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6 S.Ct. 155

115 U.S. 528

29 L.Ed. 467

TRAER and another

v.

CLEWS.1

 Filed November 23, 1885.

Henry Clews, the defendant in error, on January 17, 1878, brought this

suit in the circuit court of Linn county, Iowa, against John W. Traer and

others, to recover the value of 50 shares, of $1,000 each, of capital stock 

in the Cedar Rapids North western Construction Company, and the

dividends which had been declared thereon. The stock had been originally

subscribed and owned by Clews. The construction company was

organized in 1870. The dividends sued for were declared, $10,000 in

December, 1873, and $500 in January, 1874, and were in the treasury of 

the company ready to be paid out to the holder of the stock. On November 

28, 1874, Clews was adjudicated a bankrupt, and his stock in the

construction company, with the dividends which had been declared

thereon, passed to J. Nelson Tappan, trustee of his bankrupt estate. In

February, 1875, the construction company went into voluntary dissolution

and liquidation, and John W. Traer, John F. Ely, and William Green were

appointed trustees to settle up its affairs and divide its assets among its

stockholders, according to their interest therein. Traer, knowing that the

dividends above mentioned had been declared, and the same being

unknown to Clews and Tappan, his trustee in bankruptcy, on March 4,

1876, for the consideration of $1,200, through the intervention of oneArmstrong, who did not disclose his agency, purchased of Tappan, the

trustee, the 50 shares of stock above mentioned. Traer alleged, and it

appeared, that the purchase was made by him for his wife, Mrs. Ella D.

Traer. Afterwards, on December 6, 1877, Ta p pan, the trustee in

 bankruptcy, assuming, as it may be supposed, that the sale of the stock 

made at the instance of Armstrong was void for fraud, sold all his claims

and demands on account of the stock to Clews, who, on January 17, 1878,

 brought this suit. John W. Traer and others, who had been officers andtrustees of the construction company, were made defendants to the

original petition. The defendants demurred to the petition on the ground

that it did not state facts sufficient to entitle the plaintiff to the relief 

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demanded. The court overruled the demurrer. Afterwards, the plaintiff 

having discovered that, on March 4, 1876, the stock in the construction

company had been assigned to Ella D. Traer, on October 28, 1879,

amended his petition by making her a party defendant to his suit. Upon

final hearing in the circuit court for Linn county the suit was dismissed as

to all the defendants except John W. Traer and Ella D. Traer, and

 judgment was rendered against them for $15,000. Traer and his wifeappealed from this judgment to the supreme court of Iowa, which affirmed

the judgment of the circuit court. By the present writ of error Traer and

wife ask a review of the judgment of the supreme court of Iowa.

 N. M. Hubbard  and Chas A. Clark , for plaintiffs in error, John W. Traer 

and another.

[Argument of Counsel from pages 529-533 intentionally omitted]

 L. Deane and Frank G. Clark , for defendant in error, Henry Clews.

WOODS, J.

1 The defendant in error questions the jurisdiction of this court. As the record

shows that the plaintiff in error dispute the validity of a transfer to the

defendant in error of the property in controversy, made to him by a trustee in bankruptcy, appointed under and deriving his authority from the bankrupt act,

and as the question is made whether the suit is barred by the limitation

 prescribed by the same act, we are of opinion that the jurisdiction of the court

to decide these questions is clear. Factors' Ins. Co. v. Murphy, 111 U. S. 738;

S. C. 4 Sup. Ct. Rep. 679; New Orleans R. Co. v. Delamore, 114 U. S. 501; S.

C. 5 Sup. Ct. Rep. 1009.

2 The record does not leave it in doubt that the purchase by Traer from Tappan of the rights incident to the stock in the construction company belonging to the

 bankrupt estate of Clews was brought about by the fraudulent practices of 

Traer. As stated by the supreme court of Iowa, he was a stockholder, officer,

and trustee of the construction company, and had been, from the first, actively

engaged in the management of its affairs. As trustee he was solely intrusted

with the custody of the assets, books, and papers of the corporation, and had

full and complete knowledge of all matters pertaining to the assets and business

of the company. He knew that the plaintiff or his bankrupt estate was entitled todividends amounting to at least $10,500, received by Traer upon entering upon

the discharge of his duties as trustee. The assets of the company, much of them

 being in money, he held as a trustee for the stockholders, being so constituted

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 by the act of dissolution of the corporation. He misrepresented the value of 

these assets to both Tappan and Clews, and induced them to believe that the

sum to which they were entitled did not greatly exceed $1,200 in value, the

amount of the consideration of the assignment of the stock by Tappan. He

employed attorneys and agents to negotiate for the purchase of the stock, who

concealed from Tappan that the purchase was made for Traer or his wife. These

agents knew that they were making the purchase for Traer or his wife, andneither of them at any time was a good-faith purchaser. In all of the transactions

connected with the purchase of the stock Traer acted as the agent of his wife,

who knew that her husband was a trustee holding the assets for the

stockholders of the construction company, and knew their value, and was

guided in her purchase by his advice and direction. She knew that Tappan was

ignorant of the value of the assets, and she had knowledge of the devices used

 by her husband to secure the purchase of the stock and dividends. By means of 

these fraudulent devices she purchased from Tappan, for the price of $1,200, property which the state circuit court found to be of the value of $15,000. The

charge of fraud made in the petition was therefore fully sustained.

3 Among other defenses pleaded by Ella D. Traer was the following: 'That

 plaintiff's pretended right of action herein accrued in favor of plaintiff's

assignor, J. Nelson Tappan, as trustee in bankruptcy of plaintiff's estate, more

than two years before the commencement of this suit against this defendant,

and more than two years before she was made a party defendant herein, andthat this action is fully barred as to her by the provisions of the act of congress

in that behalf, and was so barred before she was made a party defendant herein.'

This plea sets up the bar prescribed by the second section of the bankrupt act,

now forming section 5057 of the Revised Statutes, which declares: 'No suit,

either at law or in equity, shall be maintained in any court between an assignee

in bankruptcy and a person claiming an adverse interest touching any property

or rights of property transferable to or vested in such assignee, unless brought

within two years from the time the cause of action accrued for or against suchassignee.' The suit was brought against John D. Traer within two years after the

fraudulent purchase and transfer of the stock and dividends, but Mrs. Traer was

not made a party to the suit until after the lapse of three years and a half from

the time of the purchase and transfer. The question is presented by one of the

assignments of error whether, upon the circumstances of this case, the suit was

 barred as to Mrs. Traer.

4 The amended petition filed in the case on October 28, 1879, the day after Mrs.Traer had been made a defendant, averred that John W. Traer, while holding

the office of trustee of the construction company, falsely represented to Tappan

that there were no dividends due the estate of Clews from the stock held by him

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in the construction company, and falsely and fraudulently concealed from him

the true condition of the company with the intent of undervaluing the stock and

dividends declared thereon; that Traer and his wife employed one Armstrong to

 purchase for Mrs. Traer the said stock and dividends; that Armstrong took from

Tappan an assignment of the certificate of stock to Mrs. Traer; that he

forwarded the certificate to one Howard, whom Traer and his wife had

 previously employed, and Howard, following the instructions of Traer and hiswife, carried the certificate to the headquaters of the construction company at

Cedar Rapids, and demanded of Traer, as trustee, the dividends and interest

thereon; whereupon Traer paid over to Howard, his own and his wife's

attorney, the sum of $11,913.75 on account of said dividends and interest, and

Howard, while pretending to act for Armstrong, 'carefully concealed, from

those who might inform the said plaintiff's trustee in bankruptcy, and from the

 papers and receipts, that he was acting as the attorney for John W. Traer and

Ella D. Traer his wife,' and that after receiving said sum of money, andreceipting the vouchers prepared by Traer, as trustee, he paid back the money

to Traer and his wife, less the amount of his own share as co-conspiratory and

attorney. Afterwards, it was alleged, Traer transferred the stock to his wife

upon the books of the company. These averments show, not only a fraudulent

concealment of the value of the stock and dividends from Tappan by Traer,

acting as agent for his wife, but a carefully devised plan by which the payment

of the dividends to Mrs. Traer was concealed from Tappan, and no trace of such

 payment left upon the books and vouchers of the construction company.Subsequently, and before the trial of the case, the following amendment was

made to the petition: 'That as to the matters and things herein set forth as a

cause of action against the said Ella D. Traer, the said fraudulent transactions

with which she was connected and her part therein were studiously concealed

from the plaintiff and his assignor, and he had no means of discovering the

same, nor had his assignor any means of discovering the same until the same

were disclosed upon the examination of John W. Traer, as witness in this

action, on the twenty-fourth day of September, 1879; that the plaintiff and his

assignor did not know of the said fraud and the fraudulent acts of the defendant

Ella D. Traer until the same were made known on the said examination.' No

issue was taken on this amendment.

5 The state court having entered a general finding and judgment against the

defendants, John W. Traer and Ella D. Traer, his wife, the facts set out in the

 pleadings of the plaintiff, so far as they are necessary to support the judgment,

must be taken as established by the evidence. The question is, therefore, do thefacts alleged constitute a good reply to the plea of the two-years limitation filed

 by Mrs. Traer? We think they do. The fraud by which Mrs. Traer succeeded in

 purchasing from Tappan for $1,200 property to which he had the title worth

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$15,000, must necessarily have been a fraud carried on by concealment from

Tappan of the true value of the property purchased. Such is the averment of the

 plaintiff's pleadings. But not only was fraudulent concealment in accomplishing

the fraudulent purpose averred, but also a studious concealment from the

 plaintiff, Clews, and Tappan, the trustee, of the connection of Mrs. Traer with

the fraud, and their want of means to discover the fraud, until it was revealed by

the examination of John W. Traer, on September 24, 1879. The case issubstantially the same, so far as the question now in hand is concerned, as that

of Bailey v. Glover , 21 Wall. 342. The averment of fraudulent concealment in

that case was, as shown by the report, as follows: 'The bill alleged that the

defendants kept secret their said fraudulent acts, and endeavored to conceal

them from the knowledge, both of the assignees and of the said Winston & Co.,

creditors of the bankrupt, whereby both were prevented from obtaining any

suflicient knowledge or information thereof until within the last two years, and

that, even up to the present time, they have not been able to obtain full and particular information as to the fraudulent disposition made by the bankrupt of 

a large part of his property.' The court in that case, upon demurrer, held in

effect that these averments were sufficient to take the case from the operation

of the same limitation which is set up in the present case. In delivering the

 judgment of the court, Mr. Justice MILLER said: 'We hold that, when there has

 been no negligence or laches on the part of a plaintiff in coming to a knowledge

of the fraud, which is the foundation of the suit, and when the fraud has been

concealed, or is or such character as to conceal itself, the statute does not beginto run until the fraud is discovered by or becomes known to the party suing or 

those in privity with him.'

