any court of record, it is the duty of the clerk, during the next vacation, to make a complete record thereof in a book prepared for that purpose, which is signed by the presiding judge at the next term. This record includes the writ, return, recognizance of bail, pleadings, orders, continuances, verdict and judgment, which are copied in the order of proceeding, and furnish a complete history of the cause, with the exception of the evidence: and even the evidence, or some part of it, may be spread upon the record, by means of a bill of exceptions, special verdict, or demurrer to evidence. The object of making this record is to preserve a perpetual memorial of judicial proceedings, in a form convenient for public inspection. If the record exhibit any thing to show that the judgment is erroneous, we have seen that the error may be corrected by taking the proper course. But the truth of the facts therein contained cannot be called in question; the record itself furnishing the highest possible evidence of verity. We have seen that justices of the peace keep no record, strictly so called, but only a docket. In fact, the proceedings before them are attended with little formality or technical precision; and for this reason I have not thought it worth while to describe them. Here, then, would terminate our imperfect outline of civil proceedings in courts of law, but that there remain two topics, of great practical importance, which I shall discuss briefly, as a proper conclusion to this lecture. I mean the survivorship of actions and the limitation of actions. I would previously remark, however, that the subjects already discussed in this lecture will necessarily occupy a very wide space in your future inquiries. Perhaps I should be safe in saying that at least one-half of all the learning of a lawyer has reference to practice, pleading, and evidence; three topics, upon which more volumes have been written than I have occupied pages. And I would also remark, that one of the most useful exercises in which a student can engage, is that of making for himself a complete record of all the proceedings in the various actions, and repeating the operation until he becomes perfectly familiar with all its parts.

§ 215. Survivorship of Actions. (a) This topic, though highly

came a jury, to wit [here give the names of the jurors], who being impanelled and sworn the truth to speak upon the issue joined between the parties aforesaid, upon their oaths did say that [here set forth the verdict]. And thereupon it was considered by the said court that the said [here set forth the judgment].

-, county of

The certificate of the clerk is as follows: The State of I hereby certify that the foregoing is truly taken and copied from the records of the proceedings of the court of within and for the county aforesaid. In testimony whereof, I do hereto subscribe my name, and affix the seal of said court, this [Signature of clerk and seal of court.]

If this record is to be used in another State, there must be another certificate by the presiding judge, as follows: I, [giving his official designation], do hereby certify that is clerk of said court, and that his attestation aforesaid is in due form of law; and that to all acts by him so done full faith and credit ought to be given. [Date and signature of Judge.] As to amendment of the record, see Doty v. Rigour, 9 Ohio State, 519, 526.

(a) M. E. Church of Dayton v. Rench, 7 Ohio State, 369. By the Code, in addition to the causes of action which survive at common law, are causes of action for

important, is nowhere, so far as I know, made a distinct title in the books of practice. An action or a right of action is said to survive, when, upon the death of the original parties, it can be commenced or concluded, by or against their representatives.

As to Actions of Contract. It was a maxim of the civil law, that personal actions die with the person; but by personal actions were here meant actions of tort only, and not actions of contract; and in this sense, the maxim agreed with the ancient common law, which held that actions of contract alone survive. But it is obvious that this ancient doctrine has little foundation in reason. With respect to crimes, it is easy to see that the death of the offender must be a bar to punishment; but if a man has done me a civil injury, for which the law entitles me to pecuniary damages, why should I not have them out of his property after his death, as well as if the same amount had been due me by contract? It is evident that there is no good reason for the distinction; but we shall be less surprised at this distinction, when we learn that it cost the English courts a struggle of nearly a century to establish the doctrine that any actions of contract survive, except those on contracts under seal, where survivorship both ways is generally one of the express stipulations. At length, however, in 1610, the controversy was finally settled, by an unanimous decision of the house of lords, that simple contracts survive both ways, to the same extent as sealed contracts; though there be no express stipulation with respect to the survivorship. Since that period, it has not been doubted that all actions of contract survive, with respect to both parties; with the single exception of such contracts, as a promise to marry, and the like, which can only be performed by the individuals contracting, and not by their representatives. (a)

As to Actions of Tort. The first and leading case, which overthrew the ancient rule as to actions of tort, was that of Hambly v. Trott, (b) decided by Lord Mansfield. The principles there laid down were in substance as follows: Where the cause of action is a tort, which produces no gain to the party committing it, as slander, for example, the action dies on account of the cause; where the form of action is such that the declaration must allege force and arms, as in trespass, or the plea must be that the testator was not guilty, the action dies on account of the form; and all other actions of tort survive. This case relates to the defendant only. With respect to the plaintiff, there was an ancient English statute, giving to the executor an action of trespass for the goods of his testator, carried away in his lifetime. This statute has been generally adopted as common law in this country, and by an equitable

mesne profits, for an injury to real or personal estate, and for any deceit or fraud. $ 398. (a) See the Year Books, 12 H. 8, p. 11; 27 H. 8, p. 23; 4 Reeves's H. C. L. 383; Narwood v. Reed, 1 Plowden, 180; Pinchon's case, 9 Coke's Rep. 86; Chamberlain v. Williamson, 2 M. & S. 408; Stebbins v. Palmer, 1 Pick. 71.

