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if one heir be within the saving clause, this does not help his coheirs, who are not within it. In England and in most of the States, there is a fifth; namely, "being beyond seas," which, in this country, means being out of the State. This was in our statutes of 1804 and 1810; our statute of 1824 substituted the expression, without the United States;" but the statute of 1831 omits it altogether. In all cases except ejectment, if a party, at the time his cause of action accrued, was under either of the aforementioned disabilities, he has the full period of limitation, after the removal of his disability, within which to commence his action; or, in other words, the statute does not begin to run until the disability is removed: and prior to 1830, this was the case also with respect to ejectment; but now the language of the statute with reference to this action is, "every such person may, after the expiration of twenty-one years from the time his right or title first descended or accrued, bring such action within ten years after such disability removed;" and to save existing rights, there is a temporary provision, that when a disability was removed less than eleven years before this act took effect, there shall still be ten years from that time; but if removed more than eleven years before that date, the time shall be just so much less after. It is unfortunate that the permanent provision above quoted was not expressed in clearer language. One would suppose that the legislature, in striking off eleven years from the former period, after the disability removed, would at least have given the remaining ten years as an absolute extension in all cases; but the language above quoted will not bear this construction. The time given, "after the expiration of twenty-one years," must be "within ten years after such disability removed;" accordingly, if the disability ceased at the end of eleven or any less number of years after the statute commenced running, there would be no extension whatever; for the ten years within which the action must be brought, after the removal of the disability, would run out before or with the original twenty-one years; if the disability ceased after more than eleven years of the original limitation, and less than twentyone, the extension would be so much less than ten years; but if the disability outlasted the original limitation, then, and then only, would there be an absolute addition of ten years. I do not see that the language will admit any other than this singular construction. Its operation will be best illustrated by an example; and we will take the disability of coverture. Suppose that a claim to land descends upon a married woman, and her husband dies ten years after; now without the saving clause, she would still have eleven years, because every one has that; and since these eleven outlast the ten given by the saving clause, she gains nothing by it. But suppose her husband had lived fifteen years after her claim descended to her; here, without the saving clause, she would have only six years left; but with it, she gains four years. Lastly, suppose her husband had lived thirty years after her claim

descended; here she would have an absolute gain of ten years after his death, making in all nineteen. (a)

Cumulative Disabilities. From the words, "at the time his first. title descended or accrued," it follows that the disability, in order to be available, must have been existing at the very time. No subsequent disability can be taken advantage of. If but a day intervene, between the accruing of the cause of action and the disability, the statute having once commenced running, will continue to run. And the same is true, when a subsequent disability occurs, while a prior one still exists; for no disability can be taken advantage of, which did not exist when the statute commenced running; but if several concurrent disabilities existed together at that time, advantage may be taken of that which lasts longest. (b) Thus, if a title descends upon a single woman of age, and she marries the next day, her coverture is no saving disability. If she were an infant at the time, her infancy may be taken advantage of, but not her subsequent coverture: but if she was both an infant and married, when her title descended, she may take advantage, either of her infancy or coverture, whichsoever continues longest. These points are settled beyond controversy. But the language of our statute raises one question of difficulty. Suppose that adverse possession has been running against an ancestor before his death, can his infant heir take advantage of his infancy? or must he bring his action within twenty-one years after the cause of action accrued to his ancestor? The language of the corresponding provision of the English statute is, at the time the said right first descended or accrued;" and this has been construed, in the case proposed, to preclude the infant from setting up his infancy; because, otherwise, in the language of the books, a right might travel down through minorities for centuries. The same reason exists here; and therefore it has been held that the substitution of "his right,' in place of "the said right," especially as the word "first" is still retained, is not to be construed as altering the English rule.

Miscellaneous. In the fluctuating legislation of this State, we have had limitation acts passed or amended, in the years 1804, 1810, 1824, 1826, 1830, and 1831. It is important to bear this in mind, because each new act expressly provides that prior causes of action shall be governed by the prior acts, where the contrary is not specified. (c) By a singular omission, the action of debt on a simple contract was not limited until the act of 1824. (d) Again,

ant.

