Gebhart v. Adams

Breese, J. It is now well settled that the statute of limitations must be specially pleaded, however contrary it may be to the original design of the statute, to all actions of a personal nature. It cannot, by demurrer to the declaration, be used as a defense. In an action on a penal statute, to make the statute of limitations available as a bar, it must be specially pleaded. Under the general issue, the lapse of time might be given in evidence to defeat the action, as well as under the plea of the statute. We have decided, in Burnap v. Wight, 14 Ill. R. 304, that the statute of limitations cannot be urged in support of a motion to dismiss a writ of error, which appeared not to have been sued out within the time limited by law. In the case of Johnson v. The, United States, 3 McLean, 89, the court held, when there is a bar under this statute, it must be pleaded, and this seems to be the tenor of the decisions of all the courts in modern times. The allegation of the precise time is not essential in actions of this kind, nor even in criminal cases, unless in a few cases where time may be of the essence of the controversy. Proving the act to have been done on any day after the day first alleged and before the commencement of the suit, would be sufficient. It is contended further by the defendant, that the declaration is defective, because it does not aver that the timber was cut willfully, knowingly, or in criminal negligence; and reference is made to 2 Scammon, 462; 12 Ill. R. 239; 10 N. Hamp. 438. The case in 2 Scammon, Cushing v. Dill, was originally commenced before a justice of the peace, and removed by appeal to the Edgar Circuit Court, and thence to this court. The question, therefore, must have arisen upon the evidence; and as there was no proof that the act had been willfully done, the judgment was reversed. The case in 12 Ill. R., Whitecroft v. Vandaver, was decided upon a motion in arrest of judgment, for manifest defects in the declaration, the declaration not containing the necessary averments to bring the case within the statute. In this case the declaration is framed in the words of the statute, and contains all the averments this court deemed essential in the case of Whitecroft. It is a correct rule in declaring upon a statute, to describe the cause of action, whatever it may be, in the words of the statute. Even in criminal cases, this is allowed. The court, in 12 Ill.-R., put their construction upon the statute, and say, “ to subject a party to such punishment, he must have committed the wrong knowingly and willfully, or under such circumstances as show him guilty of criminal negligence.” Not that this averment is required in terms by the statute, but that must be taken to be the meaning and intent of the act This is the construction the court put upon the statute. If then the words of the statute mean that the party must commit the wrong knowingly and willfully, then they must mean the same in pleading. The court cannot put one construction upon words in a statute, and deny them the same construction when the - same words are used in a declaration or plea. The pleader is not bound, in declaring upon a statnte, to set forth all or any of- the words the court may have used in construing the statute, for when they have placed their construction upon it, and say that it means a particular thing, the words of the statute must be construed to mean the same thing in a declaration on that statute. This is a self-evident proposition. We take this declaration, then, being in the words of the statute, to mean that the act of the defendant, in cutting the timber, without the consent of the owner, and by an entry upon the land with force and arms, was an act done; knowingly and willfully. These remarks will also apply to the case in 10 N. H., Batchelder v. Kelly. The declaration containing all the essential averments, should have been-adjudged good, and .the. demurrer overruled. The judgment is reversed and the cause remanded, with leave to defendant to withdraw his demurrer and plea. Judgment reversed.