8 Blackf. 506 | Ind. | 1847
This was an action of indebitatus assumpsit, brought by Riley Springer, surviving partner, &c., against Joseph Ml Kinney. The declaration was filed in April, 1844. The defendant pleaded the general issue and various other pleas. The sixth plea is as follows: The defendant says actio non, because he says that the Revised Statutes of the state, passed at the 27th session of the general assembly, were received by the clerk of the Decatur Circuit Court, at his office in Greensburgh in said county, on the 6th of March, 1844 ; and that a record of the time of the receipt of said statutes was then and there made by said clerk. The defendant further says, that he did not, at any time within, five years next before said 6th of March, 1844, nor did he at any time within five years next before the commencement of this suit, undertake or promise in manner and form as the plaintiff has complained against him. And this he is ready to verify. A general demurrer was filed to this plea of the statute of limitations; and the demurrer was sustained. The cause was tried on the general issue, and other issues. Verdict and judgment for the plaintiff.
The Court erred in sustaining the demurrer to the sixth plea. Previously to the taking effect of the Revised Statutes of 1843, the limitation of suits on such contracts as that sued on was five years. Those statutes, by a statutory provision, were in force in Decatur county at the time they were received by the clerk of the Circuit Court of that county,
The judgment is reversed with costs. Cause remanded, &c.
(1) To an action of assumpsit, commenced after the statute of limitations of 1843 was in force, the defendant pleaded that the causes of action did not, nor did either of them, accrue within five years next before the commencement of the action. Held, that the plea was bad. Winston v. M'Cormick, May term, 1848.