Particular classes of actions. Actions of trespass, trespass quare clausum, detinue, ac count, trover, replevin, and upon the case (except actions for slander), and actions of debt for arrearages of rent, and of debt grounded upon any lending or contract with out specialty, or simple contract debt, are usually limited to six years. Actions for slander, libel, assault, and the like, are usu ally limited to a less time, generally two years. Judgments of courts not of record, as courts of justices of the peace and county commissioners' courts, are in some states, either by statute or the decisions of the high est courts, included in the category of debts founded on contract without specialty, and accordingly come within the statute; Banne gan v. Murphy, 13 Mete. (Mass.) 251; Car shore v. Huyck, 6 Barb. (N. Y.) 583. In others, however, they are excluded upon the ground that the statute applies only to debts founded on contracts in fact, and not to debts founded on contracts implied by law ; Pease v. Howard, 14 Johns. (N. Y.) 480. Actions of assunvpsit, though not specif ically named in the original statute of James I. as included within the limitation of six years, were held in England, after much discussion, to be fairly embraced in actions of "trespass"; 4 B. & C. 44; 4 Ad. & E. 912. The same rule has been adopted in this coun try; Williams' Adm'rs T. Williams' Adm'rs, 5 Ohio 444; McCluny v. Silliman, 3 Pet. (U. S.) 270, 7 L. Ed. 676; Maltby & Bolls v. Cooper, Mon. (Ia.) 59; Beatty's Adm'rs v. Burnes's Adm'rs, 8 Cra. (U. S.) 98, 3 L. Ed. 500; but see 12 M. & M. 141; and, in fact, assumpsit is expressly included in most of the statutes. And it has also been held in this country that statutes of limitation apply as well to motions made under a statute as to actions; Prewett v. Hilliard, 11 Humphr. (Tenn.) 423. Such statutes are in aid of the common law, and furnish a general rule for cases that are analogous in their subject matter, but for which a remedy unknown to the common law has been provided by statutes; as where compensation is sought for land taken for a railroad ; Forster v. R. Co., 23 Pa. 371; Appeal of Hart, 32 Conn. 521.
But it must be remembered that in all such cases the debt is not discharged, though the right of action to enforce it may be gone ; Miller v. Ry. Co., 55 Fed. 366, 5 C. C. A. 134, 13 U. S. App. 57. So, where a cred itor has a lien on goods for a balance due, he may hold them, though the statute has run against his debt; 3 Esp. 81; Belknap v. Gleason, 11 Conn. 160, 27 Am. Dec. 721; Joy v. Adams, 26 Me. 330; Harris v. Mills, 28 Ill. 44, 81 Am; Dec. 259. And an acceptor may retain funds to indemnify him against his acceptances, though the acceptances may have been outstanding longer than the time limited by statute; 3 Campb. 418.
A set-off of a claim against which the stat ute has run cannot usually be pleaded in bar ; 5 East 16; Ruggles v. Keeler, 3 Johns.
(N. Y.) 263, 3 Am. Dec. 482; though when there are cross-demands accruing at nearly the same time, and the plaintiff has saved the statute by suing out process, the defend ant will be allowed to set off his demand ; 2 Esp. 569; Princeton & K. B. Turnpike Co.
v. Gulick, 14 N. J. L. 545 ; and, generally, when there is any equitable matter of de fence in the nature of set-off, or which might be the subject of a cross-action, growing out of the subject-matter for which the action is brought, courts will permit it to be set up although a cross-action or an action on the claim in set-off might be barred by the stat ute; Evans' Ex'rs v. Yongue, 8 Rich. (S. C.) 113; 11 E. L. & Eq. 10; King v. King, 9 N. J. Eq. 44. A set-off is barred by the statute only when the original claim is barred; Peden v. Cavins, 134 Ind. 494, 34 N. E. 7, 39 Am. St. Rep. 276.
Debts by specialty, as contracts under seal, judgments of courts of record (except for eign judgments, and judgments of courts out of the state, upon which the decisions are very discordant), liabilities imposed by statute, awards under seal, or where the submission is under seal, indentures reserv ing rent, and actions for legacies, are affect ed only by the general limitation of twenty years ; Ang. Lim. § 77. But a mortgage, though under seal, does not take the note, not witnessed, secured thereby, with it, out of the limitation, of simple contracts; Jack son v. Sackett, 7 Wend. (N. Y.) 94. And though liantlities imposed by statute are spe cialties, a liability under a by-law made by virtue of a charter is not ; 6 E. L. & Eq. 309; on the ground that by becoming a member of the company enacting the by-laws, the party consents and agrees to assume the liabilities imposed thereby.
In Massachusetts, Vermont, and Maine, the statute is regulated in its application to wit nessed promissory notes. In Massachusetts an action brought by the payee of a witness ed promissory note, 'his executor or admin istrator, is excepted from the limitation of simple contracts, and is only barred by the lapse of twenty years. But the iudorsee of such a note must sue within six years from the time of the transfer to him ; Frye v. Barker, 4 Pick. (Mass.) 384; though he may sue after that time in the name of the payee, with his consent; Rockwood v. Brown, 1 Gray (Mass.) 261. If there are two prom isees to the note, and the signature of only one is witnessed, the note as to the other is not a witnessed note; Jenkins v. Dawes, 115 Mass. 599 ; Stone v. Nichols, 23 Me. 497. And the attestation of the witness must be with the knowledge and consent of the maker of the note; Smith v. Dunham, 8 Pick. (Mass.) 246; Lapham v. Briggs, 27 Vt. 26. An attested indorsement signed by the prom issee, acknowledging the note to be due, is not a witnessed note; Gray v. Bowden, 23 Pick. (Mass.) 282; but the same acknowledg ment for value received, with a promise to pay the note, is ; Commonwealth Ins. Co. v. Whitney, 1 Mete. (Mass.) 21. If the note be payable to the maker's own order, witnessed and indorsed by the maker in blank, the in dorsement being without attestation, an ac tion by the first indorsee is barred in six years; Kinsman v. Wright, 4 Mete. (Mass.) 219. And even if the indorsement be at tested, a second indorsee or holder by deliv ery, not being the original payee, is barred ; Houghton v. Mann, 13 Mete. (Mass.) 128.