Davis v. Hascall

Opinion of the court delivered by Tompkins, J.* This is an action of assumpsit on a promissory note instituted in the circuit court of Ralls county by Davis against Ilascali. Haseall pleaded, 1st, that he -did undertake and promise within sis years &c. 2nd, That he did not undertake and promise within ten years &c. To these pleas the plaintiff demurred, and the circuit giving judgment on the demurrer for the defendant, the plaintiff' seeks to reverse that judgment by prosecuting his writ of error in this court. At the time the note sued in this cause was executed, the right of bringing actions on such notes was limited to five years; but before the note became due, the act of the 21st February 1825 was in force which limited the time of suing on such instruments to ten years: it is contended tiiat the plain tiff had no right to plead the last act, but could only plead act in force at the time the note was made. It seems to the court that if the plea that the action was not brought within five years, be good, then the plea that it was brought within ten years, a space of time including five years, cannot be bad. It not being necessary to decide whether the time of instituting the present action ought to be governed by the former or latter act, we will content ourselves with saying that the plea, that the suit was not commenced within ten years &c, is good: and are therefore of opinion that the judgment of the circuit court ought to be affirmed; and it is accordingly affirmed. Footnotes [*] Judge Wash being absent.