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pend in part on the terms of the individual statute and the forms of procedure special to the particular locality In civil causes, with us, a suit is generally deemed to be begun when papers for the purpose are filed in court, or the needful process is in good faith made out and delivered to an officer to be served. In some states and circumstances, perhaps generally, not even a delivery of the process to the officer or a filing of papers is necessary;: while in others these, or even a service of process 5 will be required. Within this doctrine, it is be


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tity of base money, such as described San Francisco, 21 Cal. 351; Kinney in the indictment, some in earlier, v. Lee, 10 Tex. 155; Bank of United some in more advanced stages of the States v. Lyles, 10 Gill & J. 326; process. The prisoner was appre- Guild v. Hale, 15 Mass. 455; Ontario hended the same evening and lodged Bank v. Rathbun, 19 Wend. 291; in Durham jail. He was afterwards (Huysman v. Evening Star Newscarried before a magistrate, and by paper Co., 12 Ap. D. C. 586; City of warrant dated 8th May was com- Belton v. Sterling (Tex. Civ. Ap.), 50 mitted to jail, charged on oath with S. W. R. 1027; Johnson v. Davidson, suspicion of high treason in counter 162 Ill. 232, 44 N. E. R. 499.] feiting the current money of this 2 Evans v. Galloway, 20 Ind. 479; kingdom, viz. shillings,' etc. The as- State Bank v. Bates, 5 Eng. 120; sizes at Durham were holden on the State Bank v. Cason, 10 Eng. 479; 8th of August, so that more than Johnson 1. Farwell, 7 370, [22 three months had elapsed between Am. D. 203;] Hail v. Spencer, 1 R. I. the commission of the offense and 17; Davis v. Duffie, 18 Abb. Pr. 360; the preferring of the indictment. [Chapman v. Goodrich, 55 Vt. 354; But the judges, at a conference, Flournoy v. Lyon, 70 Ala. 308; U. S. unanimously held that the informa- v. American Lumber Co., 80 Fed. R. tion and proceeding before the mag- 309; Lambert v. Ensign Mfg. Co., 42 istrate was the commencement of W. Va. 813, 26 S. E. R. 431; Collins v. the prosecution within the meaning Manville, 170 111. 614, 48 N. E. R. 914.] of the act, and that the variance be- 3 Updike v. Ten Broeck, 3 Vroom, tween the manner of laying the 105; Bunker v. Shed, 8 Met. 150; Jewoffense in the indictment and charg- ett v. Greene, 8 Greenl. 447; Gardner ing it in the commitment made no v. Webber, 17 Pick. 407, 412; Mason difference." The Alabama statute v. Cheney, 47 N. H. 24; Burdick v. provides that, within the meaning of Green, 18 Johns. 14; Jones v. Jincey, the act, a prosecution may be com- 9 Grat. 708. See Robinson v. Burmenced“ by the issue of a warrant leigh, 5 N. H. 225; Graves v. Ticknor, or by binding over the offender." 6 N. H. 537; Garland v. Chattle, 12 Foster v. S., 38 Ala. 425; [Giles v. S., Johns. 430; Collins v. Montemy, 3 88 Ala. 230, 7 S. R. 271; Benson v. S., Bradw. 182; [Lacey v. Newcomb, 95 91 Ala. 86, 8 S. R. 873; Clayton v. S. Iowa, 287, 63 N. W. R. 704.] (Ala.), 26 S. R. 118.]

4 Baskins v. Wilson, 6 Cow. 471. 1 Bacon v. Gardner, 23 Miss. 60; 6 Taylor v. Taylor, 3 A. K. Mar. 18; Dilworth v. Mayfield, 36 Miss. 40; [Demple v. Hofman (Kan. Ap.), 57 Wright v. Pratt, 17 Mo. 43; Sharp v. Pac. R. 234] Maguire, 19 Cal. 577; Pimental v.



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lieved to be the general understanding in our tribunals that a criminal prosecution is begun when a complaint is made to a magistrate who issues his warrant of arrest. Still, on the other hand, there is American authority for saying that the word "prosecution,” in a statute limiting criminal causes, is an equivalent for indictment; so that only on the finding of an indictment will the running of the statute be stayed. A presentment by the grand jury has been held to be: and not to be * a commencement,- a question varying with the case, the statute, and the practice of the court."

