Gustin v. Brattle , 1 Kirby 299 ( 1787 )

By the Court.

As to the first point — Halifax is not over sea, but on the main land; and not at so great a distance as any place over sea. Barely its being out of this state, or jurisdiction, does not bring it within the words or reason of the proviso. Beyond seas, in the English Statute of Limitations, of the 21 Jas. I, has been adjudged not to extend to Scotland, though without the jurisdiction of the courts'of England. And in King and Walker’s case, 1 Black. 286, it was held, that the words should be literally adhered to; for that the statute being a very beneficial one, the savings •out of it should not be enlarged by construction.

But, admitting Halifax to be over sea, within the meaning of the statute, still the obligee, as he removed there long after his right of action accrued (viz. but two months before the seventeen years expired) is not within the saving;' — it extends only to persons over sea, when their cause of action accrues. The saving for absentees, in the statute limiting the time of entry into lands, is expressly so; and this must be the understanding here. It is a person’s own folly, if, after a limitation begins to run against him, he removes out of the country, and makes no provision for the recovery of his debts. In Cod and Hill’s case, 1 Wilson, 134, upon the statute of James, it was adjudged, that a creditor, after cause of action, removing beyond sea, and remaining there till his death, did not bring him within the saving of absent plaintiffs.

2. As to the administrator’s right of four years to sue, notwithstanding the seventeen are elapsed — it is not within the proviso of the act. The words are —- “ Persons legally incapable to bring their actions, may bring them in four years after becoming legally capable.” The disability to bring their actions here mentioned, supposes the persons under it to have at the same time a right or cause of action vested in them; and does not, therefore, apply to an administrator, whose right or cause of action, and capacity to sue, commence at one and the same time. In the case of Cary et ux v. Stevenson, Salk. 421, upon the statute of James, the administrator was indeed allowed six years after administration granted; but it was expressly upon the ground (whether that would justify the decision or not) that the defendant’s receipt of the money sued for, being after the death of the intestate, was not cause of action in him, and that right of action, or the plaintiff’s title never accrued till administration was granted. In Wilcocks’ case, Stra. 907, the plaintiff, who was administrator to an administrator, and sued four years after the death of the first administrator, who sued within six years of the promise, and died pending the suit, failed in his action; and it was there holden, that he could have only one year, and that upon the equity of the case, which allows one year to commence a new suit, where the judgment was arrested or reversed. A reversioner cannot have error after twenty years, though his title did not accrue till after, notwithstanding the saving clause for disabled persons in the statute in that case. Stra. 1257.— Provisos for persons under disability, can only introduce the disabled persons, and not those who were never under any disability. An administrator comes but in place of the intestate, and is in contemplation of law, as to Statutes of Limitation, the same person. If, having right to administration, he doth not take it as soon as the intestate dies, it is his lack, but not his disability. The rule is, with regard to Statutes of Limitation, as was held in Gray’s case, Stra. 556, that the limitation having once began, the statute runs over all mesne acts, as bankruptcy, coverture, infancy, etc. The administrator, therefore, in the present case, is not within the saving of the statute for disabled persons. Nor did he sue SO' soon after taking administration as he might have done, having suffered two years to elapse. Nor did right of action upon this bond ever vest in him, the seventeen years having expired, and the bond being dead long before his letters of administration were taken out.

3. As to the remaining point — That the acknowledgment of the debt within seventeen years, saves the bond: —

There is no saving for such a case, in the words of the statute. The doubt upon this point doth not arise from the words of the statute, or any practice that hath obtained upon it, but from the practice upon the English statute of the 21 Jas. I, which in similar terms limits actions upon simple contract debts to six years; yet there it is allowed, that an acknowledgment of the debt within six years saves it. The reason of which is not, as hath been suggested in this case, that the acknowledgment of the debt, by removing the presumption of its having been paid, takes if out of the mischief of the statute. No decision has gone on that ground, and it would be to save also, the trespasses limited in the same statute, where, within the limitation there has been an acknowledgment of the fact, and that satisfaction has not been made; which none have supposed. And although a presumption of such kind of debts being settled, when not sued for within six years, and the difficulty of preserving evidence of the settlement, were;, doubtless, reasons which led to the adoption of the statute, as a general rule; yet it is not necessary that every case should bo attended with those particular circumstances, in order to its being within the statute, any more than, that every person under twenty-one years of age should be wanting in discretion, in order to bring him within the general savings of law for minors. But the true reason why an acknowledgment of the debt within six years, is said to revive or take it out of the statute, is, that the statute only fakes away the remedy, but doth not extinguish the debt. That the debt remains, and is good consideration of a promise to pay; which being in fact made, or there being an acknowledgment of the debt, which is considered as evidence of a promise, a new right of action accrues, founded upon the new promise. See 3 Bac. Abrid. 157; Ld. Raym. 389, 420, 741; Burr. 2628. — And iñ the case of Green and Crane, Ld. Raym. 1101, wbicb was an assumpsit by an executor, laid upon a promise made to the testator, and non assumpsit m fra sex annos pleaded; and upon evidence, it appearing, that after the death of the testator, and six years from the time of the contract had elapsed, the defendant owed the debt to the executor, and promised to pay it; and the question being, whether that evidence would maintain the issue, the court, after an advisement, were all of opinion, that it would not; because the promise to the executor was out of the issue; but that it would have been otherwise, if the promise had been made to the testator, within six years. It is upon the new promise, therefore, that the action is laid, and supported in the practice upon the statute of James; and'it would be making void the statute to admit the contrary.

But what hath a new promise to do in the present case? This is not an assumpsit, but debt° upon a bond. Nor could evidence of a promise (which is the most the acknowledgment of the debt can amount to) be admitted in the case; because it would not comport at all with the nature and ground of the action.

We are therefore of opinion, that the Court of Common Pleas erred, in giving judgment for the plaintiff.