Lamkin v. Nye

Simrall, J.: Suit by Nye, executor of Wilson, to recover the amount due on a sealed instrument dated 12th of January, 1854, for $300, due 1st January, 1855, and also a promissory note for $150, dated January 1st, 1856, due one day after date. Declaration filed January 3d, 1862. Writ issued 23d January, 1866. Executed by the sheriff April 30,1866. There was testimony showing that a writ was issued in 1862. 1st Plea : Won assumpsit. 2d Plea: To count on writing obligatory, that the action did not accrue in seven years. 3d Plea: That cause of action on the promissory note did not accrue in six years. 1st. Replication to the statute of limitation on bond, that the act of 1861 suspended suits, to which demurrer was sustained. • 2d. Replication suspension of acts of limitations, 2$ January, 1862, and that “ said cause of action was presented to defendant, and by him acknowledged to be due and unpaid within seven years next before the 29th January, 1862.” 3d. Replication that suit was brought on bond,'on 3d January, 1862, and within seven years and four days, the plaintiff being allowed three days of grace. 4th. Replication to statute on note, that six years had not expired on 5th August, 1861, when by the statute the plaintiff was prohibited from suing, etc., to which demurrer was sustained. 5th. Replication of suspension of limitations by act 29th January, 1862, and that “note was presented to the defendant, and by him acknowledged to be due and unpaid within ■six years next before the 29th January, 1862.” 6th. Replication that suit was brought on note within six years and four days from maturity of the note, to-wit: On 3d January, 1862, plaintiff being allowed three days of grace. Demurrer by plaintiff to fourth plea, because the plea. — 249 — embraces two causes of action, one on writing obligatory, the other on note, and six years is pleaded as to both, etc. Demurrer to fourth plea sustained — leave to answer over. Demurrer to first and fourth replications sustained, and to others overruled. There is demurrer by defendant to the replications to the second and third pleas. Assignment of errors: 1st. Because the demurrer of defendant to plaintiffs replications was not extended back to the declaration. The argument of counsel in support of this assignment of error, goes on the predicate that the declaration is in assumpsit, counting on a sealed instrument, and on a promissory note, and that there is a fatal misjoinder of causes of action. The declaration does not, on its face, profess to be assumpsit, and technically is not in that form of action. It has more of the characteristics of an action in debt than in assu?npsit. This objection, however, is disposed of by article 78, page 491, of Code. “The declaration shall contain a statement of the facts constituting the cause of action, in ordinary and concise language, etc., and if it contain sufficient matter of substance for the court to proceed on the merits of the cause, it shall be sufficient.” This has been done by the pleader. He has set out facts which constitute a cause of action. He has not begun or concluded his pleading in the technical language, which is appropriate to either debt or asstompsit; nor has he designated his suit as brought in either form. His statement of the “ facts” constitutes a substantially good declaration in debt. It is good pleading in this form of action, to include counts on bonds with counts on simple contracts, the special requsite being for a sum certain. It was not error, therefore, to have joined the count on the writing obligatory, with a count on the promissory note. 2d. The second error assigned is to the decision of the circuit court in not sustaining the demurrer to second, third,- and fifth replications of the plaintiff to the second and third pleas. The second and fifth replications present the same point; — 250 — the former having reference to the time of suit on the sealed instrument, the latter on the note. These replications set up a suspension of statute of limitations by the. act of 29th January, 1862, “and that said causes of action were presented to, and acknowledged by the defendant, within seven years (as respects the bill single, and six years, the note), next before the 29th of January, A. D. 1862. ” Conceding that the statute of limitations, which governs in this case, is the act of 1844, as held in the case of Caruthers v. Hurley, 41 Miss. Rep., 72, the replications are not in the usual form. They do not state when the acknowledgement was made, whether before or after the bar had attached. But for matter of form, where there is enough of substance in the pleading which, if proved, would sustain or defeat the action, we are not at liberty to disturb the judgment of the court below. The third replication is, that suit was brought on the sealed instrument within seven years and four days ; and on the note, within six years and four days after maturity, the four days respectively being days of grace; that the suit was brought on the 3d day of January, 1862. We think the demurrer ought to have been sustained to the replication to the plea, having reference to the count on the writing obligatory. Looking at the substance of this pleading rather than its form, we consider this replication as affirming that a suit brought on the writing obligatory on the 3d of January, A. D. 1862, was within seven years, from the accrual of the cause of action, because the instrument was entitled to three days of grace. If grace was allowable on this writing, the instrument falling due on the 1st day of January 1855, the seven years would expire on the 1st day of January, 1862. Add three days of grace, and the instrument would be due the 4th of January, 1862, and suit would be in proper time. But is this sort of obligation entitled to grace ? In Skinner v. Collie, 4 How., 396, it was held that a bill single is entitled to grace. This judgment on the case before the court, may be correct. The suit was on a promissory note — 251 — under seal. There are many reasons why bills single, which in no respect differ from promissory notes, except in the fact that they are sealed, should be put on the same footing as to endorsement, etc., as promissory notes and bills of exchange. But because the statute declares, “ that all