Page:The American Cyclopædia (1879) Volume X.djvu/490

484: LIMITATION LIMITED LIABILITY " beyond the seas," other phrases are used, the most common of which is " out of the state," and all are held to mean that. It is sometimes provided that if, after the action accrues, the defendant shall be absent from and reside out of the state, the time of his absence shall not be taken as any part of the time limited for the commencement of the action. Where there is this provision, it has been questioned whether the aggregate of successive and distinct ab- sences can be deducted from the time, or only one single absence. This is determined dif- ferently ; in some states but one single absence is deducted, while in others all the absences are. The statute affects only the remedy for the debt, or the right to recover it by action, but does not affect the validity of the debt. Hence it does not affect any security given for the debt. Thus, if there be a mortgage of land or of goods to secure a note or bond, this mort- gage remains in full force, although the six years have expired so that no action can be maintained on the note or bond. Because the law of limitation is a law of remedy and not of right, it affects the method of recovering a debt, but not the debt itself ; and therefore, in general, the law of the forum (lexfori), or the law of the place where the action is brought, determines the limitation, and not the law of the place where the debt is contracted. Thus, if A lives in Massachusetts, and there owes to B a certain debt which will be barred in six years, and they both go to Rhode Island, where we will suppose the debt to be barred in three years, and after three years B sues A in Rhode Island, the law of Rhode Island bars the action, although the law of Massachusetts would not. And we think the converse proposition equally true, that if the limitation be shorter in the state where the debt was contracted, and longer in that to which the parties have come, it is this last law which prevails. In Massachusetts (11 Pickering, 36) it was held that if both par- ties remain abroad until the debt is wholly barred where it was contracted, and then both come into that state, the creditor may sue the debtor in Massachusetts until six years have expired after their coming into that state. The principle seems to be, that wherever the statute of limitation is relied upon in defence, it is the statute of the jurisdiction where suit is brought that must be pleaded in bar, and the defendant must show that his case comes within it. But where a right of action is barred by lapse of time in any state, it cannot be revived in that state by a repeal of the statute. The cases of actions founded on any specialties, as deeds, bonds, or judgments, and any action to recover land, have usually a limitation of 20 years, and in some cases 10 years. Besides these there are, in the several states, and in the United States, various provisions as to other actions, in which there is little uniformity, and of which we could make no useful statement without oc- cupying many pages with the details. Thus, a limited time is given within which actions may be brought against sheriffs, or marshals, or executors or administrators, or for slanderous words, or for personal assaults or trespasses. For some of these actions, and in some of the states, this limitation is very short ; a year, and even less in some cases. By the application of the ancient law maxim, Nullum tempus occur- rit regi, or in other legal words, no laches (or neglect) is imputable to the king or govern- ment, it is held that rights of action possessed by the state may be enforced by action at any time, so far as the general statutes of limitation might affect them. But in many of the states there are statutes which bar the right of the state after a certain period ; and it is very com- mon to limit prosecutions for crime to some short period, excepting, however, the case of murder and perhaps some others. The word "limitation" is also used in law with refer- ence to instruments transferring real estate. It means that an estate cannot continue af- ter a certain contingency occurs ; the limita- tion of an estate is therefore the definition or restriction which confines an estate not to a time certain, but to a time which may be rendered certain by the happening of an event ; as if an estate be given to hold until from the net proceeds a certain sum shall be made, or until the grantee marries. The dis- tinction between a limitation in a deed and a condition is technical, and sometimes diffi- cult. In general, if an estate is given to be held by the grantee until a specified event shall occur, this is but a limitation ; but if it be given only with a proviso, or a condition (that is, with the words "provided that," or on " condition that "), to the effect that the estate or interest of the grantee shall cease and determine when the event shall occur, this is not a limitation, but a condition. LIMITED LIABILITY, a peculiar responsibility for contracts, defined by statute. The instance of partnership is a common one in which parties by the relation itself assume a general liability for the acts and defaults of their as- sociates when acting within the scope of the business ; and this is irrespective of the several interests of the partners, and cannot be limited by the understanding between them. Never- theless there is no reason in public policy why one partner should not be vested with exclu- sive authority to act for all, nor why others dealing with the partnership should not be permitted to stipulate to confine their negotia- tions to that partner. Indeed, public policy might often be subserved by that course, for men of large means might be willing to unite with others in important enterprises if their liability could be restricted to the consequences of contracts framed in every instance by them- selves, when they would be unwilling to put their fortunes at stake upon the judgment, discretion, or integrity of others. Accordingly, it has been customary in very recent times to provide by statutes for the formation of part- nerships with a limited liability on the part of