's testimony is admissible under his libel, his action cannot be maintained; for, according to the libelant's testimony, at the expiration of thirty days from his delivery of the boat to Charles Vanolinda, in July, 1874, he had the right to resume possession of the boat, and from that time to this he has made no attempt to exercise this right. The fact conceded in this case, that no bill of sale of the boat was given at the time of the delivery of the boat to Charles Vanolinda, is deprived of much of its ordinary significance as bearing upon the question whether the title was intended to be transferred by the circumstance that the libelant has no bill of sale. The only bill of sale proved is from William D. Callister to the libelant and one Mr. William H. Crennel. The libelant, doubtless, became possessed of Crennel's interest in the boat, but he has no bill of sale from Crennel. Assuming, however, that the omission to deliver a bill of sale to Charles Vanolinda, under these circumstances, be sufficient to compel the conclusion that there was no intention to part with the title to this boat at the time of the bargain with Charles Vanolinda, still it must in equity be held that any right to reclaim possession of the boat, upon failure of the buyer to perform his agreement, has been waived by this long and unexcused delay of some seven years. And this, certainly, when, as the claimant has proved, the boat was during this long period running upon the Erie canal, and both Charles Vanolinda and the present possessor, Cornelius Vanolinda, had been seen by the libelant on more than one occasion without any demand of the possession ever being made, and when no obstacle existed to prevent the libelant from resuming the possession at any time. It was the libelant's duty, if he intended to reclaim possession of the boat, to do so within a reasonable time after the default; and he cannot be permitted to wait seven years, and then without demand apply to have the court put him in possession as against one who, according to testimony that has not been disputed, bought the boat in 1875, paying full value therefor, and since then has been in peaceful possession of the boat, with the knowledge of the libelant and without objection on his part. The libel is dismissed, with costs.

§ 588. General principles.— The statute of limitations of a state is no bar to a suit on the admiralty side of the courts of the United States. Willard v. Dorr, 3 Mason, 91.

§ 589. That a demand is stale must in admiralty be specially pleaded. The Platina, 3 Ware, 180.

§ 590. While the statute of limitations is not obligatory in admiralty, it will be regarded in adjusting the equities of the parties. Saunders v. Buckup, Bl. & How., 269.

§ 591. It it generally true that courts of admiralty govern themselves in the maintenance of suits by the analogy of common law limitations. Jay v. Allen, 1 Spr., 130.

§ 592. Courts of admiralty, like courts of equity, govern themselves in the maintenance of suits by the analogies of the common law limitations; and are not inclined, unless under very strong circumstances, to depart from those limitations. But, independently of any statutable limitations, courts of admiralty will not entertain suits for stale demands. The Brig Sarah Ann, 2 Sumn., 206.

§ 593. In a court of admiralty stale claims meet with no more recognition than in a court of equity. Ocean Ins. Co. v. Sun Mut. Ins. Co., 15 Blatch., 249.

§ 594. Where a seaman delayed bringing an action against the master for an assault for nearly four years, his action was regarded with but little favor. Saunders v. Buckup, Bl. & How., 264. $595. Action against a vessel for personal injuries, barred, as against a mortgagee, by a delay of nearly two years. Griswold v. Steamer Nevada, 2 Saw., 144.

§ 596. As to laches in enforcing liens, the same rule applies to liens for wages as to liens for repairs and supplies. The Dubuque, 2 Abb., 20.

$597. In admiralty a delay of six years, though no technical bar by statute, may still be decisive against a claim for wages by a crew, where, in the meantime, the master has died or changes have occurred affecting the property, its value, etc. Joy v. Allen, 2 Woodb. & M., 304.

§ 598. Courts of admiralty will not entertain stale demands for wages. The lapse of twelve years affects a demand for master's wages with the imputation of staleness. Willard v. Dorr, 3 Mason, 161.

$599. Miscellaneous.

The statute of limitations of Massachusetts, which is substantially

a copy of 21 Jac., ch. 16, applies only to suits at common law for mariners' wages, and not to suits in the admiralty. Brown v. Jones, 2 Gall., 477.

§ 600. The statute of Anne, limiting suits in the admiralty for seamen's wages to six years, is not a bar to such suits in the courts of the United States. Willard v. Dorr, 3 Mason, 91.

§ 601. An American ship, in 1809, sailed from Marblehead on a voyage to St. Petersburg and back, and performed her outward voyage, but on her return voyage was captured and carried into Denmark, and condemned by the Danish tribunals, and afterwards compensation was made, under the treaty with Denmark of the 28th of March, 1830, for the ship and cargo. Upon suit for seamen's wages brought subsequent to the treaty, held, that the wages for the outward voyage to St. Petersburg were, by the capture and condemnation, vested by an absolute title in the libelant in 1809; that, as they might then have been sued for, they were stale from lapse of time, upon the principles of courts of admiralty, and incapable of being asserted. Pitman v. Hooper, 3 Sumn., 286.