6 So in the case of Rosenthal  v. Walker , 111 U. S. 185, S. C. 4 Sup. Ct. Rep. 382,

the plaintiff averred that 'both the said Carney and the defendant kept

concealed from him, the said plaintiff, the fact of the said payment and transfer 

of the aggregate sum of $30,000, * * and the fact of the sale, transfer and

conveyance of the said goods, * * * and that he, the said plaintiff, did not obtainknowledge and information of said matter until the twenty-ninth day of 

 November, 1879, and then, for the first time, the said matters were disclosed to

him, and brought to his knowledge.' These averments were held sufficient on

exception to the petition to take the case out of the bar prescribed by section

5057 of the Revised Statutes. The case of Bailey v. Glover  has never been

overruled, doubted, or modified by this court. On the contrary, in Rosenthal  v.

Walker  it was reaffirmed, and was distinguished from the case of Wood  v.

Carpenter , 101 U. S. 135, relied on by the appellants. The authorities cited arein point, and fully support our conclusion that, upon the pleadings and

evidence, the suit of the plaintiff was not barred by the limitation prescribed by

section 5057 of the Revised Statutes.

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7 The next contention of the appellants is that the transfer executed by Tappan to

Clews was not a sale to him of a right of property in the stock of the

construction company, and of the dividends, but merely the transfer of a right to

sue Traer and his wife for a fraud, and was therefore void. The assignment was

as follows: 'In consideration of the sum of $1 to me paid by Henry Clews, the

receipt whereof is hereby acknowledged, and for other good and valuable

considerations, I hereby sell, assign, transfer, and set over unto the said HenryClews any and all claims and demands of every name, nature, and description

that I may now have or be entitled to on account of the fifty shares of the

capital stock in the Cedar Rapids & Northwestern Construction Company,

which was subscribed for said Henry Clews.' This paper will not, in our 

opinion, bear the construction put upon it by the appellants. Treating the

transfer to Mrs. Traer as void, its evident purpose is to assign to Clews

whatever property and rights were incident to the ownership of the stock. When

this paper was executed, the corporation known as the construction companyhad been dissolved, and its affairs were in the course of liquidation. The

ownership of the stock simply entitled the holder to a proportionate interest in

the unpaid dividends which had been declared before the dissolution of the

company, and to a pro rata share of the proceeds of the company's assets, and

in this consisted its sole value. The language of the assignment, by which

Tappan undertook to transfer to Clews all claims and demands which Tappan

then had or might be entitled to on account of the 50 shares of stock in the

company which had been subscribed by Henry Clews, was aptly chosen toconvey the dividends which had been declared, and an interest in the property

of the company in proportion to the 50 shares of stock. It did not transfer a

mere right to sue Traer and his wife. That right was simply an incident to the

transfer of substantial and tangible property.

8 The rule is that an assignment of a mere right to file a bill in equity for fraud

committed upon the assignor will be void as contrary to public policy and

savoring of maintenance. But when property is conveyed, the fact that thegrantee may be compelled to bring a suit to enforce his right to the property

does not render the conveyance void. This distinction is taken in the case of 

 Dickinson v. Burrell , L. R. 1 Eq. 337. The facts in that case were that a

conveyance of an interest in an estate had been fraudulently procured from

Dickinson, by his own solicitor, to a third party for the solicitor's benefit, and

for a very inadequate consideration. Dickinson, ascertaining the fraud by a

conveyance which recited the facts, and that he disputed the validity of the first

conveyance, transferred all his share in the estate to trustees for the benefit of himself and children. The trustees filed a bill to set aside the fraudulent

conveyance, upon repayment of the consideration money and interest, and to

establish the trust. The master of the rolls, Lord ROMILLY, in sustaining the

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 bill, said: 'The distinction is this: If James Dickinson had sold or conveyed the

right to sue to set aside the indenture of December, 1860, without conveying

the property, or his interest in the property, which is the subject of that

indenture, that would not have enabled the grantee, A. B., to maintain this bill,

 but if A. B. had bought the whole interest of James Dickinson in the property,

then it would. The right of suit is a right incidental to the property conveyed.'

The master of the rolls then refers to the cases of Cockell  v. Taylor , 15 Beav.103, and Anderson v. Radcliffe, El., Bl. & El. 806, where he says the same

distinction is taken.

9 The rule was expounded by Mr. Justice STORY in Comegys v. Vasse, 1 Pet.

193, as follows: 'In general it may be affirmed that mere personal torts, which

die with the party, and do not survive to his personal representatives, are not

capable of passing by assignment, and that vested rights ad rem and in re,

 possibilities coupled with an interest, and claims growing out of and adherent tothe property, may pass by assignment.' In Erwin v. U. S., 97 U. S. 392, Mr.

Justice FIELD, who delivered the opinion of the court, said: 'Claims for 

compensation for the possession, use, or appropriation of tangible property

constitute personal estate equally with the property out of which they grow,

although the validity of such claims may be denied, and their value may depend

upon the uncertainties of litigation or the doubtful result of an appeal to the

legislature.' And see McMahon v. Allen, 35 N. Y. 403, decided in the state

where the assignment in question was made. Weire v. City of Davenport , 11Iowa, 49, and Gray v. McCallister , 50 Iowa, 498, decided in the state where the

suit was brought. See also a discussion of the subject in Graham v. Railroad 

Co., 102 U. S. 148. Applying the rule established by these authorities, we are of 

opinion that, so far as the question under consideration is concerned, the

assignment of Tappan to Clews was the transfer, not merely of a naked right to

 bring a suit, but of a valuable right of property, and was therefore valid and

effectual.

10 It is next insisted by the plaintiffs in error that Clews acquired no title to the

dividends and other property which Tappan attempted to transfer to him,

 because (1) he had not been discharged as a bankrupt at the time of the transfer,

and (2) because Tappan had no authority to sell the stock and its dividends for a

 bond or obligation to pay, as the evidence shows was the case, but only for 

cash. Whether Clews had been discharged at the date of the trans fer to him is

immaterial. After his adjudication as a bankrupt, and the surrender of his

 property to be administered in bankruptcy, he was just as much at liberty to purchase, if he had the means, any of the property so surrendered as any other 

 person. The policy of the bankrupt act was, after taking from the bankrupt all

his property not exempt by law, to discharge him from his debts and liabilities,

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See note at end of case.

 NOTE.

Statute of Limitations.

Statutes of limitations are statutes of repose, Hurley v. Cox, 2 N. W. Rep. 705;

Letson v. Kenyon, 1 Pac. Rep. 562; Taylor v. Miles, 5 Kan. 499; Elder v. Dyer,

26 Kan. 604, and are enacted upon the presumption that one having a well-founded claim will not delay enforcing it beyond a reasonable time if he has the

 power to sue. Such reasonable time is therefore defined and allowed. But the

 basis of the presumption is gone Whenever the ability to resort to the court has

and enable him to take a fresh start. His subsequent earnings were his own. A

 bankrupt might often desire, out of the proceeds of his exempted property, or 

out of his means earned since his bankruptcy, to purchase property which he

has surrendered to the assignee. This he might do, and there is nothing in the

letter or policy of the bankrupt act which forbid his doing so until after his

discharge. For, having complied with the law, as it must be presumed he has, he

is, after the lapse of six months, entitled, as a matter of course, to his discharge.His right to purchase property surrendered cannot, therefore, depend on his

actual discharge, and, in this respect, he stands upon the same footing as any

other person.

11 As to the second ground upon which the validity of the title of Clews is

questioned, it is sufficient to say that, by the bankrupt law, section 5062, Rev.

St., it is provided: 'The assignee shall sell all such unincumbered estate, real and

 personal, which comes to his hands, on such terms as he thinks most for theinterest of the creditors.' If, therefore, the plaintiffs in error occupied the

 position of guardians for the creditors of the bankrupt estate, and had the right,

in this suit, to question the administration of the trustee, the section referred to

would be a sufficient answer to the exception taken to the sale by Tappan to

Clews of the property which is the subject of this controversy. We think,

therefore, that no ground is shown on which the title of Clews can be

successfully assailed.

12 Other points have been raised and argued by counsel, but as these do not

 present any federal question, it is not our province or duty to pass upon them.

 Murdock  v. City of Memphis, 20 Wall. 590. All the federal questions presented

 by the record were, in our judgment, rightly decided by the supreme court of 

Iowa. Judgment affirmed.

1

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 been taken away; for in such a case the creditor has not the time within which

to bring his suit that the statute contemplated he should have. Greenwald v.

Appell, 17 Fed. Rep. 140. The object of the statute is to suppress fraudulent and

stale claims, and prevent them from showing up at great distances of time, and

surprising the parties or their representatives when all the proper vouchers and

evidence are lost, or the facts have become obscure from the lapse of time, or 

the defective memory or death or removal of witnesses. Hurley v. Cox, 2 N. W.Rep. 705; Spring v. Gray, 5 Mason, 523.

1. WHEN STATUTE BEGINS TO RUN. Where statute of limitations provided

that in cases where the cause of action had already accrued at the passage of the

act a party should have the whole period prescribed by the act, after its passage,

in which to commence action, and by another act of the same legislative session

it was provided that said statute and others should take effect at a day

subsequent to the date of their actual passage and approval by the governor, itwas held that the period of limitation did not begin to run until the statute took 

effect, as provided in the second act. Schneider v. Hussey, 1 Pac. Rep. 343;

Rogers v. Vess, 6 Iowa, 408.

