
    Sherman against Barnes:
    IN ERROR.
    In an action founded on an express agreement not reduced to writing, it was held to be no answer to a plea of the statute of limitations, that a suit for the same cause of action was brought within the time limited, and being misconceived, was discontinued, and immediately upon such discontinuance, the action in question was brought.
    This was an action of assumpsit, brought by Jotharn Sherman against Andrew Barnes, on a special agreement, alleged to have been made, by the defendant, with the plaintiff, on the 16th of February, 1825. The action was commenced on the 6th of March, 1828.
    The defendant pleaded, that he did not make the promise or agreement, alleged in the declaration, at any time within three years before the commencement of this suit; and that no note, or memorandum in writing, of said promise or agreement, was ever made and signed by the defendant, or any person by him authorized, nor was the same ever reduced to writing. The plaintiff, in his replication averred, that within three years from the time when the cause of action accrued, viz. on the 5th of May. 1827, he commenced a suit, returnable to the county court on the third Tuesday of November 1827, which was entered in the docket of that court, and by continuance came before the same court, in February, 1828, and on the fourth day of the session, the plaintiff, by reason that he had mistaken the form of action adapted to his case, was compelled to, and, as soon as he discovered the same, did, suffer a non-suit in said cause, which was immediately entered on the records of the court; and as soon thereafter as the course of the court would admit, viz. on the 6th of March, 1828, the plaintiff sued out another writ, for the same matter, cause and thing, as said first mentioned suit, returnable to said court, at the first term after said non-suit, viz. on the third Tuesday of April, 1828, and subsequently appealed to the superior court; said last-mentioned suit being the suit now pending. To this replication the defendant demurred.
    
      Fairfield,
    
    June, 1830.
    The superior court adjudged the replication insufficient, and rendered judgment for the defendant. On motion in error by the plaintiff, the record was transmitted to this Court for revision.
    
      N. Smith and Hamlin, for the plaintiff in error,
    contended, That as the plaintiff brought his action on this agreement, within three years next after his right of action accrued, and has since prosecuted his claim with all reasonable diligence, shewing no acquiescence on his part, the case is saved from the bar. They cited Bal. Stat. Lim. 118. 121. 141. 147. Lawes on Plead. 744, 5. 749. Beardmore v. Rattenbury, 5 Barn. & Ald. 452. (7 Serg. & Lowb. 157.)
    
      Sherman and Booth, contra,
    contended, 1. That the replication was bad, because it did not shew what the form of action in the former suit was, nor state any facts, from which it appeared, that its discontinuance was necessary, or was not the result of culpable negligence.
    2. That if the replication was well enough in these respects, it was insufficient, because the commencement of the former suit, which was abandoned, did not exempt the present suit from the operation of the statute. This action was not brought within three years next after the right of action accrued. They relied upon the explicit terms of the statute in the 5th section, in connexion with the provision for excepted cases in the 8th section; and referred to Smith v. Bower, 6 Term Rep. 662. 664. 2 Saund. 63. a. 2 Sell. Prac. 469. Lawes’ Plead. 753. 735. Willes 259. n. (c.) 3 Wendell 472. 475.
   Bissell, J.

Under the demurrer joined in this case, several exceptions have been taken to the plaintiff’s replication, on the ground of a supposed want of technical precision in the averments.

These exceptions it is unnecessary to consider, as the Court has come to a unanimous decision upon the leading and important question intended to be raised by the pleadings. And that question is, whether it be an answer to the plea of the statute of limitations, that a suit for the same cause of action, was brought within the time limited, and being misconceived, was discontinued, and a new action brought immediately upon such discontinuance?

The statute upon which this question arises, enacts that no action founded upon any express contract or agreement, other than actions of book debt, on proper subjects thereof, not reduced to writing, or some note or memorandum thereof, made in writing, and signed by the party to be charged therewith, or some other person by him lawfully authorized, shall be brought but within three years next after the right of action shall accrue.” Stat. 311, tit. 59. s. 5.

