Barker v. Millard

16 Wend. 572

• Court: New York Supreme Court
• Decided: January 15, 1837
• Status: Published

Opinion

By the Court, Bronson, J.

The statute commenced running in December, 1825, when the note fell due; and the question presented by the replication depends on the former statute of limitations, 1 R. L. 186, § 5. This section corresponds with the statute, 21 Jac. 1, c. § 3, 4, and certain cases have been held within the equity, though not within the letter of the first and second provisoes of the section. Where the action is brought within six years, and the plaintiff dies before judgment, his executor or administrator may have a new action within the equity of the first proviso. So, if an action brought by a feme sole abate by her marriage, she and her husband may have a new action within the equity of the statute. 2 Saund. 63, f. g., note 6. Huntington v. Brinckerhoff, 10 Wendell, 278. But no case was cited, nor have I met with any, where it was held that an injunction out of chancery would suspend the running of the statute. Indeed the contrary doctrine is strongly implied in many cases. The party to a suit in chancery has often applied to that court to restrain the defendant from setting up the statute in an action at law. If the pendency of the injunction would be a good answer to a plea of the statute of limitations, such an application would not have been necessary. Anon. 1 Vern. 74. Anon. 2 Atk. 1. Gilbert v. Emerson, 2 Vern. 503. Bac. Ab., Limitation of Actions, E. 6. Blanshard on Limitation, 164. Vin. Ab., Limitation, T. It is clear that the case is not within the letter of either of the provisoes, and the equity of the statute has never been extended far enough to aid the plaintiff.

* The case is now provided for by law. 2 R. S. 299, § 36. But this section only applies to cases where the right of action has accrued since the first day of January, 1830. 2 R. S. 300, § 45.

Judgment for defendant.

The first proviso of the statute authorizes a suit within one year after the reversal or arrest of a judgment, or reversal of an outlawry. The second eaves the rights of infants, femes covert, and persons insane or imprisoned, giving leave to bring actions within the time limited by the statute after the removal of disability, ana also authorizes a suit against a person absent from the state at the time of the accruing of the action, within the time limited, after his return to the state.