(1) Agents. As a general rule the statute of limitations does not commence to

run in favor of an agent and against his principal until the principal has

knowledge of some wrong committed by the agent in consistent with the

 principal's rights. Perry v. Smith, 2 Pac. Rep. 784; Green v. Williams, 21 Kan.

64; Auld v. Butcher, 22 Kan. 400; Kane v. Cook, 8 Cal. 449; Ang. Lim. § 179

et seq.; Wait, Act. & Def. 238. But it has been held that where an agent is

appointed to collect money and remit, after deducting his reasonable charges,

and fails to do so after a reasonable time, the statute of limitations commences

to run.

Page 542-Continued.

Mast v. Easton, 22 N. W. Rep. 253. See Stacy v. Graham, 14 N. Y. 492; Lilliev. Hoyt, 5 Hill, 395; Hart's Appeal, 32 Conn. 520; Campbell's Adm'rs v. Boggs,

48 Pa. St. 524; Denton's Ex'rs v. Embury, 10 Ark. 228; Estes v. Stokes, 2 Rich.

Law, 133; Mitchell v. McLemore, 9 Tex. 151; Hawkins v. Walker, 4 Yerg. 188.

The fact that the principal did not know when the claim was collected, and

hence did not know that the agent had failed in the performance of his duty, and

that a right of action had accrued, will not affect the running of the statute. Mast

v. Easton, 22 N. W. Rep. 253; Cock v. Van Etten, 12 Minn. 522, (Gil. 431.)

(2) Bankruptcy. The statute of limitations is no bar to proof in bankruptcy if it

had not run against the claim at the commencement of the proceedings in

 bankruptcy, In re McKinney, 15 Fed. Rep. 912; and no lapse of time will

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 prevent the proof of the claim before the register, up to the final distribution of 

dividends. If it is so barred by the statute before the adjudication, it will remain

 barred, and the claim cannot be proven. In re Graves, 9 Fed. Rep. 816.

(3) Bills, etc. In a suit by the drawee of a bill of exchange against an indorser,

where such bill was drawn by the treasurer of the United States, and the name

of the payee forged, the statute of limitations does not begin to run until judgment has been obtained by the United States against the drawee.

Merchants' Nat. Bank of Baltimore v. First Nat. Bank of Baltimore, 3 Fed. Rep.

66.

(a) Claims Payable on Demand . Where no time is specified within which a loan

of money is to be repaid, the presumption of the law is that it was to be paid on

demand, and the statute of limitations commences to run from the time of the

loan. Dorland v Dorland, 5 Pac. Rep. 77; Ang. Lim. § 95. On a due-bill without

day of payment a cause of action accrues on delivery, and the statute begins to

run. Douglass v. Sargent, 4 Pac. Rep. 861. See Palmer v. Palmer, 36 Mich. 487;

Herrick v. Woolverton, 41 N. Y. 581; Wheeler v. Warner, 47 N. Y. 519; Stover 

v. Hamilton, 21 Grat. 273; Bowman v. McChesney, 22 Grat. 609. In an action

to recover from a bank a general deposit, the statute does not commence to run

until a demand, unless the demand has been in some way dispensed with.

Branch v. Dawson, 23 N. W. Rep. 552. And the same is true of an 'especial

deposit.' Smiley v. Fry, (N. Y.) 3 N. E. Rep. 186.

(4) Bonds. (a) Administrator's Bond . The liability of a surety on an

administrators or executor's bond is not fixed, and no cause of action arises

thereon until there is a judicial ascertainment of the default of the principal, and

from this time the statute of limitations begins to run. Alexander v. Bryan, 4

Sup. Ct. Rep. 107. This judicial ascertainment must be something more than

the mere auditing of the accounts. There must be a decree ordering payment, on

which process to collect can issue against the principal. Id.

(b) Appeal-Bonds. The statute commences to run in favor of sureties on an

undertaking on appeal from the date of the affirmance of the judgment to which

it relates. Clark v. Smith, 6 Pac. Rep. 732; Crane v. Weymouth, 54 Cal. 480;

Castro v. Clarke, 29 Cal. 11. suit on guardian's bond when the person ceases to

 be guardian, Probate Judge v. Stevenson, 21 N. W. Rep. 348; and in case of a

default,

Page 542-Continued.

a right of action first accrues to the ward when amount of such default is

ascertained by the court in the settlement of the guardian's final account, and

from this time the statute runs. Ball v. La Clair, 22 N. W. Rep. 118.

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(d) Public Officer's Bond . The statute does not commence to run in favor of 

sureties on the bond of a public officer until the liability of their principal has

 been fixed. Lawrence v. Doolan, 5 Pac. Rep. 484. And it has been held that

where an assessment of damages for a right of way is paid to a sheriff, the

statute begins to run against an action on sheriff's bond to recover such

assessment when the time fixed by law for appeal has expired. Lower v. Miller,

23 N. W. Rep. 897.

(5) Book-Accounts. On the settlement of a book-account it has been held that

the statate of limitations begins to run from the time the account is settled, and

not from the time of the discovery of facts showing that such settlement was

fraudulently made. Kirby v. Lake Shore & M. S. R. Co., 14 Fed. Rep. 261. On

an open, mutual account the statute does not commence to run until the date of 

the last item charged. Hannon v. Engelmann, 5 N. W. Rep. 791. Where an open

account is closed by an agreement that certain parties shall assume payment,the statute runs from the date of such agreement. Hammond v. Hale, 15 N. W.

Rep. 585. But where the items of an account are all charged against one party it

is not a mutual account, Fitzpatrick v. Henry, 16 N. W. Rep. 606; Butler v.

Kirby, 53 Wis. 188; S. C. 10 N. W. Rep. 373; Ang. Lim. §§ 148, 149; and each

item will stand, as regards the running of the statute, as though it stood alone.

Courson's Ex'rs v. Courson, 19 Ohio St. 454. See Blair v. Drew, 6 N. H. 235;

Smith v. Dawson, 10 B. Mon. 112; Craighead v. Bank, 7 Yerg. 399; Lowe v.

Dowborn, 26 Tex. 507; Cottam v. Partridge, 4 Man. & G. 271; Williams v.

Griffiths, 2 Cromp., M. & R. 45; Tanner v. Stuart, 6 Barn. & C. 603; Bell v.

Morrison, 1 Pet. 351.

(6) Contribution. On an action for contribution by one of the sureties on a note,

against whom a judgment has been taken for the full amount, the statute begins

to run from the date of the payment of such judgment. Preston v. Gould, 19 N.

W. Rep. 834. See Lamb v. Withrow, 31 Iowa, 164; Johnston v. Belden, 49

Iowa, 301.

(7) Conversion. The statute commences to run against an action for conversion

from the date of such conversion. Doyle v. Callaghan, 7 Pac. Rep. 418.

(8) Corporation—Municipal . In an action against a municipal corporation for 

damages for an injury caused by defective sidewalk, the statute begins to run

from the time when such claim is disallowed, or the failure of the council to act

on the matter amounting to a disallowance. Watson v. City of Appleton, 22 N.

W. Rep. 475. It was held by the supreme court of Ohio in Perry Co. v. RailroadCo., 2 N. E. Rep. 854, that where a railroad company had injured a county

 bridge, that the statute did not begin to run against a claim on the part of the

county against the railroad company for damages until after the bridge had

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 been restored to its former condition by the county commissioners.

(9) Corporations—Stockholders. In an action against a stockholder to subject

his unpaid shares of stock to satisfaction of a judgment against a corporation,

the statute begins to run when the cause of action against the corporation

accrued. First Nat. Bank of Garrettsville, Ohio, v. Greene, 17 N. W. Rep. 86;

affirmed on rehearing, 20 N. W. Rep. 754; Baker v. Johnson Co., 33 Iowa, 155.See Prescott v. Gonser, 34 Iowa, 175;

Page 542-Continued.

Beecher v. Clay Co., 52 Iowa, 140; S. C. 2 N. W. Rep. 1037. Where one

corporation transferred to another all its property, except its franchise, and such

other corporation assumed to pay all debts, and a creditor of the grantor, whose

claim of action arose before the conveyance was executed, but not yet barred

 by the statute of limitations, brought suit at law against the grantor, andobtained judgment on which an execution was issued, but returned unsatisfied,

and then, after the time fixed by the statute of limitations had run since the

cause of action arose against the grantor, brought suit in equity against the

grantor and the grantee, it was held that the claim was neither barred by laches

nor the statute of limitations. Fogg v. St. Louis, H. & K. R. Co., 17 Fed. Rep.

871. As to an action by stockholder suing in his own name for benefit of all

stockholders against directors for misappropriation, etc., see infra, (31, a.)

(10) Co-Tenants. The statute does not run as against tenants in common until

actual ouster. Hume v. Long, 5 N. W. Rep. 193. A quitclaim deed by one tenant

in common will not set the statute running as against other tenants in common.

Moore v. Antell, 6 N. W. Rep. 14; Hume v. Long, 5 N. W. Rep. 193.

(11) Covenant . The statute of limitations commences to run against a covenant

from the time substantial damage is sustained. Post v. Campau, 3 N. W. Rep.

272. Where land, the paramount title being in another, is conveyed withcovenant of seizin, the covenant is broken on the delivery of the deed, and the

statute begins to run. Sherwood v. Landon, 23 N. W. Rep. 778; Matteson v.

Vaughn, 38 Mich. 373.

(12) Decedents, Estates of . The statute commences to run against a rejected

claim on the estate of a decedent from the time of its actual rejection. Bank of 

Ukiah v. Shoemake, 7 Pac. Rep. 420. A claim against an estate is not barred

 because not presented for allowance in time, when, at that time; there was no

claim which could be presented for allowance against the estate. Ford v. Smith,

18 N. W. Rep. 925.

Where a cause of action accrues to a person's estate after his death, the statute

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of limitations commences to run from the date of the accrual, Hibernia S. & L.

