French v. O'Neale

The General Court, Johnson, Ch. J. and Goldsbo rough, J. (a) gave judgment for the plaintiff, that the act of limitations could not be pleaded in this action. Thi defendant appealed to the Court of Appeals.

In the Court of Appeals. A. Chase, for the appellant. French brought an action on the case, in the General Court, against O’Neale (as Sheriff of Frederick County) for an escape, to which he plead ed the act of limitations, and on general demurrer the General Court gave judgment for French. To reverse thi; judgment O’Neale has appealed.

The only question is, whether the act of Assembly oi 1715, c. 23. is pleadable to this action on the case for an escape. The words of the act are “ that ail actions upo? the case shall be brought within three years ensuing the cause of action, and not after.” The prohibition in tin-statute 21 Jac. c. 16. is in the same words. As the present action is an action on the case, how is r possible to think that it is not within the act of Assembly, If actions on the case are to be confined to actions upoi simple contract, book debt, or account, then actions of trover, and all special actions on the case for deceit, conse quential injuries, &c. are not within the act; and every per son knows that in trover, (Cro. Car. 246. 333.) and all ac lions on the case, the act of limitations has always andurii formly been pleaded and allowed. ⁴⁰⁵ If it be admitted that all actions on the case (not com-V menced within three years after the cause of action accrues) may be barred by pleading the act of Assembly, there must be an end to the question, unless this particular action on the case for an escape can be distinguished from all other actions on the case.

This difference was taken and allowed by the General Court, on the authority of 1 Mod. 245. Cochran v. Welby, (29 Car. II. in C. B.) which is there stated to be an action on the case against a Sheriff for not bringing money into Court at the day of the return of the writ, which money he had levied on a fieri facias for the plaintiff. To this action the defendant pleaded the statute of 21 Jac. c. 16., and it Was not allowed, because the ground of the action ia maleJicium.

This law is reported in 2 Mod- 212. and in 2 Show. 79. and stated to be an action of debt, and so cited 8 Bac. Abr. 509. If it was an action of debt, it is good law; if on the case, it is not law. The reason, because ex maleficio, is nonsense.

This is the true distinction: to an, action on.the case for an escape, the act of limitations is plead-able, but not to an action of debt for an escape, because the one is within the act of limitations, but the other is not. The act of Assembly (1715, c. 23.) prohibits three kinds of actions of debt. 1. Actions of debt for lending; 2. Actions of debt on contract, without specialty; 3.

Actions of debt for arrearages of rent. The statute 21 Jac. c. 16. has the same prohibition. No other actions of debt are within, the act of Assembly or the statute of James. Ergo, sax action of debt for escape is not within the statute of James, or our act of Assembly.

As the act of limitations is in restraint of the common law, which fixed or limited no time for the bringing of actions, no case not within the letter, can by construction be brought within the act; and therefore, if an action on the: case for an escape is prohibited, but not an action of debt for an escape, and the party may bring either action, if he brings the one that is within the act it is his own fault. ⁴⁰⁶ An action of debt for an escape is not within the act of A.S' sembly or the statute of fames, because not for a loan or oír contract -without specialty, or for arrearages of rent. The following cases shew that an action of debt for ar< escape is not within the statute of 21 Jac. c. 16., and that an action on the case for an escape is within the statute 3 Bac. Abr. 509. 1 Saund. 37. 1 Lev. 191. 1 Sid. 305. 2 Bac. Abr. 245, 246. 15 Vin.

Abr. Limitation, 108, 10 Vin. Abr. Escape, 118. pl. 40. 5 Com.

Dig.