time of his appointment, which might indeed be more than six years after the claim accrued, notwithstanding the fact that the disqualification of the representatives to sue without an administrator is not mentioned in the statute, and the provision of the statute that "no other disability than those enumerated shall prevent any claim from being barred." Fulenweider v. United States,* 9 Ct. Cl., 403.

§ 1137. Infants and femes covert.- In action of trespass quare clausum fregit the statute of limitations was pleaded. The replication then alleged the infancy of some and coverture of others of the plaintiffs. Held, that the disability of some of the plaintiffs did not take the case out of the statute of limitations. Marsteller v. McClean,* 1 Cr. C. C., 579.

§ 1138. By the Oregon statute of limitations (Code of 1854, p. 172; Code of 1876, p. 108), where a cause of action to recover real property accrues to a married woman, the time of her disability or marriage shall not be counted as a part of the limitation; and this is true whether the cause of action relates to her separate property or otherwise. Wythe v. Smith, 4 Saw., 17. § 1139. If the statute of limitations runs against one of several parties entitled to a joint action, it operates as a bar to such action. Thus, where a declaration in assumpsit contained an averment that certain of the plaintiffs, at the time when the cause of action accrued, were femes covert and ever since have continued femes covert," and another of the plaintiffs was a feme covert," it was held, on demurrer, that the averment as to the latter plaintiff would have been fatal in a several action brought by her, and that when the statute has run against one of two parties entitled to a joint action, it operates as a bar to such joint action. The demurrer was sustained. Marsteller v. McClean,* 7 Cr., 156.

§ 1140. By the construction of the act of Kentucky of 1797, granting further time for making surveys, with a proviso allowing to infants, etc., three years after their several disabilities are removed to complete surveys on their entries, if any one or more of the joint owners be under the disability of infancy, etc., it brings the entry within the saving of the proviso, as to all of the other owners. Miller's Heirs v. M'Intire, 11 Wheat., 441.

§ 1141. The act of Kentucky of 1797, taken in connection with preceding acts, declaring that entries for land shall become void, if not surveyed before the 1st day of October, 1798, with a proviso allowing to infants and femes covert three years after their several disabilities are removed to complete the surveys on their entries, it was held that if any one or more of the joint owners be under the disability of infancy or coverture it brings the entry within the saving of the proviso as to all the other owners. Shipp v. Miller, 2 Wheat., 316. See Lewis v. Marshall,* 1 McL., 16.

§ 1142. A claim is not stale when the party was under the disability of coverture until three years before bringing suit. House v. Mullen, 22 Wall., 42.

§ 1143. The statute of limitations does not run against a feme covert in Oregon. Wythe v. Smith, 4 Saw., 17.

§ 1144. Neither lapse of time nor the statute operates against infants, and yet if the statute begins to run in the life of the ancestor, it will continue to run after his decease against his minor heirs. Bowman v. Wathen, 2 McL., 401.

§ 1145. Non-residents.-The statute of limitations of Ohio bars the heirs of a non-resident by an adverse possession of twenty years, during the life of the ancestor. Lewis v. Baird, 3 McL., 56.

§ 1146. Non-residence saves the operation of the statute of limitations, but not the effect of time. Bowman v. Wathen, 2 McL., 400.

§ 1147. Statute of limitations does not run against non-residents. Kibbe v. Thompson, 5 Biss., 232.

§ 1148. It is a good replication to a plea of the statute of limitations that the plaintiff is and has been a foreigner and beyond seas. Chomqua v. Mason, 1 Gall., 342.

§ 1149. Defendant owned a large and valuable farm, with stock upon it, in B., in the state of Vermont. The farm was formerly owned and occupied by the defendant's father, who afterwards conveyed it to the defendant, subject to a life estate in the father, by deed duly executed and recorded. After the father's death the defendant leased the farm with the stock upon it, to tenants who occupied it under him. Both farm and stock, during the whole time, having been set in the list for the purpose of taxation, in the name of the defendant with the name of the occupant, and were generally known in the town, which was a town of note and the seat of justice for the county, as the property of the defendant. B., where the property was situate, was the dwelling-place of the family while living, to which the defendant belonged, and where he might, if any where, claim to have his domicile, though personally absent therefrom except an occasional return during his long service in the army. The statute of limitations in the state of Vermont runs in favor of the party although he be absent from and resides out of the state, if he have known property within the state, which could, by the common and ordinary process of law, be attached. Held, that these circumstances were sufficient to charge the plaintiff with knowledge of the existence of attachable property of defendant in the

state, and cause the statute to run in favor of the latter. Stoughton v. Dimick, 3 Blatch., 356; 8 Law Rep. (N. S.), 557; 29 Vt., 535.