(b) Cowper, 872.

construction, has been held to embrace all injuries to personalty. (a) But these doctrines with respect to actions of tort, are so far modified by our statute, that here all actions of tort survive both ways, except those for injuries to the person, health, or reputation, which produce no gain to the party committing the tort; and this seems to be the plain good sense of the matter.

At common law, even where a cause of action would itself survive, yet if the action were pending at the death of either of the parties, it would in all cases abate, (b) and a new action must be commenced. This was productive of needless delay and expense; and, accordingly, our statute provides that no action shall abate by the death of either of the parties, except those, the cause of which does not survive. If, therefore, one of the parties die, during the pendency of an action, and his representatives do not of their own accord come in to prosecute or defend such action, a citation issues to bring them in; and if they still neglect to appear, a judgment of nonsuit or default is rendered, as the case may require. Also, if there be two or more plaintiffs and defendants, and one of them die, his death is suggested on the minutes; after which the suit goes on to judgment, and his representatives are made parties thereto by a writ of scire facias. The only question then is, who are the representatives of the deceased? In all strictly personal actions, having no reference to the title to realty, the executor or administrator is the legal representative, and is made party to the suit; but in the action of ejectment, and in all actions on covenants real running with land, the heirs or devisees are the legal representatives, and are made parties accordingly. It will thus be seen that on the subject of survivorship, our law is peculiarly simple and reasonable.

§ 216. Limitation of Actions. (c)

Statutes of limitations have

(a) See Berwick v. Andrews, 2 Lord Raym. 971; Salk. 314; Wheatly v. Lane, 1 Saund. 216; Griswold v. Brown, 1 Day's Cases in Error, 180; Holmes v. Moore, 5 Pick. 257. At common law, the death of a human being could not be complained of as an injury in a civil action, even by relatives dependent upon him for comfort and support. Baker v. Bolton, 1 Camp. 493; Wosley v. C. H. & D. R. R. Co. 1 Handy, 481. In several of the States, as in Ohio, acts have been passed making parties by whose wrongful act the death of a person has been caused liable for damages to his near relatives. See act of March 25, 1851. Lyons v. Cleveland & Toledo R. R. Co. 7 Ohio State, 336; Muhl v. Michigan S. R. R. Co. 10 Ohio State, 272.

(b) By the Code, an action does not abate by the death, marriage, or other disability of a party, or by the transfer of any interest therein during its pendency, provided the cause of action survives. § 39. Nor does an action pending abate by the death of both parties, with the exception of libel, slander, malicious prosecution, assault, assault and battery, for a nuisance, or against a justice for misconduct in office. § 399. As to slander, see Alpin v. Morton, 21 Ohio St. 536.

(c) On the general subject, see the American Treatise of Angell, and the English Treatises of Ballantyne, Blanchard, and Wilkinson. The Code has made important changes, which will be noted. As to courts of equity following the statute, see Bigelow . Bigelow, 6 Ohio, 96; Tuttle v. Wilson, 10 id. 24; Ridley v. Hettman, 10 id. 524. The federal courts are governed by the statutes of the States. Harpending v. Dutch Church, 16 Peters, 455. The times of limitation are not materially changed by the Code.

Commencement and Termination of the Time. In general, the time begins when the cause of action actually occurred, and not when the party first knew of it. Kerns v. Schoonmaker, 4 Ohio, 331; Lathrop v. Snellbaker, 6 Ohio State, 276. But in the

been well denominated statutes of repose. They proceed upon the maxim that legal rights should be asserted within a reasonable time, and that the law should favor the vigilant, and not the sluggish; but the common law fixed no precise time within which actions must be brought. This is everywhere done by statute; and such statutes are called statutes of limitation. They have been found to be so highly expedient, that courts of chancery, though not always within their letter, have been uniformly governed by their spirit. I shall, of course, confine my remarks to our own statute. But all the American statutes of limitation are much alike, being copies, more or less exact, of the same original; namely, the English statute of limitations. And the federal courts are uniformly governed by the statutes of limitation of the State where the cause of action accrued, and by the constructions thereof given by the courts of such State.

