pleaded, and if the wrong statute is pleaded, it is of no avail. 36 A court of equity will refuse to entertain a suit brought after an unreasonable delay, regardless of the question whether there has been a plea of the statute of limitations. 367 The statute of limitations is pleadable to any one or all of several distinct causes of action, though embraced in a single count.368 But when the statute is pleaded only as to two counts, and not as to the third count, the question as to the bar of the statute cannot be raised upon motion for a nonsuit upon the ground that the claim of the plaintiff is barred. The word "claim," as thus used in the grounds of the motion, includes the whole claim set forth in the three counts, and the action in its entirety could not be held to have been barred.369 Where the statute of limitations imposes a bar upon certain species of contracts after three years, and upon others after two years, and the plea did not show that the contract in question was of the latter class, the plea was bad.370 An action on a new promise to pay a judgment, so as to avoid the bar of the statute, must be brought within four years from the making of the new promise.371 In California, since 1863 the statute runs against a married woman in all those actions to which her husband is not a necessary party plaintiff with her.372 § 540. Limitations Statutes of different states. Where the cause of action accrued in one state, and suit was brought upon it in another state, a plea of the statute of limitations of the former state was not a good plea; but the same was demurrable, and the court sustained the demurrer. The rule is that the statute of limitations of the country in which the suit is brought may be pleaded to bar a recovery upon a contract made out of its political jurisdiction, and that the rule of lex loci contractus cannot prevail.373 When a cause of action has arisen in another state, or in a foreign country, and by the laws thereof an action Bussche, 7 Utah, 235, 26 Pac. 294; Howell v. Rogers, 47 Cal. 291; and cases cited above. 366 Blakley v. Ft. Lyon Canal Co., 31 Colo. 224, 73 Pac. 249. 367 Chapman v. Bank of California, 97 Cal. 155, 31 Pac. 896; Harris v. Hillegass, 66 Cal. 79, 4 Pac. 987. 368 Gilpin v. Adams, 14 Colo. 512, 24 Pac. 566. P. P. F. Vol. I-22 369 Castagnino v. Balletta, 82 Cal. 250, 23 Pac. 127. 370 Lyon v. Bertram, 20 How. 150, 15 L. Ed. 847. 371 McCormick v. Brown, 36 Cal. 180, 95 Am. Dec. 170. 372 Wilson v. Wilson, 36 Cal. 447, 95 Am. Dec. 194; Code Civ. Proc., § 328, subd. 4. 373 Townsend v. Jamison, 9 How. 407, 13 L. Ed. 194. thereon cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this state, except in favor of one who has been a citizen of this state, and who has held the cause of action from the time it accrued.374 It is a universally accepted rule that statutes of limitations are to be strictly construed. General words in the statute must receive general construction, and if there be no express exception the court can make none.375 In some southern states the statutes of limitations are not strictly construed.376 § 541. Limitations-Suspension of remedy.-If the mortgagee, after obtaining a judgment foreclosing his mortgage, by an agree ment with the mortgagor enters into possession of the mortgaged property, and receives the rents and profits, and applies them towards the satisfaction of the amount due, and the mortgagee further agrees not to issue an order of sale, the statute of limitations does not run against either party, so long as the debt remains unpaid, and they acquiesce in the arrangement.877 § 542. When action commenced.-Filing the complaint is the commencement of the action.378 The position that the filing of the complaint without the issuance of the summons does not prevent the statute running is not tenable.37 But it seems the plaintiff should issue his summons within a year.380 states the action commences with service of process. 379 In some § 543. When cause of action accrues.-The clause, "after the cause of action shall have accrued," does not imply in addition the existence of a person legally competent to enforce it by suit. It runs in all cases not expressly excepted from its operation. 