
    William A. Lang vs. J. D. Fatheree et al.
    It is not a good plea, in bar of an action on a note instituted in 1842, that on the 7th of May, 1839, the plaintiff had recovered a judgment against the defendants, on the same note sued on, which judgment was reversed on error at the January term, 1841, of the high court of errors and appeals, and that more than one year had elapsed after the reversal of the judgment before the plaintiff recommenced his suit.
    The statute (H. & H. 571, § 101,) which provides that if in certain specified actions, judgment be given for the plaintiff, and afterwards reversed, or if he obtain a verdict, and the judgment is given against him on motion in arrest of the judgment, then the plaintiff may commence an action within one year, and not after, does not abridge the time of limitation, but enlarges the plaintiff’s privilege, in case the bar has become complete, pending litigation ; it therefore does not prevent a second suit, after reversal, even though it be not instituted within one year after reversal, if the general statute of limitations had not run against it.
    Such provision, prohibiting the action after a year has elapsed from reversal, cannot be made the subject of a plea; the defendant can plead only the general statute; when the plaintiff may reply that he sued within six years, and his judgment was reversed, and he sued again within one year after the reversal.
    Where a demurrer to a plea is overruled, it is erroneous to award judgment final for the defendants; it should be respondeat ouster.
    
    In error from the circuit court of Clark county; Hon. Yan Tromp Crawford, judge.
    On the 3d of November, A. D. 1842, William A. Lang sued John D. Fatheree, John G. McRae, and Ransom D. 'McCann, in assumpsit, upon a note made by them, dated on the 1st day of January, 1838, and payable on the 1st day of January, 1839. The plaintiff discontinued his suit as to Fatheree, when the other defendants plead : 1. Non assumpsit. 2. That on the 7th day of May, 1839, in the circuit court of Jasper county, and state aforesaid, at the May term thereof, the said plaintiff recovered a judgment against the said defendants, in the above-stated case, upon the said promissory note declared on, in the said plaintiff’s declaration ; which judgment was taken to the high court of errors and appeals, by writ of error, and at the January term, A. D. 1841, of said court, the said judgment was then and there reversed by said high court, and the said defendants aver that more than one year hath elapsed since the reversal of said judgment by the said high court of errors and appeals and the commencement of said plaintiff’s action, and this the said defendants are ready to verify, wherefore, &c. To the first plea issue was joined; but to the second, the plaintiff demurred, and the court below overruled the demurrer, and gave judgment final for the defendants, from which the plaintiff prosecuted this writ of error.
    
      L. Lea, for plaintiff in error.
    The plea is fatally . defective, in form and substance. It attempts to set up matter of record, and yet is not in form to admit of the appropriate issue. On this ground the demurrer was well taken. But it should have been sustained, because the plea presented no substantial defence. The statute authorizing the institution of new suits within one year after the reversal of judgment,/does not affect the general law on the subject of limitations, umless it be to enlarge the time. The suit was renewed, in this instance, within six years from the time the cause of action accrued; and it is immaterial whether the former judgment had befen reversed more than a year previous to the renewal of the sunt or not.
    