§ 1150. The state of Delaware is "beyond seas" in regard to the District of Columbia, within the meaning of the statute of limitations. Ferris v. Williams, 1 Cr. C. C., 475.

§ 1151. Under an act providing that if, at the time when any cause of action mentioned in the act shall accrue against any person, he shall be out of the territory, the action may be commenced within the time therein limited therefor, after such person shall come into the territory, it was held that where the maker of a promissory note resided out of the territory at the time when it became due, and afterwards removed into the territory, although the note had been due more than six years, it was not barred by the statute of limitations unless six years had elapsed since the maker came into the territory before the commencement of the action; but that, to prevent the statute from running in such case, the debtor must have been out of the territory when the cause of action accrued. Brown v. Bicknell,* 1 Burn. (Wis.), 65.

§ 1152. In an action for a British debt, contracted before 1775, for goods sold to the defendant by a British factor, held, that the statute of limitations was no bar, the statute being a legal impediment which was removed by the treaty of peace and the convention of 1802. Dunlop v. Alexander, 1 Cr. C. C., 498.

§ 1153. A British subject who, before the treaty of 1794, took a bond in the name of a citizen of the United States, cannot avoid the statute of limitations by claiming the benefit of the clause of the treaty which removed all legal impediments in the recovery of British debts. Auld v. Hoyl, 1 Cr. C. C., 544.

§ 1154. If the holder of an accepted bill of exchange be beyond seas at the time his cause of action accrues, and so continues until suit brought, the statute of limitations is no bar, although he was always a resident of the United States. Irving v. Sutton, 1 Cr. C. C., 567.

$1155. Under the act of limitations of 1789, which provides that the creditors of any deceased person, if they reside without the limits of the state, shall, within three years from the qualification of the executor or administrator, exhibit and make demand or be forever barred, held, that the claim of a deceased creditor was not barred until three years after the appointment of his administrator in this country, although, prior to such appointment, an administrator was appointed in England. Grubb v. Clayton,* 2 Hayw., 575.

§ 1156. Executors having taken out letters testamentary in Kentucky, improperly sold land situated in Ohio. Held, that under the laws of Ohio the statute of limitations only ran as to the devisees who were residents of Ohio. Dunlap v. Pyle, 5 McL., 322.

§ 1157. Under the statute of Utah Territory, which provides that “if where (when) the cause of action shall accrue against a person while he is out of the territory, the action may be commenced within the term herein limited after his return to the territory; and if after the cause of action shall have accrued he depart the territory, the time of his absence shall not be part of the time limited for the commencement of the action," held, that, notwithstanding the use of the words "return" and "depart," the exception comprehended all persons without and ́non-residents of the territory as well as citizens of the territory; and that when the parties to a contract sued upon were not residents of the territory at the time the contract was made, or at the time the cause of action accrued upon it, and the party against whom the action is brought has moved into the territory after it accrued, the statute of limitations does not begin to run against the cause of action until he comes into the territory. Burns v. Crane,* 1 Utah Ty, 179.

XII. MISCELLANEOUS CASES.

SUMMARY - Right and limitation provided by same statute, § 1158.- Assumpsit to try title to

land, § 1159.

§ 1158. Where a statute gives a right of action unknown to the common law, and, either in a proviso to the section conferring the right or in a separate section, limits the time within which an action shall be brought, such limitation is operative in any other jurisdiction wherein the plaintiff may sue. Boyd v. Clark, SS 1160-61.

