1 Or. 176 | Or. | 1855
Various statutes of limitation have been enacted in this territory, but the particular one, upon which defendants rely, is the Iowa statute of 1839, adopted here in 1844, and which provides, among other things, that “ actions upon the ease” shall be barred in five years. Plaintiff, however, contends that this statute can be no bar to the present suit, for the reason that the cause of action, set forth in his complaint, is not embraced within that class described by said statute. Under the old form of proceeding, this would
In the case of Maltby & Bolls v. Cooper, Morris’ Rep. p. 59, the Supreme Court of Iowa expressly decides that the statute in question may be pleaded in bar to an action of assumpsit. To conclude that the legislature, in providing a limitation to all the different kinds of actions mentioned in the statute, intended to omit the most common kind of all, would be to form an opinion not very creditable to its judgment. No effect can be given to this statute, it is said, because it was repealed in 1849, and cannot, therefore, be set up as a bar to an action brought after its repeal. When a statute of limitation, which has run so long against a cause of action, as to become a perfect bar, is repealed, such bar is not thereby destroyed. {Blackford’s Reports.)
Another ground taken in support of the demurrer, is that the answer avers non accruit infra lex annos, instead of “ five years,” as provided by statute. Doubts may well exist as to whether this answer would not be exceptionable under the old practice, though there are conflicting authorities upon the point; but under our present system, where informalities in pleading are not. regarded, the objection is untenable, for it is demonstrably true that if plaintiff’s cause of action did not accrue within six years, it did not within five years next before the suit. This statute, it is finally argued by plaintiff, is a law of the provisional government, and therefore had no force, until, with acts of a like origin, it was recognised by Congress on the 14th of August, 1848, in the act to establish the territorial government of Oregon. Confessedly, the provisional government of this territory was a government de facto, and if it be admitted that governments derive their “just powers from the consent of the governed,” then it was a government de jure. Emigrants who first settled Oregon, upon their arrival here, were without any political organization to protect themselves from foes without, or to preserve peace within; and, therefore, self-preservation constrained
During thirteen years plaintiff has been sleeping under the shadow of judicial tribunals, competent at all times to do him justice, and now he comes forward claiming large damages for the violation of a parol contract, alleged to contain a multitude of provisions and conditions ; thus showing the necessity of a law, which requires men to prosecute then1 suits while witnesses are possibly within reach of all parties, and before time and change have blotted out reliable proof from the frail records of human memory.
Holding, then, that the statute of limitations, of 1844, was valid in its inception, and became a complete bar to plaintiff’s action before its repeal, we conclude that defendants are entitled to judgments on the demurrer.
Judgment for defendants.