§ 602. A steam-tug collided with (and sunk) another vessel on the 28th of December, 1859. On March 31, 1866, a libel was filed against the tug-owners to recover damages. The proofs showed that the tug remained within the district for more than a year after the collision occurred, and that the tug-owners had been residing, or carrying on business, in the district during the six years intervening between the collision and the bringing of the suit. Held, nothing being offered by way of excuse for the delay, that the claim was stale, and for that reason barred. Smith v. Sturgis, 3 Ben., 330.

§ 603. Upon libel for wages filed against a vessel by a seaman, the claimants having purchased the vessel after the claim for wages had accrued, held, that in order to maintain the defense of stale claim it was necessary to allege and prove that the claimants were purchasers in good faith for a valuable consideration and without notice of the existence of the claim. The Melissa, 1 Brown, 476; 6 Ch. Leg. N., 271.

§ 604. Where, under the above circumstances, the proofs showed that the claimants retained a portion of the purchase money in their hands, that at the time of the purchase the vendor agreed to pay all claims then existing against the vessel, and that the claimants were really defending the suit for and in the interest of such vendor, held, that the defense of stale claim was wholly untenable. Ibid.

§ 605. Libels filed against boats for negligence will not be enforced when the claim is stale, to the injury of third persons; so held where a libel was filed against a tug boat to recover the value of a canal-boat alleged to have been sunk through the captain's negligence in September, 1873. The action was commenced in July, 1876, and the tug boat had come into the hands of innocent purchasers without notice, and it was impossible to show in evidence the actual condition of the canal-boat at the time on account of the lapse of time. The Tug Jessie Russell, 9 Ben., 181.

§ 606. Courts of admiralty are not governed, in suits to enforce maritime liens, by any statutes of limitation, but they adopt the principle that laches or delay in the judicial enforcement of them will, under proper circumstances, constitute a valid defense. No arbitrary or fixed period of time has been, or will be, established as an inflexible rule, but that delay which will defeat such a suit must in every case depend on the peculiar equitable circumstances of that case. Where the lien is to be enforced to the detriment of a purchaser for value, without notice of the lien, the defense will be held valid under shorter time, and a more rigid scrutiny of the circumstances of the delay, than when the claimant is the owner at the time the lien accrued. Thus a lien, a suit to enforce which was commenced three and a half years after the cause of action accrued, was allowed against purchasers with notice. The Key City, 14 Wall., 653.

VII. LIMITATIONS IN REAL ACTIONS.

1. Simple Adverse Possession in Actions at Law.

SUMMARY-Possession of intruder, § 607.- Twenty years' adverse possession, § 608.- Effect of saving clause in patent, § 609.- Trustee and cestui que trust barred, § 610.

§ 607. The possession of a mere intruder is not an ouster of the rightful owner. The statute of limitations of Vermont of 1785 does not bar the true owner until the lapse of fifteen years. By the act of 1802 the statute does not run against the true owner of lands held for public, pious or charitable uses. This was repealed in 1819. Thus where an action of ejectment was commenced in 1824 by a foreign corporation to recover lands given it by a royal charter in 1761, in the town of Pawlet, in Vermont, which had been in the possession of Edward Clarke from 1780 until he surrendered it to the town, which in 1794 leased the same to Ozias Clarke, it was held that Edward Clarke was a mere intruder, and that there was no adverse possession until 1794, and as the statute did not run between 1802 and 1819, the statute had run only fourteen years, and was not a bar. Society for the Propagation of the Gospel v.

Town of Pawlet, § 611-18.

§ 608. Uninterrupted, open, visible and notorious adverse possession for twenty years is a good defense to the action of ejectment. So held in an action of ejectment to recover certain lots in the District of Columbia. Hogan v. Kurtz, §§ 619-22.

§ 609. A reservation contained in a patent, saving the right of persons claiming under a particular act of congress, does not prevent the statute of limitations from running in favor of the patentee and against those claiming under the act of congress. So held in an action to recover certain property in Peoria, Ill., which was in the possession of Meehan, claiming under a patent, issued to Charles Ballance, for more than ten years. The patent had been issued to Ballance in 1838, subject to the rights of any and all persons claiming under the act of congress of March 30, 1823. Meehan v. Forsyth, § 623.

