#### Gray’s Administratrix v. Berryman.

Argued, Tuesday, March 2d, 1813.

a. Statute of Limitations — Suspension—Dismissed Legal Proceedings.* — If a bill in chancery be dismissed, on the ground that the plaintiff’s claim is exclusively cognizable at law; he cannot plead the pendency of such suit in chancery, to prevent the act of limitations from being a bar to his subseauent recovery at law.

i/ucy Gray, . administratrix of William Gray, on the tenth day of September, 1800, sued out a subpoena in chancery, from the Court of Caroline County, against Newton Berryman. On the ninth day of July, 1806, the cause came on to be heard, and it appearing to the court that they had no jurisdiction, as the plaintiff might have had relief at law, the bill was therefore dismissed, for want of jurisdiction. On the eleventh day of the same month, (July 1806,) she brought her action of assumpsit in the same County Court. The declaration was for money laid out and expended, for money lent, for goods sold and delivered, &c. by the said William Gray in his lifetime. The defendant pleaded non assumpsit; also that he did not assume within five years next before the day of suing out the original writ in this case; and for further plea he said, “that after the assumption in the declaration supposed, and before the day of suing out the original writ *in this case, to wit, on the-day of-, before the justices of Caroline sitting in chancery, the said plaintiff sued out her subpoena in chancery against this defendant, and afterwards she filed her bill, charging this defendant with being indebted to her intestate in a certain sum of money, to the amount of one thousand dollars, for so much loaned to the said defendant by her intestate William Gray ; that on the said suit the usual proceedings were had, and afterwards, to wit, on the eighth day of July 1806, by consideration of the said justices of Caroline then sitting in chancery, (on a hearing of the said suit,) the said suit was dismissed, and it was decreed that the said plaintiff should pay to the said defendant his costs about his defence in that behalf expended, as by the records and proceedings thereof now remaining in said court will appear: and the said defendant averreth, that the cause of action in the said bill and proceedings set forth, and the cause of action in this suit, are the same, and not other or variant; wherefore he prays judgment, &c.”

The plaintiff, by way of replication to the second plea of the act of limitations, pleaded the institution and pendency of the suit in chancery, setting forth the record of that suit at large, and alleged, that after the dis-mission thereof for want of jurisdiction, the plaintiff, on the-day of-in the last mentioned year, sued out her capias ad respondendum, and impleaded the defendant in this action ; averring that the damages, by reason of the defendant’s non performance and breach of the several promises and assumptions of the defendant in the declaration mentioned, now sought by her to be recovered in this action, are for the same cause, and that the said non performance and breach as aforesaid are the same complaint which was exhibited in the said plaintiff’s bill in chancery, and not other or divers. She farther replied, to the same plea, that the defendant did, within five years next before the suing out the original in this action, undertake and promise, in manner and form, &c. To the third plea, she demurred generally.

The defendant demurred to the first replication, and joined *issue in fact to the second : — he also joined issue in law to the plaintiff’s demurrer to his third plea.

The County Court decided both the points of law in favour of the plaintiff ; and (the plaintiff having entered a nolle prosequi as to the issue of fact on the plea of the statute of limitations,) a jury was impanelled to try the issue on the plea of non assumpsit: —a verdict was found and judgment entered for the plaintiff for one thousand dollars, with interest thereon at the rate of five per centum per annum from the first day of September 1790, till paid, and her costs.

Upon an appeal to the Superior Court of law, this judgment was reversed with costs ; but the Superior Court did not enter such judgment as the County Court ought to have rendered. The plaintiff then appealed to this court.

Wickham, for the appellant.

The only point in this case is, whether the pendency of a suit in chancery will take a case out of the act of limitations. I do 'not recollect a single act of the parliament in England moulding the jurisdiction of the Court of Chancery as a Court of Equity. Our Court of Chancery stands altogether on a different footing. It is founded on an act of assembly. In England, the Court of Common law takes no notice of an injunction, or order directing an issue; though, in the former case, the party must proceed at his peril. But in this country it is otherwise. In the case of Wilson v. Stevenson, 2 Call, 217, it was decided, that if an injunction be obtained before the forfeiture of the forthcoming bond, the penalty is saved, as the property must be restored immediately, by the sheriff, upon his being informed of the injunction, if it were delivered to him by the defendant. (1) It appears therefore that English authorities do not apply to this case. Yet there is an anonymous decision, in 1 Vern. 73, 74, that “if a man sues in chancery, and, pending the suit there, the statute of limitations attaches on his demand, and his bill is afterwards dismissed, the matter "being *77properly determinable at common law; in such case, the court will preserve the plaintiff’s right, and will not suffer the statute to he pleaded in bar, to his demand.” The extent of this doctrine is indeed questioned in a' marginal note to 4 Bac. 481 ; but in 1 Bridg. Index p. 615, the case in Vernon is cited as law ; and it seems highly reasonable that it should be so.

