Smith v. Richmond

Field, C. J. delivered the opinion of the Court— Baldwin, J. and Cope, J. concurring.

Under the old system of pleading in actions at law, where a party was desirous of availing himself of the Statute of Limitations as a bar to the demand in suit, he was required to plead the same. He could not demur to the declaration, even where it appeared upon its face that the limitation prescribed by the statute had expired. If he did not plead the statute, he was considered as having waived its protection. In equitable suits the rule was different. In suits of this character the defendant could make the objection by demurrer that the remedy was barred by the statute where it appeared upon the face of the bill that the prescribed limitation had expired. If the case came within any of the exceptions of the statute, it was necessary to aver the fact. (Humbert v. The Rector of Trinity Church, 7 Paige, 197; Sublette v. Tinney, 9 Cal. 425.)

Under our system there is no difference in the rule whether the action be one strictly at law, or one in which equitable relief is sought. In both cases the complaint must disclose a subsisting cause of action. “ Civil actions ”—and these terms embrace both legal and equitable actions—says the statute, “ can only be commenced within certain^prescribed periods, “ after the cause action shall have accrued.” If it appear, therefore, upon the face of the complaint,, that the,.,priscribed period has elapsed since the plaintiff possessed'the right of action, and no facts are alleged taking the particular demand from the operation of the statute, the complaint will be considered defective, and subject to demurrer. If, however, the demand in suit be in truth barred, but the fact is not apparent upon the face of the complaint, the defendant must interpose the defense in his answer, as by plea under the old system. In actions upon written instruments for the payment of money, as promissory notes, the complaint will necessarily show the precise period at which the right of action accrued to the plaintiff; and if in such cases the complaint also show that the prescribed limitation has passed, any new promise which has been made, re[482]newing or continuing the contract, should be alleged. The new promise, it is sometimes said, constitutes in such cases the real cause of action, the original contract being only the consideration for the promise. The authorities are numerous which hold language to this effect. But this view is inconsistent with the theory upon which the pleadings under the old system were drawn. The declaration was always upon the original contract, which, according to the view mentioned, presented the absurdity of a declaration upon the consideration of the promise, and not upon the promise itself. (Leaper v. Tatton, 16 East. 420; Upton v. Else, 12 Moore, 303.) The true view, as we conceive, is this: that the action is upon the original demand, and that the new promise is only evidence that the statute does not operate as a bar to its prosecution. At common law there was no limitation to the period within which actions could be brought, though a presumption was created by the lapse of twenty years that the claim was satisfied. The statute prescribes the limitation, and the new promise only takes the case from its operation. “ If the action was brought upon the new promise,” said the Supreme Court of Hew Hampshire, “ there would be nothing to be taken out of the statute, for the new promise is never within it. And this shows also that the action should be founded upon the original contract, and that although there must be a new promise, or an acknowledgment from which a promise may fairly be inferred, the reason of this is not that the action is founded upon the new promise as its substantive cause, but because nothing short of evidence of a debt due, and of an intention to pay it, is sufficient to take the original demand out of the statute, and remove the bar, which would otherwise defeat the action. This continues or restores the vitality of the original demand.” (Betton v. Cutts, 11 N. H. 179.) And the Supreme Court of Massachusetts, speaking of a judgment rendered in an action ex contractu, where the defendant relied upon the statute, and recovery was had upon proof of a new promise by him, said, “ The Court are of opinion that the judgment must be considered as rendered on the old contract; that a payment, or new promise, or an admission from which a new promise may be inferred, is considered as removing out of the way a bar arising from the Statute of Limitations, so as to enable the