This case depends upon the construction and operation of the statutes of limitation of the State of Illinois, and comes before us upon a certificate of division between the judges of the Circuit Court.
It is an action of covenant, brought in 1843, upon causes of action which accrued before 1827. The defendant pleaded the statute of limitations; to which the plaintiff replied, that, at the time the causes of action accrued, he was in parts beyond the limits of the State, and has ever since remained, and yet is, beyond the limits of the State. The defendant demurred to this replication, and the plaintiff joined in demurrer.
An act for the limitation of actions was passed on the 10th of February, 1827, by which it was, among other things, provided, that every action for the performance of covenants should 'be commenced within sixteen years after the cause of such action should have accrued, and not after.' But, by a proviso in the seventh section of the act, it is declared, that every person who was or should be, at the time of such cause of action, beyond the limits of the State, might institute his action within the time limited in the act, after coming within the State. Afterwards, by a law passed February 11, 1837, it was enacted, that this proviso should not be held to extend to any non-resident, unless such non-resident was under the age of twenty-one years, insane, or feme covert.
Upon the argument of the demurrer, the following points arose, upon which the judges were opposed in opinion, and which have been certified to this court:--
'1st. Whether the statute of 1827 begins to run from the time of the repeal of the saving clause in 1837, or from the time the debt became due.
'2d. Whether the statute began to run before administration was granted.
'3d. Whether the period which elapsed between the two administrations mentioned in the replication is to be deducted from the period of the statute of limitations of 1827.'
Previous to the act of 1827, there was no law of the State of Illinois which limited the time within which an action of covenant should be brought; and, consequently, there was no restriction as to the period within which a suit might be instituted upon the cause of action now in question. The same thing was the case after the passage of this act, as long as the plaintiff continued beyond the limits of the State. For, until he came into it, the proviso above-mentioned excluded this cause of action from the operation of the statute. And as the plaintiff did not come into the State, there was no limitation running against it until the passage of the act of 1837. This act, by repealing the saving contained in the former law, brought the claim within its provisions, and subjected it to the limitations therein contained.
The question is, From what time is this limitation to be calculated? Upon principle, it would seem to be clear, that it must commence when the cause of action is first subjected to the operation of the statute, unless the legislature has otherwise provided. For it is at that time that the statute first acts upon it, and limits the period within which suit must be brought. Such is obviously the policy and intention of the Illinois statute of limitations. For if the plaintiff had come into the State the day before the act of 1837 was passed, and by that means subjected his cause of action to the provisions of the former law, the limitation would have commenced running on that day, and his action would not have been barred until the expiration of sixteen years afterwards. For the act of 1827 gave him sixteen years from the time he brought his cause of action within its operation.
He did not, however, come into the State; and his cause of action was brought within the limitation of that law, not by his own act, but by another law. Can there be any reason for a different run of limitation in the latter case, from that which the law itself has provided in the former? The construction and object and policy of the act of 1827 must be the same in both instances; and the act of 1837 makes no change in it in that respect. It merely subjects the cause of action to its limitations, and does precisely what the plaintiff himself would have done if he had come into the State,-that is to say, it brought the plaintiff within the limitations of the former law, and subjected him to the restrictions therein contained.
The question, however, has been already decided in this court in the case of Ross et al. v. Duval et al., 13 Pet. 62. In that case a saving clause in a statute of limitations of Virginia, similar to the one contained in the Illinois law, had been repealed by a subsequent statute. And this court decided, that, against the persons embraced in the saving clause of the original law, limitations would not begin to run until the time of the repeal; and that the party was entitled to the full period of limitation prescribed in the original act, commencing from the date of the repealing law.
A passage in the report of that case, in page 64, was cited in the argument, as maintaining a contrary doctrine. But it will be found to be entirely consistent with what the court had previously said. It relates to claims included in a statute of limitations, when, from the language of the law, it may be justly inferred that the legislature intended to embrace a period of time already past, during which the party had omitted to sue, yet still leaving him reasonable time to prosecute his claim. But the rule there stated can have no application to the case before us; for this claim was not embraced in, nor operated upon by, the statute of limitations of 1827. It was brought within it by the subsequent law. And that law makes no new limitations as to past or future time, and merely subjects the cause of action to the provisions of the original law. The passage above mentioned, therefore, cannot apply to it, and is not inconsistent with what had before been said in relation to the effect of a law repealing a saving in a former act of limitations.
Under this view of the subject, the court is of opinion, upon the first point in the certificate of division, that the statute of 1827 begins to run from the time of the repeal of the saving clause in 1837, and not before; and will direct it to be so certified to the Circuit Court.
And as this decision disposes of the whole case presented by the demurrer, the other points do not arise; and it is unnecessary to examine them.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Illinois, and on the point or question on which the judges of the said Circuit Court were opposed in opinion, and which was certified to this court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel. On consideration whereof, it is the opinion of this court, that the statute of 1827 begins to run from the time of the repeal of the saving clause in 1837, and not before. Whereupon, it is now here ordered and adjudged by this court, that it be so certified to the said Circuit Court.
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This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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