Crane v. French

38 Miss. 503

• Court: Mississippi Supreme Court
• Decided: April 15, 1860
• Status: Published

Opinions

Handy, J.,

delivered the opinion of the court.

This action was brought by the defendants in error, by declaration filed, and writ of capias ad respond., issued on the 12th February, 1858, against the plaintiffs in error, as administrators of James Crane, deceased, to recover on a promissory note made by the intestate. The declaration sets' forth the note as bearing date the 27th May, 1842, and as due, on its face, on the 1st day of December, 1844; and alleges a subsequent promise, on the 1st December, 1850, by the intestate, to pay the money therein; to which two pleas were filed. 1st. Won assumpsit, by the intestate. 2d. Won assumpsit infra sex annos. To this second plea, the plaintiff filed two replications, under the statute. 1st. That on the 1st December, 1850, the intestate Crane undertook and promised Roberts, the payee of the note, to pay the sum of money therein specified; and that afterwards, in the lifetime of Crane, on the 1st November, 1856, the plaintiff in this action instituted suit in the same court on said note, by filing his declaration, and causing a capias to be issued on the 1st November, 1856, and placed in the sheriff’s hands; which was returned by the sheriff, not found in his county, averring that Crane died on the 1st February, 1857, before the return of said writ, and that the suit thereby abated, and the plaintiff was thereby prevented from further prosecuting the same; that letters of administration on his estate were granted to the defendants on the 27th April, 1857; and that recently, after the expiration of nine months from the grant of administration, the plaintiff instituted the present suit, with intent to prosecute the same in continuation of his former suit, so as aforesaid abated.

2d. That on the 1st December, 1850, and within six years from the time when the cause of action had accrued on said note, Crane, in consideration that Roberts would not sue him on said note at that time, as said Roberts was about to do, undertook and promised said Roberts, that the Statute of Limitations should not run on said note, until it should be fully paid; and that Roberts, relying on said promise, did not sue upon said note, and that the same has not been paid, and setting up his promise as an estoppel.

The defendants demurred to these replications; and the court extended the demurrer back to the second plea, and held the same to be insufficient. And thereupon, by leave of the court, the defendants filed a plea of actio non accrevit infra sex annos, in lieu of the second plea; and to that the plaintiff filed replications of the same character as those above mentioned, to which the defendants demurred; and the court sustained the demurrer to the second replication, but overruled that' to the first replication. And thereupon verdict and judgment were rendered for the plaintiff.

The first error assigned is, the judgment of the court holding the plea of non assumpsit infra sex annos insufficient. It is not material to the merits of this case to determine this question; inasmuch as another plea was allowed to be filed, setting up the same defence embraced in this plea, and upon which the case was tried, giving the defendants the benefit of the defence set up in the original plea as fully as if the case had been tried upon it. Under such circumstances, though the plea were technically sufficient, the overruling of it would be no just ground for reversing the final judgment ; for no prejudice is thereby done to the defendants.

But the ground of error mainly insisted on is, the judgment overruling the demurrer to the amended plea of the Statute of Limitations.

That replication in substance is, that on the 1st December, 1850, Crane made a new promise to pay the note, and that within six years from that date, the plaintiffs instituted suit on it, on the 1st November, 1856, by filing their declaration and causing a writ of summons to be issued to the sheriff, which was returned “not found and that Crane died, without service of the writ, on the 1st February, 1857, whereby the suit abated; and that administration having been granted to the defendants on his estate, on the 27th April, 1857, the»plaintiff brought this action against them on the 12th February, 1858, shortly after the expiration of nine months from the grant of letters of administration.

This replication presents two questions for consideration: 1st. Whether the period from the institution of the suit of 1st November, 1856, to the time it abated, on the 1st February, 1857, is to be deducted from the time of the running of the statute, regarding that suit as distinct from the present action; and 2d. Whether that action can be considered as so connected with the present suit as to be the basis of it, and to make this suit a continuation of that.

Upon the first point, there is scarcely room for question. If the former suit be distinct from the present, it terminated when it abated. It answered no substantial purpose in law ; and when it ceased by abatement, it could have no more effect upon the rights of the parties in this suit, than if it had never been instituted. Therefore, when this suit was commenced, if the former action be considered as distinct from it and at an end, the right of defence, on the ground of the Statute of Limitations, was wholly unaffected by the institution of that suit; for such right of defence applies to the particular action to which it may be set up.

