Pennington v. Castleman

6 Mo. 257 | Mo. | 1840

Opinion of the Court delivered by

M’Girk Judge.

Pennington brought an action of covenant against Castle^ man on a sealed instrument for the payment of money, for a^out the sum of 837 dollars. There are two counts in the declaration. The defendant pleaded, first, non est factum; 2d. limitation of ten years; two pleas of payment: issues were taken on the 1st, 3rd and 4th pleas. The plaintiff demurred to the second plea of the statute of limitations; the the court overruled the plaintiffs demurrer, held the plea good, and gave judgment against the plaintiff. The causéis brought here by a writ of error. The point insl ted on, by the counsel for the plaintiff in error, is that the court erred in overruling the demurrer to the second plea. His argument is, that the statute of limitations contains no limitations of the action of covenant for the payment of money, or any thing else; and not being within the words of the act, there is no reason in equity, policy, or justice, why the supposed spirit of the act should be resorted to, to embrace the action of covenant. On the other side it is contended, that the action of covenant, when founded on a sealed instrument for the payment of money, is as much within the meaning and spirit of the act, as it would be if it had been expressly named in the act. I will proceed to examine the matter of law contained in this proposition. By the 1st sect, of the 2nd art. of 1235, entitled, limitation of ac- . ... /-x n ♦ , . fr>1 _ „ li. 0. ot)o,it is enacted, thus: iheioiiowmg actions sUall be commenced within ten years, after the cause of such action accrued and not after, 1st. all actions of debt found-» any writing, whether sealed or unsealed. 2nd, actions assump.-it, founded on any writing for the direct pay- . * rr„ J , ° ,. r ' ment af money. 1 he statute then goes on to limit nearly1 actions of a personal nature, having before limited ejectment, but it no where limits or says one word abou| actions of covenant, neither when the covenant is for worfy acts to be done, nor where the covenant is for the pay- ' ♦♦.i i meat of money. Hence, it is insisted, by the counsel, that the action of covenant, not being named in the words of the act, is not within its equity. Castleman’s counsel insists; there can be no reason assigned, why the legislature would wish to leave unlimited actions of covenant, especially when actions of debt on like instruments are limited, To this argument it may well be said, that there is no very satisfactory features in the form or substance of the act, to induce a court to believe that the legislature did intend to embrace in it, covenant; but, on the contrary, they use words to evince a contrary intent. It is an established rule, that all acts, made in pari materia, are to be taken together as if they were one law. Bac. Ab. 382. It is also laid down in page SSI, that the general enacting words, in one clause oí a statute, may be restrained by the particular words in a subsequent clause of the same statute ; and then again, in the same page it is said, that if the particular thing be given, or limited, in the preceding part of a statute, this shall not be taken away or altered by any subsequent general words of the same statute. In this case, the 2nd and 4th art. me not only found in the same statute, but they are on the same subject, which is to fix the time for bringing actions on sealed instruments. The second sect, of the 4th art. declares that every sealed instrument of writing for the payment of money, shall be presumed to be paid and satisfied after the expiration of twenty years from the time such action shall accrue. But this presumption may be repelled, &c. In the first place, why the legislature should limit the action of debt on a bond to ten years, and then still allow the party to sue after the ten years and within the twenty it not easily seen; and how it can be supposed, that under the name debt, the legislature intended to limit all actions, by whatever name they might be cabed, and still allow twenty years far the action on a sealed instrument, is not easily seen; accordingly, in the 2nd sect, of the 4th art. it is enacted, that every sealed instrument of writing, for the payment of money, shall be presumed to be paid and satisfied after the expiration of twenty years; this shows, clearly enough, that the legislature did not expect that the enactment in the first part of the statute had barred all sorts of actions on sealed writings for the payment of money in ten years, otherwise they would hardly have attempted, by future repugnant provisions, to fix the presumption of payment on like papers at twenty years. From this view of the subject, I conclude, the counsel for Pennington is right in his interpretation of t,he law. It is argued that the word debt Uf:ed *n ^st sect’ f*ie art- 13 tó be understood in its technical sense, as used by the statute. It is a rule, that when legal, or technical words are used in a statute, in that same sense they are to be understood. So here tin» act bars the action of debt founded on a sealed writing, then debt does not mean covenant too, merely because covenant as well as debt, will sometimos lie on the same instrument. 1 will leave the point as above discussed. The next point is whether the plaintiff could have judgment on this declaration. There are two counts in the declaration; tho first of which is not well laid, but the last is without exception.— In page 470 R. C. sect. 4 it is enacted, that where there are several counts in a declaration, and entire damages are giv* eu, the verdict shall be good, notwithstanding one or more such counts may be defective. In this case the plaintiffs declaration is good as to the last count, and would, if he had a verdict, entitled him to judgment; much more is it good as it stands now, whore the bad count may be stricken out; there is therefore no objection to the declaration. Because the court below over ruled the plaintiffs'demurrer to the defendants plea of the statute of limitations, the judgment of that court is reversed, and the cause remanded for a new trial.