The language of this statute is very plain and unambiguous, and would seem to be susceptible of but one interpretation. It is, indeed, admitted, that a strict construction of the statute would be fatal to the plaintiff’s claim. It is, however, said, that when the party has been guilty of no neglect, but has mistaken the remedy, and in consequence of such mistake, the statute has attached, the Court will not, by a strict construction, debar him of his right. If by a strict construction, is here meant, adopting the language of the statute, and giving it full effect, it may well be asked, whether the Court is at liberty to adopt any other ? And whether we may, by what is termed a liberal construction, set at naught the plain provisions of the act 1 To me it seems otherwise. In construing a statute, plain and explicit in its provisions, equitable considerations have little to do. The question is, what did the makers of the law intend? And this intent we are to ascertain from the language they have used. In support, however, of the position taken, a number of decisions under the 21 Jac. 1. and supposed to be analogous, have been relied on, and pressed upon the Court. It is said, that in the King’s Bench, the filing of the bill of Middlesex is the commencement of the suit; yet the Court, by an equitable construction of the statute, have held, that the suing out a latitat will save a cause from the operation of the statute. It is true, that the suing out a latitat has been held (where the suit has been regularly continued,) to save the bar. Hollister v. Coulson, 1 Stra. 550. Crockett v. Jones, 2 Stra. 734. 1 Tidd’s Prac. 24. 25. And the reason is, that, the suing out a latitat is a good commencement of the suit, and so within the very words of the statute. What is to be considered as the commencement of a suit, depends entirely on the general rule and course of the court. Foster v. Bonner, Cowp. 454. In the Common Pleas, it is by original writ. In the King’s Bench, a bill of Middlesex, or a latitat out of that court, may be taken to be in the nature of an original writ, in the Common Pleas. In Caulliford v. Blandford, Carth. 233. it was held, by all the judges of the Exchequer Chamber, that a latitat is a kind of original, in the King’s Bench. It has also been held to be a good commencement of the suit in a penal action. Cowp. 456. 1 Tidd 293. 2 Ld. Raym. 883. And although in the Common Pleas, the original writ is said to be the commencement of the suit, yet according to the settled practice of that court, a capias issues in the first instance, and even a testatum capias may be sued out upon only a supposed, and not an actual preceding capias. And the suing out of an original writ, is, in that court, wholly unnecessary, unless the party wish to proceed to outlawry. So in the King’s Bench, a latitat is usually sued out upon only a supposed, and not an actual bill of Middlesex. So that a latitat may, in fact, be called the first process in the King’s Bench, as the testatum capias is in the Common Pleas. 3 Bla. Com. 286. It is also well settled, that a latitat may be considered, either as the commencement of the action, or only as a process to bring the defendant into court, at the option of the plaintiff. 1 Tidd’s Pract. 293. 1 Wils. 146. Bull. N. P. 151. It ought also to be remarked, that this was a process of the court of King’s Bench, at the time of the enactment of 21 Jac. 1, and must be understood to be comprised within the meaning of the act. 2 Ld. Raym 882. 883.

And it is further to be observed, that the suing out either a latitat, or any other writ, furnishes no answer to a plea of the statute, unless it appear that the suit has been returned, and the suit regularly continued.

Thus, in Smith v. Bower, 3 Term Rep. 662. an action was brought on promises, to which the statute of limitations was pleaded. To this plea the plaintiff replied, that within six years, he sued out a bill of Middlesex, for the same cause of action. The bill of Middlesex was continued, for some time, and then abandoned, and an attachment of privilege sued out, by the plaintiff. The court held, that the suing out an attachment of privilege was no continuance of the former proceedings, and so no answer to the plea of the statute. Ashhurst, J. says, “ In order to prevent the statute of limitations from running, it is absolutely necessary, not only that a writ should be sued out, but that it should be regularly continued.” And so are all the authorities. 2 Saund. 1. n. 63 d. n. 6. Green v. Revett, 2 Salk. 421. Atwood v. Burr, 7 Mod. 5. Harris q. t. v. Woodford, 6 Term Rep. 617. Lawes on Pleading 745. 763. 2 Sellon’s Prac. 467. 469. In the case of Soulden & al. v. Van Ransselaer, 3 Wend. 472. it was decided, that a plaintiff cannot avail himself of a capias, issued to save the statute of limitations, although the same was regularly returned, entered on a continuance roll, and the continuances carried down to the time of issuing the process on which the defendant was arrested, unless it be shewn, that the process on which the arrest is made, is a continuance of the process originally issued, as that it is an alias, pluries, &c.; and that the continuance of a suit must be proved, not presumed.

These authorities conclusively prove, that to save a case from the operation of the statute, it is not only necessary that a suit should have been commenced within the term limited, but also that the suit so commenced should have been regularly continued.

But it is said, that according to the practice of the English courts, the continuance is mere matter of form, and may be entered at any time, even after judgment. It is true, that when a latitat has been sued out and returned, the continuances may be supplied, and an entry made, any time, on the continuance roll. It has even been held, that they may be made by the attorneys, at their chambers. Beardmore v. Rattenbury, 5 Barn. & Ald. 452. Dacy v. Clinch, 1 Sid. 52. But although the continuances may be mere matter of form, the cases all shew an observance of the form to be necessary. “ Where indeed, the plaintiff has been guilty of an omission, or mere irregularity, the court will interpose and grant him an indulgence, for the sake of preserving the right of action; and it is upon that ground, that we permit continuances to be added afterwards. Bat where it is admitted, that the party has discontinued, he cannot sue out a writ of a different nature, and consider it a continuance of the former action.” Per Ashhurst, J., in Smith v. Bower, 3 Term Rep. 664.

