Bishop v. Sanford , 15 Ga. 1 ( 1854 )

By the Court.

Starnes, J.,

delivering the opinion.

The 2d section of an Act of our General Assembly, passed in the year 1805, provides, that “ All actions of trespass, detinue and trover, all actions of debt, whether upon specialty, or simple contract, &c., &c., shall bo commenced and sued within the time and limitation hereinafter expressed, and not •afterward; tSat is to say, ’ the said action» of trespass, &c.r within one year after the canse of such action or suit, hath accrued, and not after. And the said actions of detinue, trover, debt, (other than upon judgments,) within four years next, after the cause of such actions or suits have accrued, and not after; and the said actions of debt, upon judgments obtained in Courts, other than the Courts of this State, within five years next,'after the judgment.shall have been obtained, and not after”. And this Act, so far as actions upon foreign judgments are concerned, has not been repealed.

It is now, in this case, insisted that inasmuch as no mention is made in this Act, of any other form of action brought upon a foreign judgement than.the action of debt, that the present action of assumpsit, upon this foreign judgment, is not barred by the time which has elapsed since the judgment was obtained.

[1.] In the first place, I think this position is not correct, because a reasonable construction of this Act seems to constrain the conclusion, that the Legislature intended to bar the right to sue upon a foreign judgment, after five years had elapsed from its date; and therefore, that it designed to embrace the action of assumpsit in the terms employed. The words, “actions of debt”, in this point of view, are used generically, as it were, and not technically.

The Statute is loosely and inaccurately worded. Indeed, this may be said of all our principal Statutes of Limitation. The most important of all—our Act of 1767—it is known, is very similar to the Statute of 21 Jac. 1 ch. 16; and this latter Statute, it has been often said, was “ unfortunately worded very loosely”. (Inglis vs. Haigh, 8 Mees. & W. 779. Angel on Lim. 74.) It is, on this account, entirely proper, that in construing these Statutes, which are now regarded as highly beneficial, and while endeavoring to enforce them, in the spirit of the legislation which called them into existence, and to prevent evasion of them, Courts should not confine construction to the letter of the Statute; but if the intention of the law-maker can be gathered from the whole frame of the Act,although contrary to the technical signification of words used, effect should be given to such intention.

On .looking to the whole of this Act of 1805, as to the matter of a suit upon a foreign judgment, and considering that its scope and purpose was (as the Supreme Court of the U. S. have said, when referring to the same Act, McElmoyle vs. Cohen, 13 Pet. 312,) to establish a policy for the State, in this-regard, I cannot believe otherwise, than that the Legislature •designed to make the Act a bar to every form of action which 'might be brought upon a foreign judgment. And I am not, prepared to hold, that it was intended to bar the cause of action, after the lapse of five years from the date of the judgment, when one form of action was employed, and to preserve it when another was adopted. I cannot see a reason for this, . and think that such a provision would have been but legislative ■ mockery.

Nor do I believe that the technical tenor of the words, ■“said actions of debt”, &e., are of such inflexible significance, that it is absolutely necessary to adhere to the letter, and hold, that debt is the only form of action which should be considered as contemplated in their use. I prefer to regard these words as employed to express those actions which were commonly brought upon simple contracts.

It seems to me, that a different view, unless it be that the action of assumpsit is barred in four yegrs from the judgment, inevitably involves the Legislature, in the predicament of intending to bar suits upon foreign judgments, after five years should have elapsed from their date, and yet, so fashioning its legislation, as to defeat its own purpose.

It was when impressed by similar considerations, that Courts have held, that the action of assumpsit, though not eo nomine, mentioned in the Statute of James, was yet within its terms, (indeed, it is only by a similar process of construction, that it is brought within our Statute of 1767); and hence, we find the Court of Common Pleas, in England, in the case of Crosier vs. Thompson, (2 Mod. 71,) where the question was, whether or not the action of assumpsit was within the equity of the saving clause of the Act of James, though named, (or rather construed to be named,) in the limiting clause alone, deciding, “ That upon the whole frame of the Act, it was strong against the defendant, for it would be very strange that the plaintiff might bring an action of debt, and not of indebitatus assumpsit”. The Court further adds, “and this action being within the same reason with other actions therein mentioned, ought also to be within the same remedy”.

