Dana v. McClure

The opinion of the court was delivered by Steele, J. It is obvious that the whole question is made on the [201] motion to dismiss. The new count either is or is not rightfully in the case. If it is rightfully in the case, it relates back to the commencement of the suit, and the defendant’s plea, that the cause of action did not accrue within fourteen years next before the filing of the new declaration, is bad. If it is not rightfully in the case, it should have been dismissed on the motion and the defendant not required to plead to it at all. The motion to dismiss the new count is made upon two grounds, one of which is, that the count was not filed until after the plaintiff had filed his specifications and the defendant had pleaded to the original declaration. The statute provides that “ the court may at any time permit either of the parties to amend any defect in the process or pleadings.” G-. S. p. 267, § 41. The amendment in this case, being made within the time prescribed by the rules of practice in the county, must be treated as made by leave of court. The authority of the county court to allow a new count in the nature of an amendment, at any stage of the proceedings, is a matter of statute law, and the exercise of that authority is, as to time, a matter of discretion ; and neither the statute nor the discretion can be revised by this court. The other ground of the motion to dismiss, is that this new count was not in the nature of an amendment, but for a new cause of action. The statute, which is merely declaratory of the law as it existed before, would not authorize the plaintiff to commence a new suit under the guise of an amendment. The plaintiff having declared originally in general indebitatus assumpsit for the purpose of collecting a promissory note, the defendant’s plea, non accrevit infra sex annos, would under the decisions Lapham v. Briggs, 27 Vt. 26, and Carpenter v. McClure, 38 Vt. 375, have defeated the plaintiff’s recovery, although the note was witnessed. The plaintiff could not have avoided the plea by replying that the action was brought to collect a witnessed note. If the note had been declared upon specially, the defendant could not have prevailed by the statute of limitations, for at that time less than fourteen years, though more than six, had elapsed since the maturity of the note. The new count was filed, declaring specially on the note, in order to enable the plaintiff to avail himself of the extended limitation of fourteen years; but [202] before the new count was filed the period of fourteen years had also elapsed. The defendant claims that this new count, if received and if allowed, as new counts always are, to relate back to the commencement of the suit, will, in substance, revive by relation a right which was lost by limitation, and by creating a living claim out of this extinguished right, will furnish the plaintiff with a new cause of action. This proposition is not sound. The original debt was not merged in the declaration. ■ The lapse of the statutory period of time does, not affect the cause of action. The debt does not become extinguished. The debtor may only ayoid it by pleading specially a statutory limitation to an action upon it, which is a plea to the remedy and not to the right. The fact that the plaintiff was in such a position that, unless he was permitted to file a new count, the defendant would have been able to defeat his recovery of the debt, does not make the additional count a new cause of action, and instead of being a reason for refusing, was the best reason for granting leave to file new counts. The plaintiff brought his suit in season to save his debt from the operation of that statute of limitations which the legislature had made applicable to it, but he declared upon the indebtedness in such a manner as to enable the defendant to plead a different statute of a shorter limitation. The new count was merely to parry this defence by setting up specially the indebtedness he had already alleged generally. The defendant had acquired no vested interest in the advantage of pleading which he was improving. 1 Comyn’s Digest, 465, citing Marlboro v. Widmore, 2 Str. 890 ; Havers v. Bannister, 2 Wils.7 ; 1 Bouvier’s Bac. Ab., p. 256. An amendment may quite as reasonably be allowed to preclude such a statutory defence, as to perfect a declaration which is of itself insufficient, and would fail on demurrer or motion in arrest. The cause of action is the debt which the plaintiff was seeking at the outset to enforce, and so long as he sets up no new debt he sets up no new cause of action. We are unable to discover any tenable ground in reason or authority upon which the plaintiff could, in this case, have been denied leave to file, pursuant to the rules of practice, this new declaration. The judgment of the county court is affirmed.