800
FEDERAL REPORTER.
of parties below, by whatever means accomplished, must be wholly stopped, in all cases, or the rights of the injured parties cannot be efficiently protected. Having no doubt, myself, of the propriety of the decree, in all its parts, it is my imperative duty to hereafter enforce it. if necessary, by all the sanctions afforded by the law. If wrong. it can readily be corrected on appeal. Let judgment for a fine of $1,500 be entered, with costs. As a compensation, in part, for the large expenses that must have been incurred in procuring evidence and prosecuting this proceeding for contempt, the money, when collected, will be paid over to complainant or his solicitors. Let j ndgment be entered accordingly.
KING IRoN BRIDGE & MANUF'G Co. v. COUNTY (Ozrcuit Oourt, D. Nebraska. June 4, 1886.) 1. STATUTE OF LIMITATIONS-WHEN BEGINS TO COUNTY WARRANTS.
OF OTOE.
RUN-NEBRASKA
STATUTE-
The right of action upon county warrants accrues upon the refusal of the treasurer to pay them on presentation, and the statute of limitations of Nebraska begins to run from that time. 1 An ordinary action of debt cannot be maintained in this court to enforce the payment of county warrants, unless the suit is brought within five years from the time the cause of action accrues.
SAME-ACTION, WHEN BARRED.
Debt on County Warrants. Demurrer to answer. This suit is based upon two county warrants, properly drawn upon the treasury of the defendant, which were duly presented for payment, but were not paid for want of funds to meet the same. The one warrant was issued to Z. King or order. on the ninth October, 1878, for $1,605, and was presented to the treasurer for payment on the twenty-third day of October, 1878, and indorsed by the treasurer: "Presented, and not paid for want of funds." The other warrant was issued to the said King on the ninth January, 1879, for $1,605, and was presented for payment on the fifteenth January, 1879, and was by the county treasurer duly indorsed: "Presented, and not paid for want of funds." This suit was commenced on the tenth day of November, 1885. The defendant pleads the statute of limitations, and relies upon that defense alone. The plaintiff demurs to the answer. N. S. Harwood. for plaintiff. J. C. Watson, for defendant. DUNDY, J. When a claim against a count,y has been audited, and warrants have been drawn on the treasury therefor, and such warlSee note at end of case.
KING IRON BRIDGE & :lLUWF'G CO. V. COUNTY OF OTOE.
801
rants have been accepted by the creditor, he must present them to the treasury for payment before he can properly sue the county thereon. When presented to the treasurer for payment, and payment is refused, the right to sue becomes complete and absolute, and the lawful holder of the warrants can then proceed to have his claim reduced to judgment. There was nothing whatever in the way of Z. King, the payee, or the plaintiff, his assignee, suing on said warrants at any time after the fifteenth day of January, 1879. The cause of action had accrued on both the warrants at that time, ahd the statute of limitations commences to run as soon as the cause of action accrues. We have this provision in our statute of limitations, on which the defendant relies: "Civil actions, other than for the recovery of real property. can only be brought within the following periods after the cause of action shall have accrued: * * * Within five years, an action upon a specialty, or any agreement, contract, or promise in writing, or foreign judgment." See sections 9, 10, pt. 2, Code Civil Proc.
This suit was commenced nearly seven years after the cause of action accrued. It seems to me to come fully within the provisions of the section of the Code above quoted. 'rhe action was not brought in time. The statute of limitations is therefore well pleaded. It follows that the demurrer to the answer must be overruled. The plaintiff may, at its option, take leave to reply, or dismiss this action without prejudice, in 10 days. So ordered. BREWER,
J., concurs.
