Long v. Anderson

• Decision Date: 31 December 1849
• Citation: 4 Tex. 422
• Parties: LONG v. ANDERSON.
• Court: Texas Supreme Court

4 Tex. 422

LONG

v.ANDERSON.

Supreme Court of Texas.

December Term, 1849.

If the petition exhibit a cause of action which is barred by the statute of limitations, the defendant can avail himself of the defect on assignment of error, although he may not have done so by answer, demurrer, or motion in arrest of judgment. (Note 91.)

The case of Coles v. Kelsey and Swenson and others v. Walker's Adm'r cited and approved; and the case of Petty v. Cleveland cited and overruled.

Error from Houston. Suit instituted on the 11th of January, 1845, on a due bill dated and due on the 4th of February, 1839. Judgment by default.Thomas J. Jennings, for plaintiff in error. The note sued on was barred by the statute of limitations and by prescription, on the principle recognized in the cases of Gautier v. Franklin (1 Tex. R., 732) and Hays v. Cage, (2 Tex. R., 501.) The defendant can take advantage of this defense on error. (Coles v. Kelsey, 2 Tex. R., 541; Swenson and others v. Walker's Adm'r, 3 Tex. R., 93.)

S. A. Miller, for the defendant in error, suggested delay.

LIPSCOMB, J.

The suit in this case was commenced by the defendant in error, against the plaintiff in error, on the 11th of January, 1845, on a note or due bill dated on the 4th of February, 1839, payable immediately. There was a judgment by default, there being no appearance or answer by the defendant in the court below. The cause is brought before us on a writ of error, and the error assigned is the giving judgment against the defendant, when the record shows the cause of action to have been barred before the commencement of the suit.

This point has never been directly decided by this court. We were, however, fully aware, in the decision of Coles v. Kelsey, (2 Tex. R., 541) and in Swenson et al v. Walker's Administrator, (3 Tex. R., 93,) that a case of this kind would be embraced in the principles of those decisions. We do not propose again discussing the doctrine we laid down in those cases, because we have the most unshaken confidence in the correctness of the views then expressed as the opinion of a majority of the court, resulting from our system of litigating rights. We then showed that the first decisions under the statute of James I, chapter 16, section 3, were decided in conformity to the views we have taken: that when the record showed that the suit was brought after the time limited in the statute, the defendant could take advantage of it by motion to the court or by motion in arrest of judgment. We showed that when this rule of decision was changed, the reason assigned in support of such change was that perhaps the plaintiff might be able to prove one of the exceptions in the statute, and that this he could do under the general indebitatus count in an English common-law declaration; that any matter that could not be received in evidence under that count must be specially alleged in the special count; that it must therefore be pleaded by the defendant; that, as we had no common or indebitatus counts in our practice, everything necessary to a recovery must be specially alleged in the petition and proved. We referred to the proceedings on a bill in chancery, as practiced in the United States Courts, to show that there was the most striking analogy between the practice in those courts and our practice by bill and answer, and that the precedents in that court would be better authority for us than common-law precedents.

It would, perhaps, at this time be exceedingly difficult to ascertain when the common indebitatus count was introduced; but there can be no doubt that it was an interpolation on the English declaration, craftily designed to mar the beauty of the system and defeat the object for which the declaration was originally designed: to be a full, clear, and explicit exposition of the grounds of action. An English judge, commenting on the variety of grounds of action that might be proved under this count, and the uses to which it was subservient, remarks “that he was...