CHAPTER XXVI.

PLEADING THE STATUTE IN ACTIONS EX CONTRACTU, AT LAW AND IN EQUITY.

285. It was first ruled that, as the statute prohibited actions from being brought beyond a certain period from the time when the cause of action accrued, it was to be taken as an absolute bar, and operated by its own force, and without pleading it. Afterwards the judges were equally divided in opinion on the question. But as the doctrine, when applied to a case merely because it appeared on the face of the declaration, that the action was commenced beyond the time prescribed by the statute, was seen to be clearly untenable, as the plaintiff might be within some of the various exceptions mentioned in the statute, it was overruled,3 and has so continued. That the statute must be pleaded, even where the cause of action appears on the face of the declaration, to be out of time, has been confirmed in a late case in England, where on a promissory note, sixteen years old, and payable with interest, the plaintiff averred that the defendant did not pay the same and

1 Brown v. Hancock, Cro. Car. 115.

2 Frankersley v. Robinson, Cro. Car. 163.

3 Stile v. Finch, Cro. Car. 404.

↑ Bricket v. Davis, 21 Pick. (Mass.) R. 404; Gould v. Johnson, 2 Lord Raym. R. 838; Puckel v. Moore, Ventris, R. 191; Pearsall v. Dwight, 2 Mass. R. 87; Jackson v. Varick, 2 Wend. (N. Y.) R. 294; Chambers v. Chambers, 4 Gill & Johns. (Md.) R. 349; Merryman v. The State, 5 Har. & Johns. (Md.) R. 425; Robbins v. Harvey, 5 Conn. R. 335; Kirkman v. Siboni, 4 Mees. & Welsb. (Ex.) R. 339. [And the defendant need not negative the exceptions; but the plaintiff must reply them. Ford v. Babcock, 2 Sandf. (N. Y.) Sup. Ct. 518; Walker v. B. R. of Miss. Eng. (Ark.) 503. In Texas, if the action appear to be barred, the plaintiff must aver a new promisor, or that the defendant is within some of the exceptions, or the defendant may demur. Coles v. Kelsey, 2 Texas, 541. If it does not appear by the declaration whether the claim is barred or not, the defendant must plead. Frosh v. Sweet, 2 Texas, 485. If it does appear that the claim is barred, the defendant may demur, or answer by setting up the statute. If, however, he does neither, he waives the defence. Sturges v. Burton, 8 Ohio, (N. Y.) 215.] The plea of the statute is generally a personal privilege, but grantees, mortgagees, or other persons standing in the place of the party having the personal privilege may interpose the plea. Lord v. Morris, 18 Cal. 482; Skedmore v. Romaine, 2 Bradf. (N. Y.) 122.

interest, or any part thereof, except some interest within six years, and the defendant pleaded the statute; it was held, on demurrer, a good bar, as the allegation of the payment of the interest introduced in the declaration was premature, and that a payment is but evidence to show that, prima facie, there exists a cause of action. The statute being a strict defence, if the party omit to plead it, the court will not relieve him by permitting him to amend by adding the plea.2 The only exception to the rule is in cases where the statute itself authorizes the general issue; and the general issue was allowed in a justice's court in which the practice was to admit everything under that plea, except matter of abatement.4

286. According to Mr. Sergeant Williams, there is the same reason for pleading the action in debt as in assumpsit; though the contrary was formerly held. He says, if the statute be not pleaded in the former, the plaintiff is equally liable to be surprised, and therefore as unprepared in one action as in the other, to answer infancy, coverture, &c., which would take the case out of the

