
    Maltby & al. use of Wheatley vs. Thomas Cooper.
    It is to be presumed that our Legislature in following the phraseology of the English statute regulated its intention by the construction which the English courts have given to their statute.
    Even in relation to antecedent contracts it is competent for the Legislature to change the remedies by which those contracts are to be enforced.
    Statutes of limitation relate to the remedy and not to the substance of the contract.
    They may therefore be made to operate on. prior contracts without impairing their obligation.
    Thelimitation to suits in actions on the case to five years includes actions of assump-sit. That action must be brought within five years.
    Assumpsit on three promissory notes, plea action did not accrue within five years. General demurrer to the plea — overruled—and writ of error brought by plaintiff.
    The first sec. stat, of Iowa limits actions on the case, except for slander, &c., to five years. The fourth section limits actions of debt founded on promissory note, &c. to six years.
    For the plff , Win. H. Starr.
    For the dít., D. Rorer and Henry W. Starr.
    The plff. contended that the statute could not be applied to this case so as to limit the time to five years, as that period had already elapsed from the making of the notes when the law was passed. It is the six year law and not the five year law that governs this case.
    The act should not be so construed as to allow a suit to he brought on a promissory note in one form of action at any time within six years, and in another form of action limit it to five years. 1 Ch. PI. 107, 111 — Bal. on Lim. p. 83.
    2d. Admitting that it was intended to include actions of assumpsit in the limitation to five years, and that to bring it within the six year limitation the form of action should be debt, and not assumpsit, still this case could not be within the law, as five years had already elapsed when the law was passed. — . 7 Johns. 434 — 3 Blachj. 275 — 13 Peters 64.
    For the defendant. The statute of limitations is to be construed so as to give it effect rather than to avoid it for it is a statute of peace. Lord vs. Sha-ler 3d Cond. R. 131 — 3 Peters R. 378 — 11 Wheat. 316 — 6 Jlmer. Com. Law 477 —3 Bing. 329 — 11 Eng. Coni. Law Rep'. 124, 5, 6.
    If the plaintiff claims the benefit of the exceptions of the statute, he must bring himself clearly within them. 6 Amer. Com. Law 496 — 11 Wheat. 361— 3 Wheat. 541 — 9 Serg. & Rawle 288.
    The last act is legally applicable as it affects the remedy only, and not th e contract or the right. Jones’ admrs. vs. Hook’s admrs.., 2 Rand. R. 303— Williams vs. Jones, 13 East 439 — 2 Mass. R. 84 — 5 Johns. 132 -3 Johns. 263.
    Actions on the case comprehend as well contracts, agreements, and promises as torts. Coni, on Con. Ch. 5, p 68.
    When the statute begins to run it runs over all subsequent disabilities. Com. on Con. 68 n (5) — 2 Hen. <$r Mun. 289 — 6 Mass. R. 328 — 1 Wheat. 292 — 3 Conn. R. 398 — 3 McCord 455 — 1 McCord 139.
    Stare, in reply cited 7 Johns. 493-.
   By the Court

Mason, Ch. J.

This was an action of assumpsit brought upon three promissory notes given by the defendant to the plaintiffs, dated at New York in the autumn of 1832 and payable at the United States Branch Bank at Louisville, Kentucky, at different times in the year 1833. The defendant pleaded the statute of limitations for his fourth plea — averring that the causes of action did not accrue within five years next before the commencement of this suit. To this plea there was a general demurrer and joinder.™ The court overruled the demurrer and gave judgment for the defendant, and the plaintiff brought his writ of error to reverse that decision.

The first inquiry will be as to whether five years is the period of limitation fixed by our statute for actions of this nature. The first section of the act in relation to the limitation of actions passed January 25, 1839, (and which was in force when this suit was brought) declares that all actions of trespass, detinue, trover and replevin for taking away goods and chattels; all actions for the arrearages- of rent due on a parol demise and all actions of account and upon the case, except actions for slander and malicious prosecution, &c., shall be commenced within five years next after the cause of action shall have accrued and not after.” The fourth section of the same act fixes six years as the peri-qd of limitation for actions of debt founded upon a promissory note, &c. The question therefore will turn upon the fact as to whether the first or fourth section is to govern this case. Does an “action upon the case” mentioned in the first section embrace the action of assumpsit. It is true that when we speak of actions upon the case, we are generally understood to mean actions founded upon torts, but it is also true that assumpsit is a species of action on the case.

To arrive ata satisfactory conclusion in this case therefore, it maybe well to refer to the English statute on this subject, which is the basis of our own — and 10 the construction which has been placed upon the former. That statute makes no mention of the action of assumpsit, but speaks of actions on the case, and in other respects makes nearly the same enumeration as is to be found in the first section of our statute. The courts in England have however held that the action of assumpsit is therein included. Under these circumstances our own Legislature in following the phraseology of the English statute must be presumed to have regulated their intentions in accordance with the English decisions. This would be the only safe rule in relation to the meaning of terms in legal enactments.

But it is contended that although this might have been the intention of the Legislature, they have no power to pass a statute of this nature that shall operate upon the present case for that the five years limitation had already expi" red when this suit was brought, (although from the defendant having been absent from the Territory during a portion of the time six years had not then elapsed.) The Legislature certainly could not by statute impair the obligations of a contract; still it is well settled that even in relation to antecedent contracts it is competent for them to change the remedies by which those contracts are to be enforced. We are not aware that any limit has been placed to the exercise of this power, except the good sense and discretion of the legislators themselves.

Statutes of limitation relate to the remedy and not to the substance of the contract. They seem to be merely a rule of evidence creating a legal presumption of payment after a particular lapse of time. Sturges vs. Crowninshield 4 Wheat. They may therefore be made to operate upon prior contracts without impairing their obligation.

It is urged however that to give the statute force in the present case would be to take away the remedy altogether, and that this would be very different from merely changing that remedy. But is this true? The plaintiff might have brought the action of debt, and then the period of limitation would have been six years. The same as under the old law. The case seems to be this. Our former statute in accordance with the law of England, as well as with that of most of the States of the Union, fixed the period of limitation to all actions on promissory notes at six years. To the operation of such a law therefore the plaintiff could not object. The new statute of the Territory gave the creditor the same length of time as before, provided he brought the action of debt, but limited the term to five years in case the action were assumpsit. Now we regard it as perfectly within the power of the Legislature to abolish the action of assumpsit altogether. Or they can prohibit a resort thereto for the collection of promissory notes. Or finally they may declare that the action of assumpsit shall not be brought on a promissory note after the lapse of one two, three, four, or five years from the time the action shall have accrued. And provided a method is still left by which the holder of such note may bring suit thereon within the period formerly limited by statute, certainly the remedy cannot be said to be taken away altogether. Such is the ease in the present instance. — - A remedy abundantly sufficient is still left the plaintiff and the period of limitation is not even curtailed.

There is no weight in the objection that the Legislature cannot limit the period for bringing assumpsit to five years, and for the same cause of action extend it to six in case the action be debt Although we do not f ully comprehend the reason for such a distinction, still we think it a matter left wholly to the wisdom and discretion of the Legislature.

The judgment below will therefore be affirmed.  