Soc. v. Conlin, 7 Pac. Rep. 477; Tynan v. Walker, 35 Cal. 634; although there

was no person in existence competent to sue, and continues to run from such

date without cessation, Tynan v. Walker, 35 Cal. 634; for where the statute of 

limitations once begins to run, no subsequent disability will stop its running.

Oliver v. Pullam, 24 Fed. Rep. 127.

(13) Dower . The statute of limitations does not commence to run against an

action to recover dower until there is an adverse possession of the land. Felch v.

Finch, 3 N. W. Rep. 570; Phares v. Walters, 6 Iowa, 106; Starry v. Starry, 21

Iowa, 254; Rice v. Nelson, 27 Iowa, 153; Sully v. Nebergall, 30 Iowa, 339.

(14) Fraud . The statute of limitations does not run against an action based on a

fraud until the discovery of the fraud. Perry v. Wade, 2 Pac. Rep. 787; Clews v.

Traer, 10 N. W. Rep. 838; Voss v. Bachop, 5 Kan. 59. And it was recently held

 by the supreme court of Pennsylvania, in the case of Hughes v. First Nat. Bank 

of Waynesburg, 1 Atl. Rep. 417, that where government bonds were deposited

with a bank for safe-keeping and afterwards pledged by the bank as collateral

security for its own debts, and actually sold by the holder,

Page 542-Continued.

that the putting off of the depositor or his representative from time to time with

 promises to return the bonds so pledged, the interest being paid in the meantime, is such fraud and concealment as will toll the running of the statute of 

limitations. Where by actual fraud the debtor keeps his creditor in ignorance of 

the cause of action, the statute does not begin to run until the creditor had

knowledge, or was put upon inquiry with means of knowledge, that such cause

of action had accrued. Mere silence or concealment, however, will not toll the

running of the statute when the relation existing between the parties is simply

that of debtor and creditor. Stewart v. McBurney, 1 Atl. Rep. ——. The

question of discovery of fraud is a question of fact and must be properly pleaded. Johnson v. Powers, 13 Fed. Rep. 315. Where money is procured to be

 paid out upon fraudulent representation, the cause of action is presumed to have

arisen, and the statute of limitations begins to run when the fraud was

committed, Barlow v. Arnold, 6 Fed. Rep. 351; but such presumption may be

avoided by alleging and proving the time of the discovery of the fraud. See

Carr v. Hilton, 1 Curt. 390; Field v. Wilson, 6 B. Mon. 479; Carneal v. Parker,

7 J. J. Marsh. 455; Baldwin v. Martin, 3 Jones & S. 98; Erickson v. Quinn, 3

Lans. 302; Mitf. & T. Eq. Pl. 356; Story, Eq. Pl. § 754. It has been held that thestatute of limitations does not begin to run against an equitable action for relief,

on the ground of fraud, until the aggrieved party has discovered the facts

constituting the fraud, or has information of such a nature as would impress a

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reasonable man with the belief that a fraud had been committed, and would,

upon diligent inquiry, lead to the discovery of the facts. O'Dell v. Burnham, 21

 N. W. Rep. 635. See Carr v. Hilton, 1 Curt. 390; Kennedy v. Green, 3 Mylne &

K. 699; Hovenden v. Lord Annesley, 2 Schoales & L. 607; Martin v. Smith, 1

Dill. C. C. 85; Bailey v. Glover, 21 Wall. 342; First Mass. Turnpike Corp. v.

Field, 3 Mass. 201; Homer v. Fish, 1 Pick. 435; Rice v. Burt, 4 Cush. 208; Kane

v. Bloodgood, 7 Johns. Ch. 90; App v. Dreisbach, 2 Rawle, 287; Reeves v.Dougherty, 7 Yerg. 222; Haynie v. Hall, 5 Humph. 290; Kuhn's Appeal, 87 Pa.

St. 100.

(15) Implied Contract . Where a cause of action is based on an implied contract,

the statute does not begin to run until after the circumstances from which the

obligation is inferred arose. Goodnow v. Stryker, 14 N. W. Rep. 345.

(16) Judgment . Where suit is brought upon a judgment after a return of nulla

bona upon the execution writ, the statute of limitations, it was held,

commenced to run at the time of the return of the execution, and not the entry

of the judgment. Taylor v. Bowker, 4 Sup. Ct. Rep. 397.

(17) Leasehold—Assignment . In a suit between the assignor and assignee of a

leasehold, for rent accruing, and paid by the assignor subsequent to the

assignment, the statute of limitations begins to run in favor of the assignee from

the time the assignor paid the accrued rent, and not from the time assignor 

made default in the payment of the same. Ruppel v. Patterson, 1 Fed. Rep. 220.

(18) Married Woman. Where the statute makes the wife as well as the husband

liable for necessary family expenses, the liability of the wife continues as long

as there is a right of action against the husband. Frost v. Parker, 21 N. W. Rep.

507.

(19) Minor or Ward—Suit after Majority. The statute of limitations commences

to run against an action by a ward to recover lands sold by his guardian at thetime of ward's attaining majority. Seward v. Didier, 20 N. W. Rep. 12. See

Spencer v. Sheehan, 19 Minn. 338, (Gil. 292;)

Page 542-Continued.

Miller v. Sullivan, 4 Dill. 340; Good v. Norley, 28 Iowa, 188, (overruled by

Boyles v. Boyles, 37 Iowa, 592;) Holmes v. Beal, 9 Cush. 223; Norton v.

 Norton, 5 Cush. 524; Arnold v. Sabin, 1 Cush. 525; Howard v. Moore, 2 Mich.

226; Coon v. Fry, 6 Mich. 506. Where the party who should bring an action for the seduction of a minor is the person who seduces her, the statute of 

limitations will not begin to ran until after such minor attains her majority.

Watson v. Watson, 18 N. W. Rep. 605. A party having a right to pursue her 

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demand on attaining her majority cannot tack her subsequent disabilities by

successive covertures, in order to prevent the operation of the statute of 

limitations. Gaines v. Hammond's Adm'r, 6 Fed. Rep. 449.

(20) Mortgage. The statute of limitations commences to run against an action to

foreclose a mortgage when the cause of action accrued. Herdman v. Marshall,

22 N. W. Rep. 690; Cheney v. Cooper, 14 Neb. 415; S. C. 16 N. W. Rep. 471.

(21) Nuisance. It has been held that the statute of limitations commences to run

against an action for erecting and maintaining a nuisance by a gas company at

the time of erection of the gas-works. Baldwin v. Oskaloosa Gas-light Co., 10

 N. W. Rep. 317. But the general doctrine is that in an action for damages and

abatement of a nuisance the statute of limitations will not be considered to have

 begun to run until some injury has been caused by the alleged nuisance. Miller 

v. Keokuk & D. M. Ry. Co., 16 N. W. Rep. 567; Powers v. Council Bluffs, 45

Iowa, 652. Every continuance of a nuisance is in law a new nuisance. Ramsdale

v. Foote, 13 N. W. Rep. 557. See Baltimore 8 P. R. Co. v. Fifth Baptist Church,

2 Sup. Ct. Rep. 719. And where, in an action for damages, and to abate a

nuisance, since the cause of action accrued, the statute of limitations has run,

 but damage has continued to be done within the time provided by statute, the

action is not barred. Drake v. Chicago, R. I. & P. R. Co., 19 N. W. Rep. 215.

See McConnel v. Kibbe, 29 Ill. 483; Bowyer v. Cook, 4 Man., Gr. & S. 236.

(22) On Coming into State. On removal to another state the statute of limitations commences to run, on a cause of action already accrued, from time

of arrival in state. Edgerton v. Wachter, 4 N. W. Rep. 85; Hartley v. Crawford,

11 N. W. Rep. 729; Harrison v. Union Nat. Bank, Id. 752.

(23) Order or Warrant on County Treasury. The statute of limitations begins to

run against a county warrant when it is presented to the proper authority, and

indorsed 'not paid for want of funds.' Carpenter v. District Tp. of Union, 12 N.

W. Rep. 280. Where a town clerk has duly paid an order, and is entitled tocredit for it at his next settlement, the statute of limitations begins to run at the

date of such settlement. Dewey v. Lins, 10 N. W. Rep. 660. See Prescott v.

Gonser, 34 Iowa, 175.

(24) Partnership—Accounting . In case of partnership each partner is entitled to

an accounting upon dissolution, and statute will run from that date, Near v.

Lowe, 13 N. W. Rep. 825; but it does not begin to run against a partnership

until the dissolution thereof, or until a sufficient time has elapsed after ademand for an accounting and settlement. Richards v. Grinnell, 18 N. W. Rep.

668.

(25) Promise to Pay, etc. Where a cuase of action, barred by the statute of 

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limitations, is revived by written admission, that removes the bar; the statute

runs anew from the date of the admission. Bayliss v. Street, 2 N. W. Rep. 437.

From the time of the acknowledgment of a debt under circumstances that

indicate a willingness or liability to pay the same,

Page 542-Continued.

the statute of limitations begins to run. Green v. Coos Bay Wagon Road Co., 23

Fed. Rep. 67. Where a debtor promised to pay 'as soon as able,' the statute of 

limitations began to run as soon as he had pecuniary ability to pay; and the

question of when that ability arose is for the jury. Tebo v. Robinson, 2 N. E.

Rep. 383.

(26) Rape. The statute of limitations commences to run against action for rape

at time of its commission. Van Der Haas v. Van Domselar, 10 N. W. Rep. 227.

But see supra, (19.)

(27) Real Estate—Adverse Possession. Adverse possession of real estate, to set

the statute of limitations running, must be open, notorious, continuous. Mauldin

v. Cox, 7 Pac. Rep. 804. Mere entry upon land is not sufficient, without open,

adverse possession, to stop the running of the statute. Donovan v. Bissell, 19 N.

W. Rep. 146. Going upon wild land, digging, and hunting for a corner and

 boundary lines, driving cattle on the land, and employing a man to 'break' in the

following spring, are notsuch going into possession as will set the statute of limitations in operation so as to carry a title by virtue of adverse possession.

Brown v. Rose, 7 N. W. Rep. 133. It does not commence to run in favor of an

adverse possession of lands until after the issuance of the patent to such lands.

