« ΠροηγούμενηΣυνέχεια »
from Henry Simpson to Lewis Stiles, and to bear date on the sixteenth day of March, one thousand eight hundred and nine, was executed by the said Henry Simpson; which said assertion the said Richard Roe then and there denied to be true, and then and there affirmed the contrary thereof; and thereupon afterwards, to wit, on the same day and year, and at the place aforesaid, in consideration that the said John Doe, at the special instance and request of the said Richard Roe, had then and there paid to the said Richard Roe the sum of one hundred dollars lawful money of the United States, he the said Richard Roe undertook and then and there promised the said John Doe, to pay him the sum of two hundred dollars of like lawful money in case the said paper writing was executed by the said Henry Simpson, as he the said John Doe had asserted and affirmed as aforesaid. And the said John Doe in fact saith, that the said paper writing was executed by the said Henry Simpson as he the said John Doe had asserted and affirmed, to wit, on the same day and year, and at the place aforesaid, of which the said Richard Roe afterwards, to wit, on the same day and year and at the place aforesaid had notice. By reason whereof, the said Richard Roe became liable to pay to the said John Doe the said sum of two hundred dollars lawful money aforesaid, to wit, on the same day and year and at the place aforesaid; and being so liable, he the said Richard Roe, in consideration thercof, afterwards, to wit, on the same day and year and at the place aforesaid, undertook and promised the said John Doe to pay him the said sum of money, when he the said Richard Roe shoulp be thereunto afterwards requested. Nevertheless, the said Richard Roe, although often requested so to do, hath not as yet paid to the said John Doe the said sum of two hundred dollars, above demanded, or any part thereof, but to pay the same to the said John Doe, the said Richard Roe hath hitherto wholly neglected and refused, and still doth neglect and refuse, to the damage of the said John Doe, of two hundred dolJars, and thereof he brings suit, &c.
PLEA.–And the said defendant, by George Jones, his attorney, comes and defends the wrong and injury when &c., and says that the said plaintiff ought not to have or maintain his
aforesaid action thereof against him, because he says that true it is that such several discourses were had and moved, and that such several questions arose and were debated between the said plaintiff and the said defendant, and that the said defendant did undertake and promise in manner and form, as the said plaintiff hath abore in his said declaration alleged; but the said defendant further says, as to the sum of two hundred dollars in the first count of the said declaration mentioned, that the said paper writing in the said first count mentioned, was not executed by the said Henry Simpson, in the said first count mentioned, as the said plaintiff hatt. in the said first count above alleged ; and of this the said defendant puts himself upon the county, and the said plaintiff doth the like, &c.
The following is the form of the question, as we would have it stated :
TITLE OF THE Cause. On motion, &c. It is ordered, that the following question of fact be tried at the circuit court, to be held, &c., viz :
Whether a certain paper writing, produced by William Smith, before Moses Hale, master in chancery, upon a reference to him, in the suit pending in that court, between the said William Smith and the representatives of Thomas Edwards, and purporting to be a deed from Henry Simpson to Lewis Stiles, and to bear date on the 16th day of March, 1809, was executed by the said Henry Simpson.
This is similar to the Scotch issues, which are remarkably neat and simple. The following is a specimen:
STEWART vs. FRASER.—This was a reduction of the sale of the estate of Belladrum, on the ground of misrepresentation. After various proceedings in the court of session, the case was sent to the jury court. The case was tried on the following issues:
56 Whether during the summer and autumn of the year 1826, and at what time in that period, the pursuer agreed 10 purchase
from the defender the estate of Bellidrum, and to pay for the same the sum of £80,000 ?
" Whether the pursuer was induced by the misrepresentation of the defender, in regard to said estate, to enter into the said agreement ?:'-(5 Murray's Rep., 166.)
of the time of commencing civil actions.
CHAPTER 1. ACTIONS, IN GENERAL.
II. ACTIONS FOR THE RECOVERY OF REAL PROPERTY.
This title, and the chapters enumerated under it, correspond, both in subject and arrangement, with the title of the revised statutes, “ of the time of commencing actions.” (2 R. S. 3d ed., 391–399.) Their introduction in this place is rendered necessary, by the fact, that the existing limitalions of actions, (with the exception of those relating to real property,) depend upon the distinctions between actions at law and suits in equity, and between the sereral forms of actions at law. To carry into effect, therefore, the abolition of those distinctions, it becomes necessary to revise the statute of liinitations, and to adapt it to the substance, instead of the form, of the remedy. In the performance of this part of our duty, we have supposed that clearness of arrangement required, that the existing statute of limitations, instead of being amended by disjointed prorisions, calculated raiher 10 perplex than to aid the reader, should be embodied in an entire form, and in a natural and consecutive order. This has been done, by proposing to repeal all the provisions of the existing statute, excepting those relating to actions for the recovery of real property. These are retained, by a general provision, in section 68; they being of considerable length, and there being no alteration in them, which rendered it necessary to transcribe them in the present act.
In examining this subject, many important changes, both in its general policy and in its details, have suggested themselves to our minds, some of which we have proposed, and others of which, in the further progress of our labors, we may deem it expedient to submit for the consideration of the legislature. For the present, we have mainly confined ourselves to a mere revision of the existing statute of limitations, with such changes of phraseology, as seemed to be rendered necessary, by a due regard to simplicity of style, and by the judicial constructions given to portions of it, calculated to render its provisions more clear and explicit.
THE TIME OF COMMENCING ACTIONS IN GENERAL.
SECTIO. 65. Repeal of existing limitations,
67. Time for commencing civil actions.
§ 66 The provisions contained in the second, third, fourth, fifth and sixth articles of the chapter of the revised statutes, entitled “of actions and the times of commencing them,” are repcaled, and the provisions of this title are substituted in their stead. This title shall not extend to actions already commenced, or to cases where the right of action has already accrued; but the statutes now in force shall be applicable to such cases, according to the subject of the action, and without regard to the form.
The provisions proposed to be repealed by this section, are contained in 2 R. S., 3d ed., 393-399; and are entitled, “ of the time of commencing actions for the recovery of any debt or demand, or for damages only,"_" of the time of commencing actions for penalties and forfeitures,”'_“ general provisions concerning the commencement of suits, and the persons and cases excepted from the operation of the preceding articles of this title,"_"of the presumption of payment, arising from the lapse of time;" and “ of the time of commencing suits in courts of equity." These subjects are all embraced in the third and fourth chapters of this title; to the several sections of which are appended explanatory notes, shewing in what respects the existing statutes have been adhered to, or departed from, and, where the latter course has been adopted, the reasons which have rendered alterations necessary.
The concluding sentence of section 66 is designed to protect actions already commenced, or causes of action which have accrued, from the operation of this act, and is, in this respect, similar to the provision contained in 2 R. S. 3d ed. 398, sec. 45. The qualification has, however, been added, that the statutes now in force shall be applicable to such cases, according to the subject of the action, and without regard to the form ;" for the purpose of rendering the saving clause consistent with the enforcement of a remedy in causes of action already accrued, without regard to the distinctions now existing between cases of legal and equitable cognizance, or between the several forms of actions at law.
$67. The civil actions embraced within section 66, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, except where, in special cases, a different limitation is prescribed by statute.
Similar in form to 2 R. S., 3d ed., 397, sec. 43.