§ 1159. An action of assumpsit for money had and received, brought to try the title to land in the city of Washington, is within the Maryland statute of limitations of 1791. Beatty v. Burnes, 1162.

BOYD v. CLARK.

(Circuit Court for Michigan: 8 Federal Reporter, 849-852. 1881.)

STATEMENT OF FACTS.- Action based upon a statute of the province of Ontario, which gave damages for causing the death of a person, and limited the period within which suit should be brought to twelve months. Plaintiff's intestate (his son) lost his life while in the service of defendants, by reason of alleged negligence of the master of their steamer on which deceased was an employee.

§ 1160. Limitations; doctrine of lex fori.

Opinion by BROWN, J.

It is a well-established principle of law that where a right of action is given by a state statute such right may be enforced in another state, and also that such right will be enforced according to the forms and modes of procedure in use in the latter state. Or, to put it briefly, the lex loci contractus governs the rights of parties, but the lex fori determines the remedy. This principle has been applied in a large number of cases arising upon contracts, but in the recent case of Dennick v. Railroad Co., 103 U. S., 11 (COURTS, §§ 581-84), it was applied to a statute of this description, where the administrator brought his action in another state. An almost unbroken series of adjudications has also established the further proposition that the time within which an action may be brought relates generally to the remedy, and must be determined by the law of the forum. Hence, it would follow that if this statute contained no limitation of time within which an action must be brought, and the time had been left to depend upon the general statutes of limitations in the province of Ontario, it is clear that we should have disregarded such statute, and permitted the plaintiff to bring this action at any time before actions of this description would be barred by the statutes of this state.

81161. Where the law of a foreign state creates a liability, gives a remedy, and, imposes upon it a limitation, the limitation will control an action brought under such statute in the courts of the United States. Cases cited.

An exception to this general rule, however, is suggested by Mr. Justice Story, in his Conflict of Laws (§ 582), of cases where the statutes of limitation or prescription of a particular country do not only extinguish the right of action, but the claim or title itself, ipso facto, and declare it a nullity after the lapse of the prescribed period; and the parties are within the jurisdiction during the whole of that period, so that it has actually and fully operated upon the case.

"Suppose, for instance, personal property is adversely held in a state for a period beyond that prescribed by the laws of that state, and, after that period has elapsed, the possessor should remove into another state, which has a longer period of prescription, or is without any prescription, could the original owner assert a title there against the possessor, whose title, by the local law and the lapse of time, had become final and conclusive before the removal."

The cases of Shelby e. Guy, 11 Wheat., 361; Goodman v. Munks, 8 Port., 84 (overruled by Jones v. Jones, 18 Ala., 248); Brown v. Brown, 5 Ala., 508; and Fears v. Sykes, 35 Miss., 633, do, in fact, lend support to this distinction; the general tenor of these cases being to the effect that where the statute of one state declares that the possession of personal property for a certain period

vests an absolute title, such prescription will be enforced in every other state to which the property may be removed, or wherein the question may arise. In the P., C. & St. L. R. Co. v. Hine, 25 Ohio St., 629, it was held that under an act requiring compensation for causing death by wrongful act, neglect or default, which gave a right of action, provided such action should be commenced within two years after the death of such deceased person, the proviso was a condition qualifying the right of action, and not a mere limitation on the remedy. The accident occurred on the 24th of September, 1870. The suit was begun on the 23d of January, 1873. In March, 1872, the act was amended by increasing the amount for which recovery might be had, and by omitting the limitation contained in the proviso, and also by repealing the section as it stood before. The court held that in creating or giving the right it was within the power of the legislature to impose upon it such restrictions as were thought fit; and if restrictions were imposed, they must be referred to the newly-created right itself, if the restricted language would warrant it; for the act being in derogation of the common law, any restrictive language used in it must be construed against the right created by it. And it was also suggested that it would have been different if the act were merely remedial as to existing rights. It was further held that the plaintiff's rights must be determined as the act originally stood, and was therefore subject to the restrictions contained in the proviso, and the action, not having been brought within the two years, could not be sustained. The case differs from the one under consideration only in the fact that the limitation was contained in a proviso to the section directing in whose name the action should be brought.