      ikobert B. Mayes, for defendant in error.
    a. The plea is not defective in form. Issue might have been tajken on the facts alleged, either as to the recovery and reversal Qtt judgment, or the lapse of a year before the renewal of the action ; both of which were indispensable to the vitality of the defence. And therefore, in pleading these facts, there is no duplicity, for all would be insufficient without either one, and all were necessary as inducements to the matter of law on which the defendant relies. “ No matter will operate to make a pleading double, that is pleaded only as necessary inducement to another allegation.” Steph. PI. 302, 303, which is stronger than the present case. And “no matters, however multifarious, will operate to make a pleading double, that together constitute but one connected proposition or entire point.” Ibid. 303. It would be unjust to compel the defendant “ to rely on the inducement only.” True the plea sets up matter of record; but “if the plaintiff wished to deny it, such matter” might have been “ traversed separately.” Ibid. 204, 306.
    2. Nor is the plea defective in substance. The language of the statute is positive. “ If in any of the said actions specified in any of the preceding sections of this act, judgment be given for the plaintiff, and the same be reversed by writ of error, or if a verdict pass for the plaintiff, and upon matter alleged in arrest of judgment the judgment be given against the plain till', then the said plaintiff, his or her heirs, executors or administrators, as the case shall require, may commence a new action within one year after such judgment reversed, or given against the plaintiff, and not after." H. &• H. 571, § 101.
    If this enactment were not intended to confine Such renewals of actions to one year, in all circumstances, it should have specified that the plaintiff “may commence a new action within one year after such judgment reversed, &c. and not after,” unless such year expire within six years from the time when the action accrued. But no such exception is made. ' >
    The object of this law is to put a speedy end to' litigation; that if the plaintiff have rights he may assert them at once, and not hold them over the defendant. Therefore, he loses his ■right of action, if he do not use it within six years; and if, having brought his action and obtained judgment, such judgment /be reversed by the supreme court, which affords a presumption against his right, a further restriction is put upon him. Wher\e there is no ambiguity, there can be no construction.
    Should the six years expire during the litigation, and the plaintiff be defeated because of some formal error, he has another year allowed him by this law, during which he may amend his course. But if, as in the present case, the action be instituted, decided, and reversed, within the six years, the law is yet definite that he “ may commence a new. action within one year after such judgment reversed, and not after.” So the defendant is not kept in continual apprehension, nor subject to an action, when length of time may have deprived him of many means of defence.
    By instituting his suit, the plaintiff takes his case out of the general statute of limitations; by the reversal of judgment, it falls under a special statute of limitation. By the general statute, suit may be brought “ within six years next after the cause of action shall have accrued, and not after.” The suit was instituted within the specified time, and thus the plaintiff avoided the prohibitory part of the act. But the reversal of the plaintiff’s judgment, threw the case within the special statute, by which a new action may be commenced “ within one year after such judgment reversed, and not after.” The force of these words is here obviously the same as in the general law, and it would be as reasonable to bring an action seven years after the cause accrued, as to bring a new action thirteen months after reversal of judgment. The act says, emphatically, that the plaintiff, &c. “ may commence a new action within one year after such judgment reversed, and not after.”
   Mr. Chief Justice SharKey

delivered the opinion of. the court.

This action was commenced by Lang, on a promissory note made by the defendants. The action was dismissed as to Fatheree, and the other defendants plead non assumpsit, and a special plea of limitation, to wit: that on the 7th of May, 1839, the plaintiff had recovered a judgment against defendants on the same note now sued on, which judgment was reversed on error at the January term, 1841, of the high court of errors and appeals, and that more than one year had elapsed after the reversal of the judgment, before the plaintiff recommenced his suit. To this plea the plaintiff demurred, which was overruled by the court. The note sued on was payable on the 1st of January, 1839, and this action was commenced on the 3d of November, 1842.

It is insisted that the plea was good, because the statute is general in its provisions, and applies in all cases where a new suit is brought after judgment reversed. The provision relied on is sec. 101, H. & H. Dig. 571. It constitutes part of the general statute of limitations, and provides that if in' any of the actions specified in the preceding sections, judgment be given for the plaintiif, and afterwards reversed, or if he obtain a verdict, and the judgment is given against him on motion in arrest of the judgment, then the plaintiif may commence an action within one year, and not after. The English statute of 21 James, 1, c. 16, contains a provision, in the very same language, used in ours, and it is not construed to abridge the-time of limitation, but as enlarging the plaintiff’s privilege, in case the bar has become complete, pending litigation, and this was doubtless the object of our statute. It was not intended to establish a different rule for cases in which no limitation had run, merely because suit had been brought; but it is a saving to the plaintiff from the general provisions of the statute, in case he should prove unsuccessful in his first suit. This provision is not the subject of a plea; being a saving or exception, it must be replied. The defendant, can only plead the general limitation, and the plaintiff may answer it by replying that he sued within six years, and his judgment was reversed, and that he has sued within one year after the reversal. 2 Saund. R. 63, (note 6.) But this judgment is erroneous.for another reason. It was final for defendants on the demurrer to the plea, when it should have been respondeat ouster.

Judgment reversed, and cause remanded.  