Shank v. Eacops

1 Tapp. Rep. 189

• Court: Jefferson County Court of Common Pleas
• Decided: September 15, 1817
• Status: Published

Opinion

President.

The replication is attempted to be supported by the latter part of the 2d section of the “ act for the limitation of actions,” passed January 25th, 1810 ; but the 5th section of the same act prevents its application to causes of action already accrued, and provides that such causes of action “ shall only be barred by the provisions of the act of January 4th, 1804.” The cause of action accrued to the plaintiff here, on the 4th of November 1808, and the statute of limitations began then to run; at that time the law made no exception as to persons leaving the state and afterwards returning, so that it is not necessary to give an opinion whether leaving the state, in the 2d section of the act of 1.110, and in the first section of the “ act to amend an act entitled an act for the limitation of actions,” of January 24th, 1809, is to be construed leaving this state, or state where the defendant resided at the time of contracting. The replication is insufficient, and if the previous pleadings are good, the defendant must have judgment on the demurrer.

The plea is, that the defendant “ did not at any time within four years next before the commencement of this suit, undertake or promise in manner and form,” &c. The statute limits the bringing of actions “upon book accounts, or tor forcible entry and detainer, or forcible detainer,” to “ within four years next after the cause of such action or suits.” This is not an action upon book account, or for forcible entry and detainer, or forcible detainer, but an action on the case, in which the plaintiff may bring his action at any time within six years. The plea is, therefore, clearly bad, and the plaintiff has judgment although the demurrer is sustained; for a bad replication is a sufficient answer to a bad plea.