(a) This same language is used in the Code.

(b) There is an exception to this rule where the plaintiff is disabled from suing by the act of a superior power, as by war between his country and that of the defendThe rebellion was such a war, where the opposite parties resided on different sides of the line of hostilities. The Protector, 9 Wall. 687; Braun v. Sauerwein, 10 Wall. 218; Levy v. Stewart, 11 Wall. 244; United States v. Wiley, 11 Wall. 508; Brown v. Hyatt, 15 Wall. 177.

(c) Bigelow v. Bigelow, 6 Ohio, 96; Hazlett v. Critchfield, 7 id. pt. 2, 153; West v. Hymer, 7 id. pt. 2, 235.

(d) Tupper v. Tupper, 3 Ohio. 387; Hazlett v. Critchfield, 7 id. pt. 2, 153.

until the act of 1830, there was no provision for the case where a contract was made between parties both residing out of the State. But now our statute refers to the law of the place where the contract was made; and if the action was barred there, it is barred here. (a) Whether the reverse would hold, the statute does not say; but as the general rule is, that the courts of one State will not take notice of the limitations of another State, it is probable that the lex loci would be noticed here no further than the statute requires. Many statutes contain an exception in favor of accounts current between merchants; but ours does not. The act of 1810 limited actions on book account to four years; but in the present act accounts are not mentioned. We have elsewhere a provision limiting the time within which a party may swear to his account, to eighteen months; but this only relates to evidence. Consequently, accounts come within the limitation annexed to unwritten contracts; namely, six years. If the account has been closed and balance struck, the six years begin from that date; otherwise it would seem from the date of the last item. (b) We have seen that absence from the State is now one of the saving disabilities; but this refers to the absence of the plaintiff; for it is expressly provided, (c) that if any person liable to an action resided out of the State at the time the cause of action accrued against him, or removed to any place unknown, during the time limited, the limitation shall begin to run only from the time of his return to the State, or from the time his place of residence within the State becomes known to the plaintiff; and a mere coming into the State clandestinely will not be a return, within the meaning of this provision: it must be an open and public return. (d) The chief evil intended to be guarded against by the statute of limitations, is that of prosecuting stale demands, after the proof of payment has been lost. But this evil cannot happen when the defendant has acknowledged the existence of the debt; and accordingly courts have held that an acknowledgment of the debt, and a promise to pay it, take the case out of the statute. Prior to the act of 1830, we had a provision that a mere demand by the plaintiff should take the case out of the statute. This was unreasonable, because a mere demand is no proof of the existence of a debt. But now the provision is, that in all cases of contract, when there has been a payment of any part of the principal or interest, or an acknowledgment of indebtedness, or a promise to pay within the time limited, the limitation shall begin to run anew from the time of such payment, acknowledgment, or promise. (e)

(a) Headington v. Neff, 7 Ohio, 229; State of Maryland v. Shipley, 7 id. 246. (b) James v. Richmond, 5 Ohio, 337.

(c) Coventry v. Atherton, 9 Ohio, 34.

(d) The Code goes still further, and provides, that if the absence or concealment commences after the cause of action accrues, it shall not enter into the computation. $ 21.

(e) The Code does not confine the promise to the time limited, but requires it to be in writing. § 24.

This provision, you will observe, is confined to the time limited by this statute, and thus virtually excludes all beyond that time; otherwise, the effect of a promise made after the time might be a matter of doubt. (a) I will only add that where two or more are jointly liable, a payment, acknowledgment, or promise by one, will bind all, with respect to the statute; and this terminates our view of the statute of limitations. There are some special limitations scattered through the statute book; but they have all been mentioned elsewhere in connection with the matters to which they refer.

LECTURE XXXVIII.