Here, it is admitted, that the first suit was withdrawn, and a new action brought. And no case has been, or can be cited, to show, that where a suit has been discontinued, it furnishes any answer to the statute ; and unless this can be shown, it is difficult to see how the plaintiff’s case is supported by authorities, An analogy has, indeed, been attempted to be drawn between this case and the removal of a case from an inferior court into the King’s Bench, by habeas corpus. And it is said, that there the statute will not be a bar, although more than six years have elapsed, before the teste of the habeas corpus. It is true, it has been decided, that if an action be brought in an inferior court, within six years, and during the pendency of the cause in the inferior court, the time expires, and the defendant then removes the cause, by habeas corpus, into the King’s Bench, and the plaintiff there declares de novo, and the defendant pleads, that the cause of action did not accrue within six years before the teste of the habeas corpus, the plaintiff may reply and show the proceedings in the inferior court; and that will be a sufficient answer to the statute. The decision may rest on either of two grounds. 1. That the proceedings upon the habeas corpus are in some sort a continuance of the former suit. Whitwith v. Hovenden, 1 Sid. 228. (cited 2 Ld. Raym. 881.) Or, 2. That although the action in the King’s Bench is not a continuance of the suit below, yet, as the plaintiff had pursued his right within due time, it ought not to be in the defendant’s power to defeat his right, and take away his remedy, without any fault in him. 2 Saund. 63. f. n. 6. Matthews v. Phillips, 2 Salk. 424. It will be here remarked, that the removal of the cause was the act of the defendant. Had the plaintiff discontinued his action in the inferior court, and after the time had elapsed, brought a new suit, the analogy between the two cases would have been rather more striking. At present, it is not very obvious.

The plaintiff’s case, then, cannot be rested on authorities. They are decisive against it; and, in my judgment, it is equally destitute of foundation on the ground of principle. The language of the statute, I repeat, is exceedingly plain and unambiguous. “ No action shall be brought but within,” &c. In no sense can the present action be said to be brought within three years after the right of action had accrued. The legislature has said, that in such case, no action shall be brought. The court is required to say, that an action may be brought, provided a suit for the same cause of action was brought within the time limited, and discontinued. By what authority, may a court of justice annex such a proviso to the statute?

The legislature has evidently provided for every case which it was intended to except from the operation of the general principle. Accordingly, in the 8th section of the statute, it is enacted, that “If in any of said suits or actions, judgment be given for the .plaintiff, and the same be reversed by error, or a verdict pass for the plaintiff, and upon matter alleged in arrest of judgment, the judgment be given against the plaintiff, that he take nothing by his writ, declaration or bill; in all such cases, the party plaintiff, his heirs, executors, or administrators, as the case shall require, may commence a new suit or action, at any time within a year after such judgment reversed, or such judgment given against the plaintiff.” Stat. 311. Now, if the construction contended for by the plaintiff, be correct; if it were intended, that the statute should not be a bar, excepting where the party had been guilty of neglect, in not prosecuting his claim; where was the necessity for the provision in question? In neither of the cases provided for, could any negligence be imputed to the plaintiff. In the one case, he had pursued his claim to judgment, and in the other, had obtained a verdict, which may have been set aside, not through any fault or negligence of his, but by reason of the misconduct of the jury; and yet this entire section is evidently framed upon the supposition, that even in such case, no new action could be brought, but under the sanction of legislative authority. This single consideration, in my opinion, gives a decisive answer to the construction contended for. It was not the object of the statute to punish a negligent plaintiff. Viewed as a statute of limitations merely, it is a statute of repose; and its foundations are laid deep in principles of public policy.

It has been urged, that the statute proceeds wholly on the pro-sumption of payment; and that whatever removes that presumption, removes the bar: and the case has been compared to thpt of a new promise, or an acknowledgment of indebtedness.

It might be sufficient to reply, that looking upon the statute as h statute of limitations merely, the cases are, in no respects, parallel. In the latter, it is the act of the defendant that revives the right and restores the remedy. Here there has been no act done or acquiesced in, by the defendant, to remove the bar. This effect the plaintiff seeks to produce, by his own act. But the statute is not to be regarded as a statute of limitations merely. It does not proceed wholly, or chiefly, on the presumption of payment. It was the danger of perjury, against which the legislature intended to guard; and this it was, which led to the enactment of the provision in question. Hence, the distinction between promises in writing, and promises not reduced to writing; six years being limited in the former case, and only three, in the latter. I am the more fully confirmed in this belief, from the consideration that the clause now in question was originally a part of the statute of frauds and perjuries; and so continued from the enactment of that statute, in 1771, until the revision in 1821, when, for some reason not very apparent, it was incorporated into the statute of limitations, and embodied in the section, limiting actions of trespass, and actions for words spoken.

I would not reverse the judgment of the superior court.

The other Judges were of the same opinion.

Judgment affirmed.  