Stringer v. Waters , 63 Ala. 361 ( 1879 )

STONE, J.

The present record presents but a single inquiry : Did the statute of limitations run, as to the matter set up in the amended complaint, until that amendment was made ? In King v. Avery, 37 Ala. 169, we stated the rule as settled, “ that if, during the pendency of a suit, any new matter or claim, not before asserted, is set up and relied upon by the complainant, the defendant has the right to insist on the benefit of the statute, until the time that the new claim is presented; because, until that time, there was no Us pendens, as to that matter, between the parties. On the contrary, if the amendment set up no new matter or claim, but simply vary the allegations as to a subject already in issue, then the statute will run only to the filing of the original bill.” — -See, also, Bradford v. Edwards, 32 Ala. 628. We do not understand Lansford v. Scott, 51 Ala. 557, as intending to overturn or weaken this principle. We think this rule sound, and will adhere to it.

The original complaint, in the present case, counts on the bond of Waters given as sheriff, he having been appointed administrator of Sims by virtue of his office. In April, 1859, Waters came to a settlement of his administration, and a decree was rendered against him, in favor, of Louisa Stringer, a legatee under the will of Mr. Sims. The original complaint describes that decree, and the breach alleged is its non-payment. The amended complaint makes no reference to the bond, but counts on the probate decree. Like the original count, the breach it alleges is the non-payment of that decree. This is not a new matter or thing, not before asserted, but simply a variation of allegations, as to a subject already in issue. The breach assigned in each count is identical in terms and effect; namely, the non-payment of one and the same decree. Tbe Circuit Court erred in the-charge given, and the judgment must be reversed, and the cause remanded.