It may he said that we do not come within the exceptions mentioned in the act of limitations. But there are many authorities which extend those exceptions very far to other cases coming within their equity. The tenth section of the act provides that the plaintiff, where his judgment is arrested or reversed, may re-commence his action within one year. Under the equity of this clause, a great variety of cases are provided for; (a) it being settled that a seasonable latitude of interpretation ought to be given to the statute of limitations, as well as to the statute of frauds.

Wirt contra.

In several cases in this court it has been decided that a court of common law will not take notice of proceedings in Courts of Equity. The distinction in England, (according to authorities later than Vernon,) is, that, where a man voluntarily goes into equity, when he ought to sue at law, he is not to be protected from the act of limitations, but where an injunction has bound his hands, the court will interfere to prevent the defendant at law (who forced him into equity) from availing himself of the plea.

But for the exceptions in our act of assembly, I apprehend that proceedings of Courts of Equity would be no more regarded by Courts of Law in this country than in England. The Court of Chancery here is not a court of Record. The replication in this case does not present the point of a suit at law commenced within one year after the dismission of the bill in chancery ; but whether the promise was within five years before that bill was filed.

The tenth section of the act applies only to a suit at law. It does not apply in favour of a man who wastes his time by going into a court having no jurisdiction. A man acting in *that manner is directly within the spirit and intention of the act of limitations. Witnesses may have died, or vouchers have been lost, while he was wasting time in a court having nothing to do with the cause. The tenth section, instead of making in his favour, excludes him by the strongest implication.

Wickham, in reply.

The Court of Chancery in this country is a court of record, (b) Mr. Wirt says the case in Vernon has been overruled by later authorities ; but the marginal note, in 4 Bac. 481, refers to chancery cases, (an older book I believe than Vernon,) and not to any modern authority.

The equity of the tenth section of the act of limitations applies as forcibly where a party has brought a suit in chancery, by mistaking his remedy, and therefore, his bill has been dismissed, as in the case where his judgment is reversed, in consequence of an error committed in the prosecution of his suit at law. It plainly appears, from the averment in this replication, that the present suit was brought within the year in which the hill was dismissed.

Wirt. The providing a method, for preserving the proceedings of our Courts of Chancery, does not make them Courts of Record.

Thursday, January 27th, 1814,

*

Statute of Limitations — ■ Suspension — Dismissed Legal Proceedings. — As authority for the proposition that a suit in chancery which has been dismissed because the plaintiff’s claim is exclusively cognizable at law, is no bar to the running of the statute of limitations, the principal case was cited with approval in Elam v. Bass, *4*Munf. 301, 302; Catlett v. Russell, 6 Leigh 372; M’Can v. Conery, 12 Fed. Rep. 319.

(1)

 Note. See also Ross v. Poythress, 1 Wash. 120.

(a)

 Willcox v. Huggins, 2 Str. 907; Matthews *v.*Phillips, 2 Salk. 424; Lord Middleton v. Forbes, Willes’ Rep. 269; note (e); 2 Saund. 64.

(b)

 Rev. Code, 1st vol. p. 67, sect. 49.

(1)

 Note. See Mantz v. Hendley, 2 H. & M. p. 308 pl. 5; ana p. 318.

the president pronounced the court’s opinion, that there is no error in the judgment aforesaid of the Superior Court of law, so far as it reverses that of the County Court ; but that the same is erroneous in not proceeding to enter such judgment as the County Court ought to have given. (1)

Both judgments reversed, and judgment entered, that the appellant take nothing, &c„ and that the appellee go thereof without day, and recover against the appellant the costs in the Superior Court of law and County Court.