suitors a test oath.73 An act placing Indians under certain disabilities in respect to selling or devising their land was held not to be strictly construed, especially if, by such construction, the object of the legislature would be defeated; protective and remedial statutes imposing disabilities upon persons for their benefit ought to receive a liberal construction.74

§ 544 (368). Statutes of limitation.- Statutes limiting the right to bring actions to particular periods are restrictive and will not be extended to any other than the cases expressly provided for," and the exceptions are allowed a liberal effect; 76 though not so liberal as to embrace cases within the reason when not within the letter of them." The exception of actions which concern the trade of merchandise between merchants is confined to actions on open and current accounts; it does not extend to accounts stated. It must be a direct concern of trade; liquidated demands, or bills and notes, which are only traced to the trade of merchandise are too remote to come within this description. When the statute contains no exception, as a general rule the courts will not make any.79 But the supreme court of Iowa has held that "where the party against whom a cause of action existed in favor of another, by fraud or actual fraudulent concealment prevented such other from

73 Harrison v. Leach, 4 W. Va. 383.

74 Doe v. Avaline, 8 Ind. 6, and note. See Smith v. Spooner, 3 Pick. 229.

75 Miller v. Board of Supervisors, 68 Miss. 88, 8 So. 269; Davenport v. Hannibal, 120 Mo. 150, 25 S. W. 364; Bedell v. Janney, 9 Ill. 193; Delaware, etc. R. R. Co. v. Burson, 61 Pa. St. 369; Pearl v. Conley, 7 Sm. & M. 358; Wood on St. Lim., § 4. 76 Roddam v. Morley, 1 De G. & J. 1.

77 Sacia v. De Graaf, 1 Cow. 356. See post, § 601, 602.

78 Ramchander v. Hammond, 2 John. 200.

79 Kilpatrick v. Byrne, 25 Miss. 571; Semmes v. Hartford Ins. Co., 13 Wall. 158, 20 L. Ed. 490; Warfield v. Fox, 53 Pa. St. 382; The Sam Slick, 2 Curtis, C. C. 480; Wells v. Child, 12 Allen, 333; Dozier v. Ellis. 28 Miss. 730; Favorite v. Booher, 17 Ohio St. 548; Pryor v. Ryburn, 16 Ark. 671; Howell v. Hair, 15 Ala. 194; Baines v. Williams, 3 Ired. L. 481.

obtaining knowledge thereof, the statute will only commence to run from the time the right of action was discovered, or might, by the use of diligence, have been discovered." 80 Where a statute allowed suit to be commenced within two years after the discovery of a cause of action which had been fraudulently concealed, the court held that it was not meant to help those who took no pains to see what was before their eyes.81

82

There has been held to be an implied suspension of such statutes during the late civil war as to citizens of different states between which intercourse was interrupted, on the ground of paramount necessity, and limited by such necessity. Being statutes of repose, they are not regarded in modern times with disfavor; and are therefore not to be defeated by undue strictness of construction.83 Heath, J., said these statutes ought to receive a strict construction.8 But this has not been the uniform expression of English judges. Dallas, C. J., said: “I cannot agree in the position that statutes of this description ought to receive a strict construction; on the contrary, I think they ought to receive a beneficial construction with a view to the mischief intended to be remedied." 85 Like views have been expressed in this country. "The statute of limitations is entitled to the same respect with other statutes and ought not to be explained away." 86 Such statutes were not enacted to protect persons from claims fictitious in their origin, but from ancient claims, whether well or ill founded, which may have been

80 District Township v. French, 40 Iowa, 601; Carrier v. Chicago, etc. Ry. Co., 79 Iowa, 80, 44 N. W. 203, 6 L. R. A. 799.

53 id. 61; Coleman v. Holmes, 44 Ala. 124.