But is the present action to be considered as a continuation of that for any legal purpose ? It is insisted, in behalf of the defendant in error, that it must be, on several grounds.

First. It is contended that the former action was legally “ commenced and prosecuted,” by filing a declaration and issuing a summons for the defendants ; and, therefore, that it survived after the death of Crane, and was continued in law as the basis of this action, in virtue of the statute, Hutch. Code, 672, § 119, which provides, that “ all actions which have been commenced and prosecuted for or against any testator or intestate (except actions of slander and for injuries or torts done to the person), shall and are hereby declared to survive for and against executors and administrators, with the same effect that they might or could have been had or maintained for or against the testator or intestate; any law, usage, or custom to the contrary in anywise notwithstanding.” This section, it is said, contemplates a-different state of case from § 47, Hutch. Code, 841, which provides, that where any suit shall be depending, and either of the parties shall die before final judgment, the executor or administrator of such deceased party shall have poweff to prosecute or "defend the suit, and that scire facias may issue to bring in such representative ; that the former section applies to suits “ commenced,” but upon which no process has been served upon the defendant, and provides that such suit shall “survive” against the executor or administrator of the defendant who dies after its institution; but that the latter applies to suits in which process has been served on the defendant, who subsequently dies, which suits are, by service of process, “depending.”

But we do not consider this a correct view of the statute. The two statutes are found in different parts of the Code ; the former in that treating of deceased persons’ estates, and the latter in that treating of process. They both relate to actions that survive the death of parties to them, and make provisions to prevent their abatement. The object of the former is, to declare what actions shall not abate, but shall survive to or against the representatives of parties to them, who may die after their commencement; and that is appropriate to the division of the statutes treating of deceased persons’ estates. But the object of the latter is, to make provision for the process by which such representatives may be made parties, which is the subject-matter there treated of; and in doing so, it makes reference to and repeats the previous provision in relation to the cases in which the action should survive. This was proper and necessary in providing for the process by which the right to revive the suit was to be effected. In short, the former section provides what actions shall survive: and the latter provides the mode in which the same actions shall be revived. But they both plainly refer to actions in the same condition, the former designating them ás “ actions commenced and prosecuted,” and the latter as “ actions depending,” and both meaning, actions wherein the deceased party had been brought under the jurisdiction of the court, so that the suit would not entirely abate upon his death.

In this case, there -is nothing in the record showing that the present suit was intended to be a continuation of the former one, or to have any connection with it as a suit. The former suit was abated and discontinued, and the present action was brought by filing.a new declaration and issuing new process thereon, making no reference whatever to the preceding suit. If it had been competent to engraft it upon the preceding suit so as to make it a continuation of that suit in law, which it is clear could not be done, it is manifest that it was instituted as a distinct suit, and cannot be aided by the fact that the preceding suit had been instituted.

Much stress is laid by the counsel for the defendant in error, in support of the position under consideration, upon the words of the 119th section, that “ the action should survive for and against executors and administrators, with the same effect that it might or could have been had or maintained for or against the testator or intestate.” And it is insisted that the effect of this provision is to continue the suit, for all substantial legal purposes, against the representative, as it would have been against the deceased, had he continued in life. But we do not agree with this view. The spirit of the provision is that, in cases in ivhich the action would survive, it should do so against the representative with the same effect that it might have been maintained against the deceased. It certainly was not intended that a suit which was abated and discontinued should still be considered as a subsisting action for any legal purpose; or that it should be the basis upon which anew action against the representative of the deceased should be instituted. On the contrary, taking into view all the provisions of the statutes upon the subject, it is clear that a suit against a deceased party cannot be considered as continued for any legal purpose, unless it be a case which, under the provisions of the statute, may be revived against his representative.

It is further said, that this cannot be the construction of the 119th section, because the previous section 111, had already provided for the revivor of suits, by or against any executor or administrator, in cases where the action might have been brought by or against the deceased. But section 111 has no reference to suits commenced by or against a party in his lifetime; and it makes no provision for the revivor of such suits, in case of the death of the party, by or against his representatives. Its object is to give to an executor or administrator the right to institute and prosecute or defend any action, with certain specified exceptions, which the deceased might have instituted or defended, if alive; and this is the entire scope of the section.