Ross v. Evans, 4 Pac. Rep. 443. It does not run against the owner of unoccupied

lands until some one assumes to take adverse possession; and this rule applies

as well to an assignee in bankruptcy, who, under the statute, (U. S. Rev. St. §

5057,) must bring suit within two years, as to the original owner. Gray v. Jones,

14 Fed. Rep. 83. An action to set aside an assignment or conveyance of  property made to hinder or delay creditors should ordinarily be brought within

the same time after the right accrues as an action at law to recover possession of 

the same property. Hickox v. Elliott, 22 Fed. Rep. 13.

(28) Salary. The statute begins to run against an action to recover salary of a

 public officer from time of expiration of his term of office. Griffin v. County of 

Clay, 19 N. W. Rep. 327. Where an employe's wages are due at the end of each

month, the statute of limitations begins to run against an action to recover themat the date when they should have been paid. Butler v. Kirby, 10 N. W. Rep.

373; Davis v. Gorton, 16 N. Y. 255; Rider v. Union India R. Co., 5 Bosw. 85;

Turner v. Martin, 4 Rob. 661; Mims v. Sturtevant, 18 Ala. 359; Phillips v.

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Broadley, 11 Jur. 264.

(29) Tax, Illegal—Mandamus. Statute of limitations begins to run against

mandamus to compel the refunding of illegal tax from the time of the payment

thereof. Beecher v. Clay Co., 2 N. W. Rep. 1037.

(30) Tax Title. The statute of limitations does not begin to run in favor of theholder of a tax deed by merely recording the same. To avail himself of the

 benefits of the statute, his possession must be actual and adverse, and continued

for the statutory period. Baldwin v. Merriam, 20 N. W. Rep. 250.

(a) Against Owner of Land . The statute of limitations commences to run against

defense to tax deed from date of sale. Shawler v. Johnson, 3 N. W. Rep. 604.

See Clark v. Thompson, 37 Iowa, 536. In Wisconsin it is held that the fact that

the tax deed issued is void does not prevent the running of the statute in favor 

of the holder. Peck v. Comstock, 6 Fed. Rep. 22. See Edgerton v. Bird, 6 Wis.527; Hill v. Kricke, 11 Wis. 442; Knox v. Cleveland, 13 Wis. 245; Lawrence v.

Kenney, 32 Wis. 281; Wood v. Meyer, 36 Wis. 308;

Page 542-Continued.

Marsh v. Supervisors, 42 Wis. 502; Philleo v. Hiles, Id. 527; Oconto Co. v.

Jerrard, 46 Wis. 324; Milledge v. Coleman, 47 Wis. 184; S. C. 2 N. W. Rep.

77.

(b) Against the Holder of Tax Deed . The statute commences to run against one

claiming under a tax deed from date of treasurer's deed, where received when

entitled to demand the same, Bailey v. Howard, 7 N. W. Rep. 592; Barrett v.

Love, 48 Iowa, 103; otherwise, from time when entitled to deed and not from

date of actual execution and delivery. Hintrager v. Hennessy, 46 Iowa, 600.

The statute commences to run against deed without date from day of its

delivery, McMicheal v. Carlyle, 10 N. W. Rep. 556; for the real date of a deed

is the date of delivery, Jackson v. Schoonmaker, 2 Johns. 234; or from the date

of filing same for record. Griffith's Ex'r v. Carter, 19 N. W. Rep. 903; Cassady

v. Sapp. 19 N. W. Rep. 909; Eldridge v. Kuehi, 27 Iowa, 160. But the person

 purchasing at tax sale must demand and record his deed when he is entitled to

do so. Hintrager v. Hennessy, 46 Iowa, 600.

(c) On Failure of Tax Title. Where tax sale is set aside, or the title acquired

fails, the purchaser has a lien for taxes paid, with interest, Harber v. Sexton, 23 N. W. Rep. 635; which he may enforce by proceedings to foreclose the same,

Peot v. O'Brien, 5 Neb. 360; Pettit v. Black, 8 Neb. 52; Wilhelm v. Russell Id.

120; Miller v. Hurford, 11 Neb. 377; S. C. 9 N. W. Rep. 477; Towle v. Holt, 14

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 Neb. 222; S. C. 15 N. W. Rep. 203; Reed v. Merriam, 18 N. W. Rep. 137;

Zahradnicek v. Selby, 19 N. W. Rep. 645; Sturges v. Crowninshield, 4 Wheat.

122; and the statute of limitations does not begin to run against the right to

enforce such lien until the tax deed fails. Schoenheit v. Nelson, 20 N. W. Rep.

205; Bryant v. Estabrook, Id. 245; Otoe Co. v. Brown, Id. 274.

(31) Trusts. It is a general rule that neither lapse of time, nor the rule of analogy, nor any defense analogous to the statute of limitations can be set up by

a trustee of an express trust. Preston v. Walsh, 10 Fed. Rep. 315; Etting v.

Marx's Ex'r, 4 Fed. Rep. 673 This rule applies only to pure or direct trusts.

 Newsom v. Board of Com'rs, (Ind.) 3 N. E. Rep. 163. Yet, when the

circumstances require it, especially when the rights of third persons intervene, a

court of equity will enforce against the cestui que trust  its own peculiar maxim,

vigilantibus et non dormientibus jura subserviunt . Id. Hence, when the legal

title to realty is in one person, and the real interest is in another, the statute of limitations will not run as between the parties until there is a renunciation of the

trust, or until the party holding the legal title by some act or declaration asserts

a claim adverse to the interests of the real owner. Reihl v. Likowski, 6 Pac.

Rep. 886. But where there is a conflict of claim between trustee and his cestui

que trust , and the party having the legal estate holds adversely, the statute of 

limitations will protect the only having the legal title, and who is sought to be

converted into a trustee by a decree founded upon fraud, breach of trust, or 

some inequitable advantage obtained by him. Taylor v. Holmes, 14 Fed. Rep.

498.

(a) Misappropriation, etc. Where a person misappropriates trust funds, the

statute commences to run from the actual misappropriation, or at furthest from

the discovery of the fact by the use of reasonable diligence by the party entitled

to its benefit. Pierson v. McCurdy, 2 N. E. Rep. 615; Same v. Same, 33 Hun,

520. It has been held that an action by a stockholder, suing in his own name for 

the benefit of all the stockholders, to recover against the directors of a

corporation for property lost or stolen through the misconduct, negligence,carelessness, and inattention of such directors, is in the nature of complaint in

an equitable action against the directors,

Page 542-Continued.

as trustees,—one of which courts of equity have jurisdiction, Brinckerhoff v.

Bostwick, 1 N. E. Rep. 663; Robinson v. Smith, 3 Paige, 222; Heath v. Erie Ry.

Co., 8 Blatchf. 347; Brinckerhoff v. Bostwick, 88 N. Y. 52; and the statute of limitations will begin to run as in other cases of breach of corporate trust. See

Pierson v. McCurdy, supra.

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(b) Resultant, Constructive, Implied Trusts. The statute of limitations will run in

favor of the trustee of a resultant or constructive trust from the time he

disavows the obligations of the trust. German-American Seminary v. Kiefer, 4

 N. W. Rep. 636; Otto v. Schlapkahl, 10 N. W. Rep. 651; Strimpfler v. Roberts,

18 Pa. St. 283; Gebhard v. Sattler, 40 Iowa, 152; Smith v. Davidson, 40 Mich.

632. Where a trust arises by implication out of the agreement of parties, and

there is no conflict of claim, or adverse possession between the trustee andcestui que trust , statutes of limitation do not apply. Taylor v. Holmes, 14 Fed.

Rep. 498.

(32) Verbal Contract to Convey. Where money has been paid on a verbal

contract to convey land, the statute does not begin to run against an action to

recover the same until the date of demand or refusal to convey. Tucker v.

Grover, 19 N. W. Rep. 62; Clark v. Davidson, 53 Wis. 317; S. C. 10 N. W.

Rep. 384. See Thomas v. Sowards, 25 Wis. 631; N. W. U. P. Co. v. Shaw, 37Wis. 655.

(33) Wrongful Act . Where a wrongful act has been committed, in the absence of 

fraud the statute begins to run as soon as the wrong is committed, although the

 plaintiff may be ignorant that a cause of action has accrued, Dee v. Hyland, 3

Pac. Rep. 388; Jordan v. Jordan, 4 Greenl. 175; Thomas v. White, 3 Litt. 177;

for the statute does not protect plaintiffs who are ignorant of the facts necessary

to enable them to bring suits, unless that ignorance is occasioned by some

improper conduct on the part of the defendant. Froley v. Jones, 52 Mo. 64;Wells v. Halpin, 59 Mo. 92. Failure to credit a payment on a judgment is not a

fraud, and the statute of limitations begins to run from the date of the payment.

Shreves v. Leonard, 8 N. W. Rep. 749. See Gebhard v. Sattler, 40 Iowa, 153;

Brown v. Brown, 44 Iowa, 349; Phoenix Ins. Co. v. Dankwardt, 47 Iowa, 432;

Higgins v. Mendenhall, 51 Iowa, 135.

2. COMPUTATION OF TIME. In the absence of any statutory provision

governing the computation of time, where an act is required to be done a certainnumber of days or weeks before a certain other day, upon which another act is

to be done, the day upon which the first act is to be done must be excluded

from the computation, and the whole number of the days or weeks must

intervene before the day fixed for the second act. Ward v. Walters, 22 N. W.

Rep. 844; Pitt v. Shew, 4 Barn. & Aid. 208; Mitchell v. Foster, 4 Perry & D.

150; Queen v. Justices of Shropshire, 8 Adol. & E. 173; Zouch v. Empsey, 4

Barn. & Aid. 522; Hardy v. Ryle, 9 Barn. & C. 603; Judd v. Fulton, 4 How. Pr.

298; Small v. Edrick, 5 Wend. 137; Rankin v. Woodworth, 6 Pen. & W. 48;Wood. Lim. 107, § 56. It is said in the case of Ganahl v. Soher, 5 Pac. Rep. 80,

that the time of a minor's minority is calculated from the first minute of the day

on which he is born to the first minute of the day corresponding which

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completes the period of minority; and, in calculating the time within which he

may thereafter bring an action, as he attains majority on the first minute of a

day, the whole of that day is to be calculated as the first day of the time within

which he may bring the action.