NOTE. Statutes of limitations are statutes of repose, Hurley v. Cox, (Neb.) 2 N. W. Rep. 705; JJetsoll v. Kenyon, (Kan.l 1 Pac. Rep. 562; Taylor v. Miles, 5 Kall. 499; Elder v. Dyer, 26 Kan. 604, and are enacted upon the presumption that one havitlg a well-founded claim will not delay enforcing it beyond a reasonable time if he has the power to sue. Such reasonable time is therefore defined and allowed. But the basis of the presumption is gone whenever the ability to resort to the court has been taken away; for in such a case the creditor has not the time within which to bring his suit that the statute con· templated he should have. Greenwald v. Appell, 17 Fed. Rep. 140. The object of the statute is to suppress fraudulent and stale claims, and prevent them from showing up at great disLances of time, and surprising the parties or their repreBentatives when all the proper vouchers and evidence are lost, or the facts have become obscure from t.he lapse of time. or the defective memory or death or removal of wit. nesses. Hurley v. Cox, (Neb.) 2 N. W. Rep. 705; Spring v. Gray, 5 Mason, 523. Where a statute of limitations provided that in cases where the cause of action had already accrued at the passage of the act a party should have the whole period pre· scribed by the act, after its TJassage, in which to commence action, and by another act of the same legislative session it was provided that said statute and others shOUld take effect at a day subsequent to the date of their actnal passage and approval by t.he gov. ernor. it was held that the period of limitation did not begin to run until the statute took effect, as provided in the second act. Schneider v. Hussey, (Idaho,J 1 Pac. Rep. 343; Rogers v. Vass, 6 Iowa, 408. 1. AGENTS. As a general rule the statute of limitations does not commence to run in favor ot an agent and against his principal until the principal has knowledge of some wrong committed by the agent inconsbtent with the principal's rights. Perry v. Smith, (Kan.) 2 Pac. Rep. 784; Green v. Williams, 21 Kan. 64; Auld v. Butcher, 22 Kan.400; Kane v. Cook, 8 Cal. 449; Ang. Lim. 179 et seq.; 7 Wait. Act. & Def. 238. But it has been held that where an agent is appointed to collect money and remit after deducting his reasonable charges, and fails to do so after a reasonable time, statute of limitations commences to rllll. v. Easton, (Minn.) 22 N. W. Rep. 253. See Stacy v. Graham, 14 N. Y. 492; v. Hoyt, 5 Hill, 395; Hart's Appeal, 32 COUll.
e
v.27F.no.12-51
802
520; Call1Ilbell's Adm'rs v. Boggs, 48 Pa. St. 524; Denton's Ex'rs v. Embury, 10 Ark. 228; Estes v. Stokes. 2 Rich. Law. 133; Mitchell v. McLemore, 9 Tex. 151; Hawkins v. Walker, 4 Yerg. 188. The fact that the principal did not know when the claim was collected, and bencedid not know that the agent had failed in the Ilerformance of his duty, and that a right of action had accrued, will not effect the running of the statute. Mast v. Easton, (Minn.) 22 N. W. Rep. 253; Cock v. Van Etten, 12 Minn. 522, (Gil. 431.) 2. BANKRUPTCY. The statute of limitations is no bar to proof in baukruptcyif it had not run against the claim at the commencement of the proceedings in bankruptcy, In re McKinney, 15 Fed. Rep. 912; and no lapse of ti III I' will prevent theproofofthe claim before the register, nIl to the final distribution of dividends. If it is so barred by the statute before the adjudication, it will remain barred, and the claim cannot be proven. In re Graves, 9 Fed. Rep. 816. 