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(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 limita tions 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 extend limitation against the wife until the expiration of such judgnient. 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. Hawkins, 19 Vt. 26; Wheelock v. Doolittle, 18 Vt. 440; Emmons v. Overton, 18 B. Mon. 643; Walton v. Robinson, 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.
(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. But the rule is different in most if not all the states. Marienthal v. Mosler, 16 Ohio 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, 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 to stop 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 the same 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 cessation 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 in equity 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.
5. PLEADING AND PRACTICE. 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, 33 Wis. 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; Morgan v. Bishop, 56 Wis. 284; S. C. 14 N. W. Rep. 369; Ward v. Walters, 22 Ñ. 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 the suit 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 defense of 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 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; and cannot 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 stat
ute 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, 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 the statute of limitations, containing a negative pregnant, a motion by defendant for judgment against plaintiff should not be sustained. Gannon v. Dyke, 5 Pac. Rep. 845.
A party asserting the statute of limitations must set forth facts showing that the statute has run. Tredway v. McDonal, 2 N. W. Rep. 567. But in pleading a new promise, which is relied on to take the debt out of the operation of the statute of limitations, it need not be set out that such promise or agreement, from which a new promise will be inferred, was in writing, as that will be presumed until contrary is shown. Green v. Coos Bay Wagon Road Co., 23 Fed. Rep. 67. In an action for conversion, where the defendant sets up the statute of limitations, it is incumbent upon him to prove the time of the conversion, and that the statute has run against the same, Wright v. Ward, 4 Pac. Rep. 534; and in a complaint, an averment which anticipates a defense by proposing to show that no bar to the action has arisen according to the statute of limitations, is bad. Brooks v. Bates, 4 Pac. Rep. 1069.
A bankruptcy statute is in effect a statute of limitations, and, like any other statute of limitations, must be pleaded, -taken advantage of either by demurrer or answer. Bartles v. Gibson, 17 Fed Rep. 293.
It has been held a foreign corporation cannot avail itself of the statute of limitations in New York. Kirby v. Lake Shore & M. S. R. Co., 14 Fed. Rep. 261.
A plea of the statute of limitations may be interposed as well in equity as at law, without changing the character of the action, so as to entitle the defendant to a jury trial. Hancock v. Plummer, 5 Pac. Rep. 514. See Dominguez v. Dominguez, 7 Cal. 426; Brandt v. Wheaton, 52 Cal. 430.
6. COUNTER-CLAIM. The statute of limitations runs against a counter-claim not a mere defense. Folsom v. Winch, 10 N. W. Rep. 629. But a counter-claim, barred by the statute of limitations, may be pleaded if it was the property of the party when it became barred, and was not barred when the claim sued on originated. Folsom v. Winch, 19 N. W. Rep. 305.
7. IN EQUITY. In the consideration of purely equitable rights and titles, courts of equity act in analogy to statutes of limitation, but are not bound by them. Hickox v. Elliott, 22 Fed. Rep. 13; Hall v. Russell, 3 Sawy. 515; German-American Seminary v. Kiefer, 4 N. W. Rep. 636; District Tp. of Spencer, Clay Co., v. District Tp. of Riverton, 17 N. W. Rep. 105; Relf v. Eberly, 23 Iowa, 467. But courts of equity will not follow the statute of limitations when manifest wrong and injustice would result, Fogg v. St. Louis, H. & K. R. Co., 17 Fed. Rep. 871; are only bound to apply the statute where their jurisdiction is concurrent with that of a court of law. Etting v. Marx's Ex'r, 4 Fed. Rep. 673. And when they do apply them the lex fori governs the question of limitations. Walsh v. Mayer, 4 Sup. Ct. Rep. 260.
