Page images

not if it be abated by his own default. The doctrine RICHARDS applies as well to personal as to real, actions. 1 Lil. & OTILERS Ray. 283, Elstob v. Thorowgood. The principle of that case is that where the second. Plaintiff derives his au- MARY'D. thority from the same scource as the first, he may have Ins. Co. the action by Journey's account.

PINKNEY, contra.

The argument divides itself into two parts.

1. The construction of the act of congress.

2. The effect of the act of limitations.

1. Under the bankrupt law the commissioners had no power to appoint a new assignee in case of the death of the first assignee. Their power in this respect was limited to the case of a renoval of the assignee by the creditors. Much is said about the equity of the statute, but this Court is authorized jus dicere, non jus dure. The 6th section provides for the appointment of an assignee. The 7th authorizes the commissioners to appoint a temporary assignee without the consent of the creditors, and the 8th section provides for the removal of an assignee, and the appointment of another in his place. If the Court can extend the equity of the statute to the case of the death of an assignee, it must be by a very liberal construction.

By the 18th section the estate and effects of the bankrupt are to be conveyed to the assignee, his heirs, executors, administrators and assigns forever. The 50th section conveys the same idea. The estate descends to the beir of the assignee, clothed with the trust, and he has all the rights and is subject to all the responsibilities and duties of the original assignee.

But if the Court can, by equity, extend the power of the commissioners to the appointment of a new assignee in case of death, then, under the 9th section of the act, the new assignee might have been substituted for the old, and the action would not have abated by the death, but might have been prosecuted to judgment by the new assignee. So that if the suit was abated, it was through


INS. co.

RICILANDS his negligence, or voluntary act; and no Plaintiff, who & OTHERS is in default, can have the benefit of the equity of the

statute by Journey's accounts. MARY'D.

2. As to the Maryland statute of limitations. It differs from the English statute of 21 Jac. which contains no limitation of actions apon specialities, judgments or recognizances. The same rule of equitable construction, therefore, cannot apply to both. But even if the same rule of construction could be applied to the Maryland statute, yet it does not contain the same clause upon which the equity arises in England.

The object of the statute was to prevent injury to Defendants by the loss of evidence. If the statute once begins to run nothing will stop its course but an effectual suit. If a promise be made to a feme sole, and the day after the cause of action accrues, she marry, the statute continues to run notwithstanding the coverture, so in case of non compos, absence, &c. i Bac. Ab. 479, note. 1 Bac. Ab. 413.

But it is only the equity of the 4th section of the English statute that could have aided the Plaintiffs. That section allows a new action to be brought within a year, in three cases. 1. Where judgment has been reversed by writ of error. 2. Where judgment has been arrested; and, 3. Where an outlawry has been reversed.

Bac. Ab. 471, Gwillim's edition, s 4. The Courts have said that abatement is within the same reason, but they have not said that other representatives than those mentioned in the 4th section may bring a new action, (except in the case in lord Raymond, which has been over-ruled in that respect. 1 Ld. Ray. 281.)

The Maryland statute does n't contain a section similar to the 4th section of the 21st James.

HARPER. But that section of the English statute has been always in use in Maryland in that respect, and is in daily practice in their Courts; and, therefore, and by force of the bill of rights and constitution of Maryland, has been adopted as part of the law of the land.

PINKNEY. The statute of James is not in force in RICHARDS Maryland in respect to those cases for which the sta- & OTHERS tute of Maryland provides. This statute professes to provide a limitation for all actions, and to enumerate MARY'D. all cases in which exceptions should be made. With Ins. Co. the English statute before them, and while exercised in selecting such parts of it as they thought proper, the legislature cannot be presumed to have been so negligent as to omit the 4th section if they intended to adopt it.

But if it be in force in Maryland, this Court will not push the equity of it farther than has been done in the Courts in England. They have never permitted such a representative, as these Plaintiffs are, to bring a new action, nor any one to bring a new action where the benefit of the former one has been lost by negligence or voluntary abandonment; which we say was the case here, for the action might certainly have been continued and maintained by either the executor of Allibone, or by the new assignees. In the case cited from 2 Salk. 421, Cary v. Stephenson, the cause of action arose after the death of the intestate and before the letters of adıninistration were granted. For if the statute had begun to run in the life of the intestate, it would have continued to run although no administration had been granted.