3. BIL.Ls,Erc. In a suit by the drawee ofa bill of exchange against an indorser, where such bill was drawn by the treasurer of the United States, and the name of the payee forged, the statute of limitations does not begin to run until judgment has been obtained by the United States against the drawee. Merchants' Nat. Bank of Baltimore v. First Nat. Bank of Baltimore, 3 Fed. Rep. 66. a. Claims Payable on Jlemand. Where no time is specified within which a ioan of money is to be repaid, the presumption of the law is that it was to be paid on demand, and the statute of limitations commences to rnn from the time of the loan. Dorland v. Dorland, (Cal.) 5 Pac. Rep. 77; Aug. Lim. 95. On a due:bill without day of payment a cause of action accrues on delivery, and the statute begms to run. Douglass v. Sargent, (Kan.) 4 Pac. Rep. 861. See Palmer v. Palmer, 36 Mich. 487; Herrickv. Woolverton, 41 N. Y. 581; Wheeler v. ,Varner, 47 N. Y. 519; Stover v. Hamilton, 21 Grat. 273; Bowman v. McChesney, 22 Grat. 609. In an action to recover from a bank a general deposit, the s'tatute does not commence to run until a demand. unless the demand has been in some way dispensed with. Branch v. Dawson (Minn.) 23 N. W. Rep. 552. And the same is true of an "especial deposit." Smiley v. Fry. (N. Y.) 3 N. E. Rep. 186. 4. BONDS. a. Bond. The liability ofa surety on an administrator's or executor's bond is not fixed, and no cause of aL-tion arises thereon until there is a judicial ascertainment of the default of the principal, and from this time the statute of limitations begins to run. Alexander v. Bryan, 4 Sup. Ct. Rep. 107. This judicial ascertainment must be something more than the mere auditing of the There must be a decree ordering payment, on which process to collect can issue against the principal. Id. b. Appeal-Bonds. The statute commences to run in favor of sureties on an undertaking on appeal from the date of the affirmance of the judgment to which it relates. Clark v. Stllith, (Cal.) 6 Pac. Rep. 732; Crane v. Weymouth, 54 Cal. 480; Castro v. Clarke, 29 Cal. U. c. Guardian's Bond. The statute commences to run against suit on guardian's bond when the person ceases to be guardian. Probate Judge v. Stevenson (:Mich.) 21 N. W. Rep. 348; and in case of a defanlt, a right of action first accrues to the ward when amount of such default is ascertained by the court in the settlement of the guardian's final account, and from this time the statute runs. Ball v. La Clair (Neb.) 22.N. W. Rep.U8. d. Public Officer's Bond. The statute does not commence to run in favor of sureties on the bond of a public officer until the liability of their principal has been fixed. Lawrence v. Doolau, (Cal.) 5 Pac. Rep. 484. And it has been held that where an assessment of damages for a right of way is paid to a sheriff, the statute begins to run against an action on sheriff's bond to recover such assessment when the time fixed by law for appeal has expired. Lowerv. Miller, (Iowa,> 23 N. W. Rep. 897. 5. BOOK-ACCOUNTS. On the settlement of a book-account it has been held that the statute of limitations begins to run from the time the account is settled, and not from the time of the discovery of facts showing that such settlement was fraudulently made. Kirby v. Lake Shore & M. S. R. Co., 14 Fed. Rep. 261. On an open, mutual account the statut,e does not commence to run until the date of the last item charged. Hannon v. Engelmann, (Wis.) 5 N. W. Rep. 791. Where an open account is closed by an agreement that certain parties shall assume payment, the statute runs from the date of such agreement. Hammond v. Hale, (Iowa,) 15 N. W. Rep. 585. But where the items of an acconnt are all charged against one party it is not a mutual account, Fitzpatrick v. Henry, (Wis.) 16 N. W. Rep. 606; Butler v. Kirby, 53 Wis. 188; S. C. 10 N. W. Rep. 373 i Ang. Lim. .148, 149; and each item will stand, as regards the
*
**
KING IRON
&; MANUF'G CO. V. COUNTY OF OTOE.