1 Hollis v. Palmer, 3 Scott, (C. B.) R. 265; 2 Bing. R. (New Cases,) 713.

2 Jackson v. Varick, 2 Wend. (N. Y.) R. 294. The action for mesne profits forms no exception to the rule. The plea of the statute cannot be amended, though the amended plea is filed before the rule day has expired. But if a plaintiff amends his declaration, the defendant may plead the statute anew. Johnson v. Green, 4 Gill & Johns. (Md.) R. 381; [Reed v. Clarke, 3 McLean, (U. S.) 480; Nelson v. Bond, 1 Gill, (Md.) 218. Nor will a default be taken off to allow the plea of the statute to be made. Shutz v. Baldwin, 12 Ohio, 120; State v. Jennings, 5 Eng. (Ark.) 428. Nor will the court set aside a judgment to allow devisees to plead the statute, the executor having neglected to do it. The executor is not bound. to plead the statute to a debt which he deems to be justly due. Walton v. Radcliffe, 2 Des. (S. C.) 577; Bird v. Harose, Spears, (S. C.) Ch. 250; Leigh v. Smith, 3 Ired. (N. C.) Ch. 442. And see ante, § 170, note. But the court will sometimes allow amendments to avoid the plea. Crawford v. Cocks, 3 Eng. Law & Eq. 594. In Wiley v. Yule, 1 Met. 353, the court, in an action for a penalty, refused to allow an amendment changing the form of the action. The plea, though in general a personal one, may nevertheless be set up by any one interested in the claim against which it is to be set up. Fergusson v. Brown, 1 Bradf. (N. Y.) 10; Skidmore v. Romaine, 2 Id. 122; Larthet v. Hogan, cited ante, § 269, note; Dawson v. Callaway, 18 Geo. 573. But see Briggs v. Wilson, 39 Eng. Law & Eq. 62; Elkinton v. Newman, 20 Penn. (8 Harris,) 281; Biddle v. Moore, 3 Barr. (Penn.) 161. And a grantee may reply an exception, which his grantor might have replied. Ford v. Laugec, 4 Ohio, (N. s.) 464.]

3 Merceron v. Merceron, 5 Dowl. R. 271.

4 Williams v. Root, 14 Mass. R. 273. It was formerly the practice in pleading the statute to recite it at large. But it has been long since it has been required, or has been usual. On setting aside an inquest regularly obtained, the defendant will be allowed to withdraw the plea of the statute, in analogy to the practice on opening a default, and permitting a defendant to plead. Fox v. Baker, 2 Wend. (N. Y.) R. 244.

statute. If the defendant intends to insist upon the statute (though he may waive it if he choose), he should plead it to prevent surprise, and, if he do not do so, it is presumed he intends to waive it.1

287. The pleas in an action of assumpsit are non assumpsit infra sex annos, and actio non accrevit infra, &c. In many cases the first is no answer, and is, therefore, not applicable; because the statute operates as a bar only from the time the cause of action arose, and not from the time of making the promise, the words being" within six years next after the cause of such action or suits, and not after." Hence, it is of no consequence (if the cause of action accrued within six years) when the promise was made. Besides, it is admitted by this plea that a cause of action did subsist before six years. In the case of promissory notes on demand, and in all others, where the debt and promise existed at the same moment, the plea of non assumpsit infra sex annos will be proper and safe. But the plea is demurrable if used in an action upon promises to pay money, or do any act, at a future period.5 It is no answer to a count on a promissory note payable at a day subsequent to its date. The plea of actio non accrevit infra sex annos, on the other hand, is appropriate in all cases, and is the most preferable mode of pleading the statute in assumpsit.7 The plea

3

1 Hodson v. Harridge, 2 Wms. Saund. R. 636, note 1; Pearsall v. Dwight, 2 Mass. R. 87.

2 Gould v. Johnson, 2 Salk. R. 422.

3 Bland v. Haselrig, 2 Ventris, R. 151.

4 Buckler v. Moore, 1 Mod. R. 89. 6 Chitty on Contracts.

Stillwell v. Hasbrouck, 1 Hill, (N. Y.) R. 561; United States v. White, 2 Id. 59. Though a demurrer is interposed to the defendant's plea of non assumpsit, he will still prevail, if the count to which the plea relates be bad in substance. United States v. White, 2 Hill, (N. Y.) R. 59.

7 The plea of non assumpsit infra sex annos, is only applicable to cases on considerations executed; for if the action be on an executory consideration, such plea would be bad, for it is not material when the promise was made, if the cause of action accrue within six years; and, therefore, in such case, actio non accrevit in frasex annos is the proper plea. 2 Salk. R. 422; Esp. N. P. R. 156. In indebitatus assumpsit, therefore, the plea would be good, because it shows a debt at the time of the promise. However, though the plea be good in such case, yet the plea of actio non accrevit infra sex annos is also proper; therefore it seems the safest and best way of pleading the statute, in all cases of debt on simple contract on assumpsit, to say that "the said several causes of action in the said declaration mentioned, or any or either of them, did not accrue to the said plaintiff within six years next before the commencement of the action aforesaid, of the plaintiff," &c. Story's Pleading, 76; 2 Saund. R. 63 c. (Wms. note 6.)

in assumpsit, of non assumpsit, &c., corresponds to the plea of nil debit infra sex annos in debt upon simple contract; and the plea of causa actionis non accrevit infra sex annos is as proper in debt as in assumpsit, and is pleadable to any form of action ex contractu.