In the case of Eastwood . Kennedy, 44 Md., 563, it was held that where a statute of the United States for the District of Columbia gave a claim for the recovery of usurious interest, provided suit to recover the same be brought within one year after the payment of such interest, that it would not be competent for a party to recover in Maryland after the lapse of a year, and that the courts of that state were bound to respect and apply the limitations contained in the act. The cases of Baker v. Stonebraker's Adm'r, 36 Mo., 349, and Huber v. Stiener, 2 Bing. N. C., 202, are somewhat analogous, but throw little additional light upon the question.

To this extent go the authorities and no further. None of them are controlling here. None are precisely upon all-fours with the case under consideration. We are compelled, then, to deal with it to a certain extent as an original question. The legislature of Ontario has given a right unknown to the common law, but it has seen fit to qualify this right by providing that no more than one action shall lie for the same subject-matter, and that every such action shall be commenced within twelve months after the death of a deceased person.

To permit an action to be brought upon it here after the twelve months would be giving plaintiff a right which the statute he invokes does not authorize, and to that extent nullifying the statute. In the Dennick Case the supreme court held that the method of distribution provided by the local act, although a part of the remedy, should be pursued by the court in which the action is brought. It would seem from this that even so far as the remedy is concerned the court will not universally adopt the law of the former. The true rule I conceive to be this: that where a statute gives a right of action unknown to the common law, and, either in a proviso to the section conferring the right or in a separate section, limits the time within which an action shall be

brought, such limitation is operative in any other jurisdiction wherein the plaintiff may sue. It results from this that the action is barred by the statute, and the demurrer must be sustained.

BEATTY v. BURNES.

(8 Cranch, 98-108. 1814.)

ERROR to the Circuit Court for the District of Columbia.
Opinion by MR. JUSTICE STORY.

STATEMENT OF FACTS. This is an action for money had and received, brought by the plaintiffs as administrators of Charles Beatty, deceased, against the defendant as administrator of David Burnes, deceased. The declaration alleges the promise to have been made in the life-time of the respective intestates. The defendant has pleaded the general issue and the statute of limitations of Maryland.

Upon the trial in the circuit court for the District of Columbia, the plaintiffs sought to support their action under the fifth section of the statute of Maryland of November, 1791, chapter 45, concerning the territory of Columbia and the city of Washington. That section is as follows:

"And be it enacted, that all the squares, lots, pieces and parcels of land within the said city, which have been or shall be appropriated for the use of the United States, and also the streets, shall remain and be for the use of the United States; and all the lots and parcels which have been or shall be sold to raise money as a donation as aforesaid, shall remain and be to the purchasers, according to the terms and conditions of their respective purchases.” "And purchases and leases from private persons claiming to be proprietors, and having, or those under whom they claim having, been in possession of the lands purchased or leased, in their own right, five whole years next before the passing of this act, shall be good and effectual for the estate, and on the terms and conditions of such purchases and leases respectively, without impeachment, and against any contrary title now existing; but if any person hath made a conveyance, or shall make a conveyance or lease, of any lands within the limits of the said city, not having right and title to do so, the person who might be entitled to recover the land under a contrary title now existing may, either by way of ejectment against the tenant, or in an action for money had and received for his use against the bargainor or lessor, his heirs, executors, administrators or devisees, as the case may require, recover all money received by him for the squares, pieces or parcels appropriated for the use of the United States, as well as for lots or parcels sold, and rents received by the person not having title as aforesaid, with interest from the time of the receipt; and on such recovery in ejectment, where the land is in lease, the tenant shall thereafter hold under, and pay the rent reserved, to the person making title to and recovering the land, but the possession, bona fide acquired, in none of the said cases shall be changed."

The plaintiffs offered evidence that on the 16th of April, 1792, Charles Beatty, the intestate, returned into the land-office for the western shore of Maryland a certificate of survey, dated on the 3d of April, 1792, and then paid the usual caution money for the land described in said certificate. On the 23d May, 1792, a caveat against the issuing of a patent for the lands on said certificate was filed by David Burnes, the intestate, which caveat was discontinued on the 23d of May, 1801, by virtue of a certain act of the state of