Ingraham v. Regan

23 Miss. 213

• Court: Mississippi Supreme Court
• Decided: November 15, 1851
• Status: Published

Opinion

Mr. Chief Justice Smith

delivered the opinion of the court.

This is an appeal from a decree of the vice-chancellor for the southern district.

The facts alleged in the bill of the appellants are as follows: On the 12th of March, 1838, the appellee made and delivered his promissory note, due four months after date, to the Grand Gulf Railroad and Banking Company for $2700.

On the 10th of February, 1842, this note with others was transferred, assigned, and delivered by the bank, without indorsement, to Lindsay and Ingraham, for the benefit of her creditors. Lindsay having died, the bank, jointly with Ingra-ham, the survivor of Lindsay, on the 31st of December, 1842, without indorsement, transferred, assigned, and delivered the said note to the said Ingraham and one Read, for the same purpose.

Proceedings in the nature of a quo warranto were instituted against the bank on the 13th November, 1843. And a judgment of ouster was rendered against it at the April term, 1846, of the circuit court of Claiborne. This judgment, upon appeal, was affirmed in this court at the January term, 1848, whereby the corporation was dissolved.

From the time of filing the injunction, which issued upon the institution of the said proceedings, until the final disposition of the case in this court, the appellants allege, they were restrained by the operation of the said injunction from attempting the collection of the money due on the- said note.

On the 1st of April, 1841, prior to said assignment, the bank had instituted suit in her corporate name on the note. This suit was brought in the circuit court of Claiborne county, and was formally abated by the order thereof on the 11th of April, 1848, on suggestion of a dissolution of the corporation. The bill was filed in September, 1848; and the prayer is for a decree against the appellee for the amount of the note.

A demurrer to the bill was filed, and a decree pronounced sustaining the demurrer and dismissing the cause.

The ground assumed in support of the demurrer was, that it is shown upon the facé of the bill, that the claim sought to be recovered was barred by the statute of limitations.

The statute bar in regard to actions at law is applied in equity to analogous cases. 1 Story’s Eq. 544. Iler v. Routh, 3 How. 296. And it is not contested, that if the bill showed upon the face of it that the claim was barred, the objection was properly taken by demurrer.

The note, for the recovery of which the bill was filed, matured on the 15th of July, 1838. As we have seen, more than ten years had elapsed after the note became due, before the commencement of this suit. Hence, unless it has been shown that a state of facts existed which took the case out of the operation of the statute, the claim was barred, and consequently that the decree of the vice-chancellor was error.

It has been settled by this court, in the case of Robertson v. Alford, 13 S. & M. 509, that the injunction, which issued under the act prescribing the method of proceeding against banks which have forfeited their charters, does not suspend the operation of the statute of limitations as to claims held by them.

It will not be contended that the appellants occupy a more favored position in respect to the statute than their assignor. It is evident upon the principle recognised in that case, that if the claim in controversy had remained the property of the bank, by the general provisions of the statute it would have been barred. Therefore, unless this case falls within some exception to the law of limitation, the claim is equally barred in the hands of the appellants.

This action, it is alleged, was commenced within one year after the abatement of the suit originally instituted by the bank. And it is argued that, although not within the letter, the case is within the equity of the 14th section of the act of 1822, (Hutch. Dig. 827) ; hence, that the statute bar does not apply.

The provisions of this 14th section were extracted from the 4th section, chap. 16 of the statute 21 James 1. There is, however, a difference between the two, not unimportant when the inquiry is made, whether, upon an equitable construction, the same or a wider operation should be given to the former.

This difference consists in the express and unqualified limitation placed by the former upon the right of the plaintiff, his heirs, executors, and administrators, after arrest or reversal of judgment, to bring a new suit, confining the right to the actions and cases specified in the preceding sections of the statute; whereas, by the proviso in the 16th chapter of the statute of 21 James 1, this right to commence a new suit is not limited, expressly, to the actions or cases enumerated, but extends to “ all such cases.” Thus laying a broad and visible ground upon which cases not embraced by the letter, might by an equitable construction be brought within the operation of the proviso.

This statute in regard to limitations was not a favorite with the judiciary of England. They were certainly liberal to the suitors in their courts who claimed an exemption from its operation, and appear to have acted upon a fixed determination to break the full effect of the law by the recognition of exceptions based upon the equities of the act. In this spirit, the earlier cases arising under the statute were decided; and the judgments in these cases have settled the interpretation.

