Wires v. Farr

Pleading. Statute of Limitations. The Act of 1832.* And the Statute of 1797. A replication, to a plea of the statute of limitations, which closes by tendering an issue, “ that the present suit was commenced within six years next after making “ the promises, and next after the cause of action had accrued, saving the time “ defendant was out of the State, as aforesaid,” cannot be sustained, as the plaintiff, if defendant takes issue, on trial can avail himself, in making out the issue on his part, of any absence of defendant from the State prior to the act of 1832,* which he is not entitled to do. Though the act of 18-32, embraces cases where the cause of action accrued before the passage of the act, and applies to persons, who were out of the State at the time of its passage, as well as to those, who afterwards left the State; yet, it cannot by a retrospective operation, defeat any right which had accrued under the statute of 1797, to insist upon that statute as a bar, and which had become complete before the passage of the act of 1832. It is immaterial whether the statute bar was complete or not, when the act of 1832 was passed, as that act simply suspends the effeot of the statute of 1797, from and after its passage, in those cases which fall within its provisions. A party, in making out the statute bar, is entitled to have the time computed, that he was out of the State, before the act of 1832* was.passed, and after the cause of action had accrued.

Assumpsit. The declaration contained two special counts on notes, and the money counts. The defendant pleaded the general issue, and special pleas of the statute of limitations. The plaintiffs replied, joining issue on the first plea, and specially as to the other pleas. The defendant demurred to the replication† in part, and rejoined as to the residue specially. The plaintiffs joined in the defendant’s demurrer, and demurred to the rejoinder, in which last mentioned demurrer defendant joined. The county court, September term, 1851, — Poland, J. presiding, — adjudged the rejoinder and -replication severally insufficient. Exceptions by plaintiffs. 1. The case is within the act of 1832. The act embraces those cases in which the causes of action had accrued, when the act was passed, and the absence had commenced by going out of the State intermediate with the accruing of the cause of action, and the passage of the act, provided the cause was not then barred; and it is therefore immaterial whether the replication shows the absence to have commenced after the passage of the act. The question, presented by this ease, is left open by that of Lowry v. Keyes, 14 Yt. 66. 2. When the terms of a statute vary from its spirit, it is to he construed by the latter, and that is to be ascertained, by regarding the nature of the evil to he remedied, the old law and the remedy. The old law, the statute of 1797, did not provide for cases, in which the debtor should leave the State after the accruing of the cause of action; and in that class of cases the remedy was nominal, not a matter of right to the creditor, hut dependent on the will of the debtor. This mischief existed at the passage of the statute of 1832; the intent of the Legislature must have been to correct it, both as to cases existing and not barred, and to future cases. Again, this act in terms embraces existing eases, and there is nothing to restrain its operation, as a remedial act, upon an existing mischief. This construction does not conflict with the principle of Lowry v. Keyes; because, if when a case is barred, the debtor has acquired a right of exemption, and that cannot be disturbed, it being a vested right, here, the right was but accruing, when the act was passed. If, however, the cause having become barred a right has not vested in the debtor, it would require unequivocal language to extend a subsequent act to them, and for that reason alone. But the reason does not apply to a cause existing, but not barred. Bottles v.'Korbes, 18 Pick. 332. S. C. 19 Pick. 578. Wright v. OaJcley et al., 5 Met. 100. Willard v. Clark, 7 Met. 135. Bingham v. Bigelow, 12 Met. 268. Darling v. Wells, 1 Cush. 508. 3. The expression, “return into,” in the act of limitations, is treated as synonymous with “ come into.” For the same reason “go out,” should be treated as synonymous with “be out.” It is the absence of the debtor from the State, however it arises, which creates in the intent of the law, the exemption. So construed, the act of 1832, will read, if the debtor “shall be out of the State;” and will then embrace absences commencing after its passage, and those existing, and thereafter continuing. - v. Grame, 3 Wils. 115. Deming v. Chamberlain, 6 Yt. 127. Dowry v. Keyes, 11 Yt. 66. Graves et al. v. Weeks, 19 Vt. 178. Little v: Blunt, 16 Pick. 359. Buggies v. Keeler, 3 Johns. 263. 1. The averment as to the time defendant left the State is not material or traversable as alledged, and plaintiffs are not tied to the day alledged; and so as to the period of time alledged that he resided out of the State, it is uncertain in this respect. Britton v. Bishop et al., 11 Yt. 70. 2. The same objection lies to the averment that the defendant was without property, as it only refers to the averment as to residence out of the State and can be no more certain. Nor is it alledged, that defendant was without property during the whole time of such residence out of the State. Proof of the time short of the whole, would support the replication if issue were taken upon it. 3. The averment that defendant was without property, .covers-the period of time, before he left the State, as well as after, and all embraced in one averment, so that no issue can be taken, as material and immaterial matter are blended together upon it; it differs from mere surplusage in a distinct and separate averment. 4. These defects were not cured by the averment, that the action was commenced within six years after the cause of action accrued, (exclusive of the time defendant resided out of the State,) as that averment does not contain the qualification, (without any known property, &c.) — so that the issue must be, if taken on this averment, simply on the fact of residence out of the State, without reference to the question or fact of the defendant’s having property in the State. Nor can the issue be either upon the residence alone, or the want of property alone; as it is not either, alone, that entitles the plaintiffs to deduct the time, but the combination of both at the same time, — the one may not be co-extensive in duration with the other. So that this last averment should not be “exclusive of the time defendant -resided out of the State,” but merely exclusive of the time he resided out of the State having no known property, or the time he resided out of the State while or during which, he had no known property. 5. The replication excludes in the computation all the time defendant resided out of the State. A portion of this time may be before the statute of 1832 went into effect, or was passed, especially as it appears by date of the note, that cause of action accrued before that statute was passed. Statute is not retrospective, and the time defendant was out of the State before the act passed must be computed in the six years — and if'so, it does not appear but that including such time the statute has run upon the demand — and hence the replication is no answer to the plea. Lowry v. Keyes, 14 Yt. 66. 6. The replication, if not good as to all the counts, is bad in toto. 7. The cause of action having accrued before the act of 1832, that act does not apply to it. The replication being bad, judgment should be for the defendant, both on the demurrer to the replication, and on the plaintiffs’ demurrer to the defendant’s rejoinder; as to the common counts it does not appear, but that the action was barred before the statute was passed; the replication ought to have alledged that the absence from the State was since that statute.