Brian v. Banks , 38 Ga. 300 ( 1868 )

Warner, J.

The error assigned to the judgment of the Court below in this case, is the ruling and deciding that the statute of limitations in this State did not run against the plaintiff’s demands during the war, and that his right of action thereon was not barred. The plaintiff’s action was instituted' on the 26th February, 1866, to recover the amount due on two promissory notes against the maker and indorser, one of which was dated 20th October, 1857, due one day after date, and endorsed on the 11th July, 1860. The other note was dated 29th July, 1858, due one day after date, and indorsed • on the 26th January, 1859. The defendants plead the statute of limitations in bar of the plaintiff’s right to recover. The argument for the plaintiff in error is, that the statute having commenced to run, it was not suspended by the Act of 1861, because that Act was passed by an illegal Legislature. This argument, if true, proves too much for the defendants in the Court below, now plaintiff in error here. If there were no legal legislatures during the war, then there were no legal courts, in which the plaintiff below could have sued upon the notes. It is the judgment of a majority of this Court, that inasmuch as the Statute of 1860 suspended the running of the statute of limitations for one year, and the Act of 1861 suspended the running of the statute during the war, and the ordinance of the Convention, on the first day of November, 1865, having declared the statute of limitations to be, and to haye been, suspended, from the 19th of January, 1861, and that, inasmuch as the 3d paragraph of the 11th article of the Constitution of 1868 declares of force “all Acts passed by any legislative body sitting in this State as such, since the 19th day of January, 1861,” (including Irwin’s Code), and that inasmuch as the 5th paragraph of the 11th article of the Constitution of 1868 declares that “all rights, privileges, and immunities, which may have vested in, or accrued to, any person or persons, or corporation, in his, her, or their own right, or in any fiduciary capacity, under any Act of any legislative body, sitting in this State as such, since the 19th day of January, 1861, shall be held inviolate by all the courts of this State, unless attacked for fraud, or unless otherwise declared invalid by this Constitutionthat the plaintiff’s right to recover upon the notes sued on is not barred by the statute of limitations ; that the Act of 1861, as well as the Ordinance o 1865, suspending the running of the statute, are recognized and made valid by the express provisions of the Constitution of 1868; that “ all lights, privileges, and immunities, which may have vested in, or accrued to any person, in his, her, or their own right,” as specified in the 5th paragraph of the 11th article-of the Constitution of 1868, includes the rights of the plaintiff as well as the rights of the defendant, whatever the same may be, and not the rights of the defendant exclusively.

Whatever may be said in regard to a prescriptive right to either real or personal property, under the provisions of the Code, having become vested by lapse of time, as prescribed thereby, under the 10th paragraph of the 11th article of the Constitution of 1868; still, there can be no vested right in the remedy under the statute of limitations. If a prescriptive right to property had commenced running, in favor of the possessor, prior to the war, whether it continued to run during the war, would depend, it would seem, upon whether, during that time, there was any disability to sue in the courts. However, that question is not now before us, and we will not discuss it.

Let the judgment of the Court below be affirmed.