288. In declaring in the case of a new promise or acknowledgment, the declaration is upon the original promise. In an action of assumpsit upon a bill of exchange to which the statute was pleaded, it was objected, that the plaintiff ought to declare specially on the new promise or acknowledgment. Lord Ellenborough said: "As to the form of declaring insisted on, it is enough to say that it has never been in use, and that it is the common practice to declare on the original contract, and if the statute be pleaded, the only question is, whether the defence given by it has been waived." In a later case, Best, Ch. J., said: "We have every wish to give full effect to the statute. Probably the new promise ought in strictness to be declared on specially, but the practice is inveterate the other way, and we cannot get over it." 2 When the statute is pleaded, the plaintiff may, therefore, reply the new promise, and when the pleadings assume this shape, the original promise is apparently the cause of action; but it is the new promise alone that gives it vitality, and that, substantially, is the cause of action.s

289. In Green v. Crane, which was an action brought by an

1 Leaper v. Tatton, 16 East, R. 420.

2 Upton v. Else, 12 Moore, R. 303, and 22 Eng. Com. Law R. 451. So is the settled practice in Massachusetts, Little v. Blunt, 9 Pick. (Mass.) R. 488, and is according to the established rules of pleading. Ibid. [But in Georgia, the declaration must be upon the new promise, setting out the original debt as the inducement. Minter v. Broach, 6 Geo. 21. And so it seems in South Carolina. Sims v. Radcliffe, 3 Rich. (S. C.) 287. So in Texas. Coles v. Kelsey, 2 Texas, 541. And to the same effect is Kampshall v. Goodman, 6 McLean, 189.]

8 Per Wilde, J., in giving the opinion of the court in Little v. Blunt, supra; Baxter v. Penniman, 8 Mass. R. 133; Fisk r. Needham, 11 Id. 452; Brown v. Anderson, 13 Id. 201; Livingston v. Ostrander, 9 Wend. (N. Y.) R. 306; Barrett v. Barrett, 8 Greenl. (Me.) R. 355.

Green v. Crane, 2 Lord Raym. R. 1101. And see the same point in Kinder v. Paris, 2 H. Blackf. R. 562; Pitman v. Foster, 1 Barn. & Cress. R. 248; Ward v. Hunter, 6 Taunt. R. 210. Where to a declaration of an action of assumpsit, by the assignees of an insolvent debtor, for money due to him before his insolvency, stating all the promises to have been made to the plaintiffs as assignees; the defendant pleaded, that he did not undertake a promise in manner and form, as the plaintiffs had complained against him, at any time within six years; and the plaintiffs replied, that when the causes of action first accrued to them, the defendant was beyond sea, and that within six years after his return they sued out their original against him; to which the defend

executor, upon a promise to his testator to which the defendant pleaded the statute, it appeared in evidence, that, after the death of the testator, and after six years from the time of the contract, the defendant acknowledged the debt to the executor, and promised to pay it. The action, it was held, could not be maintained, the promise to the testator not falling within the issue. In Jones v. Moore, in Pennsylvania, the action was also brought by an executor upon promises to his testator, and to take the case out of the statute, evidence was given of a new promise to the executor. In the opinion of the court, the evidence did not maintain the issue, which was upon a promise to the testator. Breckenridge, J., however, expressed himself of opinion that the acknowledgment or new promise ought to be replied; such a replication would be no departure, and the evidence would be admissible. He was clear, that such a special replication could not but be maintained. The Supreme Court of Massachusetts have been unable to perceive the technical difficulty in the class of English cases above referred to, and the practice in that State has always been to declare on the original promise. In the case of an acknowledgment by an executor or administrator of the debtor, it is not necessary to declare on his implied promise of the executor or administrator, and such an implied promise, say the court, could not be supported on the ground of a new consideration, as an independent substantive promise; and the promise being implied from the original consideration, it is necessary to declare on the original consideration. But, says Wilde, J., in giving the opinion of the court," although this seems the proper form of declaring, yet the new promise, whether express or implied, actually gives the remedy and is substantially the cause of action."2 That it is important that the pleadings should be moulded to the new principle of a new promise is clearly undeniable."

290. Where a plea of non assumpsit was put in instead of a

ant rejoined, that the cause or action first accrued to the insolvent before the plaintiffs became assignees, and that six years had elapsed after the cause of action first accrued to the insolvent. It was held, that there was a departure. Kinder v. Paris, supra.

1 Jones v. Moore, 5 Binn. (Penn.) R. 573.

2 Little v. Blunt, 9 Pick. (Mass.) R. 488. Where a defendant, in an action ex contractu, relies on the statute, but judgment is rendered against him, on proof of his having made a new promise, which removed the statute bar, the judgment is considered as rendered on the old contract. Ilsley v. Jewett, 3 Met. (Mass.) R. 439.

See opinion of Gibson, Ch. J., as given ante, Ch. XXIV. § 256.