3. WHAT PREVENTS THE RUNNING. The statute of limitations does not

cease to run merely because the creditor is involved in litigation with third parties,

Page 542-Continued.

upon the issue of which the individual right to the debt is dependent. Gaines v.

Hammond's Adm'r, 6 Fed. Rep. 449. A cause of action for conversion which

would be otherwise barred by the statute is not kept alive by every

intermeddling with the property which treated by itself might give a cause of 

action. Kinsely v. Stein, 18 N. W. Rep. 115.

(1) Acknowledgment or New Promise. Acknowledgment or promise to pay

debt, made after the debt is barred, will revive it, Rolfe v. Pillond, 19 N. W.

Rep. 970; but will not revive except by an express promise, or by such an

acknowledgment of the indebtedness as reasonably leads to the inference that

the debtor intended to renew his promise or to waive the benefit of the statute.

Denny v. Marrett, 13 N. W. Rep. 148; Whitney v. Reese, 11 Minn. 138, (Gil.

87;) Brisbin v. Farmer, 16 Minn. 215, (Gil. 187.) An acknowledgment of indebtedness will not be presumed where the accompanying circumstances are

such as to leave it in doubt whether the party intended to prolong the time of 

legal limitation. City of Fort Scott v. Hickman, 5 Sup. Ct. Rep. 56. To take a

debt out of statute the acknowledgment must be clear and unequivocal, and

consistent with a promise to pay, Landis v. Roth, 1 Atl. Rep. 49; Richardson v.

Brecker, 1 Pac. Rep. 433; uncertainty as to acknowledgment or indentification

of the debt is fatal. Burr v. Burr, 26 Pa. St. 284. See Miller v. Baschore, 83 Pa.

St. 356.

A promise to pay, after the statute of limitations has run, will not revive a tort;

 but a promise made before the statute has run, on consideration that no suit

should be brought, will stop the running of the statute. Armstrong v. Levan, 1

Atl, Rep. 204.

(a) Promise in Writing . Where an unqualified promise, in writing, to pay is

required to remove the bar of the statute of limitations, the words 'I think I see

my way clear to pay you the $200 and interest I owe you. * * * I am in hopes

another two years will enable me, from my present income, to clear off all

 pressing debts. * * * Rest assured that not a day of pecuniary freedom will pass

over my head without your hearing from me,'—is not such promise. Pierce v.

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Seymour, 9 N. W. Rep. 71. A promise to pay 'when able,' 'as soon as possible,'

'when I can,' or 'as soon as he could,' have been held to be conditional in

Colorado: Richardson v. Brecker, 1 Pac. Rep. 433; Illinois: Horner v. Starkey,

27 Ill. 13; Connecticut: Norton v. Shepard, 48 Conn. 142; Vermont: Cummings

v. Gassett, 19 Vt. 310; New Hampshire: First Cong. Soc. v. Miller, 15 N. H.

522.

Where a debtor wrote, 'I am sorry that you have had to pay the notes of Frank 

Pillond and myself, upon which you were surety for us. I cannot at this time

 pay you the money, but propose to pay you my share, which I am told is about

$413. I hope to be able to pay you soon, but will let you know what I can do in

a few days;' held to take the debt out of the statute. Rolfe v. Pillond, 19 N. W.

Rep. 970. Also, 'If I ever get able I will pay you every dollar I owe to you and

all the rest. You can tell all as soon as I get anything to pay with I will pay. As

for giving a note it is of no use; I will pay just as quick without it,'—held thatthis acknowledged an 'existing liability,' and took case out of statute. Devereaux

v. Henry, 19 N. W. Rep. 697.

(2) Absence from the State and Non-Residence. Absence from the state

suspends the operation of the statute as to resident or non-resident debtors.

Whitcomb v. Keator, 18 N. W. Rep. 469; Hedges v. Roach, 21 N. W. Rep. 404;

Satterthwaite v. Abercrombie, 24 Fed. Rep. 543; Hennequin v. Barney, Id. 580;

Fowler v. Hunt, 10 Johns. 465; Milton v. Babson, 6 Allen, 322;

Page 542-Continued.

Rockwood v. Whiting, 118 Mass. 337. But the absence of a mortgagor from the

state does not suspend the running of the statute of limitations, as to the

mortgage securing a debt. Watt v. Wright, 5 Pac. Rep. 91. It has been held that

a statute providing that 'the time during which a defendant is a non-resident of 

the state shall not be included in computing the period of limitation,' has no

reference to non-resident corporations who come into such state on business,and can, by the laws of the state, sue and be sued there. McCabe v. Illinois

Cent. R. Co., 13 Fed. Rep. 827.

(a) Temporary Absence. Where a statute provides that if, when a cause of 

action shall accrue against any person, he shall be out of the state, the action

may be commenced within the term limited after such person shall return to or 

remove to the state, applies to the temporary absence of a resident of the state,

although during such absence a summons might be served by leaving it at hisusual place of abode. Parker v. Kelly, 21 N. W. Rep. 539. See Ruggles v.

Keeler, 3 Johns. 263; Milton v. Babson, 6 Allen, 322; Brown v. Bicknell, 1 Pin.

226. And it has been held that where a person leaves a state in which he resides,

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under the employment of the general government, with the intention of 

returning as soon as his employment terminates, but retains no property or 

 business interest in the state, he is a non-resident within the meaning of the

statute, although his wife remains in the state for a portion of the time; and the

statute of limitations will not run in his favor during his absence. Hedges v.

Jones, 19 N. W. Rep. 675. See Penley v. Waterhouse, 1 Iowa, 498; Savage v.

Scott, 45 Iowa, 133; Hackett v. Kendall, 23 Vt. 275; Sleeper v. Paige, 15 Gray,349; Ware v. Gowen, 111 Mass. 526.

(b) Removal from and Return to State. Where a cause of action has accrued

 prior to the removal of a debtor from a state into another state, and he remains

in such other state a sufficient length of time to avail himself of the statute of 

limitations in such state, his return to the first state will not revive the cause of 

action, when it is provided by statute in the first state that 'where a cause of 

action has arisen in a state or territory out of this state, or in a foreign country,and by the laws thereof an action cannot be maintained by reason of the lapse

of time, an action thereon shall not be maintained in this state.' Osgood v. Artt,

10 Fed. Rep. 365. The reason for this is, that as soon as a residence was taken

up in the second state, a cause of action accrued in that state against the debtor,

and as soon as the cause of action accrued the statute of limitations of that state

 began to run. But, in the absence of the exceptional legislation, the debtor 

would be required to reside continuously within the first state from the time the

cause of action arose until the statute in that state had completely run. Chenot v.

Lefevre, % J. Gilman, 637.

(3) Commencement of Action. The statute ceases to run in favor of a defendant

who is a non-resident of the district when complainant has obtained process

against him, or done all that is necessary to obtain process, and not before.

Bisbee v. Evans, 17 Fed. Rep. 474. And it is said that where an action has been

commenced on a claim, however defective, it stops the running of the statute of 

limitations. Smith v. McNeal, 3 Sup. Ct. Rep. 319. But, where the law furnishes

a party with a simple method of proceeding against an ultimate debtor, hecannot prevent the running of a statute of limitations against him by attempting

to collect his debts by a circuitous legal proceeding. Glenn v. Dorsheimer, 23

Fed. Rep. 695.

Where the continuity of an action is interrupted by an interval between the

returnday of one writ of summons and the issue of an alias writ,

Page 542-Continued.

the institution of the action will not stop the running of the statute during the

intervening time. Johnson v. Mead, 24 N. W. Rep. 665. And where a case is

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 brought in state court and removed to the federal court, where it is dismissed

without prejudice because plaintiff 'believes he cannot obtain a fair trial in the

federal court,' another action in the state court will be barred if the original

action would have been barred. Archer v. Chicago, B. & Q. R. Co., 22 N. W.

Rep. 894.

A debtor who procures and keeps in force an injunction against the collectionof a debt which he ought to pay, until it is barred at law by the statute of 

limitations, will not be allowed to avail himself of the bar in a court of equity.

Union Mut. Life Ins. Co. of Maine v. Dice, 14 Fed. Rep. 523. It has been held

that, under the statute of California, where the supervisors of a county all

resigned to prevent the service of summons in a suit against the county, it did

not prevent the statute from running. Nash v. Eldorado Co., 24 Fed. Rep. 252.

(a) Defense or Counter-Claim. It is said that the statute does not run against a

claim set up as a defense, and on which defendant is entitled to rely, while such

suit is pending. Becker v. Wing, 21 N. W. Rep. 47.

(4) Estates of Decedents. Death of debtor suspends the running of the statute

until an administrator is appointed. Nelson, Adm'r, v. Herkel, Adm'r, 2 Pac.

Rep. 110; Toby v. Allen, 3 Kan. 399; Hanson v. Towle, 19 Kan. 273. See

Whitney v. State, 52 Miss. 732; Briggs v. Thomas' Estate, 32 Vt. 176; Etter v.

Finn, 12 Ark. 632. A request by the executor of the estate of a deceased person

for delay, to save the bar of the statute of limitations in favor of such estate,must be for a definite time agreed on by the parties, or fixed by reference to

some designated event which may occur, and thereby render the period certain.

Simply requesting 'that you do not enforce your claims,' and promising that he

'will not avail himself of the statute applicable to executors,' etc., is insufficient.

Pulliam v. Pulliam, 10 Fed. Rep. 53.

The statute of limitations does not run against a claim against the estate of a

decedent from the time when presented for allowance until rejected. Nally v.McDonald, 6 Pac. Rep. 390. The statute does not run against a claim presented

and allowed. German Savings & Loan Soc. v. Hutchins, 8 Pac. Rep. 627. Filing

a claim against the estate of a decedent is not 'proving,' within the meaning of 

the statute of limitations. Willcox v. Jackson, 1 N. W. Rep. 536.