§ 610. When the right of action in a trustee is barred, it is barred in the cestui que trust also. So held in an action to recover a lot in San Francisco, California, of which George Harlan died seized in 1850. In 1856 his administrator, Benjamin Aspinall, by an order of the probate court, sold the lot, and the defendants, or those under whom they claim, entered into possession and have remained there since then. In 1864 Aspinall settled up his accounts and was discharged. The probate act limits actions to recover real estate sold by an administrator to three years. The real estate of a decedent is assets in the hands of an administrator, and he is entitled to possession. Meeks v. Olpherts, § 624. [NOTES.-See $$ 627-728.]

SOCIETY FOR THE PROPAGATION OF THE GOSPEL v. TOWN OF PAWLET. (4 Peters, 480-510. 1830.)

Opinion by MR. JUSTICE STORY.

STATEMENT OF FACTS.- This cause is certified to this court from the circuit court for the district of Vermont, upon certain points upon which the judges of that court were opposed in opinion. The original action was an ejectment, in the nature of a real action, according to the local practice, in which no fictitious persons intervene; and it was brought in May, 1829, to recover a certain lot of land, being the first division lot laid out to the right of a society in the town of Pawlet. The plaintiffs are described in the writ as "The Society for the Propagation of the Gospel in Foreign Parts, a corporation duly established in England, within the dominions of the king of the United Kingdom of Great Britain and Ireland, the members of which society are aliens, and subjects of the said king." The defendants pleaded the general issue, not guilty, which was joined, and the cause was submitted to a jury for trial. By agreement of the parties at the trial, the jury were discharged from giving any verdict upon the disagreement of the judges upon the points growing out of the

facts stated in the record. Those points have been argued before us, and it remains for me to pronounce the decision of the court.

§ 611. Pleading the general issue admits the competency of a plaintiff to sue as a corporation; objections to its competency should be made by special plea in abatement or bar.

The first point is whether the plaintiffs have shown that they have any right to hold lands. In considering this point it is material to observe that no plea in abatement has been filed denying the capacity of the plaintiffs to sue; and no special plea in abatement or bar, that there is no such corporation as stated in the writ. Comyn's Dig., Abatement, E., 16; Mayor, etc., of Stafford v. Bolton, 1 Bos. & Pull., 40; 1 Saunders, 340, Williams' Notes; 6 Taunt., 467; 7 id., 546. The general issue is pleaded, which admits the competency of the plaintiffs to sue in the corporate capacity in which they have sued. If the defendants meant to have insisted upon the want of a corporate capacity in the plaintiff's to sue, it should have been insisted upon by a special plea in abatement or bar. Pleading to the merits has been held by this court to be an admission of the capacity of the plaintiffs to sue. Conard v. Atlantic Ins. Co., 1 Pet., 386, 450. See the case of Sutton Hospital, 10 Co., 30, b.; Comyn's Dig., Franchise, F., 6, 10, 11, 15; Capacity, A., 2. See, also, Proprietors of Kennebec Purchase v. Call, 1 Mass., 482, 484; Mayor, etc., of Stafford v. Bolton, 1 Bos. & Pull., 40; 1 Saunders, 340, note by Williams.

§ 612. The recognition in a charter to a town of the capacity of a corporation to hold lands therein, by a designated name, vests the power, even if it did not exist previous thereto.

But the point here raised is not so much whether the plaintiffs are entitled to sue generally as a corporation, as whether they have shown a right to hold lands. The general issue admits not only the competency of the plaintiffs to sue, but to sue in the particular action which they bring. But, in the present case, we think there is abundant evidence in the record to establish the right of the corporation to hold the lands in controversy. In the first place, it is given to them by the royal charter of 1761, which created the town of Pawlet. Among the grantees therein named is "The Society for the Propagation of the Gospel in Foreign Parts," to whom one share in the township is given. This is a plain recognition by the crown of the existence of the corporation, and of its capacity to take. It would confer the power to take the lands, even if it had not previously existed; and the other proceedings stated on the record establish the fact that the society had received various other donations from the crown of the same nature, and had accepted them. Besides, the act of 1794, under which the town of Pawlet claims the lands, distinctly admits the existence of the corporation, and its capacity to take the very land in controversy.

"Whereas," says the act, "The Society for the Propagation of the Gospel in Foreign Parts is a corporation created by and existing within a foreign jurisdiction, to which they alone are amenable; by reason whereof, at the time of the late revolution of this and of the United States from the jurisdiction of Great Britain, all lands in this state, granted to the Society for the Propagation of the Gospel in Foreign Parts, became vested in this state," etc.

And the act then proceeds to grant the right of the state, so vested in them, to the various towns in which they are situated. So that the title set up by the state is under the society, as a corporation originally capable to take the lands, and actually taking them, and their title being devested and vesting in