Hawkins vs. Hensley, 4 Ark. 167

By the Court, Ringo, C. J. The only question presented by the record and assignment of errors, for the decision of this Court, is, whether the judgment given upon the demurrer to the plea of the statute of limitations, was authorized by law 2 The solution of this question depends upon the construction to be given to the statute of limitations, Rev.

St., chap. 91, the 6th sebtion of which, among other things, provides, that “ the following actions shall be commenced within three years after the passage of this act; or, when the cause of action shall not have accrued at the taking effect of this act, within three years after the cause of action shall accrue: First, all actions of debt, founded upon any contract, obligation, or liability, (not under seal), excepting such as are brought upon the judgment or decree of some court of record of the United States, of this, or some other Stale.” These provisions absolutely embrace causes of action of two distinct classes: First, ali actions of debt, founded upon any contract, obligation, or liability, not under seal, except such as are founded upon' the judgment or decree of some court of record in the United States, where the right of action had accrued prior to the taking effect of said statute, in which cases, the right to sue, at any time within three years next after the taking effect of said act, is expressly given; but the right to sue in such cases is, by the terms of the enactment, expressly limited to that period.

Second, all actions of debt upon such contracts, obligations, or liabilities, not under seal, except judgments or decrees of courts of record, as aforesaid, where the right of action should accrue after the taking effect of said statute; in whi(ch class of cases, suit must be commenced within three years next after the cause of action accrues.

Such we understand to be the express and positive injunctions of the statute, the effect of which, in respect to cases of the first class, is to exclude the plea, where the suit is brought within three years after the act went into operation, notwithstanding the right of action may have accrued more than three years before the institution of the suit.

In the present case, a right of action accrued on the contract set forth in the declaration, on the 22d day of September, 1836; and, according to the law then in force, the party invested with such right was at liberty to commence an action at law thereupon, at any time within five years thereafter. Ark. Dig. 381. And therefore the right of action on said contract was not barred by either statute, when this suit was commenced.

Consequently, the plea of the defendant, setting forth “ that the said cause of action has not accrued within three years next preceding the commencement of said action,” is wholly insufficient to bar the action; and the declaration being in every respect sufficient, and the action in the name of the plaintiff well conceived, the demurrer of the plaintiff to saifi plea of the defendant, ought to have been sustained, and the plea adjudged insufficient. Judgment reversed,