To the same effect, is the case of Chandler vs. Villett, (2 Saund. 120.) So, also, in the late case of Inglis vs. Haigh, (8 Mees. & W. 769,) when considering, whether or not, the exception in the Statute, as to merchants’ accounts, applies to an action of assumpsit, it was hold by the Court of Exchequer, “ That the exception clearly would not apply to an action of debt, brought for the same demand; and it is difficult to believe that the Legislature could have intended to preserve the right in one form of action, but to bar it in another.

I suggest, in this connection, that the form of a declaration, in an action of assumpsit, and in an action of debt, on simple contract, are very similar—the principle difference being that one is founded on the promise, and the other on the contract; and by an examination of the records in our Superior Courts, about, and previous to the year 1805, it will be found, that the actions brought upon simple contracts, generally, were entitled either debt, or action on the ease; and that in some parts of our State, certainly, the forms peculiar to actions of debt, and of assumpsit, were frequently very much mingled in the same petition.

Debt was formerly, in the language of Lord Ch. Jus. Vaughn, “the natural and genuine action upon a simple contract”; and assumpsit was adopted afterwards, as an expedient, to avoid the wager of law, which might be pleaded to the action of debt. (Wilk. on Lim. 6.) This privilege, by which the defendant might wage his law, has long been obsolete, and perhaps never ryas of force in Georgia; and there was, on this account, therefore, no occasion to resort to the action of assumpsit, or to be very particular or careful in framing the form of the action, or distinguishing between chit and assumjosit.

In view of these things, I can readily see how our legislators, in 1805, may have overlooked the difference between these actions, and have considered assumpsit as embraced in the general terms used. . In opposition to the view which has been • presented, it is urged that it is no uncommon thing to find that ' one form of action is barred by the Statute, and when another, ' on the same cause of action, is not; and for illustration, reference "is made to the writ of right, which might be brought to recover lands, tenements, &c., within sixty years after right of entry, whilst the action of ejectment would be barred, in England, in •twenty years.

It should be borne in mind, that we are here searching for 'the intention of the Legislature, in passing one Act, viz: the Act of 1805, and are endeavoring to ascertain what action 'that body designed to embrace in the terms of that Act, to which reference has been made; for I think no instance can be ¡found, where, in the same Act, the law-making power intended to preserve a remedy, when one form of action was brought, -and to bar it when another was adopted. Unless such instance •can be found, the illustration taken, proves nothing; for the limitation, as to the writ of right', was created by the Statute of 32 Henry, 8 ch. 2, and that as to ejectment by the 21 Jac; 'and thus is presented the action of different legislative bodies, -•at different times.

But aside from this, the writ of right cannot, with aecura■cy, be said to have been framed for the same cause of action, with the action of ejectment. The former, which is one of the vestiges of the feudal system, lay for the mere right—the latter was a possessory action only, used now, it is true, for the purpose of trying title, but in its nature and origin, a possessory action; and the judgment on the former, for the reason that it was a trial of the right, has always been held final and conclusive between the parties, whilst on the latter, it determined only the right of present possession.

In these distinctions may be found, no doubt, the reason for the difference in the application to , these forms of action of the Statute of Limitations, by the English Courts. And if similar illustrations to that contained in this reference can be found, in the application of the Statute to other forms of action, I think there will be, at the same time found, some such essential difference' in the right, or cause of'action.

For these reasons, I am of opinion that the action of assumpsit may be fairly included in the terms of the section upon which I have commented.

[2.] But if I bo wrong in the view just taken ; and the action of assumpsit is not to be regarded as within the terms of of the 2d section of the Act of 1805, still, I am well satisfied that the Statute of Limitations bars this action.