Periods of Limitation. Our statute divides actions with reference to the periods of limitation into seven classes, which are limited as follows: 1. Ejectment, to twenty-one years. There is

an exception, however, by our statute, in the case where land has been sold by an executor or administrator under an order of court: in which case no action can be brought by any person claiming under the deceased, after five years from the sale; or in case of

Moore v. Greene,

case of fraud, the Code makes it begin with the discovery of it. 19 How. 69; Long v. Multord, 17 Ohio State, 485. In regard to the public lands, the statute does not begin to run until the Indian title has been extinguished. Thompson v. Gotham, 9 Ohio, 170. In the Virginia military district, it does not begin until the emanation of the patent. Wallace v. Miner, 6 Ohio, 366; Wallace v. Miner, 7 id. pt. 1, 249; Duke v. Thompson, 16 id. 34. And where a patent was void on account of the death of the patentee before it was issued, and a curative statute was passed giving the title to his heirs, devisees, or assignees, the statute does not begin to run. until the passage of the curative statute. Wood v. Ferguson, 7 Ohio State, 288. In case of a disputed boundary, an agreement to submit to arbitration prevents the running of the statute. Hunt. Guilford, 4 Ohio, 310. And see upon the general subject, Williams v. Williams, 5 Ohio, 444; Payne v. Skinner, 8 id. 159; Abram v. Will, 6 Ohio, 164; Fee v. Fee, 10 id. 469. An action of ejectment on the demise of husband and wife cannot be maintained during the coverture, after the statute has run for the full period against the husband. Thompson v. Green, 4 Ohio State, 216; Ford v. Langel, 4 id. 464.

Saving Clause. By the Code, penalties and forfeitures are excepted from the sav ing clause. It was once held that where one of the parties to a writ of error was within the saving clause, all were saved. Wilkins v. Phillips, 3 Ohio, 49. But see to the contrary, Moore v. Armstrong, 10 Ohio, 11; Marstellar v. M'Clean, 7 Cranch, 156; Perry v. Jackson, 4 Term Rep. 516. The words "beyond seas" meant "out of the State." Starke v. Smith, 5 Ohio, 455; Richardson v. Richardson, 6 Ohio, 125; Whitney v. Webb, 10 id. 513. But this is not a disability under the Code.

Cumulative Disabilities. See Granger v. Granger, 6 Ohio, 35; Maryland v. Shipley, 7 id. pt. 1, 246; Whitney v. Webb, 10 id. 513.

Miscellaneous. The statute does not run against the State, and, consequently, not against a tax title, because the purchaser succeeds to the State lien. Monroe v. Morris, 7 Ohio, pt. 1, 262. But it does run against all corporations created by the State, in the same manner as against individuals. Cincinnati v. Presbyterian Church, 8 Ohio, 298. It runs against municipal corporations. City of Cincinnati v. Evans, 5 Ohio State, 594. Virginia military district school lands held under a lease for ninetynine years are subject to the statute. Bently v. Newton, 9 id. 489. In a court of equity, the statute does not run against a trust. Gary v. May, 16 Ohio, 66. But it does in a court of law. Bigelow v. Bigelow, 6 Ohio, 96. The provision as to the removal or non-residence of the defendant, relates to the time when the cause accrued, not after. Coventry v. Atherton, 9 Ohio, 34.

disability, five years from the removal thereof. 2. Forcible entry and detainer, to two years. 3. Actions upon any written contract, whether under seal or not, to fifteen years. 4. Actions upon any contract not in writing, and actions on the case for consequential damages, to six years. 5. Actions of trespass upon property, real or personal, and actions of trover, detinue, and replevin, to four years. 6. Actions for personal injuries, including assault and battery, libel, slander, malicious prosecution, and false imprisonment; actions for official misconduct; and qui tam actions, or, actions for penalties, where the informer has one-half, to one year. 7. All other actions, not included in the above classes, to four years.

Commencement and Termination of the Time. The limitation begins from the time "when the cause of action accrued." Generally speaking, this means, when the right of action is perfect; and it makes no difference whether the party was then aware of his right of action or not; for it is the happening of the event. upon which the right of action is founded, and not the discovery of the right resulting from the act, which fixes the commencement of the limitation. Thus, in ejectment, for example, the cause of action accrues, and the time begins to run, when adverse possession commences. So long as the occupant of land acknowledges the right of the owner, there is no cause of action against him; but from the moment when, in word or act, the occupant denies the owner's title, and claims to hold adversely to him, the cause of action has accrued, and the twenty-one years have commenced running. Again, the words of the statute are: "all actions hereinafter mentioned, shall be commenced within the several times hereinafter limited;" and an action is commenced or is pending, when the process has been served, or if the notice is by publication, when the publication has been completed. If the action be commenced a moment before the limitation expires, it is saved; for the statute provides that if it should abate, or the plaintiff be nonsuited, or judgment be arrested or reversed, the plaintiff shall have one year more within which to commence a new action.

Saving Clause. When any cause prevents the statute from operating in a given case, it is said to take the case out of the statute. For example, an agreement to submit a question of boundary to arbitration takes the case out of the statute, because by admitting a doubt in which party the right lies, it negatives the idea of a positively adverse possession. But there are certain general causes which, by express provision, take all cases out of the statute, on the ground that the parties affected by them have sufficient reason for not asserting their claims in the usual time. These causes pass under the general name of disabilities; and the clause providing for them is called the saving clause of the statute. In our statute they are now four; namely, infancy, coverture, insanity, and imprisonment. These disabilities are personal privileges, and protect only the person laboring under them; so that