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"It has therefore been supposed better to express the actual state of the law, in the language of the courts, than to retain a phraseology, which is incorrect in its terms, and leads to misconstruction."

[S 36. Same as § 24 R. S.] Original note. "In the act making sheriffs liable for escapes, there is no saving."

[S 27. Same as § 26 R. S.]

Original note. "New. Probably a stronger instance of judicial legislation cannot be produced, than the introduction by the courts of the principles contained in this section. Vide Bull. N. P. 150; 2d Strange, 907; Willes, 255; Fitzgibbon, 170, 289. The courts say it is within the equity of the provision allowing a suit within one year after a judgment reversed. The necessity was undoubtedly great, and the equity therefore strong; but it cannot be disguised, that the section referred to gives not the least color to such a construction. Mr. Selwyn, in his Nisi Prius, 1 vol. 130, seems to think that no precise time is limited, but that the action may be brought within a reasonable time, after the death of the person entitled. The necessity of legislative provision, is apparent."

[S 29. Same as enacted § 28 R. S.] Original note. "In 18 J. R. 227, it was held that the state was not bound by the statute of limitations. It is supposed that no good reason exists for the discrimination."

"ARTICLE III.-Of the time of commencing actions for penalties and forfeitures."

A

[S 30, 31, 32. Same as § 29, 30, 31 R. S.] Original note to § 31. "1 R. L. 186, § 6, varied so as to prevent a suit by an individual, in the name of the state;" to § 32. "The words 'or to such party, and the people of this state,' new, to supply an omission noticed in 20 J. R.

472."

“ARTICLE IV.— General provisions concerning the commencement of suits, and the persons and cases excepted from the operation of the preceding Articles of this Title.

[S 35. Same as § 32 R. S.] Original note. “As an alien enemy can not sue during war, it seems unjust to deprive him of all remedy, for not doing that which our laws forbid him to do. In 10 J. R. 417, and 16 do. 210, the supreme court considered war, in such a case, sufficient to repel the legal presumption of payment. The reason seems equally applicable to the statute of limitations."

[$ 36, 37. Same as § 33, 34 R. S.]

Original note to § 37. "New. Suggested by the case of Jackson vs. Horton, 3 Caines' Rep. 199, &c. where the supreme court were equally divided on the question, whether the abatement of a suit by the death of the defendant, formed an exception to the statute. The judges all concurred in the extreme hardship of the case; but two of them denied their power to extend the exceptions of the statute."

IS 38. Same as § 35 R. S.]

Original note. "It was admitted by all the judges, in the case in 3 Caines, above cited, that the case provided for the above section, was within the equity of the statute. It seems useful explicitly to declare it, that courts may not be compelled to strain statutes to reach equitable cases, and that the rule may be fixed permanently."

[S 39, 40. Same as § 36, 37 R. S.] Original note to § 39; " new: within the obvious equity of the statute:" to § 40; "1 R. L. 122, § 2, extended to members of congress, and its language varied, so as to express its supposed intent."

IS 43. Same as § 40 R. S.]

Original note to § 41, 42, 43. "The three last sections have been drawn, to prevent the injustice of the present settled construction of the statute of limitations. In 5 Cowen, 525, it is decided that if a writ be issued even with instructions not to serve it, and it be never heard of by the defendant, yet it is sufficient to take the case out of the statute. Thus an act passed for the very purpose of quieting estates, avoiding suits, and protecting the community against stale demands, is evaded by a mere fiction, and rendered a dead letter. The Revisers trust the contemplated end will be attained by the above provisions.”

[S 44, 45. Same as § 41, 42 R. S.] Original note to § 44; "see note to $47:" to § 45; "see note to next §."

[S 47. Same as § 45 R. S.]

Original note. "It has been held, that it is a general principle that statutes apply only to subsequent cases, 7 J. R. 493, Dash vs. Van Kleek, and the cases there cited. Although this doctrine as applied to statutes of limitations, has been shaken by the decisions of the supreme court of the United States, and of this state, which declare that such statutes are merely remedial; yet it is conceived but just to prevent their having a retroactive effect."

"ARTICLE V.— Of the presumption of payment arising from the lapse of time."

[S 48. Same as § 46 R. S.] Original note. "Laws of 1821, p. 246. § 4; its language preserved as to past judgments, and not applied to future judgments, as the next section will provide for them.”