Secondly. It is contended that the former suit is to be considered as continued in law in aid of the present action, under the rule of journeys accounts, at the common law; by which, when an abatement of a suit happened without any fault imputable to the plaintiff, he was permitted to sue out a fresh writ by journeys accounts; which is quasi a continuance of the first writ, and places him in the situation in which he would be, supposing that he were still proceeding on that writ. 1 Bac. Abr. Abatement Q.

If this artificial rule of the common law was at all applicable to our system of jurisprudence, it is clear that it would not sustain the present action; because this suit does not purport to be brought by journeys accounts, which is held to be necessary in order to maintain an actioir on that ground. Kinsey v. Hayward, 1 Ld. Raymond, 433. It is a distinct and independent suit. But it is plain that this doctrine has no application to our system of jurisprudence, as is manifest by the reasons upon which it was founded at common law. 1 Ld. Raymond, 433.

When a suit is abated, and discontinued, and out of court, under our laws, it is at an end, for all legal purposes, except where it is provided by our statutes that it may be further continued, or that further legal steps may be taken upon it. A new and distinct suit must stand upon its own merits, and can derive no aid to support it from a prior suit, which has been terminated and is dismissed from the court. This rule of practice is believed to be without exception, and is repugnant to the antiquated rule of the- common law referred to. But especially is not this rule of the common law, to be sanctioned with reference to defences to actions upon the ground of the Statute of Limitations; for it would have the effect to engraft an exception upon the statute, not only not enumerated in it, but in violation of its positive provision, that cumulative and additional disabilities should not be allowed to persons for whose benefit the savings in the statute were inserted. Hutch. Code, 832, § 17.

Thirdly. It is insisted that this case is within the equitable exception which has been extended, in England, to a suit brought within twelve months after the abatement of a former suit by the death of the plaintiff, applying the saving of one year within which to bring a new suit after arrest or reversal of a judgment, to the case of a suit abated by the plaintiff’s death. This rule is founded, in England and in the courts of this country, which have followed it, upon the principle that the case of an abatement was within the equity of the statute. But it has been wholly rejected in this court, and the rule is firmly established, as the settled doctrine here, that no equitable exceptions are to be engrafted upon the statute, and that where there is not an express exception, the court cannot create one. Robertson v. Alford, 13 S. & M. 510; Butler v. Craig, 27 Miss. 629; Ingraham & Read v. Ryan, 23 Ib. 213.

This point is not affected by the provision of the Rev. Code, 401, Art. 19, extending the privilege contained in the prior statute to an action abated, as the time allowed for bringing the new action, after the abatement of the former suit had transpired before this suit was brought. And by the terms of that act, this case is not within its provisions.

It follows from these views, that the first replication was insufficient, and that the demurrer to it should have been sustained.

But it is insisted, nevertheless, that the judgment upon the whole record is correct, because the second replication was a sufficient answer to the plea, and should have been sustained; and that the court will look to the whole record, and not reverse the judgment for the error in sustaining the first replication, if the second replication shows a good answer to the plea, and should have been so adjudged. The rule of practice is doubtless as stated; and if upon the whole record the judgment is correct, it will not be reversed because the judgment was placed on a particular ground which is not sufficient to sustain it.

The question presented by this replication is, whether the defendants are estopped by the promise of their intestate, that the Statute of Limitations should not run on the note. It appears that this agreement was founded on the consideration that the holder of the note would not then bring suit on it, which was complied with \on Ms part, and that the agreement was made before the bar had ,'Uttaohed to the note, hut after its maturity.

I If this agreement be regarded as a new promise to pay the debt, ills it is treated in the declaration and first replication, there appears [to be no doubt of its validity in that respect; and that it had the leifect to extend the time of payment of the note to the period of six years from the date of the promise; for new promises are expressly recognized by the Statute of Limitations; and, consequently, it would have been a sufficient answer to a plea of the statute to an action commenced on the note at any time before that period transpired.

But it is insisted, by the plaintiffs in error, that, in its terms as stated in the replication, it is an agreement not to set up the Statute of Limitations as a defence to the note in all time to come, and is against public policy, as declared in our statutes requiring that actions shall be commenced within a limited time, and void. On the contrary, it is insisted that the statute merely confers a right to set up the limitation as a defence, as an individual privilege, and that every man has the right to renounce such a privilege.