381 § 544. Statute of limitations-Continued.-Where the statute of limitations is pleaded by the defendant, a finding as to matter 374 Cal. Code Civ. Proc., § 361. See Allen v. Allen, 95 Cal. 184, 30 Pac. 213, 16 L. R. A. 646. 375 Tynan v. Walker, 35 Cal. 634, 95 Am. Dec. 152. 376 Martin v. Tally, 72 Ala. 24; Heflin v. Burns, 70 Tex. 347, 8 S. W. 48. 377 Frink v. Le Roy, 49 Cal. 315. Pimental v. City of San Francisco, 21 380 See Cal. Code Civ. Proc., § 406; Allen v. Marshall, 34 Cal. 166. 381 Tynan v. Walker, 35 Cal. 634, 95 Am. Dec. 152. See O'Neil v. Magner, 81 Cal. 631, 15 Am. St. Rep. 88, 22 Pac. 876; Board of Commrs. Wabash Co. v. Pearson, 120 Ind. 426; 16 Am. St. Rep. 325, 22 N. E. 134; Lake v. Steinbach, 5 Wash. 659, 32 Pac. 767. which takes the case out of the statute is within the issues. The statute does not run between partners until the accounts are settled and a balance agreed upon.382 In an action for money had and received, where the complaint avers receipt of the money within two years, and the answer denies all the material allegations of the complaint, and alleges that the cause of action is barred by the statute of limitations, the plaintiff may prove and the jury may take into consideration any evidence of concealment of facts, misrepresentations, deceit, or other facts constituting fraud on the part of the defendant which would take the case out of the statute, though the complaint contains no averment as to those matters.383 A plea of the statute of limitations in an unverified answer to a complaint of foreclosure of a mortgage is properly stricken out as sham, where it appears from the copies of the notes and mortgage set out in the complaint that the action was commenced within four years after the maturity of the note.384 The statute of limitations to be available as a bar to the prosecution of a writ of error in the supreme court must be specially interposed at a preliminary stage of the proceeding, and before issue joined upon the merits; and if the protection of the statute be not thus invoked by the party entitled to it, it will be deemed waived. 385 The courts will in some cases allow the statute of limitations to be set up by amendment.380 And where the nature of the answer interposed to a complaint and the proof thereunder clearly indicate that it was the intention of the defendant to plead a three-year statute of limitations as a bar, and by a mistake the defendant in pleading such statute had specified two years instead. of three, it is not an abuse of discretion for the court, after the hearing of the cause, to allow an amendment correcting the mistake, although the equities of the case may be in favor of the plaintiff.387 Plaintiff cannot avoid the statute of limitations by alleging a trust and then proving a cause based on fraud; and defendant should be allowed in such a case to amend his answer to set up the statute as a defense.388 393 § 545. Tender-How made, and effect of.-Payment, tender, and readiness to pay are affirmative pleas, and cast the burden of proof on the defendant.389 And the plea of tender must be specially stated;300 and that the defendant has always been and still is ready to pay the sum tendered, and the money must be brought into court. 391 An offer of ten dollars is not a "due" offer of payment of a claim of twenty thousand dollars, within section 1500 of the California Civil Code, providing that an obligation for payment of money is extinguished by due offer of payment, if the amount is immediately deposited in a bank in the name of the creditor, with notice to him.392 And it is essential in setting up tender to aver that the money has been actually brought into court.3 Where the defendant pleads tender before suit, and pays the amount of his tender into court, and the plaintiff fails to show himself entitled to a larger sum, it is proper to render judgment for the defendant for his costs, and in favor of the plaintiff for the amount due at the time of the tender.394 In such case the plaintiff shall not recover costs, but shall pay the costs of suit to the defendant.395 A tender does not extinguish or satisfy the obligation, and an offer to comply with the demand of judgment does not amount to a satisfaction thereof.396 Upon a tender being made by a vendee of realty, he need not produce the money or allow it to be counted, if the vendor does not accept the offer.397 All objections to the mode of an offer of performance, which could at the time be obviated by the debtor, are waived if not stated at the time of the tender. 