[S 49. Same as § 47 R. S. except that the words "or of written acknowledgment of indebtedness," were inserted by the legislature.]

Original note. "New; the act of 1821 extended to decrees in equity, and to judgments, &c., in other states, and in the courts of the United States, which now, by the decisions in 19 J. R. 162, are of equal validity with our own. As judgments cease to be a lien after ten years, against purchasers, &c., it seems necessary to limit the cases, in which evidence against the presumption may be given, to the defendant or his representatives."

[S 50. Same as enacted § 48 R. S. except that the concluding clause, after "by payment," was reported as follows: "but such presumption may be repelled by competent proof of an acknowledgment of such right of action, within that period."]

Original note. "It has been supposed useful to declare this doctrine of presumption, and define it with more accuracy than has been done by the courts, who speak of an indefinite time of 18 or 20 years, or even a less period. 7 J. R. 556. If, however, § 17 of Article 2 of this Title, p. 9, as proposed by the Revisers, be adopted, to place sealed instruments on the same footing with other contracts, this section will be unnecessary, and some of the foregoing provisions will require modification.”

"ARTICLE VI. Of the time of commencing suits in courts of equity."

"New,

[S 51 substantially same as § 49 R. S.] Original note. adopting the principle and the language of the case in 20 J. R. 585, in the court of errors. It is conceived that every reason for the existence of a statute of limitations, as to suits at law, applies with greater force to cases in equity, where parol proof is of necessity admitted to a greater extent."

IS 52. Same as § 50 R. S.] Original note. "This qualification, it is presumed, will remove all apprehension of danger from intrenching on the powers of courts of equity."

[$ 53. Same as § 51 R. S.]

Original note. "Upon the principle stated in the preceding notes, it has been deemed useful to propose a limitation of bills of this description. The rule seems to be, that a party is not affected by lapse of time, unless he discovers the fraud, 2 Ball & Beatty, 129, and that when he discovers it, the limitation at law applies to bills in equity, 2 Sch. & Lefroy, 636; 1 Bro. P. C. 455, and the cases collected in 20 J. R. 38. As the limitation of actions on the case, which are generally brought for frauds, is six years, that period has been adopted in the above §."

[$ 54. Same as § 52 R. S. except that the time was left blank in the report.]

Original note. "Presented upon the principle before stated."

"CHAPTER V."

"OF SUITS RELATING TO REAL PROPERTY."

Original note, prefixed to Chapter.

"In the following Chapter, the Revisers have endeavored, among other things, to effect an object which has long been a matter of interest and solicitude, both in England and in this state: the reformation of the practice in real actions. These actions are proverbial for their tardiness, intricacy and expense. Their amendment seems to have been considered as almost a hopeless task. Few remedial provisions have been enacted by the legislature, and they have consequently been left, in most cases, to all the strictness of the common law, and to all the refinements and subtleties, which have, from time to time, been interwoven by practitioners. A further consequence has been, that with the exception of dower, unde nihil habet, they have fallen into general disuse; and the learning connected with them, has become a species of recondite science, known to but a small portion of the legal profession. Cases, however, sometimes occur, in which a party is driven to his writ of right; but in that action, so many opportunities are afforded to the defendant, to procrastinate a decision, and to harass his antagonist, that the remedy is liable to be defeated by death, and even when successfully terminated, that success is not unfrequently acquired at a ruinous expense.

"It will be perceived that numerous alterations have been made in the proceedings in these actions. Those alterations consist, generally, in the abolition of forms always useless, or no longer applicable to our state of society; in the extension of the writ of right, so as to

embrace all the ordinary cases of claims to real estate; in abolishing all real actions, except writs of right, dower and nuisance; in restoring, in several instances, the simple and direct procedure of the ancient law; and in subjecting these actions, as well as ejectment, waste and trespass, to the operation, in many respects, of uniform rules of practice. (See Title 9, of general provisions, which ought to be read in connexion with the first Titles.) If these alterations shall meet the approbation of the legislature, it is confidently believed, that they will render real actions as easy, as expeditious and as economical, as the action of ejectment.

"It is proper to state, and the Revisers do it with much pleasure, that in the revision of the statutes relating to real actions, they have availed themselves of several valuable suggestions, received from two professional gentlemen conversant with those actions."

"TITLE I. Of writs of right." "TITLE II.