In support of this position, a class of cases is referred to .by counsel for the defendant in error, holding that a party who waives his right to a third party, and thereby induces that party to acquire a right in the thing, cannot afterwards be heard to gainsay the right which he has been the means of inducing that party to acquire,— such as the maker of a note inducing a third person to purchase it, or a party having an interest in property inducing others, either by silence as to his right, when he knew that the other party was about to purchase the property, or by his positive conduct inducing him to make the purchase. But these cases are not applicable to this case, which presents an agreement made betw'een the parties to the note, and affecting their rights only.

Another principle is also relied on, — that a party may decline to assert a right which the law gives him the power to assert for his individual benefit; he may decline to plead the Statute of Limitations, or to make any other defence of which the law allows him to avail himself. But there appears to be a plain distinction between declining to take advantage of a privilege which the law allows to a party, and binding himself by contract that he will not avail himself of a right which the law has allowed to him on grounds of public policy. A man may decline to set up the defence of usury,- or- the Statute of Limitations, or failure of consideration, to an action on a promissory note. But it would scarcely be contended that a stipulation inserted in such a note, that he would never set up such defence, would debar him of the defence, if he thought fit to make it.

Several cases are relied on in behalf of the defendant in error to show that an agreement like this operates by way of estoppel.

In Utica Insurance Company v. Bloodgood, 4 Wend. 652, the defendant agreed in writing, before the maturity of the note sued on, not to plead the Statute of Limitations to an action on the note. ' The suit was brought before the expiration of the time the note had to run under the new promise created by that agreement; and it was held that the defendant was estopped by his agreement from availing himself of the Statute of Limitations. The same rule was recognized in the case of Livingston v. Livingston, 15 Wend. 289, where there was a new promise and action brought before the expiration of the time given by the new promise. In Randon v. Toby, 11 Howard (S. C. U. S.), 493, there was also an agreement in writing, that the defendant would not take advantage of the Statute of Limitations, and in the same instrument an agreement for an extension of the time of payment; and in an action brought upon the notes to which the agreement referred, before the'expiration of the time given by the new promise, it was held that the defendant wras precluded from setting up the statute by his agreement. These were all cases where the agreement had the effect of a new promise to pay the debt, and the actions were brought before the expiration of the time embraced by the new promise. It is clear that in each, the new promise prevented the bar from attaching until the expiration of the time to which the new promise extendedand if this decision be placed on that ground, it was properly held that the agreement, as a new promise, estopped the defendant from relying on the bar, until the time to which the new -promise extended had elapsed. But no case has been produced of an agreement not to plead the statute, which has been held to conclude the defendant of that right in an action brought after the expiration of the time given . under the new agreement. Such an agreement, indeed, appears to be only coextensive with the new premise; and the same period of limitation which would bar one, would bar the other. This must be true, unless the agreement be considered as ,an independent and collateral covenant not to plead the statute, which only became broken by making the defence. But so regarded, it appears clearly to be an agreement in violation of public policy; that policy which requires suits to be brought in due season, and discourages stale demands, as calculated to promote litigation, and to prejudice the just rights of parties. This policy stands upon the same reason of the public good, as the laws in relation to usury. Suppose, then, an agreement made by the maker of a nóte that he would not set up the defence of usury. Would an action lie for a breach of that agreement, in case the party should make the defence in disregard of it ? It appears not; and the reason is, that the right to make the defence is not only a private right to the individual, but it is founded on public policy, which is promoted by his making the defence, and contravened by his refusal to make it. The same principle is applicable to the policy of Statutes of Limitations; and with regard to all such matters of public policy, it would seem that no man can bind himself by estoppel not to assert a right which the law gives him on reasons of public policy.

Note. — For a full discussion of the doctrine of Journeys Accounts, see Dames v. Lowndes, 49 E. C. L. R. Y62, and authorities there cited.

If this agreement, then, be considered as a contract not to plead the Statute of Limitations to an action upon the note in all time to come, we think it in violation of the policy of the law, and void. And hence, the judgment on the demurrer to the second replication was correct.

The judgment is reversed, the'demurrer to the first replication to the amended plea sustained, and judgment here for the plaintiffs in error.