The fourth section was held to apply, not only to cases where suit was brought after an arrest or reversal of the judgment, but to cases where a new suit had been brought after an abatement of a former one for the same cause of action. Thus, where the action had abated by the death of the plaintiff, his representative was permitted to institute a new suit within the time limited, although the time required to bar the claim had been out pending the original actions. The same exception was held to apply in cases, where suit was brought by husband and wife, after abatement of a former suit instituted by the feme whilst sole, and which had abated in con-quence of her subsequent marriage. Matthews v. Phillips, 2 Salk. 424; Wilcox v. Huggins, 2 Strange, 907; Middleton v. Forbes & Wife, Willes, R. 259; 2 Saund. R. 63, g, h, (note); Ballan, on Lim. 169, 170, 171.

Many of the elder states of the confederacy re-enacted the British statute in reference to the limitations of actions, or passed laws embracing its substantial provisions. In all of which the received interpretation in England was adopted. 1 Wash. R. 302; Riley’s Law Cases, 195; 1 Spen. R. 80; 2 Hawks, R. 357; 16 Pick. 313; 9 Verm. R. 399; 1 Harr. & McH. R. 518; 3 How. 39.

Hitherto, in Mississippi, no question has arisen‘which involved a construction of the 14th section of the act of 1822, in regard to limitations. But it is contended that we are bound by the construction placed upon the act, both in England and the United States, at the time of its adoption by Mississippi.

It is a rule in the construction of statutes, which appears to have been uniformly observed by the. supreme court of the United States “ To adopt the constníction made by the courts of the country by whose legislature the statute was enacted.” Dialogue v. Pennock, 2 Peters, 18; Kirkpatrick et al. v. Gibson, 2 Brockenb. 388; Cathcart v. Robinson, 5 Peters, 281.

The same rule, subject to some modification, has been generally applied in the state courts, 'in the construction of statutes, which had been admitted to operate within their jurisdictions, before a separation from the empire took place. The construction placed in England upon the statutes, was considered as accompanying them into the colonies, and by them silently adopted as integral parts of the statutes themselves.

But a distinction [exists, in the very nature of the case, between a statute of the British empire, which had been admitted to operate in one of her dependent colonies, and a law, although transcribed from the English statute-book, enacted by a sovereign state. In this case the statute, like all other legislative enactments, would stand on the same footing, subject to the same rules of construction. It must, however, be conceded, that the construction made by the courts of the country where the law has been enacted is entitled to very great consideration, and that very strong reasons should exist to warrant a departure therefrom.

But admitting, by way of argument, that we are bound to adopt the same construction in reference to the 14th section of the statute under consideration, which had been placed in England on the '4th section, 16th chapter of that of James 1; the question arises, Whether the case at bar is within the equities of the statute ?

As we have above seen, the equity of the fourth section was held to apply to but two classes of cases. 1. Where the statute bar had been completed, pending a suit which had abated by reason of the death of the plaintiff; and 2. Where a suit brought by a feme sole had abated in ^consequence of •her subsequent marriage; the time requisite to bar having run out whilst the action which was pending.

It is not the cause or the means, whereby the original suit has abated, which furnishes the ground for extending the equity of the statute in either of these cases. The basis of the equitable application of the statute, is the assumption that a close analogy exists between parties so situated, and the persons expressly provided for in the letter of the act. Hence, if the appellants stood in the same relation to the defunct bank which an administrator does to his intestate, or a husband and wife in a new suit, commenced under this construction of the law, do to the action originally instituted by the latter whilst a feme sole, there would be. no question, according to such construction, that they are not barred.

But this we do not "hold to be the case. The appellants who claim, by virtue of a contract of assignment, certainly do not stand in the character of the representatives of the bank. Nor is there such a privity of interest between them and the bank, us could warrant the assumption that the present suit was an equitable continuation of the action which had abated.

They were not parties to the record in the original suit. Their interest commenced with the assignment, by which they acquired an equitable right to the money, for the recovery of which that suit had been instituted. But this did not, in any sense of the terms, make them parties to it. The bank alone was responsible for the costs of suit, and subject to the equitable right which, by the assignment, became vested in the appellant ; she had the undoubted right to prosecute the suit, and collect the money, unless restrained by them. The present suit, therefore, is not a new suit, commenced by the same parties, or by parties who are privies in interest with the plaintiffs, in the suit which had ■ abated.

This court, in the construction of our statutes, have been careful to follow their terms, and to adhere closely to their provisions. This course has been always rigidly observed in the interpretation of the different provisions of the statute of limitations. In Smith v. Westmoreland, this court say, “ It is not the province of courts to engraft exceptions upon statutes, or to impair their practical utility by the introduction of refinements.” To hold that the situation of the appellants exempts them from the operation of the statute, would be to add another exception, which is not warranted by either the English or American authorities.

The decree is affirmed.

In this case a petition was filed for a re-argument; but the prayer of the petitioner was denied.