$ 261a. Continuing to run after beginning.- After any sort of statute of limitations has attached to a case,- has begun to run,- it, as a general rule, and in the absence of statutory terms otherwise providing, continues its effect, though something intervenes which, if existing before, would have prevented its attaching;? as, for example, though for a time there is no party to sue or be sued, or the suit is forbidden, or the

1S. v. Howard. 15 Rich. 274; S. v. 6 Ante, S 260a. May, 1 Brev. 160; Newell v. S., 2 7 Coventry v. Atherton, 9 Ohio, 34; Conn. 38; S. v. Groome, 10 Iowa, 308; Cotterell v. Dutton, 4 Taunt. 826; Ross v. S., 55 Ala. 177: S. v. Gibbs, 1 Stevenson v. McReary, 12 Sm. & M. Root, 171; Reg. v. Lennox, 34 U. C. 9, 58, [51 Am. D. 102;] Wynn v. Lee, Q. B. 28; 8. v. Miller, 11 Humph. 505; 5 Ga. 217; Halsey v. Beach, 1 PenP. v. Clark, 33 Mich. 112, 120; (S. v. ning. 122; Ruff v. Bull, 7 Har. & J. Erving, 19 Wash. 435, 53 Pac. R. 717; 14, [16 Am. D. 290;) Pendergrast v. In re Clyne, 52 Kan. 441, 35 Pac. R. Foley, 8 Ga. 1; Smith v. Newby, 13 23; P. v. Clement, 72 Mich. 116, 40 N. Mo. 159; Dillard v. Philson, 5 Strob. W. R. 190; In re Griffith, 35 Kan. 377, 213; (Asbury v. Fair, 111 N. C. 251, 16 11 Pac. R. 174.]

S. E. R. 467; Bowles v. Smith (Tex. 2 Com. v. Haas, 57 Pa. St. 443; (P. Civ. Ap.), 34 S. W. R. 381; Makepeace V. Aybens, 85 Cal. 86, 24 Pac. R. 635; v. Bronnenberg, 146 Ind. 243, 45 N. Anderson v. S., 20 Fla. 381; Broughn E. R. 336; Grady v. Wilson, 115 N. C. v. S., 44 Neb. 889, 62 N. W. R. 1094; 344, 20 S. E. R. 518, 44 Am. St. R. 461; Ex parte Lacey, 6 Okl. 4, 37 Pac. R. Campbell v. McFadden, 9 Tex. Civ. 1095; City of Pilot Grove v. McCor. Ap. 379, 31 S. W. R. 436; Voight v. mick, 56 Mo. Ap. 530; In re Griffith, Raby, 90 Va. 799, 20 S. E. R. 824; 35 Kan. 377, 11 Pac. R. 174.]

Lloyd v. Lloyd's Adm'r (Ky.), 46 S. 38. v. Cox, 6 Ire. 440; (S. v. Kiefer W. R. 485.] (Ind.), 44 Atl. R. 1043.]

8 Rhodes v. Smethurst, 6 M. & W. *U. S. v. Slacum, 1 Cranch, C. C. 351, 4 M. & W. 42; Byrd v. Byrd, 28 485.

Miss. 144; Brown v. Merrick, 16 Ark. 5“ Pending."— As to what is a 612; Tynan v. Walker, 35 Cal. 634, “prosecution pending,” see S. v. Ar- [95 Am. D. 152;] Baker v. Brown, 18 lin, 39 N. H. 179; Reg. v. Martin, 8 Ill. 91. Q. B. D. 54; Schoeppe v. Com., 65 Pa. 9 Houpt v. Shields, 3 Port. 247; JorSt. 51.

dan v. Jordan, Dudley (Ga.), 182; [Mc


person to be sued is dead, consequences provided against by the express terms of many of our statutes. Yet, even to this rule the unwritten law has exceptions, which enter into and qualify the statute. Thus,

Creditor becoming executor, etc.— If the creditor of a deceased person is made his executor or administrator, this act of the law, rendering a suit for the debt impossible, since one cannot sue himself, yet not extinguishing it, suspends the running of the limitations statute.? Again,

Rebellion — War.—The mere temporary closing of the courts, in consequence of disturbances from rebellion or war, does not necessarily, or does not in all circumstances, suspend the running of the statute. But those hostilities do, which, by rendering unlawful or impossible the litigation in bar whereof the statute is invoked, constitute the overwhelming necessitys to which all laws must yield.