803
running of the statute. as though it stood alone. Courson's Ex'rs v. Courson, 19 Ohio St. 454. See Blair v. Drew, 6 N. H. 235; Smith v. Dawson, 10 B. Mon. 112; Craighead v. Bank, 7 Yerg. 399; Lowe v. Dowborn, 26 Tex. 507; Cottam v. Partridge. 4 Man. & G. 271; Williams v. Griffiths. 2 Cromp., M. & R. 45; Tanner v. Stuart, 6 Barn. & C. 603; BelLv. Morrison, 1 Pet. 351. 6. CONTRIBUTION. On an action for contribution by one ofthe sureties on a. note against whom a judgment has been taken for the full amount, the statute begins to run from the date of the payment of such judgment. Preston v. Gould, (Iowa,) HI N. W. Rep. 834. See Lamb v. Withrow, 31 Iowa, 164; Johnston v. Belden, 49 Iowa, 301. 7. CONVERSION. The statute commences to run agaiust an action for conversion from the date of such conversion. Doyle v. Callaghan, (Cal.) 7 Pac. Rep. 418. 8. CORPORATION-MuNICIPAL. In an action against a municipal corporation for damages for an injury caused by defective sidewalk, the statute begins to run from the time when such claIm is disallowed, or the failure of the council to act on the matter amounting to a disallowance. Watson v. City of Appleton, (Minn.) 22 N. W. Hep. 475. It was held by the supreme court of Ohio in Perry Co. v. Railroad Co., 2 N. E. Rep. 854, that where a railroad company had injured a county bridge, that the statute did not begin to run against a claim on the part of the county against the railroad company for damages until after the bridge had been restored to its former condition by the county commissioners. 9. CoRPORATIONS-SToCKHOLDERS. In an action against a stockholder to subject his unpaid shares of stock to satisfaction of a judgment against a corporation, the statute begins to run when the cause ofaction against the C'orporation accrued. First Nat. Bank of Garrettsville, Ohio, v. Greene, (Iowa,) 17 N. W. Rep. 86; affirmed on rehearing, 20 N. W. Rep. 754: Baker v. Johnson Co., 33 Iowa, 155. See Prescott v. Gonser, 34 Iowa, 175; Beecher Clay Co., 52 Iowa, 140: S. C. 2 N. W. Rep. 1037. Where one corporation transferred to another all its property, except its franchise, and such .other corporation assumed to pay all debts, and a creditor of the grantor, whose claIm of action arose before the conveyance was executed. but not yet barred by the statute of limitations, brought suit at law against the grantor, and obtainedjudgment on which an execution was issued, but returned unsatisfied, and then. after the time fixed by th e statute of limitations had run since the cause of action arose against the grantor, brought suit in equity against the grantor and the grantee, it was held that the claim wasneitber barred by laches nor thestatuteof limitations. Foggv. St. Louis, H. & K. R. Co., 17 Fed. Rep. 871. As to an action by stockholder suing in his own name for benefit of all stockhQlders against directors for misappropriation, etc., see infra, 31, a. 10. Co-TENANTS. The statute does not run as against tenants in common until actual ouster. Hume v. Long, (Iowa,) 5 N. W. Rep. 193. A quitclaim deed b)' one tenant in common will not set the statute running as against other tenants in common. Moore v. Antell, (Iowa,) 6 N. W. Rep. 14: Hume v. Long (Iowa,) 5 N. W. Rep. 193. 11. COVENANT. The statute of limitations commences to run against a covenant fron the time substantial damage is sustained. Post v. Campau. (Mich.) 3 N. W. Rep. 272 Where land, the paramount title being in another, is conveyed with covenant 01 seizin, the covenant is broken on the delivery of the deed, and the statute begins to run. Sherwood v. Landon, (Mich.) 23 N. W. Rep. 778; Matteson v. Vaughn, 38 Mi<:'h. 373. 12. DECEDENTS, ESTATES 011'. The statute commences to run against a rejected claim on the estate of a decedent from the time of its actual rejection. Bank of Ukiah v. Shoemake, (Cal.) 7 Pac. Rep. 420. A claim against an estate is not barred because not presented for allowance in time, when, at that time, there was no claim which could be presented for allowance against the estate. Ford v. Smith, (Wis.) 18 N. W. Rep. 925. Where a cause of action accrues to a person's estate after his death, the statute of lim· itations commences to rUll from the date of the accrual, Hibernia S. & L. Soc. v. Conlin, (Cal.) 7 Pac. Rep. 477; Tynan v. Walker, 35 Cal. 634, although there was no person il1 existence competent to sue, and continues to run from such date without cessation Tynan v. Walker, 35 Cal. 634; for where the statute of limitations once begins to run no subsequent disability will stop its running. Oliver v. Pullam, 24 Fed. Rep. 127. 13. DOWER. The statute of limitations does not commence to run against an action to recover dower until there is an adverse of the land. Felch v. I!'inch, (Iowa.) 3 N. W. Rep. 570; Phares v. Walters, 6 Iowa, 106; Starry v. Starry, 21 Iowa, 254; Rice v. Nelson, 27 Iowa, 153; Sully v. Nebergall, 30 Iowa, 339. 14. FRAUD. The statute of limitations does not run against an action based on a fraud until the discovery of the fraud. Perry v. Wade. (Kan.) 2 Pac. Rep. 787; Clews v. Traer, (Iowa,) 10 N. W. Rep. 838; Voss v. Bachop, 5 Kan. 59.