CHANCERY PROCEEDINGS. (b)

§ 217. Nature of Equity. We are now to trace the course of proceedings in courts of chancery; and here, happily, there will not be so much occasion for fault-finding as in the preceding lecture. It would indeed be difficult to devise a system of practice better calculated to answer all the ends of judicial controversy, than the system of chancery practice now in use. It has pre-eminently the merit of reasonableness and simplicity. Though the cases to which its remedies extend, are nearly, if not quite, as numerous and diverse as those of law; yet, instead of nine or ten distinct forms of proceeding, it has but one for all cases; and that is founded, and throughout constructed, upon the principles of nature and reason. Fictions are entirely dispensed with, and truth substituted in their place. The parties tell their stories, as men of common sense would tell them, and the court pronounce their decrees in a corresponding style. There is no occasion for the Procrustean system of torturing forms to meet circumstances. Were this system of procedure extended, as it might easily be, to all the matters of civil controversy, whether in law or equity, even leaving the principles as they now are, the benefits of such a reform could hardly be overrated. This is in fact done to a good degree in Louisiana, where the forms of the civil law prevail, and those of the common law are unknown; and I hope the time is not far distant, when something like an approach to a similar improvement will be made here; when the reign of technicality

(a) Hill v. Henry, 17 Ohio, 9.

(b) On the principles of equity, see the fourth book of Swift's Digest; 3 Black. Com. ch. 27; Story's Commentaries on Equity, and the English treatises of Jeremy, Fonblanque, and Adams, with American notes by Ludlow and Collins. On Chancery practice, see the works of Mitford, Maddock, Newland, Harrison, Cooper, Barton, Blake, Hoffman, Barbour, and Paine and Duer. The last four are American treatises. To which add Story's Commentaries on Equity Pleading, the last and best of all.

See first note to preceding lecture.

will end, and that of simplicity begin. Such a change would be similar to that which was effected in philosophy by the overthrow of syllogistic reasoning, and the substitution of the inductive method. The origin and nature of chancery jurisdiction were briefly described in the lecture on divisions and definitions. The constitutional provisions conferring this jurisdiction upon the federal and State courts, were also referred to in their proper place; and will again be noticed as occasion may require. Many of the subjects of equity jurisdiction have necessarily been discussed in the lectures on the law of property. But in order to render this outline as complete as my limits will permit, after describing the general course of proceedings from the commencement to the termination of a suit, I shall close the lecture with a very succinct enumeration of the principal subjects of equity jurisdiction. In the mean time, however, it may aid our future inquiries to indicate the points wherein equity differs from law; and to show how far the English chancery system has been adopted in this country.

We have seen that equity does not differ from law, strictly so called, in being less dependent upon positive regulations. Neither does it differ from law with respect to the subject-matter upon which it operates, except in being confined to a narrow range. is chiefly conversant with questions of property, and rarely, if ever, takes cognizance of crimes or civil injuries strictly personal. In England, though not in this State, as will be seen hereafter, it does differ from law, in being administered by a different court. But the great and radical difference grows out of the modes of proceeding; which are so contrived as to ascertain facts and administer remedies for which the law is incompetent, by reason of the inflexibility of its forms. To illustrate these modes of procedure will be the chief object of this lecture; but it may be well to remark here that in settling disputed facts, there are the following fundamental points of difference: 1. In chancery proceedings the parties themselves are compelled to testify; and thus truth is often reached without difficulty, when by the rules of law it could not be reached at all. This salutary power of putting the parties upon their oaths is the highest recommendation of the chancery system; and to this more than to all other causes is to be ascribed the growth of equity jurisdiction. 2. In chancery proceedings, oral testimony is not allowed. It must be reduced to writing and placed on file. The expediency of this regulation is more questionable. The advantage which results from observing the tone and manner of a witness is lost. But, on the other hand, the testimony is preserved in a durable shape, and can be examined at pleasure. 3. In chancery proceedings, the facts, as well as the law, are submitted to the court without the intervention of a jury. It has been sometimes doubted whether this be not a violation of the constitutional guaranty of the right of trial by jury; but this question cannot arise where the same constitution which declares this right, also