bonds, obligations, bills single, promissory notes, and all other writings for the payment of money or other thing, may be assigned by endorsement,” and that assignee may sue in his own name, etc., it does not follow that all “ bonds, obligations and other writings, for the payment of money or other things, are put in all respects, on the footing of inland bills of exchange.” We have examined the cases accessible to us referred to in 4 Howard. In the case referred to in 2 Yerger, 576, the question of das^s of grace was not raised nor alluded to by the'court. The case referred to in 2 Porter, Ala. Rep., 461, puts the responsibility of the assignor of a bond under the statute law of that state. The court say: “ If it be a bill of exchange, then the lex mereatoria governs. If not, but a bond for example, then the liability is such as the statute law imposes, in force at the time of the endorsement. It is important then, to inquire in every case, the nature of the instrument endorsed.” The court then go on to remark, "that bonds payable in bank are subject to the law merchant, by virtue of the act of 1832. If the endorsement be under the act of 1828, entirely different responsibilities attach, such as are prescribed in the act.” In this case, days of grace are not referred to or discussed. We believe that the true interpretation ol our statute is, that the endorsement of bonds and other writings for the payment of money, or any other thing, does no more than pass to the assignee the legal title to the obligation or contract, with a right to sue at law, whilst the endorsement of “ negotiable paper,” such as is recognized by the law merchant as negotiable, carries along with it (in addition to the legal title to the paper), the responsibilities, as well as the indulgencies incident to an endorsement. Of those indulgencies are days — 252 — of grace. If A, by writing, promises to deliver to B a horse on the first day of the month, is it the professional understanding that B has three days of grace after the month has expired within which to make delivery ? If a party is obliged, by writing, to pay to another a hundred bushels of corn, and that contract is assigned to B, can B demand the corn and give notice to A and hold him as endorser under the law merchant ? In the cases just supposed, must the party wait the expiration of the days of grace before he can sue for a breach ? The writing sued on is an obligation to pay money and do sundry other things. There might be several other breaches besides non-payment of the money, either of which would be a good cause of action. There was error in the first instruction granted the plaintiff. This instruction assumes that the filing of the declaration is the commencement of the suit. And if this be done within the time limited for suit the bar is avoided. The law is more correctly stated in the third instruction requested by the defendant, but refused by the court. In Allen v. Mandeville, 26 Miss. Rep., it is said : “ the issuance of the writ is doubtless the commencement of the action, citing 7 Ver. R., 429. But even in that case it was held not to be a good commencement of the action,.unless the writ be after ward served.” Angel on Limitation, p. 392, sec. 312, thus sums up: “The general rule appears to be, in this country, at the time of suing out the writ the action commences, either when the writ is delivered to the sheriff, or when sent to him with Iona fide intention of being served.” 3 John. R., 42-51; ib. R., 323; 15 Mass., R., 859; 1 Serg. & Rawle, 236. If the original summons was lost or destroyed, it is competent by parol to prove the date of its issuance, and the date of its receipt by the sheriff. This was the writ that begun the suit, and not the one served on Lamkin in 1866. We deem it proper to remark, in reference to the second instruction given at the request of the plaintiff, that whilst it announces the law, as ruled in the case of Brady v. Doherty, 30 Miss., — 253 — Rep., 40, it ought to be accompanied Avith explanations from the court, of what is meant by “ a claim being present and ready to be presented.” In the case cited, it is said “that the claim should be present when the promise or acknowledgednxent is made, and the promise should be made Avith a full knowledge of that fact and of the identity of the claim.” The “presentment of the very claim,” evidently carries along with it the idea of a physical act. No case has gone further than to hold that the presentment may be dispensed with when the person to xvhom the promise or acknowledgment is made, has the claim Avith him ready to be produced, and the debtor knows it, but waives it, or at all events, does not call for it. The language of the statute is: “ The very claim sued on was presented and acknowledged,” etc. This court has assimilated the act to be done in the presentment of the claim, to a “ tender.” The party must be ready with the money, and actually offer it to the creditor, unless the creditor waives it, or recognizing the presence of the money, dispenses Avith its production. These observations are made Avith a viexv to the testimony on this point in the bill of exceptions. The evil intended to be remedied by the statute was to extricate the subject from the latitude and vagueness to which the courts had gone in sustaining indefinite and uncertain acknowledgments and promises to take cases out of the statute. Therefore, the main provision is, they shall be in “ writing,” provided, however, that “ the promise ox-acknowledgment, to save the bar, may be made without writing if it be proved that the very claim sued on was presented, and acknoxvledged to be due,” etc. We are disposed to adhere strictly to the statute, and not by interpretation and construction to exxlarge it. To do so would be to rush into the very evils the legislature attempted to cure. It was because, perhaps, of the initiation of a movement in the courts to enlarge by construction the literal requirement of the act of 1844, that in 1857 it was declared — 254 — that all these promises or acknowledgments, to continue or revive a claim, should be “ in writing signed by the party to be charged thereby.” Let the judgment be reversed, a venire facias awarded, and a new trial had in accordance with the principles herein laid down.