398 So an offer in writing to pay a particu 389 North Penn. R. R. v. Adams, 54 Pa. St. 94, 93 Am. Dec. 677. See Halpin v. Phenix Ins. Co., 118 N. Y. 165, 23 N. E. 482. 390 Bryan v. Maume, 28 Cal. 238; Duff v. Fisher, 15 Cal. 375; Hegler v. Eddy, 53 Cal. 597. 391 Bryan v. Maume, 28 Cal. 238. And see Henderson v. Cass County, 107 Mo. 50, 18 S. W. 992; Levan v. Sternfeld, 55 N. J. L. 41, 25 Atl. 854. 392 Colton v. Oakland Bank of Savings, 137 Cal. 376, 70 Pac. 225. 893 Hill v. Place, 5 Abb. Pr. (N. S.) 18. As to this defense generally, see Wilder v. Seelye, 8 Barb. 408; People v. Banker's Admr. etc., 8 How. Pr. 258; Livingston v. Harrison, 2 E. D. Smith, 197; Brickett v. Wallace, 394 Curiac v. Abadie, 25 Cal. 502; Logue v. Gillick, 1 E. D. Smith, 398. 395 Cal. Code Civ. Proc., § 1030. 396 Redington v. Chase, 34 Cal. 666. Legal effect of plea of tender: See Supply Ditch Co. v. Elliott, 10 Colo. 327, 3 Am. St. Rep. 586, 15 Pac. 691; Phoenix Ins. Co. v. Readinger, 28 Neb. 587, 44 N. W. 864. 397 Cal. Civ. Code, § 1496; Latimer v. Capay Valley Land Co., 137 Cal. 286, 70 Pac. 82. 398 Cal. Civ. Code, § 1501; Colton v. Oakland Bank of Savings, 137 Cal. 376, 70 Pac. 225. 399 lar sum of money, or to deliver a written instrument or specific personal property, is, if not accepted, equivalent to the actual production and tender of the money, instrument, or property." In an action by a landlord against a tenant to recover possession of property for failure to pay rent, a plea of tender by the defendant is insufficient under Washington code of 1881, section 548, nless it alleges that the defendant offered to pay interest on the rent due, or that he brings into court the amount of rent in arrear, with interest and costs of action.400 A plea of tender never goes to the whole of the plaintiff's demand, but is an admission to the extent of the amount tendered, and is a denial only of the balance of the plaintiff's claim.40 The plea, if defective, should be demurred to.402 § 546. Tender-Issue joined.-Where the plaintiff joins issue on such a plea, without questioning its sufficiency, he cannot afterwards object that it was not duly filed, or that the money was not paid into court at the first term.403 If, by the laws of the United States, more than one kind of lawful money is a legal tender in payment of debts, and the plaintiff in an action is entitled to a judgment payable in a particular kind of money, a plea of tender which avers the tender to have been made in lawful money of the United States is insufficient. The plea should aver that the tender was made in the kind of money the plaintiff is entitled to receive. 404 The legal tender act is held constitutional.405 It is competent for the state legislature to enact that all tolls, dockage, and wharfage charges payable into the public treasury shall be due and collectible exclusively in gold and silver money of the United States. 408 § 547. Real party in interest-Allegations.-An answer setting up that another party than the plaintiff is the real party in 399 Cal. Code Civ. Proc., § 2074. 400 Ralph v. Lomer, Wash. 401, 28 Pac. 760. Insufficient tender of purchase price of land by lessee under a lease giving him the privilege of purchasing the demised premises at any time during the term. See Heine v. Treadwell, 72 Cal. 217, 13 Pac. 503. 401 Gardner v. Black, 98 Ala. 638, 12 South. 813. 402 Id.; Hanson v. Todd, 95 Ala. 328, 10 South. 354. 403 Rudolph v. Wagner, 36 Ala. 698. 404 Magraw v. McGlynn, 26 Cal. 428. 405 Belloc v. Davis, 38 Cal. 254, and cases cited. 406 People v. Steamer America, 34 Cal. 676. |