The next case is Cawer v. James, or Carver v, James, or Karver v. James, as it is differently called in several books. Buller, N. P. 150. Esp. N. P. 150. Wille's Rep. 255. In that case the action was brought by the executor, and the equity of the 4th section of 21 Jac. extends only to the party himself, his heirs, executors and administrators, and not to any other representative. The case cited from 1 Ld. Ray. 283, supports the same doctrine. Both Plaintiffs were executors of the orig.: ginal creditor. The Court decided the case upon the doctrine of Journey's accounts and the equity of the 4th section of the statute of James. The case put by the Court, by way of illustration, is precisely in point. If the first Plaintiff had been administrator (instead of executor) durante minoritate, the executor, when of age, could not have continued the suit by Journey's accounts, nor would he have been aided by the equity of the statute, because he was not the legal representative of the VOL. VIII.


RICHARDS former Plaintiff. There is no case in which an assignee & OTHERS has been decided to be within the equity of that sertion

of the statute. Although both assignees may derive MARY'D. their authority from the same source, yet the one is not INS. Co. the legal representative of the other. The opinion in

the case of Elstob v. Thorowgood (Ld. Raymond, 283 ) is expressly retracted, in the case of Kinsey v. Heyward, 1 Ld. Ray. 432, where the same Court say " that in no “ case can a writ of Journey's accounts be, but by the t6 same Plaintiffs, or some of them, who were Plaintiff's “ in the former writ; and that to say that the general 66 executor, and the executor durante minoritate, were 6 as one person in the office, is to strain the point too 6 far; for it must be the same Plaintiff, not only by re“ presentation, but by name; for the second writ is a o continuance of the first, which cannot be but by the “ same person, not in representation only, or in respect 6 of their office, but strictly and truly the same person."

Jones, same side.

Even if the doctrine of Journey's accounts could ap. ply, the Plaintiffs were too late. In Journey's accounts the writ is said to be granted per dietas computatas, which originally meant as many days journies as the Plaintiff was distant from the Court of chancery, where he was obliged to go to get a new writ, accounting 20 miles for a day's journey, and it was originally necessary to show the number of days in the replication that by computation it might appear that he was within the time allowed. This was afterwards settled by a general rule to be 30 days. In this replication the Plaintiff has replied simply the facts, and says nothing of the dietas computatas. The new writ, by Journey's accounts, operates a continuance of the old suit, and in the judgment the Plaintiff recovers the costs of both writs, and, therefore, it must be brought by the same Plaintiff. 8 Co. 10, Spencer's case. 2 Inst. 288. 2 Com. Dig. 433. Tit. costs. In none of the cases decided upon the equity of the statute of James, has the plaintiff prevailed upon appeal. They are little better than obiter dicta.

HARPER, in reply.

The opposite counsel almost admit our construction


of the bankrupt law. The authority of the assignee is RICHARDS like that of an administrator. The power of the com- & OTHERS missioners is like that of the ordinary.

MARY'D. Although the writ was abated, yet the Plaintiffs might ins. co. renew the suit. They were not in default by not continuing the old writ, for if they might have continued it, they were not obliged so to do. Thus in Maryland an executor may be made a party in the place of his testator; but if he does not come in and the suit is thereby abated, he may bring a new suit. The right of the Plaintiffs to continue the old suit, under the 9th section of the bankrupt law, was doubtful. They preferred a safe, plain, clear, undeniable remedy. Their having done so ought not to exclude them from the equity of the statute of limitations.

It is well known to every lawyer in Maryland, that the 4th section of the statute of James had been used and practised in the Courts of that state, and it has, therefore, become the law of the land by force of the bill of rights.

The case of Kinsey v. Heyward was not reversed on its merits, the doctrine of the Court of common pleas, that the Plaintiff was within the equity of the 4th section of the statute of James, was not denied by the king's bench. Nor was the case of Carver v. James reversed upon the merits. The doctrine, therefore, was in effect affirmed by implication ; because they would not have assigned other causes of reversal, if the principle of the case itself was erroneous.

February 25th....JOHNSON, J. delivered the opinion of the Court as follows:

This is an action of covenant brought on a policy of insurance under seal. The facts as made out in the pleadings are these : The cause of action accrued on the 1st May, 1797. M.Kean was declared a bankrupt, and on the 19th March, 1801, his estate was assigned to Thomas Allibone. On the sixth of October, 1806, the assignee instituted a suit on this policy and died on the 1st of August, 1809.

On the 11th of January, 1810, the Plaintiffs were

« EelmineJätka »