Any tribunal which inquires into the validity of a claim, must admit that its age is among the elements which determine the probability of its having a legal existence and obligation. The natural course of events is for him who owes a debt, to pay it; and for him to whom a debt is due, to demand it; and any conduct which is opposite to this, is exceptional. And human experience tells us, that it is very rare, in point of fact, for a creditor to let a claim which is enforceable at law, lie, for a long period, not only unpaid but uncalled for. This improbability the common law recognized ; and when the claim was old enough, it considered the improbability too strong to be overthrown by the mere fact of an original debt, and no evidence of payment; in other words, it raised a presumption of payment after many years; this period is regulated in the States generally, by statute. In many it still is, as it was at common law, twenty years ; and it applies to all personal claims which are not limited by the statute of limitations. (a) But this was not an absolute presumption, because it could be rebutted by acts or words on the part of the debtor, which were incompatible with such payment At length, the statute, 21 James I. c. 16, enacted, among other things, that all actions of account, and upon the case, other than such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants, all actions of debt grounded upon any lending, or contract without specialty, and all actions of debt for arrearages of rent, should be commenced * and sued within six years next after the cause of such actions, or suit, and not after. Beside the general statutes of limitation, there are in many of the States statutes relating to especial demands or debts, and cases have arisen under them. As in California, under a statute limiting the recovery of Tents and profits in ejectment, to three years; (aa) in Missouri, under a statute limiting scire facias to revive a judgment to ten years from its rendition; (ab) in Indiana, under a statute requiring actions upon an officer's bond to be brought within three years; (ac) in Iowa, under a statute limiting actions to fore-close mortgages or trust-deeds to ten years, (ad) or for recovery of real property or personal actions on written contracts; (ae) in Alabama, under a statute limiting an action for overflowing lands to one year, (af) In Massachusetts, Maine, and Vermont, witnessed notes are excepted from the common disability. But this does not apply where the witness's name was put on at a time after the maker signed the note, and without his knowledge, (ag)

(a) Duffield v. Creed, 5 Esp. 52; Cooper v. Turner, 2 Stark. 497; Christophers v. Sparke, 2 Jacob & W. 223.

It is not quite certain, from the selection of the claims to which the statute of limitations applies, whether it proceeded upon the same ground as the legal presumption; that is, actual probability of payment; for while these claims are such as would very seldom be suffered to be long unsettled, and the excepted claims, as those of accounts between merchants, and those grounded on specialty, are often permitted to go on without liquidation for a considerable period, it is also true that this latter class of claims might become old without becoming stale, and should be excepted from a statute of limitations which went on the ground that the actions which it prohibited ought not to be brought after a certain time, whether the debts were paid or. not, because they ought not to be suffered to lie unsettled so long. And some of the earlier decisions of the questions which soon arose under this statute, would lead to the supposition that the courts then regarded it as a statute of Tepose, and not one of presumption, (b) Soon, however, the other view prevailed; and a long course of decisions occurred, which can be justified and explained only on the supposition that the statute is to be construed as one of presumption, and of rebuttable presumption, (c) Gradually, however, this view gave way to the first;

(aa) Carpentier v. Mitchell, 29 Cal. 330.

(ab) Humphreys v. Lundy, 37 Mo.

320.

(ac) Pickett v. State, 24 Ind. 366.

(ad) Newman v. De Lorimer, 19 la. 244.

(ae) Johnson v. Hopkins, 19 la. 49.

(af) Polly v. McCall, 37 Ala. 20.

(ag) Brown v. Consens, 51 Me. 301. (b) Bland v. Haselrig, 2 Vent 151; Dickson v. Thompson, 2 Show. 126; La-con v. Briggs, 3 Atk. 105; Bass v. Smith, IS Vin. Abr 229, pl. 4; Owen v. Wolley, Bull N. P. 148; Andrews v. Brown,

Prec. in Ch. 386; Hyleing v. Hastings, 1 Ld.-Raym. 389, 421; Sparling v. Smith, id. 741.

(c) Yea v. Fouraker, 2 Burr. 1099; Quantock v. England, 5 Burr. 2628; Richardson v. Fen, Lofft, 86; Llovd r. Maund, 2 T. R. 760; Catling v. Skoul-ding, 6 id. 189; Lawrence v. Worrall, Peake, N. P. 93; Clarke v. Bradshaw, 3 Esp. 155; Bryan v. Horseman, 5 Esp. 81, 4 East, 599; Rucker v Hannay, 4 Hast, 604, n. (a); Gainsford v. Grammar, 2 Camp. 9; Leaner v. Tatton, 16 East, 420; Loweth v. Fothergill, 4 Camp. 185; Donthwaite v. Tibbut, 5 M. & S. 75; and it may now be considered as the established rule, that the statute proceeds upon the expediency of refusing to enforce a stale claim, whether paid or not, and not merely on * the probability that a stale claim has been paid; and this expediency is the actual basis of the law of limitations. This change we deem one of extreme importance. The tendency to it caused much of the conflict and uncertainty which attended the adjudication upon this statute in England. The prevalence of the new view gave rise at length to Lord Tenterden's act in England, (d) which has been adopted in many of our States, and found to work very beneficially; and in the construction of this statute, or in the consideration of questions arising under the earlier statutes of limitations, where they remain in force, we consider that the principle which will hereafter be applied will be that which regards the statute of limitations as a statute, not of presumption, but of repose.