A joint judgment against the deceased and others, obtained during his life-time,

may, upon his death, be prosecuted against his representative alone in

Michigan. U. S. v Spiel, 8 Fed. Rep. 143.

(a) Appointment of Administrator . No disability arising after a statute of 

limitations has begun to run will suspend its operation, McDonald v. Hovey, 4

Sup. Ct. Rep. 142; and the bar of the statute of limitations is not removed by the

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issuance of letters of administration on the estate of the deceased debtor. Gaines

v. Hammond's Adm'r 6 Fed. Rep. 449. And this rule is not modified by the fact

that it was not known that the decedent had any estate calling for administration

until after the expiration of the statutory period of limitation. Id.

(b) Devolution. Where the statute commences to run in life-time of ancestor, its

operation is not arrested by his death and minority of his heirs,

Page 542-Continued.

Darnall v. Adams, 13 B. Mon. 273; Haynes v. Jones, 2 Head, (Tenn.) 372; Ang.

Lim. § 196; and consequently the statute of limitations in ejectment is not

arrested by the devolution of the estate. De Mill v. Moffat, 13 N. W. Rep. 387.

See Hill v. Smith, 1 Wils. 134; Cotterell v. Dutton, 4 Taunt. 826; Rhodes v.

Smethurst, 4 Mees. & W. 42; S. C. 6 Mees. & W. 351; Eager v. Com., 4 Mass.

182; Peck v. Randall, 1 Johns. 165; Demarest v. Wynkoop, 3 Johns. Ch. 129;Jackson v. Wheat, 18 Johns. 40; Dillard v. Philson, 5 Strob. 213; Byrd v. Byrd,

28 Miss. 144; Seawell v. Bunch, 6 Jones, Law, 197; Tracy v. Atherton, 36 Vt.

503; Reimer v. Stuber, 20 Pa. St. 458; Stephens v. McCormick, 5 Bush, 181;

Ruff v. Bull, 7 Har. & J. 14; Pinckney v. Burrage, 31 N. J. Law, 21; Lewis v.

Barksdale, 2 Brock. 436; Walden v. Gratz, 1 Wheat. 292; Mercer v. Selden, 1

How. 37; Hogan v. Kurtz, 94 U. S. 773; Becker v. Van Valkenburgh, 29 Barb.

324; Allis v. Moore, 2 Allen, 306; Currier v. Gale, 3 Allen, 328; Keil v. Healey,

84 Ill. 104; Cozzens v. Farnan, 30 Ohio St. 491.

(5) Extension of Time. An agreement to extend or postpone the time of payment

of a claim, made without consideration, is void, and will not prevent the

running of the statute of limitations. Green v. Coos Bay Wagon Road Co., 23

Fed. Rep. 67. In German Savings & Loan Soc. v. Hutchinson, Ex., (Cal.) 8 Pac.

Rep. 627, an agreement made after the maturity of a note and mortgage, and

executed by the mortgagor to the mortgagee, after reciting the loan and

execution of the note and mortgage, and that the mortgagor was desirous of extending the loan, provides 'that the time for the payment of the said

 promissory note shall be extended to, and the said note shall not mature or be

 payable until, the thirtieth day of December, 1874, provided that this agreement

shall not affect or impair any other covenant or condition in the said promissory

note or mortgage, but that they shall remain in as full force and effect as if this

agreement had not been made,' held  to be an agreement for the renewal of the

note and mortgage.

(6) Fraud . Fraud, or the concealment of fraud, prevents the running of the

statute of limitations until it is discovered. McAlpine v. Hedges, 21 Fed. Rep.

689. Where a deed is executed for the purpose of defrauding creditors,

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 purposely kept off of record, and all the parties considered in the transaction

keeping it perfectly silent, this is such fraudulent concealment as relief may be

granted for in equity. McAlpine v. Hedges, 21 Fed. Rep. 689. See Meader v.

 Norton, 11 Wall. 442; Carr v. Hilton, 1 Curt. C. C. 238; Vane v. Vane, L. R. 8

Ch. 383; Rolfe v. Gregory, 4 De G., J., & S. 576; Hovenden v. Annesley, 2

Schoales & L. 634; Buckner v. Calcote, 28 Miss. 568. A contrary doctrine

 prevails in Indiana. Boyd v. Boyd, 27 Ind. 429; Pilcher v. Flinn, 30 Ind. 202;Musselman v. Kent, 33 Ind. 458; Jackson v. Buchanan, 59 Ind. 390; Wynne v.

Cornelison, 52 Ind. 319; Hughes v. First Nat. Bank of Waynesburg, (Pa.) 1 Atl.

Rep. 417.

(7) Mortgage. A mortgage will not keep alive the personal obligation to pay a

debt after the time when it would otherwise be outlawed. Lashbrooks v.

Hatheway, 17 N. W. Rep. 723; Michigan Ins. Co. v. Brown, 11 Mich. 265;

Appeal of Goodrich, 18 Mich. 110; Powell v. Smith, 30 Mich. 452.

(8) Negligence and Laches. Neglect of a person to do that which is required of 

him to be done to perfect his right against another will not prevent the running

of the statute of limitations against him. Lower v. Miller, 23 N. W. Rep. 897;

Prescott v. Gonser, 34 Iowa, 175; Baker v. Johnson Co., 33 Iowa, 151;

Hintrager v. Hennessy, 46 Iowa, 600; Beecher v. Clay Co., 52 Iowa, 140; S. C.

2 N. W. Rep. 1037; First Nat. Bank of Garrettsville v. Green, 17 N. W. Rep. 86.

Page 542-Continued.

(9) Note, etc. It has been held that the giving of a note by the husband for 

necessaries, for which the wife is equally liable, arrests the running of the

statute of limitations until the maturity of the note, both as to the husband and

the wife. Davidson v. Beggs, 16 N. W. Rep. 135; Lawrence v. Sinnamon, 24

Iowa, 80. Also, that where a judgment is taken against the husband alone for 

necessaries, for which his wife was jointly liable, it does not extent limitation

against the wife until the expiration of such judgment. Polly v. Walker, 14 N.W. Rep. 137.

(10) Part Payment . It has been held that partial payment stops running of 

statute, whether made before, Engmann v. Estate of Immel, 18 N. W. Rep. 182;

see Mainzinger v. Mohr, 41 Mich. 687; S. C. 3 N. W. Rep. 183; Eaton v. Gillet,

17 Wis. 435; Williams v. Gridley, 9 Metc. 482; Sibley v. Lumbert, 30 Me. 253;

 Newlin v. Duncan, 1 Har. (Del.) 204; 7 Wait, Act. & Def. 228, 301, 307; Pars.

Cont. 353, or after the statute has debarred the claim. Winchell v. Hicks, 18 N.Y. 558; Pickett v. Leonard, 34 N. Y. 175; Harper v. Fairley, 53 N. Y. 442;

Carshore v. Huyck, 6 Barb. 583; Graham v. Selover, 59 Barb. 313; First Nat.

Bank of Utica v. Ballou, 49 N. Y. 155; Ilsley v. Jewett, 2 Metc. 168; Ayer v.

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Hawkins, 19 Vt. 26; Wheelock v. Doolittle, 18 Vt. 440; Emmons v. Overton, 18

B. Mon. 643; Walton v. Orbinson, 5 Ired. Law, 343; Schmucker v. Sibert, 18

Kan. 104; Shannon v. Austin, 67 Mo. 485; Carroll v. Forsyth, 69 Ill. 127. But a

credit entered upon a note by the holder thereof does not revive a barred note,

under the construction of the statute of limitations in Georgia, unless he be

authorized by the defendant in writing to enter such credit. Stone v. Parmalee,

18 Fed. Rep. 280.

(a) Voluntary Payment. It has been held that voluntary part payment is an

acknowledgment of the indebtedness, and an agreement to pay the residue is

implied, Thomas v. Brewer, 7 N. W. Rep. 571; Harper v. Fairley, 53 N. Y. 442;

Rolfe v. Pillond, 19 N. W. Rep. 970; Miner v. Lorman, 22 N. W. Rep. 265; yet

mere part payment of a debt, without words or acts to indicate its character, is

not evidence from which a new promise to take the debt out of the operations

of the statute of limitations may be inferred. Chadwick v. Cornish, 1 N. W.Rep. 55; Brisbin v. Farmer, 16 Minn. 215, (Gil. 187.) A payment of interest on

a barred note by maker and indorsement thereon by holder will take it out of 

the statute of limitations. Yesler v. Koslowski, (Wash. T.) 8 Pac. Rep. 493.

(b) Enforced Payment . Enforced part payment will not affect the running of the

statute, Thomas v. Brewer, 7 N. W. Rep. 571; yet a part payment made by sale

of a collateral by holder, and indorsed on note, will remove bar. Sornberger v.

Lee, 15 N. W. Rep. 345; Wheeler v. Newbould, 16 N. Y. 392; Joliet Iron Co. v.

Sciota F. B. Co., 82 Ill. 548; Whipple v. Blackington, 97 Mass. 476; Haven v.Hathaway, 20 Me. 345. It is said that where the statute provides that a part

 payment shall take the debt out of the statute, the payment of a dividend by an

assignee of such debtor will not have that effect. Clark v. Chambers, 22 N. W.

Rep. 229; Marienthal v. Mosler, 16 Ohio St. 566; Stoddard v. Doane, 7 Gray,

387; Pickett v. King, 34 Barb. 193; Roosevelt v. Mark, 6 Johns. Ch. 266. But

the supreme court of Kansas hold, by a divided court, that such payment by

assignee does take cause out of statute. Letson v. Kenyon, 1 Pac. Rep. 562;

citing Jackson v. Fairbank, 2 H. Bl. 340; Barger v. Durvin, 22 Barb. 68.

(c) By Partner, Co-Surety, etc. At common law a payment made by one of the

debtors kept the demand alive as to both, and was equivalent to a new promise

 by both. Mainzinger v. Mohr, 3 N. W. Rep. 183; Wyatt v. Hodson, 8 Bing. 309.

Page 542-Continued.

