Samuel A. Spencer, Appellant, vs. Sarah F. McBride, Appellee, 14 Fla. 403

WESTCOTT, J., delivered thé opinion of the Court.' Samuel A. Spencer, the payee, brought an action against-1 Sarah F. McBride, one of the makers of the following joint | and several promissory note : i “ Quincy, Fla., June 30, 1861. ; “ $1,463.06. “ One day after date, we or either of us promise to pay; S. A. Spencer or order one thousand four hundred and six- ¡ ty-three dollars and six. cents, with eight per cent, interest ■ per annum, from date until paid, for value received. ; “ Sophia McBride, “S. F.

McBride.” The defendant answered “ that the said cause of action or promissory note did not accrue to the plaintiff at any time within five years next before the commencement of> the action.” To this answer a demurrer is interposed orn the ground of “insufficiency in not stating facts sufficient to constitute a defence.” There was final judgment for the i defendant upon the demurrer. Plaintiff excepted and upon: appeal assigns this judgment for error. i On the 13th December, A. D. 1861,

an act was approved i by which it was enacted “ that the statute of limitations now in-force in this State in relation to civil actions of every description, be and the same are hereby suspended and -shall have no operation or effect so long as this act may continue in force and unrepealed, reserving all rights and defences under the existing statutes of limitation; provided, 'however, that nothing in this act shall-be construed so-as to prevent any defendant from pleading said statute or statutes •of limitation in any cause wherein the, same shall have run before the passage of this act.” This act suspended all limitation as to actions not then barred-until it was repealed, and actions barred by existing limitations still remained so.

Two classes of cases were 'therefore embraced in this statute: those in which the limitation had not run, and those in which the bar was com-' píete. This statute remained in force until expressly repealed by the act of Feb’y 27, 1872. The first

section of the repealing act pi’ovides that “ civil actions can only be commenced within the periods prescribed in this act after the cause of action shall have accrued, (except where a different limitation is prescribed by statute.”) The 19th

section provides that all actions not heretofore barred by .statute or that will be barred within sixty days from the passage hereof, shall not be affected by the limitations of this act until six months from the date of the approval hereof.” Under the 10th

section of this act, the limitation for an action of this kind is fixed at five years. The cause of ■action accrued in this case in the month of June, A. D. 1861. This action was brought in. the month of February A. D. 1873, over eleven months after the approval of the act of February -27,1872... Two ’questions - are. thus .presented .for- bur consideration:. Is this, action..barred by the acfc of February 27, 1872? Is it .within the power.-of .the State .thusAo limit this action? These statutes■■ are;.in- reference to thdusame Subject: matter,. .limitations, and. must ;be■ construed together.

The object of the last must be ascertained by reference to the effect of the first. The conception of the last originated in the intention and desire of the Legislature to remedy the evils following the continued and then present enforcement of the first. The first statute was enacted during an exhaustive war to meet the exigencies of that occasion, and was not adapted to a state of peace and active commercial intercourse.

It was the purpose of the Legislature by this last act to prescribe limitations for all actions to be commenced after the passage of this act, embracing such rights of action as had accrued in the past as well as those that would accrue in the future.

The effect of the first and tenth sections of this act, considered without reference to the 19th section, was therefore to prescribe a limitation of five years to all actions upon a contract founded upon- an instrument of writing not under seal, and the period of five years was to be calculated from the time “ the cause of action accrued.” It made no difference under the sections whether the cause of action had accrued before its enactment or would accrue afterwards, because in either case the time fixed at which the estimate was to commence was the accrual of the right of action; nor did it make any difference that the computation thus made embraced a part of the time during which the limitation had been suspended by the previous statute, because the time fixed was arbitrary, and without exception the date of the accrual of the action.

If these two sections can receive any other construction consistent with the intention of the Legislature, which was to prescribe a limitation for all actions to be commenced in future, we are unable to perceive it. The proposition that the act relates only to rights of action to accrue'in > the future is in conflict with the express letter '■ of the statute and the manifest intention of the Legislature. It would make the.statute perpetuate in part the very evil it was com ceived to remedy.

It-is too clear, for argument-that if the limitation thus enacted ■ refers Only to rights- of action- that are to accrue in future, then- all rights of action that ha/mr accrued, in the past are without a limitation under this act,, and the suspending statute of. 1861 is still in force as t©< them. Accepting this, therefore, as the correct construction of" these two sections, it only remains to consider the 19th-ses--tion. That

section is in the following- words : “ All actions-not heretofore barred by statute, or that will be barred* within sixty days from the passage hereof, shall not be affected by limitations of this act until six months from thsdate of the approval hereof.” It is clear that the purpose of this

section is to create an exception to the operation and effect of the general rule of limitation previously prescribed by sections one and ten, as it expressly provides that certain, actions shall not be affected by the limitations of this act until six months after its-approval. The necessary effect of' this is that after si-x months has elapsed, then the limitations of this act will affect and control such actions. This proposition is self evident.

These actions are excepted from th®> operation of these limitations, and the suspension of the limitation as to them continues for six- months after the approval of this act, and when that time expires the limitation becomes operative. Is this action one of the particular-actions not to be thus affected until the expiration of six-months ? If it is an action not heretofore barred by statute or that will be barred within sixty days from the passage of this act, then it is plain that it is such an action.

The term statute here means any and all statutes of limitation embracing both the antecedent and present statute. If' any action was barred anterior to the suspension act of 1861,. then by virtue of this antecedent statute, which was then in force, it is still barred. If it was not barred at that time, or if it is barred now under this statute, or if it would be barred within sixty days from the passage of this act by i-te terms, then the limitation of this act shall not operate until six months has elapsed.

Applying the law as thus eo®-strued to this action, the result is that it was barred after six months elapsed from the approval of this act. This period had elapsed before this action was brought, and the only question remaining is: Was it within the power of the Legislature thus to limit this action % The general power of the Legislature over the subject of limitation of actions is too well settled to admit of question.

It is also well set-tied that statutes of this character apply to rights of action existing at the time of their passage, provided a reasonable time is left after the passage of the act for the party to exercise the right before it would operate as a bar. In Ross vs. Duval, 13 Pet., the Supreme Court of the United States use this language: “ It is a sound principle that where a statute of limitations prescribes the time within which suit shall be brought, or

an act done, and a part of the time has elapsed, effect may be given to the act, and the time yet to run being a reasonable part of the whole time, willbe considered the limitation in the mind of the Legislature in such cases.” In this case, therefore, the limitation in the mind of the Lsgislature was six months after the passage of the act. In view of the authorities upon the question of reasonable time in such cases, we cannot set aside the exercise of this legislative discretion.

There is but one ground upon- which it can be assailed, and that is that it impairs the obligation of the contract.-— If this act had attempted to take away the right of action' entirely, that would be a different matter, but as it gives six months in which to assert it and as the time is a matter of legislative discretion or power,- it must stand. The precise limitation of six months was sustained by the Supreme Court of Kentucky in Luckett vs. Dun & Bass, 3 Litt. 219, and in Smith vs. Packard, 12 Wis. 371, the limit of nine months was deemed reasonable. See also 4 Texas, 470; Cart., (Ind.) 56; 3 Foster, (N.

H.) 376; 22 Pick., 430; 1 Hill, 324. Judgment affirmed.