The statute only declares that "no action shall be maintained;" but not that the cause of action is made void. Hence, although the remedy by action is lost, a lien is not lost If one holds a note against which the statute has run, and also a mortgage * or pledge of real or personal property to secure it, he cannot sue the note; but he can take, or hold possession of the property and sell it, if it be personal, with proper precautions, or have a bill in equity to foreclose his mortgage. And if his lien, whatever it be, fails to pay the whole amount of the note, he loses the remainder, because he can have no action upon it, although he may have proper process, founded upon the debt and the security, to establish his lien, and make it available in payment of the debt (q) The index of the second volume of Black's reports of the Supreme Court of the United States, states, that "The lapse of time under the statute of limitations not only bars the remedy but extinguishes the right" But this is not the language of the court in the the case referred to, nor can any such general rule be inferred from the case. It was an action of ejectment brought by appeal from Wisconsin. The defendant (plaintiff in error) relied upon a statute of limitations referring to proceedings for recovery of lands sold for taxes. The court (Swayne, J.) says: "The lapse of time limited by such statutes, not only bars the remedy, but it extinguishes the right, and vests a perfect title in the adverse holder." The court then goes on to give the reason for this, by a quotation from Buller's Nisi Prius, sustained by other authorities.

(q) Spears v. Hartley, 3 Esp. 81; Quantock v. England, 5 Burr. 2628; Williams v. Jones, 13 East, 439; Chappie v. Durston, 1 Cromp. & J. 1; Mavor v. Pyne, 2 C. & P. 91; Higgins v. Scott, 2 B.& Ad. 413; Mayor, etc. of N. Y. v. Colgate, 2 Duer, 1,2 Kern. 140; Alexander v. Whipple, 45 N. H. 502. See Pratt v. Huggius, 29 Barb. 277, wherein it was held, that a debt secured by a sealed mortgage and an unsealed note instead of a bond, may be enforced by a foreclosure of the mortgage, after the expiration of six, but before the expiration of twenty, years from the time when the debt became due. See contra, Harris v. Mills. 28 111. 44, where it is held, when the note is barred by the statute of limitations, the right to foreclose is likewise barred; but if the mortgage contains a covenant to pay the money, it may be that the mortgage will only be barred by the time fixed for the limitations in such cases. The early capes of Draper v. Glassop, 1 Ld. Raym. 153. and Anonymous, 1 Salk. 278, which were decided upon the ground that the statute of limitations destroyed the debt as well as the remedy, have now no authority.

The reason given is, that "it tolls the entry of the person having the right, and consequently, though the very right be in the defendant, yet he cannot justify his ejecting the plaintiff." It would seem obvious that what the court intend is, that such a statute makes the right wholly worthless, because it makes him who holds it, wholly remediless. (r) It might be doubted whether the statute of * Wisconsin referred to, is, strictly speaking, a statute of limitation; it is rather a statute conferring power, than limiting rights which exist without the statute. The right spoken of is rather a power than a right; and as it exists only by force of the statute, when this force ceases to operate, it may be said that the right or power ceases to exist.1

Where the limitation of real actions does not apply, generally, to mortgages, it may apply and the time begin to run after the mortgagee has elected to pursue his remedy under the mortgage.(rr)

If an action on a mortgage contract be barred by the statute of limitations, it may not be barred on the note or debt to secure which the mortgage was given, if the debtor have been absent from the State. (rs)

A surety on a note who has not been sued is held for contribution to a co-surety, although more than six years have elapsed since the maturity of the note. (rt)

(r) Leffingwell v. Warren, 2 Black, 599.

(rr) Howard v. Hildreth, 18 N. H. 105. (rs) Low v. Allen, 26 Cal. 141. See also Arlington v. Liscom, 34 Cal. 365, and Pollock v. Maison, 14 111 516.

(rt) Preslar v. Stallworth, 37 Ala. 402.

1 It is now well settled that the statute of limitations in Wisconsin, unlike that in most States, extinguishes the right. Pierce v. Seymour, 52 Wis. 272; Brown v. Parker, 28 Wis. 21. See also McCracken County v. Mercantile Trust Co. 84 Ky. 344, 349. As to the generally accented view, see Campbell v. Holt, 115 U. S. 620; Booth v. Hoskins, 75 Cal. 271; Shaw v. Silloway, 145 Mass. 503; Campbell v. Maple's Adm., 105 Pa. 304; Jordan v. Jordan, 85 Tenn. 561; Criss v. Criss, 28 W. Va. 388,396.