In equity, as well as at law, a statute of limitations is a bar when the conflicting titles are adverse in their origin, and one was equitable and the other legal, Fussell v. Hughes, 8 Fed. Rep. 386; Fussell v. Gregg, Id. 384; that where a trustee and his cestui que trust are parties on one side, and other parties in adverse interest on the other, courts of equity are bound by the statute of limitations. Livesay v. Helms, 14 Grat. 441. (a) Laches, etc. A court of equity, however, does not act in analogy to the statute of limitations where there has been gross laches in prosecuting claims, or long and unreasonable acquiescence in the assertion of adverse rights, Etting v. Marx's Ex'r, 4 Fed. Rep. 673; for in equity rights are forfeited by laches, Hough v. Coughlan, 41 Ill. 131; Mitchell v. Berry, 1 Metc. (Ky.) 619; Davison v. Jersey Co., 71 N. Y. 333; State v. West, 68 Mo. 229; Atkinson v. Robinson, 9 Leigh, 393; Robertson v. Read, 17 Grat. 544; Harrison v. Gibson, 23 Grat. 212; Hudson v. Hudson, 3 Rand. 117; or by acquiescence, Kent v. Jackson, 14 Beav. 384; Stiles v. Guy, 1 Hall & T. 523; Ex parte Morgan, Id. 328; 2 Perry, Trusts, 2 870; and it is well settled that where the facts alleged in the bill disclose laches on the part of the complainant, the court will refuse relief on its own
motion, even where the defense of laches is not pleaded. Credit Co. v. Arkansas Cent. R. Co., 15 Fed. Rep. 46; Sullivan v. Portland, etc., R. Co., 94 U. S. 806; Board of Conı'rs Leavenworth Co. v. Chicago, R. I. & P. Ry. Co., 18 Fed. Rep. 209; Johnson v. Florida, T. & P. R. Co., Id. 821. Quære, whether the doctrine of laches or lapse of time can ever be invoked in a suit to which a statute of limitations applies. Sheldon v. Keokuk Northern Line Packet Co., 8 Fed. Rep. 769. Lapse of time is one of the defenses peculiar to a court of equity. Hancock v. Plummer, 5 Pac. Rep. 514; Dominguez v. Dominguez, 7 Cal. 426; Brandt v. Wheaton, 52 Cal. 430. After a lapse of 12 years from a settlement, a demand will be regarded as stale in equity. Clute v. Frazier, 12 N. W. Rep. 327. See 1 Story, Eq. ? 592.
(b) Pleading and Practice. Under the rules of pleading and practice in equity, it is necessary that the cause or reason which prevented the statute of limitations or prescription from running in the particular case should be stated in the bill, in order to be permitted to offer evidence thereof. Boyd v. Wyley, 18 Fed. Rep. 355. A plea of the statute of limitations to a bill in equity is a pure plea, and need not be accompanied by an answer, unless the defense is anticipated by the bill, and some equitable circumstance is alleged therein for the purpose of avoiding the statute. West Portland Homestead Ass'n v. Lownsdale, 17 Fed. Rep. 205.
A plea of the statute of limitations to a note given for purchase money is not good in bar of a decree in rem for a sale of the lands. Hall v. Denckla, 28 Ark. 507; Birnie v. Main, 29 Ark. 591. But it is good as a bar to the recovery of a personal judgment against the maker of such note. Buckner v. Street, 15 Fed. Rep. 365. Where a note and mortgage have been assigned to secure another note transferred, the fact that the statute of limitations has run as to the original note assigned, and the note the mortgage was given to secure, will not prevent a foreclosure of the mortgage. Potter v. Strausky, 4 N. W. Rep. 95; Wiswell v. Baxter, 20 Wis. 680; Kennedy v. Knight, 21 Wis. 340; Knox v. Galligan, Id. 470; Edgerton v. Schneider, 26 Wis. 385. A suit in equity may be maintained to enforce a security for a debt, although an action against the debtor directly upon the indebtedness is barred by the statute of limitations. Hickox v. Elliott, 22 Fed. Rep. 13. The debt still exists for the purpose of enforcing any lien or pledge given to secure its payment. Quantock v. England, 5 Burr. 2628; Sparks v. Pico, 1 McAll. 497; Myer v. Beal, 5 Or. 130; Goodwin v. Morris, 9 Or. 322; 2 Pars. Cont. 379. On the other hand, it has been held that a mortgage is but the incident of the debt, Hurley v. Cox, 2 N. W. Rep. 705; Kyger v. Ryley, 2 Neb. 28; Richards v. Kountze, 4 Neb. 208; Webb v. Hoselton, Id. 317; and that no action to foreclose can be maintained after the statute has run against the debt or note. Hurley v. Cox, 2 N. W. Rep. 705.
(c) Federal Courts. Federal courts of equity usually follow, by analogy, the state statute of limitations; but they will not do so when the effect of such a statute in any case is to limit their general chancery jurisdiction, Tice v. School-district No. 18, 17 Fed. Rep. 283; Bisbee v. Evans, 17 Fed. Rep. 474; and they give the statutes of limitations of the states the construction and effect given them by local tribunals, because such construction is binding upon all federal courts, Moores v. Citizens' Nat. Bank, 11 Fed. Rep. 624; Taylor v. Holmes, 14 Fed. Rep. 498; and will consider equitable rights as barred by the same limitations, where nothing has been done or said directly or indirectly to recognize such equitable claims by the adverse possession. Taylor v. Holmes, 14 Fed. Rep. 498. Where a claim has become barred by the statute of limitations, the federal equity courts may refuse to interfere, after the lapse of a considerable length of time, on grounds of public policy. McKnight v. Taylor, 1 How. 161. See Badger v. Badger, 2 Wall. 89; Brown v. County of Buena Vista, 95 U. S. 157; Goddin v. Kimmiell, 99 U. S. 211; Wood v. Carpenter, 101 U. S. 135. And although a state statute of limitations may make no exception in favor of a party who is prevented from suing by reason of a concealed fraud, federal courts of equity will enforce such an exception, because it is a part of the chancery law as administered in those courts which the state cannot change. Tice v. School-district No. 18, 17 Fed. Rep. 283; Bisbee v. Evans, 17 Fed. Rep. 474.