83 Toll v. Wright, 37 Mich. 93; Palmer v. Palmer, 36 id. 487, 24 Am.

81 Purdon v. Seligman, 78 Mich. Rep. 605. 132, 43 N. W. 1045.

82 Levy v. Stewart, 11 Wall. 244, 20 L. Ed. 86; Ross v. Jones, 22 Wall. 576, 27 L. Ed. 730; Smith v. Charter Oak Ins. Co., 64 Mo. 330; Stiles v. Easley, 51 Ill. 275; Mixer v. Sibley,

84 Roe v. Ferrars, 2 B. & P. at p. 547.

85 Tolson v. Kaye, 3 Brod. & B. at p. 222.

86 Clementson V. Williams, 8 Cranch, 72, 3 L. Ed. 491.

89

discharged, but the evidence of discharge may be lost.$7 Story, J., in Bell v. Morrison,88 said: "It is a wise and bene*ficial law, not designed merely to raise a presumption of payment of a just debt from lapse of time, but to afford security against stale demands after the true state of the transaction. may have been forgotten, or be incapable of explanation by reason of the death or removal of witnesses. It has a manifest tendency to produce speedy settlements of accounts and to suppress those prejudices which may rise up at a distance of time and baffle every honest effort to counteract or overcome them." Such statutes rest upon sound policy and tend to the peace and welfare of society. The courts do not now, unless compelled by the force of former decisions, give a strained construction to evade their effect.90 This class of statutes has a harsh effect on the creditor, which consideration leads to a strict construction; and a debtor who takes advantage of long forbearance to be utterly discharged on his own account has little right to favor; but all persons are not provident enough to have indestructible evidence of all their transactions, and it is for the general good that a period be fixed after which there is an arbitrary exemption from liability. In this sense these statutes are remedial, to afford protection against stale claims, after a period sufficient to the diligent, and when in the majority of instances a defending party would be placed at a disadvantage by reason of the delay.

§ 545 (369). Limitations as to new trials and appeals. Provisions which limit in point of time the right to move for a new trial, or to take an appeal, are construed with strictness in favor of the party desiring a review, when the time is to be computed from notice of the judgment to be given by the opposite party. The right of appeal is general and positive, and as statutes of limitation are in restraint of

87 Id.

881 Pet. 351, 7 L. Ed. 174.

90 McCluny v. Silliman, 3 Pet. 270,

7 L. Ed. 676; United States v. Wild

89 See Willison v. Watkins, 3 Pet. er, 13 Wall. 254, 20 L. Ed. 631. 43, 54, 7 L. Ed. 596.

that right they are, as already said, to be construed strictly." Although it be admitted that notice means knowledge, it by no means follows that knowledge or information of any kind will suffice-notice to limit the right in question must be given. This implies a positive act of the party in whose favor the judgment has been rendered. "It is highly proper," says Savage, C. J., "that such should be the practice. Notice in such a case ought not to depend upon casual information or an advertisement in the newspapers. Such notice certainly cannot be considered notice given by one party to the other. It is clear to my mind that the legislature intended a regular, formal, written notice." " Where an appeal was required to be taken within "thirty days after written notice of the judgment or order shall have been given to the party appealing," it was held that unless, after the judgment or order and its entry, the party has some written notification thereof by the act of the prevailing party or his attorney, the time to appeal continues without limitation. The party may acquire a knowledge of the order, he may examine it on the files of the court or on its records, or procure a copy of it from the clerk; but as a limitation of the time to appeal, knowledge so acquired will be wholly inoperative. Such a notice must be given, though the order or judgment appealed from was entered by the appellant himself; or though he was in court and heard the judgment pronounced and even asked for a stay of proceedings. Service of a report containing a recital of the judgment or order will not be sufficient.96 Where a statute. required a motion for a new trial to be signed within four days after the trial, it was held that an unsigned motion filed within the time could be signed after it had expired, with the leave of court; 97 also that a motion could not be

95

94

93

91 Pease v. Howard, 14 John. 479. 92 Jenkins v. Wild, 14 Wend. 539, 545.

93 Fry v. Bennett, 16 How. Pr. 402; Valton v. National Loan, etc. Co., 19 id. 515.

94 Rankin v. Pine, 4 Abb. Pr. 309. 95 Biagi v. Howes, 66 Cal. 469. 96 Matter of N. Y. Cent. etc. R. R. Co., 60 N. Y. 112.