804
It recentlyhcld by the supreme court of Pennsylvania, in the case of Hughes v. First Nat. Bank of Waynesburg, 1 Atl. Rep. 417, that where bonds were deposited with a bank for safe-keeping and afterwards pledged by the ban k as collateral security for its own debts, and actually sold by the holder, that the putting off of the depositor or his representative from time to time with promises to return the bonds SO pledged, the interest bcing paid in the Illean time, is such iraud and concealment as will toll the running of the statute of limitations. 'fhe question of discovery of fraud is a question of fact and must be properly pleaded. Johnson v. Powers, 13 Fed. Rep. 315. Where it is alleged in the petition that the fraudulent transaction was studiously concealed from plaintiffand his assignor, and that he and his assign or had no means of discovering the same, and did not know thereof until they were disclosed in the examination of a witness in a suit on a day named in the petition, this allegation is sufficient to take the case out of the statute. Trder v. Clews, 6 Sup. Ct. Rep. 165. Where money is procured to be paid out upon fraudulent representation, the cause of action is presumed to have arisen, and the statute of limitations begins to run when the fraud was committed, Barlow v. Arnold, 6 Fed. Rep. 351; but such presumption may be avoided by alleging and proving the time of the discovery of the fraud. See Carr v. Hilton, 1 Curt. 390; Field v. Wilson, 6 B. Mon. 479; Carneal v. Parker, 7 J. J. Marsh. 455; Baldwin v. Martin, 3 Jones & S. 98; Erickson v. Quinn, 3 Lans. 302; Mitf. & T. Eq. Pi. 356; Story, Eq. Pi. 754. It has been held that the statute of lImitations does not begin to run against an equitable action for relief, on the ground of fraud, until the aggrieved party has discovered the facts constituting the fraud, or has information of such a nature as wonld impress a reasonable Ulan with the belief that a fraud had been committed, and would, npon diligent inquiry, lead to the discovery of the facts. O'Dell v. Burnham, (Wis.) 21 N. W. Rep. 635. See Carry. Hilton, 1 Curt. 390; Kennedy v. Green, 3 Mylne & K. 699; Hovenden v. Lord Annesley, 2 Schoales & L. 607; Martin v. Smith, 1 Dill. C. C. 85: Bailey v. Glover, 21 Wall. 342; First Mass. Turnpike Corp. v. Field, 3 Mass. 201; Homer v. Fish, 1 Pick. 435: Rice v. Burt, 4 Gnsh. 208; Kane v. Bloodgood, 7 Johns. Ch. 90; App v. Dreisbach, 2 Rawle, 287 j Reeves v. Dougherty, 7Yerg. 222; Hayniev.Hall, 5 Humph. 290; KUhn'sAppeal, 87 Pa, St. 100. 15. IMPLIED CONTRACT. Where a cause of action is based Oil an implied contract, the statute does not begin to run until after the circumstances from which the obligation is inferred arose. Goodnow v. Stryker, (Wis.) 14 N. W. Rep. 345. 16. JUDGMENT. Where suit is brought upon a judgment after a return of nulla bona upon the exeeution writ, the statute of limitations, it was held, commenced to run at the time of the return of the execution, and not the entry of the judgment. Taylor v. Bowker, 4 SLIp. Ct. Hep. 397. 17. LEASEHOLD-AsSIGNMENT. In a snit between the assignor and assignee of a leasehold, for rent acrrning, and paid by the assignor subsequent to theassignl1lent, the statute of limitations to run in favor of the assignee from the time the assignor paid the accrued rent, and not from the time assignor made default in the payment of the same. Ruppel \', Patterson, 1 Fed. Rep. 220. 