But the rule is different in most if not all the states. Marienthal v. Mosler, 16Ohio St. 566; Quinby v. Putnam, 28 Me. 419. In absence of a statute to the

contrary, part payment by one joint debtor will remove the bar as to all.

 National Bank of Delavan v. Cotton, 9 N. W. Rep. 926. See Winchell v. Hicks,

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18 N. Y. 558; Huntington v. Ballou, 2 Lans. 121. Money paid by one of two or 

more joint debtors on contract, at request of others, stops running of statute as

to all. National Bank of Delavan v. Cotton, 9 N. W. Rep. 926; Pitts v. Hunt, 6

Lans. 146; Whipple v. Stevens, 2 Fost. (N. H.) 219. Payment by one of two

 joint obligors in presence of the other will take out of statute. Mainzinger v.

Mohr, 3 N. W. Rep. 183. But it has been held that proof of partial payment by

one partner, after the dissolution of the partnership, cannot be introduced tostop the running of the statute of limitations. Cronkhite v. Herrin, 15 Fed. Rep.

888. And it has been held that a part payment or new promise by one co-surety

will not operate to keep alive the obligation as to a co-surety who was not privy

to it, or in no way participated in it. Probate Judge v. Stevenson, 21 N. W. Rep.

348.

(11) War . The existence of war suspends the statute of limitations as between

citizens of the adverse belligerent powers, but not as between citizens of thesame power. Cross v. Sabin, 13 Fed. Rep. 308. And it is said if the means

 provided by law for the issuance and service of process exist, whereby injured

 parties can commence suit, the court is not 'closed,' although the stated sessions

are not regularly held at the times appointed by law, and the probabilities are

that a suit then brought would not be tried until after the cassation of hostilities.

Cross v. Sabin, 13 Fed Rep. 308. And it has been held that where the United

States has consented to be sued in the court of claims on a certain class of 

claims, and a citizen is prevented from bringing a suit on such a claim within

the time specified, by reason of his connection with the Rebellion, he will be

 barred. Kendall v. U. S., 2 Sup. Ct. Rep. 277.

4. SUIT—WHEN COMMENCED. Where the statute provides that a suit is

commenced by 'delivering of the original notice' to the proper officer, with

intent that it be served immediately, the delivery to such officer of a 'notice' in

which the appearance day is left blank, and to be filled by such officer on

service of the writ, is not such a commencement of an action as will bar the

running of the statute of limitations. Phinney v. Donahue, 25 N. W. Rep. 126.Where a creditor filed a petition, and on the same day a notice was put in the

hands of the sheriff, who neglected to serve it, and delivered it to plaintiff's

attorney, who lost it, it was held that no action was commenced. Wolfenden v.

Barry, 22 N. W. Rep. 915. A suit in law is not commenced, so as to avoid the

statute of limitations, until the writ is completed, with the intention of making

immediate service. Clark v. Slayton, 1 Atl. Rep. 113; Robinson v. Burleigh, 5

 N. H. 225; Graves v. Ticknor, 6 N. H. 537; Hardy v. Corlis, 21 N. H. 356;

Mason v. Cheney, 47 N. H. 24; Brewster v. Brewster, 52 N. H. 60. A suit inequity is not commenced, so as to avoid the statute of limitations, until the bill

is filed in the clerk's office. Clark v. Slayton, 1 Atl. Rep. 113; Leach v. Noyes,

45 N. H. 364.

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5. PLEADING AND PEACTICE. A plea of the statute of limitations was

formerly regarded by the courts as dishonorable, and not to be favored. Hurley

v. Cox, 2 N. W. Rep. 705; Perkins v. Burbank, 2 Mass. 81; Willet v. Atterton, 1

Wm. Bl. 35. And to be made available to-day it must be specially pleaded, in

absence of statute to the contrary. Zeilin v. Rogers, 21 Fed. Rep. 103; Brush v.

Peterson, 6 N. W. Rep. 287; Leavitt v. Oxford & Geneva Silver Min. Co. of 

Utah, 1 Pac. Rep. 356; Grant v. Burr, 54 Cal. 298; Tarbox v. Supervisors, 33Wis. 445; Mead v. Nelson, 52 Wis. 402; S. C. 8 N. W. Rep. 895; Lockhart v.

Fessenich, 17 N. W. Rep. 302; Plumer v. Clarke, 18 N. W. Rep. 467;

Page 542-Continued.

Morgan v. Bishop, 56 Wis. 284; S. C. 14 N. W. Rep. 369; Ward v. Walters, 22

 N. W. Rep. 844; Clarke v. Lincoln Co., 54 Wis. 578; S. C. 12 N. W. Rep. 20;

Wisconsin Cent. R. Co. v. Lincoln Co., 57 Wis. 137; S. C. 15 N. W. Rep. 121;

Crowe v. Colbeth, 24 N. W. Rep 478. But it was recently held by the United

States circuit court for the district of California that a formal plea of the statute,

or of the special facts, is not necessary in equity to raise the defense of laches,

neglect, or acquiescence. Lakin v. Sierra Buttes Gold Min. Co., 25 Fed. Rep.

337.

The statute of limitations, as a defense to an action, must be pleaded, or it will

 be considered waived by the defendant. Phinney v. Donahue, (Iowa,) 25 N. W.

Rep. 126; Atchison & N. R. Co. v. Miller, 21 N. W. Rep. 451; Taylor v.Courtnay, 15 Neb. 196; S. C. 16 N. W. Rep. 842. The rule that the statute of 

limitations must be pleaded is limited to cases in which an opportunity to plead

it has been given. Dreutzer v. Baker, 18 N. W. Rep. 776; Heath v. Heath, 31

Wis. 223. See Morgan v. Bishop, 56 Wis. 284; S. C. 14 N. W. Rep. 369; Gans

v. Insurance Co., 43 Wis. 108, 115; Waddle v. Morrill, 26 Wis. 611; Harris v.

Moberly, 5 Bush, 556; Mann v. Palmer, 41 * N. Y. 177, 188. However, in some

states, it is unnecessary to plead the statute of limitations when it appears on

the face of the petition or bill that the cause of action was barred at the time thesuit was instituted. Baxter v. Moses, (Me.) 1 Atl. Rep. 350; Hurley v. Cox, 2 N.

W. Rep. 705; Sturges v. Burton, 8 Ohio St. 215; Bissell v. Jaudon, 16 Ohio St.

498, 504; Delaware Co. v. Andrews, 18 Ohio St. 49; Peters v. Dunnells, 5 Neb.

460; Hurley v. Estes, 6 Neb. 386. The plea of the statute of limitations is a plea

to the remedy, and to be governed by the lex fori. Star Wagon Co. v.

Matthiessen, 14 N. W. Rep. 107; Townsend v. Jemison, 9 How. 420;

McElmoyle v. Cohen, 13 Pet. 327. In absence of statutory provision to the

contrary, where parties to a suit fail at the proper time to interpose the defenseof bar by the statute of limitations, it cannot be afterwards made available,

Welsh v. McGrath, 10 N. W. Rep. 810; Retzer v. Wood, 3 Sup. Ct. Rep. 164;

and it is not error, or an abuse of discretion, in trial court to refuse to allow

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amendments setting up statute of limitations where suit is between original

 parties. Morgan v. Bishop, 21 N. W. Rep. 263; Plumer v. Clarke, 18 N. W.

Rep. 467; Fogarty v. Horrigan, 28 Wis. 142; Eldred v. Oconto Co., 30 Wis.

206; Meade v. Lawe, 32 Wis. 266; Dehnel v. Komrow, 37 Wis. 336.

As a rule the objection that the action was not commenced within the time

limited can only be taken by answer, Hurley v. Cox, 2 N. W. Rep. 705; andcannot be raised by demurrer. State v. McIntire, 12 N. W. Rep. 593; State v.

Hussey, 7 Iowa, 409; State v. Groome, 10 Iowa, 308. But it has been held that

where the statute of limitations is relied upon as a defense in an action of 

ejectment, 'the objection that the action was not brought within the time limited

can only be taken by answer,' except where the facts by which the statute

operates as a bar are sufficiently stated in the complaint, when the objection

may be taken by demurrer, which will be considered as an answer. Paine v.

Comstock, 14 N. W. Rep. 910; Howell v. Howell, 15 Wis. 55.

Where no facts are alleged upon which to base the defense of the statute of 

limitations, such defense is not available to the defendant, Plumer v. Clarke, 18

 N. W. Rep. 467; Smith v. Dregert, 18 N. W. Rep. 732; Morgan v. Bishop, 56

Wis. 284; S. C. 14 N. W. Rep. 369; Paine v. Comstock, 57 Wis. 159; S. C. 14

 N. W. Rep. 910; but where the statute is informally pleaded, evidence is not

thereby excluded. Haseltine v. Simpson, 17 N. W. Rep. 332. The statute is

sufficiently pleaded by reference in the answer to the section of the Code.

Packard v. Johnson, 4 Pac. Rep. 632. Where an action is founded on fraud,

Page 542-Continued.

the petition should set forth when the fraud was discovered. Doyle v. Doyle, 7

Pac. Rep. 615; Young v. Whittenhall, 15 Kan. 579.

The plea of the statute of limitations cannot avail third persons as against the

 parties, Brigham v. Fawcett, 4 N. W. Rep. 272; and can only be pleaded in bar of a tax title by one who is, or claims through, the true owner, Lockridge v.

Daggett, 2 N. W. Rep. 1023; yet an agent may plead the statute of limitations

for his principal. King v. National Min. & Exp. Co., 1 Pac. Rep. 727. And it

has been held that where statute of limitations bars a cause of action against the

agent of an undisclosed principal, no suit can be maintained against the

 principal when he is discovered. Ware v. Galveston City Co., 4 Sup. Ct. Rep.

337.

When the statute of limitations is set up as a defense, a finding that 'all the

allegations of plaintiff's complaint are true' is not a finding on the issue of the

statute of limitations. Lewis v. Adams, 7 Pac. Rep. 779. Where plaintiff fails to

file a replication within the time allowed, where the answer includes a plea of 

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the statute of limitations, containing a negative pregnant, a motion by defend