Chenot v. Lefevre
| Decision Date | 31 December 1846 |
| Citation | 8 Ill. 637,3 Gilman 637,1846 WL 3900 |
| Parties | JOHN J. CHENOTv.CHARLES H. LEFEVRE. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
DEBT, in the St. Clair circuit court, brought by the appellee against the appellant, and heard before the Hon. GUSTAVUS P. KOERNER, and a jury, when a verdict was rendered in favor of the defendant below for $250.68 debt, and $256.77 damages.
The various pleadings, instructions asked and evidence offered in the case at the trial in the court below, will sufficiently appear in the opinion of the court.
L. TRUMBULL for the appellant.
W. H. UNDERWOOD for the appellee.
This was an action of debt, brought by the present defendant against the present plaintiff in the circuit court of St. Clair county. The first count is upon a promissory note, dated at Phalsburg, January 1st, 1828, for twelve hundred francs, at six per cent. interest, payable to the said plaintiff by the name and description of “Mr. Hoffman Lefevre,” and executed by the defendant by the name of “Chenot.”
The second count is on a note dated at Phalsburg, on the 16th of May, 1830, for the sum of one hundred and thirty seven francs and seventy five centimes, payable to the plaintiff by the description of “Mr. Ch. Hoffman son,” and executed by the defendant by the name of “Chenot,” also bearing interest at six per cent. per annum.
The third count is on a note dated at Phalsburg, January 1st, 1828, for the sum of twelve hundred francs, with interest at six per cent. payable to the plaintiff by the name and description of “Mr. Hoffman Lefevre,” and signed by the defendant by the name of “Chenot.”
The fourth count is on a note dated at the same place, on the sixteenth May, 1830, for the sum of one hundred and thirty seven francs and seventy five centimes, and payable to the said plaintiff by the description of “Mr. Ch. Hoffman son,” and executed by the said defendant in the same way as all of the others.
The fifth count is for goods sold and for money paid and money lent, etc.
The defendant filed the general issue and eight special pleas, each applicable to one or more of the counts in the declaration. To each of the special pleas, the plaintiff, by leave of the court, filed two replications; but in this volume of special pleading, it is only necessary to notice the replications to the fifth, sixth, and ninth pleas, as it is assigned for error that the court improperly overruled demurrers to those replications. The fifth is a plea of the statute of limitations to the third count, and the sixth is a similar plea to the fifth count. The first replications to each of these pleas are alike. These replications state, in substance, that the defendant was out of the state when the cause of action accrued, “and has not during the last sixteen years next before the commencement of this suit lived and continued to live in the state of Illinois.” The thirteenth section of our statute of limitations provides: “If any person or persons, against whom there is or shall be any cause of action, as is specified in the preceding sections of this chapter, except real or possessory actions, shall be out of this state at the time of the cause of such action accruing, or any time during which a suit might be sustained on such cause of action, then the person or persons who shall be entitled to such action, shall be at liberty to bring the same against such person or persons, after his, her or their return to this state, and the time of such person's absence shall not be accounted or taken as a part of the time limited by this chapter.” This statute is peculiar, and provides that the defendant must reside in the state sixteen years after the cause of action accrues, and before the suit is brought, before the limitation constitutes a bar. It is true that the presumption of law is, that the defendant has resided in this state ever since the cause of action accrued, so that it is sufficient for the defendant to plead, that more than sixteen years have elapsed since the cause of action accrued, and if the plaintiff would avoid this, it is necessary to show in his replication that the defendant has not resided in this state, altogether, sixteen years since the cause of action accrued. This, these replications do not show. They merely state that the defendant resided out of the state at the time the cause of action accrued, and has not resided and continued to reside in this state for the last sixteen years before the commencement of the suit, and from aught that appears in these replications, the defendant may have resided more than sixteen years in the state between the accruing of the cause of action and the commencement of the suit. From the peculiar phraseology of the statute, we are of opinion that, although the statute of limitations might have commenced running more than sixteen years before the commencement of the suit, yet it might be arrested at any time, and as often as the defendant removed from the state, and would commence running at any time upon his becoming a resident of the state again. The demurrer should have been sustained to these two replications.
The second replication to the fifth plea is also bad. It states “that the said defendant did, within sixteen years next before the commencement of this suit, undertake and promise to pay to the said plaintiff the said sum of money,” etc. Had the action been assumpsit, this would have been a good replication. The proper replication, of this nature, to a plea of the statute of limitations in an action of debt is, that “the cause of action did accrue to the said plaintiff within sixteen years next before the commencement of this suit,” etc. 1 Chitty's Pl. 614. It is true that none of these defects are pointed out by the special causes assigned in the demurrer, and probably the attention of the court was not called to them; but, still, they are of a substantial character, and are reached by the general demurrer.
The ninth plea is to the four first counts of the declaration, and avers that,...
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Digan v. Mandel
...no promissory note, and nothing to which a presumption can attach." We quote with approval from the opinion in the case of Chenot v. Lefevre (1846), 8 Ill. 637, 641, as peculiarly applicable to this case, the language: "The defendant requested the court to give two instructions * * * as fol......