18. MARRIED WOMAN. Where the statute makes the wife as well as the husband liable for necessary family expenses, the liability of the wife continues as long as there is a right of action against thc husband. Frost v. Parker, (Iowa,) 21 N. W. Hep. 507. 19. MINOR OR'VARD-SUIT AFTER MAJORITY. The statute of limitations cOlUmences to run against an action by a ward to recover lands sold by his guardian at the time of ward's attaining majority. Seward v. Didier, (Neb.) 20 N. W. Rep. 12. See Spencer V. Sheehan. 19 Minn. 338, (Gil. 292;) Miller v, Sullivan, 4 Dill. 340; Good v. Norley, 28 Iowa, 188, (overruled by Boyles V. Boyles, 37 Iowa, 592;) Holmes v. Beal, 9 Gush. 223; Norton v. Norton, 5 Cush. 524; Arnold v. Sabin, 1 Cush. 525 j Howard v. Moore, 2 Mich. 226; Coon v. Fry, 6 Mich. 506. Where the party who shonld bring an action for the seduction of a minor is the person who seduces her, the statute of limitations will not begin to run until after such minor attains her majority. Watson v. Watson, (Mich.) 18 N. W. Hep. 605. A party having a right to pursue her demand on attaining her majority cannot tack her subsequent disabilities by successive covertures, in order to prevent the operation of the statute of limitations. Gaines v. Hammond's Adm'r, 6 Fed. Rep. 449. 20. MORTGAGE. The statute of limitatiolls commcnces to run against an action to foreclose a mortgage when the cause of action accrued. Herdman v. Marshall, (Neb.) 22 N. W. Rep. 690; Cheney v. Cooper, 14 Neb. 415; S. C. 16 N. W. Rep. 471. 21. NUISANCE. It has been held that the statute of limitations commences to run against an action for erecting and maintaining a nuisance by a gas company at the time of erection of the gas-works. Baldwin v. Oskaloosa Gas-light Co., (Iowa,) 10 N. W. Rt'p.317.
KING IRON BRIDGE & MANUF'G CO. V. COUNTY OF OTOE.
805
But the gcneral'doctrine is that in an action for damages and abatement of a nuisance the statute of limitations will not be considered to have begun to run until some injury has heen caused by the alleged nuisance. Miller v. Keokuk & D. M. Ry. Go., (Iowa,) 16 N. W. Rf'p. 567 j Powers v. Council Bluff., 45 Iowa, 652. Every continuance of a nuisance is in law a new nnisance. Ramsdale v. Foote, (Iowa,) 13 N. W. Rep. 557. See Baltimore & P. R. Co. v. Fifth Baptist Ohurch, 2 Sup. Ot. Hep. 719. And where, in an action for damages, and to. abate a nuisance, since the cause of action accrued, the statute of limitations has run. but damage has continned to be done within the time provided b.v statute, the action is not barren. Drake v. Chicago, R. 1. & P. R. 00., (Iowa,) ]9 N.·W. Hep. 215. See McConnel v. Kibbe, 29 Ill. 483; Bowyer v Oook, 4 lIlan., G. & S. 236. 22. ON OOMING INTO STATE. On removal to another state the statute of limitations commences to rUIl. on a cause of action already accrued, from time of arri val in state. Edgerton v. Wachter, (Neb.) 4 N. W. Rep. 85; Hartley v. Crawford, (Neb.) 11 N. W. Rep. 729; Harrison v. Union Nat Bank, (Neb.) Id. 752. 23. ORDER OR WARRANT ON COUNTY TREASURY. The statute of limitations begins to run against a county warrant when it is presented to the proper authority, and indorse'l "not paid for want of funds." Carpenter v. District Tp. of Union, (Iowa,) 12 N. W. Rep. 280. 'Vhere a town clerk has duly paid an order, and is entitled to credit for it at his next settlement, the statute of limitations begins to run at the date of such settlement. Dewey v. Lins, (Iowa,) 10 N. W. Rep. 660. See Prescott v. Gonser, 34 Iowa, 175. 