tain cases. Where a joint debtor pays a debt which is as to his co-debtor barred by the statute, he cannot recover contribution from such joint debtor.1 But a husband is not barred from joining and suing for the use of the wife at any time during coverture in any action which could survive to her after the removal of her disability.2 There is not much $33. When the right of action accrues. difficulty in determining when the right of action accrues as a question of law. Sometimes, it is true, there is a controversy upon mere technical points, such as whether a right of action accrues upon negotiable paper upon the last day of grace or only the next day after; but such questions hardly ever arise under statutes of limitations, and if the question should arise, the strict construction in favor of the creditor would generally prevail. In actions upon express contracts for money, of course, the cause of action accrues when the money is due by the contract, and so upon an implied contract to pay money whenever by law the debtor becomes liable, the cause has accrued; but in actions for the recovery of money from a party who holds the same in a fiduciary capacity, no right of action accrues until a demand is made, unless by some contract or duty arising out of the relation, it is made obligatory upon the person holding the money, to account and pay periodically, as in case of a public officer whose duty it is to report to another officer periodically and pay over money in his hands as such officer, it is held that the right of action accrues upon the failure to report and pay at the fixed period without demand. actions for tort, there can be no question that the cause accrues with the commission of the act. In actions for the possession of real estate whenever there is a visible adverse claim, the right accrues.5 And where the action is against one who claims as a cotenant, the cause accrues whenever the cotenant first denies the cotenancy and claims to hold for himself, which is always presumed where there is exclusive unqualified possession and claim. In §34. The statute applies alike to legal and equitable causes. Prior to the blending of law and equity, the statutes of limitations 12 R. S. (1876) 130, § 227. 2 Id. § 228. 3 Cunningham v. McKindley, 22 Ind. 70. 4 Moore v. The State, 55 Ind. 360. 'Hargis v. Inhabitants etc. 29 Ind. were never applied directly to suits in equity, although courts of equity in analogy to the rules of law, held the statutes of limitations binding, the maxim being, "equitas sequitur legem."1 But while this is so, there were cases where a court of equity would disregard the statute, and permit a cause of action to be enforced even after the period had expired, while in other cases the cause of action would be held stale before the statutory time.2 But the question can no longer arise in this state, as the code settles the rule in all cases alike, and whether the right be legal or equitable, the statute applies to all cases alike. $35. How shall the defendant avail himself of the statute of limitations? The statute abolishes or obliterates the cause of action and leaves the defendant with as full and perfect a title to, and enjoyment of the subject, as if the same had been cast upon him by operation of law or the act of the plaintiff himself. It would therefore seem that, whenever it appeared upon the pleading of the plaintiff, that the cause of action had been thus obliterated, it should be held bad on demurrer. But upon general principles of pleading, it has long since been settled at law that, as there are many exceptions to the statute, while the fact that the cause of action is shown prima facie to be barred, yet in order to give the plaintiff an opportunity to reply the exceptions, the statute must be pleaded.5 Whether this is in accordance with the logical rules of common law pleading, it is too late to inquire. But the rule in equity pleading for the same reason, as there is no special replication in equity, is different; there, if the bill upon its face show that the cause of action is barred, the objection may be taken on demurrer; and if the complainant rely upon exceptions to take the case out of the statute, they must be stated in the bill. Under the code, the reason of the rules already discussed as the common law rules rather than the equity mode of pleading, has been adopted, and in favor of requiring the statute to be pleaded in all cases, and the ruling has been to this effect in general.' A single exception has been countenanced, whether wisely or not need not be discussed. It is this: Where the statute of limitations is descriptive of the right of action, where no exception exists and the complaint shows that the action is barred, the objection may be taken on demurrer.1 Hannah v. The Jeff. R. R. Co. 32 Ind. 113. CHAPTER II. OF THE COMMENCEMENT OF AN ACTION-THE PROCESS. §1. Commencement of actions at the common law not discussed here. 2. Commencement of actions at law and suits in equity. 3. Arrest on civil process virtually abolished by the constitution. 4. Definition of process. 5. Former division of process. 6. Action. How commenced. 7. The commencement of an action, what. 8. Issuance of process. 9. No precipe necessary. Process may be issued to several counties at once. Duty of sheriff to indorse receipt of summons and proceed to serve the 10. same. 11. The usual or last place of residence, what. 12. Time and manner of returning summons. 13. Acknowledgment a substitute for service of summons. 14. Process, how served on a corporation. 15. Nonresident railroad corporation. 16. Process, how served upon agent where corporation or company is required to file agreement to accept service. 17. Great strictness formerly required in service and return of process. 18. Code seems to relax this strictness. 19. Substance of summons and return still preserved. 20. Notice by publication in certain cases. 21. Notice by publication continued. 22. Notice by publication continued. 23. Affidavit and publication. 24. Duty of clerk to make publication when affidavit filed. 25. Summons served outside the state as good as publication. 26. In case of nonresidence, where the name is unknown, how to proceed. 27. Proper evidence of service of process or notice. 81. Commencement of actions at the common law not discussed here. The modes of commencing actions at the common law, by original writ or precipe, with the peculiarities of the forms and course of procedure, are found in the common law treatises apon pleading and practice, and it would serve little or no benefi cial purpose to enter into an examination of that subject here. The curious student who desires to examine the subject is referred to the treatises. And § 2. Commencement of actions at law and suits in equity. Formerly in Indiana, an action was commenced by precipe, which is simply an order by the plaintiff's attorney for process. the declaration might either accompany the precipe, or be filed afterwards, within certain limits. And upon affidavit for bail, the process was a capias, upon which the defendant was arrested and held to bail. But otherwise, upon filing the precipe without affidavit for bail, the process was a summons simply. And under the chancery practice, the action was commenced by filing the bill, upon which the clerk issued a subpœna. § 3. Arrest on civil process, virtually abolished by the constitution. The constitutional abolition of imprisonment for debt, virtually put an end to the arrest of the defendant upon civil process; for although there is an exception in cases of fraud, yet in practice the constitutional prohibition gives almost total immunity from arrest on civil process. 84. Definition of process. Process is the means by which the defendant is brought into court to answer. § 5. Former division of process. Anciently process was divided into original, mesne and final. But in modern practice, as suits were never begun by original writ, the process is divided into mesne and final; the former signifying all process which intervenes between the beginning and end of the suit, embracing that with which it is begun, and the latter, that by which the final judgment of the court is enforced. 6. Action. How commenced. A civil action is commenced by filing a complaint in the office of the clerk of the court, who thereupon issues a summons for the defendant. Filing a paper consists in depositing it in the office of the clerk or delivering it to him, whose duty it is, upon a complaint or other proper paper being delivered to him, in vacation, to indorse the fact and date of filing on the same, signing his name to such indorsement, and placing the same upon the files of the court. The summons is 1 R. S. (1843) 671 et seq. 22 Bouv. L. Dict. 387; 1 Paine, 368. 3 Blk. Com. 279. |