It may safely be relied upon as a general rule, that there must in all cases be proper parties to sue and be sued, and that the person to sue must be free from any disability on account of which the law excuses his inattention to his rights.

Where a party was fatally injured by an accident upon a railroad, the right of action against the company was limited to one year after the cause of action should accrue. The Supreme Court of Connecticut held, that the period of limitation did not begin to run, (the party having been killed by the accident,) till the appointment of an administrator in the State in which the action was brought.

SECTION 5.

Mortgages, or other collateral Securities, not discharged by the running of the Statute time.

It will be noticed that the provision of the statute is not, that the debt shall be deemed paid, but, that no action shall be maintained to recover it. It therefore results, that securities held by a party, whether by mortgage or otherwise, are not discharged, nor is any lien of a creditor impaired by reason of the recovery of the debt being barred by the statute. For example: upon process to foreclose a mortgage, on account of non-payment of the debt by the mortgagor, the defendant sets up that the recovery of the debt secured by the mortgage is barred by the statute of limitation. This is clearly insufficient as a defence, for it does not at all show that the debt has been paid; and one, and perhaps the principal, reason of the delay of the creditor may have been, the security he relies upon for its final payment. So, with reference to any security: the party who has pledged it may not redeem. it, upon merely showing that recovery of the debt which it secures is barred by the statute. See Belknap vs. Gleason, 11 Conn., 160; Thayer vs. Mann, 19 Pick., 535; Heyer vs. Pruyn, 7 Paige, 470.

Where an action to recover debt is barred by the statute, the defendant in an action is equally barred from recovering upon it by way of set off.

SECTION 6.

Of Statutory Exceptions.

In some of the States, there are special exceptions arising out of fraudulent concealment of the cause of action, and out of the witnessing of a promissory note, in addition to the exceptions enumerated under Section four. There are also frequently provisions, as in Maine, Massachusetts, Connecticut, &c., providing that when a writ shall fail of sufficient service or return, or an action fail by reason of any matter in abatement, on account of defect of form or other matter not going to the foundation of the action, the plaintiff may commence a new action on the same demand within a limited time thereafter.

Courts of equity, in the absence of statute provisions, have always held that where the cause of action has been fraudulently concealed, the statute ought not to be allowed to run. But, while this is, without controversy, the settled doctrine of courts of equity, the cases in this country in courts of law are very conflicting. Perhaps the weight of authority is in favor of the position, that the statute ought not, in any case, to be so construed as to encourage fraud; and that, therefore, cases of fraud form an implied exception, to be acted upon both by courts of law and equity. See 2 Story's Equity Jurisprudence, 1521; Mass. Turnpike Co. vs. Field, 3 Mass., 201; Sherwood vs. Sutton, 5 Mason, 143; Sweat vs. Harring ton, 2 Hayw., N. C., 129; Troupe vs. Smith, 20 John., 33; Farnam vs. Brooks, 9 Pick., 212; Harrisburg Bank vs. Foster, 8 Watts, 12.

CHAPTER XXIV.

OF TITLE BY OCCUPANCY AND PRESCRIPTION.

SECTION 1. Of Real Estate acquired by Occupancy.

WHEN property of any description is absolutely without an owner, it fairly belongs to the first person who takes possession. We have alluded, in the Chapter on Property, to the first patent from the Creator to the human race, in which it is made the great duty and destiny of man to subdue and occupy the earth. While but little value has been usually placed upon the territorial rights of wandering races of people, who sparsely inhabit vast regions, suffering them to remain in wilderness, and subsisting chiefly upon the natural products of the soil and of the stream and the forest, actual occupation and cultivation of the soil has, everywhere, been held to invest the original occupant with substantial rights therein.

It was with this view, that the original immigrants came to this country; confiding in their right, "to possess and cultivate the American wilderness, as being by the law of nature and the gift of Providence, open and common to the first occupants, in the character of cultivators of the earth." They, however, usually received patents from the sovereign under whose patronage they left the Old World, and also negotiated with the Indian nations, as distinct and independent powers, for the title to such land as they took possession of.

The general principles, upon which the bases of title by discovery and original occupancy rest, have but little to do with those rules of commercial law which we design to discuss in this book. Besides, there is at present so small an amount of property without a legal owner, that this right of acquiring title by occupancy is practically of but

little importance. There are, however, some cases in which this right is called into exercise even now: as where soil is formed from the sea or a river by gradual accretion, it is the property of the person to whose land it becomes joined. So, if an island be formed in a river, it belongs to the owner of the nearest bank; or, if the thread line of the river divides upon the upper end of the island, and portions of the stream pass upon each side thereof, the ownership of the island will be divided between the respective owners of the adjacent banks. The "thread" of a stream is not necessarily, nor usually, the precise center of the flowing water, but is that line in the bed of the stream where, if the stream were entirely dried up, the water would remain last: in other words, the deepest line in the channel, which, as is well known, is frequently quite near to one or the other bank. Air, water, and light, as appurtenant to, and connected with, the occupancy and enjoyment of land, are of great importance; and the doctrine is, that he, who has made the first appropriation of either of these elements to a particular use, is entitled to a modified protection in their enjoyment, for that use.

The Statutes of Limitations, of which we have spoken in a preceding chapter, in each of the States prescribes a period of adverse occupancy, which, if open, notorious, and uninterrupted, shall confer title upon the occupant. Such a possession must be exclusive, as well as open and notorious, adverse and uninterrupted. Possession of a tenant cannot be adverse to his landlord; and, where the possessor has once acknowledged the title of the other party by offering to purchase, paying rent, and the like, possession is not adverse.

A possessory right is good as against any trespasser or wrong doer, and where neither party can show any other than a possessory title, prior possession, however short, is the better one, unless a defendant has been in possession so long as to be protected by the Statute of Limitations.

SECTION 2.

Personal Estate acquired by Occupancy.

Personal property is more easily acquired by occupancy than realty possession being, in this case, higher evidence. of ownership than in the case of realty. In early times, goods taken by capture in war were held to belong to the captor: but now, by the law of nations and by the jurisprudence of the United States, goods taken from enemies in time of war vest primarily in the government under which the captor serves; and the rights of the individual captor are only such as are prescribed for him in the regulations of positive law.

Title by occupancy is now permitted to exist only in a few special cases, which are not inconsistent with the public welfare. The most common instances are as follows:

First, the finder of things lost is entitled to retain them as owner, unless the original owner appears to claim them; subject to certain statute regulations in most of the States. Such regulations most frequently apply to stray animals, boats adrift, and other articles which from their nature are more liable to become lost than ordinary property. In reference to such property, the finder is generally required to advertise the fact of such finding, to have the property appraised; and if the owner does not appear within a specified time and pay charges, the property is usually permitted to vest in the finder.

Second, the captor of wild animals is entitled to them as owner, provided he does no violence to the rights of others in the act of taking them.

Third, increase of value by accession is properly referrible to this head. This right of accession is the title which one has to all which is produced by, or becomes either naturally or artificially united with, or added to, property in his possession as by the growth of vegetables, the pregnancy of animals, or the application of mechanical labor or skill. Upon this principle of accession, whatever is built upon one's land becomes his property, though the materials originally belonged to the builder. So, a tree, or a plant set in the ground