Clure v. Melton, 34 S. C. 377, 13 S. E. 5 Ante, į 24, and places there re R. 615, 13 L. R. A. 723.]

ferred to. 1 Stewart v. Spedden, 5 Md. 433; 6 Hanger v. Abbott, U. S. v. Wiley, Hayman v. Keally, 3 Cranch, C. C. and other cases supra; The Pro 325; Johnson v. Wren, 3 Stew. 172; tector, 9 Wall. 687; Harrison v. HenConant v. Hitt, 12 Vt. 285; [Oates v. derson, 7 Heisk. 315; Neely v. Luster, Beckworth, 112 Ala. 356, 20 S. R. 399; 7 Heisk. 354; Braum v. Sauerwein, 10 Shumate v. Snyder, 140 Mo. 77, 41 S. Wall. 218; Levy v. Stewart, 11 Wall. W. R. 781; McAuliff v. Parker, 10 244; Stewart v. Kahn, 11 Wall 493; Wash. 141, 38 Pac. R. 744; Ackerman Coleman v. Holmes, 44 Ala. 124, [4 v. Hilpert (Iowa), 79 N. W. R. 90; Am. R. 121;] O'Neal v. Boone, 53 Ill. Stauffer v. British, etc. Co. (Miss.), 25 35; Mixer v. Sibley, 53 Ill. 61; Sierra S. R. 299; Copeland v. Collins, 122 v. U. S., 9 Ct. of Cl. 224; The Pro N. C. 619, 30 S. E, R. 315.)

tector, 12 Wall. 700; Adger v. Alston, 2 Seagram v. Knight, Law R. 2 Ch. 15 Wall. 555; Ross v. Jones, 22 Wall. Ap. 628, 632; Spencer v. Spencer, 4 576; Gooding v. Varn, Chase, 286; Md. Ch. 456; Brown v. Stewart, 4 Md. Eddins v. Graddy, 28 Ark. 500; RanCh. 368. See Munroe v. Holmes, 13 dolph v. Ward, 29 Ark. 238; Hall v. Allen, 109.

Denckla, 28 Ark. 506; Bell v. Hanks, 3 Prideaux v. Webber, 1 Lev. 31; 55 Ga. 274; Selden v. Preston, 11 Hall v. Wybourn, 2 Salk. 420. And Bush, 191; McMerty v. Morrison, 62 see Hepburn's Case, 3 Bland, 95. But Mo. 140; Pitzer v. Burns, 7 W. Va. see observations in Hanger v. Abbott, 63; Sleght v. Kane, 1 Johns. Cas 76. 6 Wall. 532, 541; U. S. v. Wiley, 11 And see Shand v. Gage, 9 S. C. 187; Wall. 508, 513; Marks v. Borum, 1 Johnston v. Wilson, 29 Grat. 379; Bax. 87, [25 Am. R. 764;) Kilpatrick Zacharie v. Godfrey, 50 Ill. 186, (99 v. Brashear, 10 Heisk. 372, 375. Am. D. 506;] Delancey v. McKeen, 1

* See, for the principle, Bishop, Wash. C. C. 354. Con., SS 577-609.

$ 261b, Exceptions - Besides the exceptions thus engrafted by the unwritten law on the statute, there are generally in our states others, as already intimated, incorporated into its terms. For example,

"Beyond seas.” — The statutes of some of the states, following' mainly the early English ones, except out of their operation persons“ beyond the seas.”3 In the absence of this statutory exception this fact itself will not work the exemption. The English courts gave to the expression its obvious meaning; so that, for example, Ireland, both before and after the union, was adjudged to be, and Scotland not to be, “ beyond the seas.” In 1833 this construction was somewhat changed by the statute of 3 and 4 Will. 4, ch. 27, § 19, which declared that, within its provisions and the limitations act of 21 Jac. 1, ch. 16 $ 7, “no part of the United Kingdom, etc., shall be deemed to be beyond seas.”? This statute of Will. 4, adopted long after the Revolution, has, of course, no effect with us; but some of our American courts, overlooking it, and overlooking the English decisions pronounced in its absence, have held that the words “ beyond the seas” mean simply out of the limits of the state. And, in one way or another, a large proportion of our


| Vans v. Higginson, 10 Mass. 29; dria v. Dyer, 14 Pet. 141, 145, Taney, Hall v. Little, 14 Mass. 203.

C. J., delivering the unanimous opin2 Hall v. Wybank, 3 Mod. 311; Beven ion of the supreme court of the v. Clapham, 1 Lev. 143; Rochtschilt United States, said: “The question v. Leibman, 2 Stra. 836; Swayn v. presented by these pleadings is the Stephens, Cro. Car. 245; Parry v. construction of that clause in the Jackson, 4 T. R. 516.

