[Shanks et al. vs. Dupont et al.]

time of peace, until restrained by congress;" and for this doctrine the author quotes Talbot vs. Jansen, 3 Dall. and the case of the Santissima Trinidada, 7 Wheat. 348; in both which cases the author has obviously mistaken the argument of counsel for the opinion of the court; for the court in both cases expressly wave expressing an opinion, as not called for by the case, since if conceded, the facts were not sufficient to sustain the defence.

The author also quotes a case from 1 Peters's C. R. which directly negatives the doctrine, and a case from 4 Hall's Law Journal, 462, which must have been quoted to sustain the opposite doctrine. It is the case of the United States vs. Williams, in which the chief justice of the United States presided, and in which the right of election is expressly negatived, and the individual who pleaded expatriation is convicted and punished.

This cause came on to be heard on the transcript of the record from the supreme court of appeals in law and equity in and for the state of South Carolina, and was argued by counsel; on consideration whereof, it is considered and declared by this court that Ann Shanks, the mother of the original defendants, was at the time of her death a British subject, within the true intent and meaning of the ninth article of the treaty of amity, commerce and navigation made between his Britannic majesty and the United States of America on the 19th of November 1794, and that the said original defendants, as her heirs and British subjects, are capable to take, and did take by descent from her the moiety of the land in the proceedings mentioned, and are entitled to the proceeds of the sale thereof, now in the registry of the circuit court of equity, as in the said proceedings mentioned. It is therefore considered and adjudged by this court, that there is error in the decree of the said court of appeals in equity, of the state of South Carolina, in affirming the decree of the circuit court, in said proceedings mentioned, whereby it was ordered and decreed, that the money arising from the sale of the land in question, theretofore re

.

same.

[Shanks et al. vs. Dupont et al.]

served subject to the order of the court, be paid over to the petitioners, as the only heirs who are capable of taking the And it is further ordered and adjudged by this court, that for this cause the decree of the circuit court aforesaid, and of the court of appeals aforesaid be, and each of them is hereby reversed. And it is further ordered and adjudged by this court, that the cause be remanded to the said court of appeals, with directions that a decree be entered therein, that the said moiety of the said proceeds of the said sale be paid over to the original defendants (the present plaintiff's in error) as their right, and that such further proceedings be had therein as to justice and equity may in the premises appertain.

JAMES D. WOLF US. GEORGE F. USHER.

Where the point on which the judges of the circuit court divided in opinion was not certified, but the point of difference was to be ascertained from the whole record, the court refused to take jurisdiction of the case.

This cause came before the court on a certificate of a division between the judges of the circuit court of the district of Rhode Island.

When the case was opened by the counsel for the plaintiff, it was found on inspecting the record, that the particular point on which the judges of the circuit court had differed, was not certified. The whole record had been sent up, and it contained a certificate that the judges of the court had differed in opinion, without a specific statement of what the difference was.

The court refused to take jurisdiction of the cause, and remanded the same to the circuit court of Rhode Island, with directions to proceed therein according to law.

Mr Coxe, for plaintiff; Mr Whipple, for defendant.

WILLIAM M'CLUNY, PLAINTIFF IN ERROR vs. WYLLIS SILLIMAN, DEFENDANT IN ERROR.

The plaintiff sued the defendant, as register of the United States land office in Ohio, for damages, for having refused to note on his books applications made by him for the purchase of land within his district. The declaration charged the register with this refusal, the lands had never been applied for nor sold, and were at the time of the application liable to be so applied for and sold. The statute of limitations is a good plea to the suit.

It is a well settled principle that a statute of limitations is the law of the forum, and operates upon all who submit themselves to its jurisdiction. [276] Under the thirty-fourth section of the judiciary act of 1789, the acts of limitations of the several states, where no special provision has been made by congress, form a rule of decision in the courts of the United States, and the same effect is given to them as is given in the state courts. [277] Construction of the statute of limitations of the state of Ohio. [278] Where the statute of limitations is not restricted to particular causes of action, but provides that the action, by its technical denomination, shall be barred if not brought within a limited time, every cause for which such action may be prosecuted is within the statute. [278]

In giving a construction to the statute of limitations of Ohio, the action being barred by its denomination, the court cannot look into the cause of action. They may do this in those cases where actions are batred for causes specified in the statute; for the statute only operates against such actions, when prosecuted on the grounds stated. [278]

Of late years the courts in England and in this country have considered statutes of limitations more favourably than formerly. They 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 the effect of those statutes. By requiring those who complain of injuries to seek redress by action at law within a reasonable time, a salutary vigilance is imposed, and an end is put to litigation. [278]

ERROR to the circuit court of Ohio.

In the circuit court of Ohio, the plaintiff in error instituted a suit on the 15th of December 1823, against the defendant, who was register of the United States land office at Zanesville, to recover damages for having, as register, refused to enter an application in the books of his office, for certain lands in his district; the entry having been required to be made according to the provisions of the tenth section of the act of congress, passed the 18th of May 1796, entitled "an

[M'Cluny vs. Silliman.]

act providing for the sale of the lands of the United States, in the territory north west of the river Ohio, and above the mouth of the Kentucky river." The declaration charges, that the register, on the 2d of August 1810, refused to enter the application, although the lands had never been legally applied for or sold, and were then liable to be applied for and sold.

The defendant pleaded not guilty, and not guilty within six years before the commencement of the suit. To the latter plea there was a demurrer, and joinder in demurrer. The circuit court overruled the demurrer, and sustained the plea of the statute of limitations. The plaintiff prosecuted this writ of error; and sought to reverse the judgment on the grounds:

1. That the statute of limitations does not apply to an action upon the case brought for an act of nonfeasance or misfeasance in office.

2. That no statute of limitations of the state of Ohio, then in force, is pleadable to an action upon the case brought by a citizen of one state against a citizen of another, in the circuit court of the United States for malfeasance or nonfeasance in office, in a ministerial officer of the general government; and especially where the plaintiff's rights accrued to him under a law of congress.

Mr Doddridge, for the plaintiff in error, argued, that there are many cases within the words of the statute of 21 James I. ch. 16, for limitation of personal actions, which are not within its meaning; as debt against a sheriff for an escape; debt against a sheriff for money levied; actions ex maleficio; debt for not setting out tithes under the statute, although founded on the highest record, an act of parliament; debt on award, although founded on contract. 1 Saund. Rep. tit. Statute. 5 Bac. 509. 2 Lev. 191. Esp. N. P. 653.

Out of the clause limiting actions for words, are excepted, slander of title; scandalum magnatum. Cro. Ch. 141. Esp. N. P. 519.

The statute does not extend to trusts, to charities or to