24. PARTNERSHIP-AcCOUNTING. In case of partnership each partner is entitled to an accounting upon dissolution. and statute will run from that date, Near v. Lowe, (Neb.) 13 N. W. Rep. 825; but it does not begin to run af(ainst a partnership until the dissolution thereof; or until a sufficient time has elapsed after a demand for an accounting and settlement. Richarns v. Grinnell, (Iowa,) 18 N. W. Rep. 668. 25. PROMISE TO PAY, ETC. "'h ere a cause of action, barred by the statute of lim itations, is revived by written admission, that removes the bar; the statute runs anew from the date of the admission. Bayliss v. Street, (Iowa,) 2 N. W. Rep. 437. From the time of the acknowledgment of a debt under circumstances that indieate a willingness or liability to pay the same, the statute of limitations begins to run. Green v. Coos Bay W"agon Road 00., 23 Fed. Rep. 67. Where a debtor to pay" as soon as able," the statute of Jimitations began to run as soon as he had pecuniary ability to pay; and the qnestion of when that ability arose is for the jury. Tebo v. Robinson, (N. Y.) 2 N. Eo Rep. 383. 26. RAPE. The statute of limitations commences to run against action for rape at time of its commission. Van Der Haas v. Van Domselar, (Iowa,) 10 N. W. Hep. 227. But see supm, 19. 27. REAL ESTATE-AnVERBE POSSESSION. Adverse possession of real estate, to set the statute of limitations runnillg, must be open, notorious, continuous. Mauldin v. Cox, (Oal.) 7 Pae. Rep. 804. Mere entry upon land is not sufficient, without open, adverse possession, to stop the running of the statute. Donovan v. Bissell, (Mich.) 19 N. W. Rep. 146. upon wild land, diggiJlg, and hunting for a corner am] boundary lines, driving cattle on the land, and employiJlf( a man to "hreak" in the following spring, are not such going into possession as will set the statute of limitations in operation so as to carry a title by virtue of ad"erse possession. Brown v. Rose, (Iowa,> 7 N. V{. Rep. 133. It does not commence to run in favor of an adverse possession oflands until after the issuance of the patent to such lands. R()ss v. Evans, (Cal.) 4 Pac. Rep. 443. It does not run against the owner of nnocenpied lands until some one assumes to take adverse possession j and this rule applies as well to an assignee in bankruptey, who, under the statute, (U. S. Rev. St. 5057,) mnst bring suit within two years, as to tht' original owner. Gray v. Jones, ]4 Fed. Rep. 83. An actioll to set aside an assignment or conveyance of property made to hinder 01 delay creditors should ordinarily be brougllt within the same tillle after the right accrues as an action at law to recover possession of the same property. Hickox v. Elliott, 22 Fed. Rep. 13. 28. SALARY. The statnte begins to run against an action to recover salary of a public officer from time of expiratiou of his term of oflice. Griffin v. County of Clay, (Iowa,) 19 N. W. Rep. 327. Where an employe's wages are dne at the end of each month, the statute of limitations begins to run against an action to recoverthelll at the date when they should have been paid. Butler v. Kirby, (Wis.) 10 N. W. Rep. 373; Davis v. Gorton: 16 N. Y. 255; Rider v. Union India R. Co., 5 Bosw. 85; Turner v. Martin, 4 Rob. 661; Mims v. Sturtevant, 18 Ala. 359; Phillips v. Broadley. 11 JUl'. 264.