Boogher v. Byers , 10 App. D.C. 419 ( 1897 )

Mr. Chief Justice Alvey

delivered the opinion of the Court:

The judgment in this case must be affirmed. The declaration contains, two counts — one on a promissory note, and the other for money loaned by the plaintiff to the defendant; for money paid by the plaintiff for the defendant, at his request; for money had and received by the defendant for the use of the plaintiff; and for money due the plaintiff on an account stated with the defendant. This declaration was supported by an affidavit of the plaintiff, Fannie Malvina Byers, under Rule 73 of the Supreme Court of the District of Columbia.

To this declaration the defendant, William F. Bougher, pleaded, 1st, not indebted as alleged; 2d, that he did not promise as alleged; 3d, that the plaintiff was a married woman; and, 4th, that the cause of action did not accrue within three years before action brought. The defendant filed these pleas without an affidavit, as required by Rule 73 of the Supreme Court; and upon motion of the plaintiff judgment was entered upon the declaration and cause of action shown, for want of proper affidavit to the pleas, as required by the rule.

The question, and the only question, on this appeal is, whether the affidavit to the pleas, to prevent summary judgment, was required under the rule. It is argued that by the first count of the declaration and the affidavit thereto, the promissory note is shown to be the only real cause of action, and that is shown to be subject to the bar of the statute of limitations; and that, consequently, there is no sufficient cause of action shown to entitle the plaintiff to judgment as against the plea of the statute of limitations interposed by the defendant.

But this position cannot be maintained. The operation of the act of limitations of Maryland of 1715, Ch. 23, in force in this District, is not to extinguish the debt on simple contract, but only to bar the remedy. The action must be brought on the original cause of action, and not on any new promise or acknowledgment that may be made, which only restores the remedy. Oliver v. Gray, 1 H. & G. 204; Barney v. Smith, 4 H. & J. 485. The limitation of the statute simply gives rise to a presumptive payment, and a promise or acknowledgment within the three years before action brought, rebuts such presumption, and does away with the operation of the statute. The bar of the statute of limitations must always be specially pleaded in actions at law, and can never be availed of otherwise than by special plea. The practice in most of the States is to declare upon the original cause of action, and when the statute is pleaded, to reply the new promise or acknowledgment, and the issue is then made upon the plea and the replication (1 Wood on Lim., p. 249; Lonsdale v. Brown, 4 Wash. C. C. 149; Little v. Blunt, 9 Pick. 488; Dean v. Hewett, 5 Wend. 257); and this is substantially the practice that is observed in the courts of Maryland under the act of 1715. In that State, upon the bar of the statute being pleaded, the plaintiff replies generally that the cause of action did. accrue within three years, and thereupon issue is joined; and under that issue, evidence of the acknowledgment or new promise is admitted. Barney v. Smith, 4 H. & J. 485, 495; Ellicott v. Nichols, 7 Gill, 86; Leaper v. Tatton, 16 East., 420, 423; Irving v. Veitch, 3 M. & W. 90, 106-7. The new promise to pay or acknowledgment of the debt, does not create a new or original assumpsit, but is a saving of the remedy on the original promise. Id.

The plaintiff is not required, either in his declaration or his affidavit, to anticipate the defence of the defendant; and if the declaration and affidavit present a case which, if unanswered, would entitle the plaintiff to judgment, he can only be prevented from obtaining such judgment under the rule, by a sufficient plea and affidavit by the defendant, as required by the rule. This rule requires of the defendant that he shall “ file along with his plea, if in bar, an affidavit of defence denying the right of the plaintiff as to the whole, or some specified part of his claim, and specifically stating, also, in precise and distinct terms, the grounds of his defence.” This he has failed to do, both with respect to the pleas of the general issue, and that of the statute of limitations. AU the pleas pleaded by the defendant were required to be supported by affidavit; and with respect to the plea of the statute of limitations, his failure to make the affidavit thereto fairly gives rise to the presumption that he was conscious of having made some acknowledgment that would revive the right to recover the claim. Wilson v. Hayes, 18 Pa. St. 354.

The affidavit should have been made to the pleas, and the judgment must, therefore, be affirmed; and it is so ordered. Judgment affirmed.