(d) Admiralty. Whether a claim will be held stale in admiralty does not depend so much upon lapse of time as upon change of circumstances affecting the rights and conditions of parties. Coburn v. Factors' & Traders' Ins. Co., 20 Fed. Rep. 644. Semble, the statute of limitations is followed by analogy in admiralty, as in equity, where no special equitable reasons exist against its application. Scull v. Raymond, 18 Fed. Rep.
8. STATE. The statute of limitations does not run against claims of the United States. U. S. v. Spiel, 8 Fed. Rep. 143. As against the state, the rule expressed in the English common law by the maxim nullum tempus occurrit regi obtains, and the statute does not run. Blazier v. Johnson, 9 N. W. Rep. 543. But it has been held that a state is barred by statute of limitations, and can give no title by selling an old tax-list for premises that have been held adversely long enough to bar ejectment from them Chamberlain v. Ahrns. 20 N. W. Rep. 814.
9. CONSTRUCTION. Statutes of limitations are intended to cure defects which could be taken advantage of by action brought within the time limited, and not to cure defects which limitation could not cure. Dreutzer v. Smith, 14 N. W. Rep. 465. See Mead v. Nelson, 52 Wis. 402; S. C. 8 N. W. Rep. 895; Clarke v. Lincoln Co., 54 Wis. 578, 580; S. C. 12 N. W. Rep. 20; Smith v. Todd, 13 N. W. Rep. 488. Statute of limitations does not apply to a judgment that is void for want of jurisdiction to render it. Smith v. Griffin, 13 N. W. Rep. 423. Statute of limitations not available as a defense in an attack on a void tax deed. McGavock v. Poliock, 14 N. W. Rep. 659; Sutton v. Stone, 4 Neb. 319. See, also, Atkins v. Atkins, 9 Neb. 191; S. C. 2 N. W. Rep. 466. The rule that a cause of action once barred by the statute of limitations is not revived by the repeal of the statute is founded upon the principle that a person cannot be divested of his vested rights of property by mere legislative enactments; hence it only applies where the statute entirely extinguishes the right, and vests perfect title in the adverse holder, and not to statutes which merely bar certain remedies, or forms of actions, but leave the rights of property unaffected, and capable of being tested in other forms of action. Kipp v. Johnson, 17 N. W. Rep. 957. The exemptions from the operation of statutes of limitations usually accorded to infants and married women do not rest upon any general doctrine of the law that they cannot be subjected to their action; but in every instance upon express language in those statutes giving them time after majority, or after cessation of coverture, to assert their rights. Vance v. Vance, 2 Sup. Ct. Rep. 854. Courts cannot ingraft on statutes of limitations exceptions not clearly expressed; and where the language of the statute is perfectly clear, it is the duty of the court to enforce the law as it finds it. Amy v. City of Watertown, 22 Fed. Rep. 418.
(68 Cal. 91)
MCGEE v. CITY OF SAN JOSE. (No. 8,203.)
Filed November 25, 1885.
1. DEBTOR AND CREDITOR-PAYMENT OF DEBT BY STRANGER.
A stranger cannot, without authority, pay the debt of another person, and charge the amount so paid against the party for whose benefit the payment was made.
2. MUNICIPAL CORPORATION-CONTRACTS WITH-POWER OF LEGISLATURE REGARDING.
Where a contract entered into with a municipal corporation provides a certain method of payment, the legislature cannot so change the existing law as to authorize, by such subsequent legislation, a performance different from that prescribed in the contract, and, unless the contractor assented to such change, payments made in conformity with such subsequent legislation will not bind him.
In bank. Appeal from superior court, county of Santa Clara.
D. W. Herrington, for respondent.
MORRISON, C. J. This is an action on a contract for street work done in the city of San Jose under a contract between the plaintiff and the authorized agent of the city. The contract price for the work was the sum of $3,400, “whereof 70 per cent. should be paid in gold and 30 per cent. in silver coin, in the manner prescribed by law, and in accordance with an act of the legislature of the state of California entitled 'An act to incorporate the city of San Jose,' approved March 17, 1874, by a warrant drawn upon the general fund in the treasury of said city by the mayor and common council thereof at the next general meeting of said mayor and common council after the acceptance of said work, to be paid by the treasurer of said city out of said general fund in the proportions of gold and silver coin expressed in said agreement." The contract was entered into on the tenth day of December, 1877. The case was tried by the court without a jury, and the following findings were made and filed by the judge: