Bockee v. Crosby

3 F. Cas. 791, 2 Paine 432

Opinion

THOMPSON, Circuit Justice.

This case comes before the court on a demurrer to a plea in abatement. The demandant counts on the seizin of his ancestor, within sixty years then last passed. The tenant pleads in abatement, that the averment of seizin should have been within twenty-five years instead of sixty; to this plea the demandant interposes a general demurrer.

It is contended on the part of the demand-ant, that the count is not defective in this respect, but that admitting it to be so, advantage should be taken of it by demurrer and not by plea in abatement. It is unnecessary to express any opinion upon the latter question, for upon this demurrer we must look back to the first fault in pleading; and if the count is bad, judgment must be against the demandant

Ah averment of seizin is essential, and that must be alleged to have been within the time limited for bringing the action.² By an act of the legislature of this state, passed in the year 1788, it is declared, that after the year 1800, no action for the recovery of lands shall be maintained, unless on a seizin or a possession within twenty-five years next before such action brought. If this law applies to this case the count is bad; it should have averred a seizin within twenty-five years next before action brought. It is contended on the part of the demandant, that this law would be retrospective and void, if applied to a seizin existing prior to its passage, and that the demandant will have a right to show this upon the trial. We think, however, the law is valid, even if applied to such a seizin; it is a statute of limitations applying to the remedy; it is prospective in its operation, giving twelve years for the bringing of suits upon seizin existing at the time the law was passed.

Judgment for the tenant upon the demurrer.

2 [See note at end of case.]