Of the action of dower." "TITLE III. Of fines." "TITLE VI.- Of the action of ejectment." [Agreeably to the suggestions in the above preliminary note, Title I (consisting of thirty-eight sections) contained a series of new provisions reforming the practice in writs of right; Title II introduced various amendments into the action of dower; and Title VI, though it retained the general course of proceeding in ejectment abolished all the fictions employed in the action. In Title III the mode of assurance by fines was retained with various amendments; but in Title I the Revisers had inserted several new provisions enabling persons claiming and possessing lands to institute proceedings against adverse claimants for the purpose of determining the validity of such claims, and in the notes subjoined to those sections it was suggested, that they would furnish a substitute for fines and common recoveries. When these Titles were taken up in the house of assembly, that body readily indicated a decided preference for the new provisions, in lieu of the Title concerning fines; and not only approved the general views of the Revisers in respect to real actions and the action of ejectment, but even carried them to a greater extent; in consequence of which, a resolution was passed by the house, on the 18th of September, 1828, directing the Revisers to consolidate the provisions of Titles I, II and VI, and to enlarge the action of ejectment in such manner, as to make that action a general remedy for the recovery of land or the possession of land, and to adapt it to all cases of that nature. Conformably to this direction, the Revisers prepared and submitted Title I, "OF THE ACTION OF EJECTMENT," in substantially the same form as that enacted by the legislature. In this Title many of the provisions contained in Title VI of the original chapter were repeated; and the notes originally subjoined to them, being for the most part still applicable, were also retained. As a substitute for the Title "OF FINES," Title II, "PROCEEDINGS TO COMPEL THE DETERMINATION OF CLAIMS TO REAL PROPERTY IN CERTAIN CASES," was also submitted, embodying the provisions above referred to from the original Title I, "OF WRITS OF RIGHT," with such additions and alterations as were necessary to conform it to the substituted Title I, and to effectuate the object in view.]

Substituted "TITLE I.- Of the action of ejectment."

[S1 of Title VI Same as § 1 of substituted Title I, and same as § 1 R. S.]

Original note. "The perfection to which the action of ejectment has been brought, and its superiority in point of expedition and expense over all real actions, have rendered it the ordinary and favorite mode of trying titles to land. Among the most prominent advantages which are peculiar to this action, may be enumerated-the simplicity of the pleadings-the right to blend the titles of various claimants in one suit; and to recover according to the title shown on the trial, in any one or more of the lessors. It cannot, however, be denied, that the action is a singular and complicated proceeding, and that the fictions on which it rests, are calculated to excite anything but respect, among those who are not acquainted with their origin and object. The desire has frequently been expressed, both in England and in this state, that some of these fictions might be abolished, and the Revisers have been requested, not only by intelligent citizens, but by members of the bar, to make such an effort. They have accordingly attempted in the following sections, to amend the practice in the action, so as to dispense with all the nominal parties, and with most of the fictions now used in the action. But they have carefully adhered to the leading principles of the action, so as to make little or no alterations except in the form of the proceeding. It may be proper to observe, that similar alterations of the mode of proceeding in this act on, have been made in other states."

[$ 2 of Title VI, same as § 3 of subs. Title I, and same as § 3 R. S. except that the words "in a plaintiff or," before the word "recover," were stricken out by the legislature.] Original note. "Conformable to 4 J. Rep. 483, 10 do. 368, 2 Cowen, 502, varied in requiring the fact to be established at the trial, instead of depending on affidavits shown on a special application."

[S 9 to 13 of Title VI. Same as § 5 to 9 of subs. Title I, and same as § 5 to 9 R. S.]

Original note. "The object of these sections, is to enable a jury to pass definitively upon the matters submitted. By the present law, if the declaration be general, the plaintiff takes possession 'to any extent which he chooses, subject to be put right by the court, if he takes too much!' 2 Cowen, 291. And this, where the quantity belonging to the plaintiff, may be the real matter in dispute. In no other action, probably, would this complete substitution of the court for the jury, and of a trial on affidavits, instead of the open examination of witnesses, be tolerated. Provisions will be made in Title IX to enable a plaintiff to ascertain the boundaries and quantity of the land he claims, and then, like all other plaintiffs, it becomes his duty specifically to state and prove what he does claim. And yet to avoid the consequence of an erroneous description, provision will be made in this Title, by which the verdict of the jury will designate the premises actually recovered."

[S 12 to 16 of subs. Title I. Same as enacted, except the words "in term," between "thereafter," and "upon filing," stricken from § 16.]

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