Maryland act of limitations which 3 Post, $ 595.

exempts from the operation of the * Hall v. Wybourn, 2 Salk. 420; s. C. act all persons who are 'beyond the nom. Hall v. Wyborn, 1 Show. 98; seas,' at the time cause of action acAnonymous, Comb. 190; Swayne v. crues, and continues the exemption Stevens, W. Jones, 252.

until they shall return. The words 6 Nightingale v. Adams, Holt, 426; 'beyond the seas' in this law, are Anonymous, 1 Show. 91; Gaskin v. manifestly borrowed from the EngGaskin, Cowp. 657, 658; Lane v. Ben- lish statute of limitation of James 1, nett, 1 M. & W. 70.

ch. 21 [21 James 1, ch. 16]; and it has 6 King v. Walker, 1 W. Bl. 286. always been held that they ought And see Lane v. Bennett, supra, at not to be interpreted according to pp. 74–76.

their literal meaning, but ought to ? And see Chandler v. Vilett, 2 be construed as equivalent to the Saund. 120 and notes; Ruckmaboye words 'without the jurisdiction of V. Mottichund, 8 Moore, P. C. 4. the state.' According to this inter8 For example, in Bank of Alexan- pretation, a person residing in any

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tribunals have reached this conclusion. Other of our courts deny this construction, and hold that, at least, another state of the Union is not “ beyond the seas."? It is difficult to find any other reason than the blunder just mentioned for adjudging that a man who steps across an invisible line into an adjoining state bas, by the one step, taken where there is not a drop either of salt water or fresh, transported himself “beyond the seas.” “Even,” to quote from Lord Abinger, C. B., if the court were “quite satisfied” that the legislature meant so, it “could not supply the defect.” 3

$ 261c. Concealment.-On general principles, want of knowledge of an offense, or the defendant's concealing it,' or mere ignorance of a civil right, is no answer to the statutory bar. other state of the Union was 'be. still, where the question is upon a yond the seas' within the meaning state statute which has received the of this act of assembly, and there other construction from the state fore exempted from its operation tribunal (ante, SS 35b, 115; Amory v. until he should come within the lim- Lawrence, 3 Clif. 523), it will follow its of Maryland.” For a review of the latter. So it did in passing upon the decisions of the supreme court the North Carolina statute, on the of the United States on this ques- ground “that the fixed and received tion, see Davie v. Briggs, 97 U. S. construction by the state courts of 628, 637.

local statutes of limitation furnishes Murray v. Baker, 3 Wheat. 541; rules of decision for this court, so Forbe v. Foot, 2 McCord, 331; Shelby far as such construction and statutes v. Guy, 11 Wheat. 361; Pancoast v. do not conflict with the constitution Addison, 1 Har. & J. 350, [2 Am. D. of the United States.” Davie v. 520;] Wakefield v. Smart, 3 Eng. 488; Briggs, 97 U. S. 628, 637. Denham v. Holeman, 26 Ga. 182, [71 3 Lane v. Bennett, supra, at p. 73. Am. D. 198;] Stephenson v. Wait, 8 And see Wilson v. Appleton, 17 Mass. Blackf. 508; Galusha v. Cobleigh, 13 180, 181, N. H. 79; Richardson v. Richardson, *U. S. v. White, 5 Cranch, C. C. 38; 6 Ohio, 125, [25 Am. D. 745.)

(S. v. Pierre, 49 La. An. 1159, 22 S. R. ? S. v. Harris, 71 N. C. 174; Mason 373; S. v. Wren, 48 La. An. 803, 19 S. v. Johnson, 24 III. 159, [76 Am. D. R. 745.] 740;) Marvin v. Bates, 13 Mo. 217; 5 Campbell v. Long, 20 Iowa, 382; Fackler v. Fackler, 14 Mo. 431; Kee Abell v. Harris, 11 Gill & J. 367; Davis ton v. Keeton, 20 Mo. 530; Gonder v. v., Cotten, 2 Jones Eq. 430; Bossard v. Estabrook, 33 Pa. St. 374. There are White, 9 Rich. Eq. 483; Leonard v. statutes the special terms of which Pitney, 5 Wend. 30; {Townsend v. are so. Hall v. Little, 14 Mass. 203, Eichelberger, 51 Ohio St. 213, 38 N. E. 204.

R. 207; Gore v. Murphy, 18 Mont 342, State statutes in national courts. 45 Pac. R. 217; School Dist. of Sedalia Though the supreme court of the v. Deweese, 93 Fed. R. 602, Meyer United States has interpreted th9 Bros. Drug Co. v. Fry (Tez Civ. Ap.), expression “beyond seas” as 48 S. W. R. 752. equivalent for "out of the state,"



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