97 Reamer v. Morrison Express Co., 93 Mo. App. 501, 67 S. W. 718.

amended after the four days by adding a new ground for the motion.98

§ 546 (370). Statutes interfering with legitimate industries, etc.- All statutes for interference with legitimate industries or the ordinary uses of property, or for its removal or destruction for being a nuisance or contributory to public evil, are treated with a conservative regard for the liberty of the citizen in his laudable business, and in the innocent enjoyment of his possessions, and generally the rights of property. Such interferences are cautiously justified on principles of the common law, and only in cases of imperative necessity," or under valid statutes plainly expressing the intent.1

§ 547 (371). Statutes creating liability. If a statute creates a liability where otherwise none would exist, or increases a common-law liability, it will be strictly construed.2

98 Hesse v. Seyp, 88 Mo. App. 66. 99 Mayor, etc. of New York v. Lord, 18 Wend. 128; Respublica v. Sparhawk, 1 Dall. 357; Russell v. Mayor, etc., 2 Denio, 461, 474.

1 Re Jacobs, 98 N. Y. 98; People v. Marx, 99 id. 377, 2 N. E. 29, 52 Am. Rep. 34; Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77; Brigham v. Edmunds, 7 Gray, 359; Austin v. Murray, 16 Pick. 121; Welch v. Stowell, 2 Doug. (Mich.) 332; Walker v. Board of Public Works, 16 Ohio, 540; Wynehamer v. People, 13 N. Y. 373; Port Wardens of N. Y. v. Cartwright, 4 Sandf. 236; Stevens v. State, 2 Ark. 291, 35 Am. Dec. 72; Thorpe v. R. & B. R. R. Co., 27 Vt. 140; Miller v. Craig, 11 N. J. Eq. 175; Bartemeyer v. Iowa, 18 Wall. 129, 137, 21 L. Ed. 929; Mugler v. Kansas, 123 U. S. 623, 661, 8 S. C. Rep. 273, 31 L. Ed. 205; Watertown v. Mayo, 109 Mass. 315, 319; Slaughter House Cases, 16 Wall. 36, 21 L.

Ed. 394; State v. Gilman, 33 W. Va. 146; 41 Alb. L. J. 24; Hughes v. Chester, etc. Ry. Co., 8 Jur. (N. S.) 221; S. C., 3 De Gex, F. & J. 352; Mayor, etc. v. Davis, 6 W. & S. 269; Commonwealth v. Sylvester, 13 Allen, 247; Shiel v. Mayor, etc., 6 H. & N. 796; Wiener v. Davis, 18 Pa. St. 331; McGlade's Appeal, 99 Pa. St. 338; Cooley's Const. Lim., ch. XVI.

2 Cohn v. Neeves, 40 Wis. 393; Steamboat Ohio v. Stunt, 10 Ohio St. 582; Moyer v. Penn. Slate Co., 71 Pa. St. 293; Lane's Appeal, 105 id. 49, 51 Am. Rep. 156; O'Reilly v. Bard, 105 Pa. St. 569; Hollister v. Hollister Bank, 2 Keyes, 245; Matter of Hollister Bank, 27 N. Y. 383, 84 Am. Dec. 292; McFerren v. Umatilla County, 27 Ore. 311, 40 Pac. 1013; Hughes v. Western Union Tel. Co., 79 Mo. App. 133; Moran v. St. Paul, 54 Minn. 279, 56 N. W. 80; Bryson v. Johnson County, 100 Mo.