It is conceded, that the Legislature never intended that the ■ action of assumpsit, brought upon a foreign judgment, should' be without the Statute; and it is admitted that the Statute, by virtue of the 4th section of the Act of 1805, which declares,. “ That all actions therein enumerated, (among which, assumpsit,. by construction, is placed,) shall be commenced and sued within four years after the cause of action shall have accrued, and' not after”; or, by virtue of similar terms, in our Act of 1767,. runs against this action of assumpsit. But it is contended, that though running against the action of debt, on a foreign' judgment from the time the judgment is obtained; yet, that,, owing to the peculiar phraseology of the Statute, as applicable to actions of assumpsit, that action is limited only from the time when the cause of action accrues in the State of Georgia, by the presence of the defendant in the State.

With regard to this phraseology, it will be remarked, that the terms, of this section of the Act of 1805, are similar to those of the Act of James, and to our Statute of 1767. Let us, then, ascertain the value of these words, as they are found in the Statute of James, and see whether or not, they may he relied upon as taking a case out of the Statute, because the defendant has been out of the realm, or State, from the time the action accrued. v- •

In the case of Aubrey vs. Fortescue, (10 Mod. 206,) I find it laid down by Bridgman Ch. Jus., “that the Statute is general, and must work'upon all cases not exempted by the exception”. In the early case of Prideaux vs. Webber, (1 Levinz 31,) upon the exception, as to infants, it is observed that “the Statute being genera], infants would have been boundj if they had not been expressly excepted”. In the case of Chevely vs. Bond, (1 Show. 98,) “ The defendant pleaded the Statute, and the plaintiff replied, that the defendant was all that time out of the realm, the replication was adjudged ill”. In the case of Beckford et al. vs. Wade, (17 Ves. 93,) the Master of the Rolls, (who was Sir Wm. Grant,) observing, on a case where defendants were “ absent- out of the realm before the Statute of Queen Anne”, remarks, that “ It was in vain attempted, upon general reasoning, in many cases, to introduce an exception in favor of the plaintiff, in a case where the defendant was out of the rehlm; a most reasonable exception, undoubtedly, but which the Statute has not made. A plaintiff out of the realm may prosecute a suit by attorney, but wdicn the defendant is out of the realm, it is very hard to call upon the plaintiff to institute a suit, which, in most cases, must be wholly without fruit; yet, until the Statute of Queen Anne was made, that case formed no exception, and the Statute of Limitations barred the action”. In the same case, the learned Judge, • commenting on a Statute of Limitations for the Island of Jamaica, says : “ Here is a Statute which .contains no exception in favor of absentees—we are, therefore, of opinion that it is impossible, by construction, to introduce that exception into the law”.

On this.subject, Mr. Angel, in his Treatise, says, that “ The received construction in England, was that the exception in the Statute of James, in respect to persons ‘beyond seas’, extended only to the case where creditors were beyond sea, and not where the debtors were. But by the 19 Sec. 4 Anne, ch. 16, it is enacted, that if any person, against whom any action lies, for seaman’s wages, trespass, &c., or such other actions as are mentioned in the third section of the Statute of James, be beyond sea at the time such action accrued, the plaintiff shall be at liberty to bring Ms action against him within the same time after his return, as is limited for such action by the Statute of Jemes”, &c. And the author adds, that “ until this Statute, such a case in England formed no exception”. (Ang. on Lim. 215.)

It will be observed, that the cause of action is here contemplated as accruing while the defendant is out of the realm, and the Statute as running against the plaintiff, before the Statute of Anne.

But the case of Douglass vs. Forrest, (7 Bing. 686,) is cited as supporting a contrary doctrine. It is true, that in this case,.. Ch. Jus. Best says, that “no one has a complete cause of action, until there is somebody he can sue”; and also, that “cause of action is the right to prosecute an action with effect”, &c. This declaration, however, let it be remembered, was made in England, where the Statute of Anne was of force; and in the light of that Statute, was, perfectly correct But without that Statute, it seems from the decisions and opinions which I have cited, entirely certain, that in England, absence of the defendant out of the realm, would form no exception to the Statute of Limitations, and the cause of action would be considered as having accrued against him.

