Farmers' Bank v. Gardner's Adm'rs.

4 Del. 430

• Court: Superior Court of Delaware
• Decided: July 5, 1846
• Status: Published

Opinion

By the Court:

Booth, Chief Justice.

—The question presented by the demurrer is, whether the present action is barred by the 5th section of the act entitled “ An act for the limitation of certain personal actions and of exceptions to accountsor, in other words, whether this action, within the intention of the act, is founded upon a record. If it is, it is not within the act. If it is not so founded upon a record, it is barred. (Sec. 5, Dig. 397,) “No action of trespass; no action of replevin; no action of detinue; no action of debt not founded on a record or specialty, shall be brought after the expiration of three years,” &o.

The defendant’s counsel have contended that the present action is not founded upon a record; but upon the fact of James Gardner having received under execution process, the amount of sales of James Armor’s lands, and upon the implied promise which the law raises from the legal obligation of the sheriff, to pay over to the plaintiffs the principal and interest of their judgment: that the declaration filed in this case, although in form, a declaration in debt, is merely for money had and received; for which assumpsit would as well lie; and, as the latter action cannot be founded on matter of record, this present action of debt cannot be considered as being founded on a record; but is founded in matter of fact, and the record is only inducement to the action.

The whole argument against the demurrer is based on a fallacy. It assumes as a principle, that an action of debt is not founded upon a record, unless the record itself constitutes the cause of action, and unless nul tiel record is a proper plea. Therefore, where the cause of action arises from a legal liability depending on a matter of fact, of which the record is the evidence, as nil debet and not nul tiel record, is a proper plea, the action caundt be founded upon the record, but upon ’ matter of fact: and the conclusion is, that in the former case, the action is not within the operation of the act of limitation; and, that in the latter case, the action is barred. 'Were this mode of reasoning correct, it would follow, that the present action, to which nil debet is properly pleaded, and nul tiel record would have been a bad plea, is barred by the act.

That there is a distinction between the two classes of cases, as regards pleading, is admitted; but that any exists, as regards the act of limitation, is denied. Both are excluded from its operation, and for the same reason. The object and policy of the act of limita tian is to prevent the institution of suits at a remote period of time from the accruing of the cause of action, where the claim or demand, depends on evidence not permanent in itself; but which by lapse of time, by the imperfect memory, or by the death of witnesses, is rendered doubtful and uncertain; and where injustice, fraud, or perjury might be resorted to, for the purpose of substantiating or resisting claims that have long been permitted to lie dormant. The act of limitation wisely and beneficially interposes, by requiring suits to be brought within a reasonsable time, when all the facts and circumstances under which a right of action may be enforced or opposed, are fresh in the memory of witnesses; and by barring the remedy of those who slumber on their rights, and neglect to litigate their claims within the time prescribed by the act. Hence, its several provisions have reference to the nature and character of the evidence, which it is necessary to produce, to sustain the action. Where the evidence is not fixed or permanent in its character, the remedy is barred after the expiration of three years from the accruing of the cause of action. Where the evidence is rendered more durable by the demand or cause of action being reduced to writing, the period of limitation is six years. But where the right of action is fixed, permanent, and so certain, that it cannot be changed, misconstrued, or misunderstood, as in the case of a specialty or a record, the act of limitation is silent, and leaves the case to the common law presumption of payment or satisfaction after the lapse of twenty years.

No difference exists in reason, or in the obvious intention of the act, whether the record itself constitutes the cause of action, as in the case of debt on a judgment, or a recognizance for the payment absolutely of a specific sum of money; or whether the record shows a legal liability or obligation to pay a certain sum of money, for the recovery of which an action of debt is brought. In both cases the record furnishes the same permanent and unalterable evidence for establishing the claim ; and must be set forth in the declaration. In debt on judgment, the declaration sets forth simply the judgment; because on that alone the defendant’s liability is founded; but in an action of debt like the present, the declaration sets forth the judgment, the amount of which is sought to be recovered, the execution process under which the levy was made and the lands sold, and the defendant’s return on such process; because they are all matters of record essential to the right of action, and on which the liability of the defendant as sheriff, is founded. In each case, the declaration expressly alledges that by means or by reason of the record, an action has accrued to the plaintiff to demand and have of the defendant, the sum demanded.

Bradford and Bayard, for plaintiff. Wales and Whitely, for defendant

The statute 21 James 1, ch. 16, bars “ all actions of debt grounded upon any lending or contract without specialty.” Our act bars all actions of debt “not founded upon a record or specialty.” The meaning of each is substantially the same. The cases cited by the plaintiff’s counsel from 2 Shower’s Rep., 2 Modern, and the note of Sergeant Williams, in 2 Saunders 67, are conclusive authorities upon this question.

The opinion of the court therefore, is, that the plaintiff have judgment on the demurrer.