Now, the Statute of Anne is confessedly not of force in our-State; and none of our Statutes create or recognize such disa-. bility as that provided for in this Statute of Anne. If, there-, fore, before the Statute of Anne, in England, the cause of action would have accrued to the plaintiff, and the Statute of' James have commenced to run, notwithstanding the absence of' the defendant, it would seem, by analogy, rigidly true, that in our State, where the terms of the Statute are similar, as I have shown, the cause of action accrues, although the defendant be absent from the State. And that this might be held to be true, in all cases of such absence of the defendant, arising under any of our Statutes of Limitations.

But I care not to insist on this last conclusion. I am satisfied to put the decision of this point upon the ground, that we are here called upon, by construction, to introduce an exception into the fourth section of the Act of 1805, or, (if that be regarded as repealed,) into the fifth section of the Act of 1767, which is similar in terms, and that whilst considering the propriety of this, we must look to other parts of the Act of 1805, and especially to the second section thereof; and finding there, as we do, the provision, as to the action of debt upon foreign judgments, on which I have commented, I feel it my duty to take these two features of the law together, to harmonize them, if it be possible, to avoid incongruous conclusions, and to maintain a symmetrical system of legislation, if it can be done. To do this, I believe it necessary, in full consideration of the Act of 1805, to adopt th,e course of reasoning which I have presented, and for the purposes of this case, to reject a construction which would authorize the conclusion, that tho cause of action did not accrue to the plaintiff until the defendant, constructively, by his property, came into the State; and to hold, that, under the facts submitted, if the cause of action was not barred by the terms of the second section of the Act of 1805, in five years after the judgment was obtained, it was barred in four years thereafter, by virtue of the fourth section of said Act, or by the fifth section of the Act of 1767.

[8.] Entertaining the opinions which I have expressed, and feeling that they may make a case of some hardship to the plaintiff, I would gladly bring his case within the exception contained in the third section of the Act of 1805, if I could do so, consistently with those rules which I regard as controlling such a question. Rut the case of a defendant residing in another State when the cause of action accrues, and so remaining until the period limited by the Statute has elapsed, though admitted to be within the reason and spirit of the exception, is not within its terms, nor indeed, within the terms of the exceptions, in either of our other Acts of Limitation, and cam-not be placed there without a forced construction.

The exception contained in this Act of 1805, is where the defendant “ shall remove his property without the limits of the State, or absconds, or conceals himself, so that his creditors cannot commence an action”, &c. Nothing is said, directly or indirectly, of a defendant who resides without the State.

I regard it as a well settled rule, that so far as exceptions to the Statute are concerned, and consequent evasions thereof, “ a construction derived from its reason and spirit should never he resorted to,' but where the expressions are so ambiguous as to render such mode of interpretation unavoidable”. (Fisher vs. Harnden, Paine C. Ct. R. 61.)

Mr. Angel, in his Treatise, says, that “ The views generally —indeed, invariably entertained by our State Courts of the present day, are responsive to the above”. (Ang. on Lim. 21.)

In the case of Perry et al. vs. Jackson et al., (4 T. R. 517,) the Court declares, “that that Statute (21 Jac. 1,) having always been considered as a beneficial Law for the public, we ought not to extend the exceptions in it, to a case which does not require it”. In the case of Sucia vs. DeGrapp, (1 Cow. 356,) where the plaintiff had replied to a plea' of the Statute, that the defendant had been discharged under an Insolvent Act, and therefore that the case came within the equity of the exception, (in the N. Y. Statute,) as to defendants, who were absent from the State, it was decided, “ that it is not for the Court to extend the law to all cases coming within the reason of it, (the Statute,) so long as they are not within the letter”.

The Supreme Court of the U. S., too, have said, in the case of McClung vs. Silliman, (3 Pet. 270,) that “the Courts do not now, unless compelled by the force of former decisions, give a strained construction, to evade the force of these Statutés”.

And all this is placed upon the distinct and reasonable ground, that the Statute of Limitations is now construed as one passed “ for quieting men’s estates, and avoiding of suits”.

Impressed with these views, I do not feel authorized, by a forced construction, to aid this plaintiff in evading this beneficial Statute.