MAY TERM, 1755.

#### Philip Hammond *against*Ann Denton, Executrix of Vachel Denton.

THIS was an action of debt upon a writing obligatory, executed by the testator to the plaintiff, on the 10th of November, 1740. The. writ issued on the 8th of *Novem*ber, 1752. The defendant pleaded the act of 1715, c. 23. entitled *u*An act for limitation of certain actions, for “ avoiding suits at law.” *Non est*factum, payment, and *plencadministravit.*Replication. “ That the original writ “ issued on the 8th of November, 1752, and the debt afore- “ said by virtue of the writing obligatory aforesaid,-was not “ of "twelve years standing, wherefore the same writing was- “ good and pleadable, and ought to be admitted in evf “ dence.”' Issue to the second plea; non-payment to the third, and assets to the fourth plea.. Rejoinder to the. replication to the first plea, that the debt aforesaid was-above twelve years standing, and general demurrer thereto..

The verdicts, upon the issues in fact, were for the plaintiff, and judgment upon the demurrer for the plaintiff. By the bill of exceptions filed in this cause, it appears that-,, at the trial of the cause, the plaintiff" offered in evidence the bond mentioned in the declaration, and to prove the same to be the deed of the deceased, in support of the first Issue in fact in the cause, to which the defendant by her *201counsel objected, and read and offered to the Court an act of Assembly, made and passed at a session of Assembly, begun and held on the 26th day of *April,*1715, entitled “ An act for limitation of certain actions, for avoiding suits 61 at law.” And insisted to the Court that the said bond ought not to be admitted in evidence to the Jury on this trial, and prayed the opinion of the Court to that purpose.

*Dulam/s*notes.

The question was, whether if an action is brought upon a bond before the expiration of the twelve years, and when the bond is offered in evidence the twelve years are expired, the bond shall be admitted in evidence ?

The words of the act are these : “ That no bill, bond, *u*judgment, recognizance, &c. except such as shall be “ taken in the name, and for the use of our Sovereign Lord “ the King, shall be good and pleadable, or *admitted in*“ evidence, after the principal debtor and creditor have been “ both dead twelve years, or the debt or thing in action *a*above twelve years standing.”

For the plaintiff it was argued,' that the bringing the action before the expiration of the twelve years, prevented the act being a bar.- That the clause ought to be construed *secundum subjectam*materiam, and that the subject matter appears, by the preamble, to be a limitation of time for the *commencing of*actions, and, therefore, as this appears to have been the intention of the law-makers, the act in all the parts of it ought to be construed so as to answer it ;■ wherefore it was concluded that the words *admitted in evidence*related to such bonds, upon which the action was not commenced within twelve years.

That if this be not the sense of the act, there would be a double limitation, and one of them could have no effect; for if abondis not to be admitted in evidence, *-when at the time of offering it in evidence*it is above twelve years standing,, the other limitation, that it should not be pleadable, which means the bringing of the action,, will have no effect.-

*202That it would be unreasonable to suppose, that the law* makers would avoid the plaintiff’s bond, on account of his laches, when that from which the laches is inferred depends'as much upon the act of the defendant as himself; for a trial cannot always be had when the plaintiff pleases : as, therefore, the plaintiff is to suffer by the act for his neglect, it follows that the neglect must be entirely his own; that is, that it must be the omission of something which he might do, and which is owing to his own default that he did not do it; wherefore it was concluded, that the law related only to the time of bringing the action, which is the sole act of the plaintiff, and to which the concurrence of tire defendant is not necessary, as in the case of a trial.

That according to a strict grammatical construction* the time relates only to the commencement of the suit; for the words are, that no bond shall be *admitted in evidence*after the principal, debtor and creditor *have*been both dead twelve years, or the debt and thing above twelve years standing, *i. e.*after the debt or thing in action hath been twelve years standing, which being the preterperfect tense, is relative to some time before the bond is offered in evidence, which must be the bringing the action, for no other tense is taken notice of in the act.

That as the intention of the law-makers is so plain, to limit the time to the bringing the action, the act shall be so moulded (if necessary) as to answer that *intention;*and therefore the *or*shall be construed and, and then the words would be, *shall be*good, *pleadable and admitted in*evidence, which would restrain the time in the bringing of the action, and for this was *Co. Litt.*272. cited.

That the time must relate to the bringing the action ; fob the1 words are, *the debt or thing in action above twelve years*standing, because, after tire suit brought, the debt cannot properly be said to *be standing.*

On the other side, it was argued, that the act ought to be construed so as to advance the relief intended by it. Here the relief intended was to bar the recoveries on stale demands; that no case can be cited of an act being taken *203*by*equity, against those for whose relief it was made, and any laws that may be cited of a favourable construction of a proviso, do not impugn but prove this, for those who are mentioned in a proviso are as much intended to be relieved, as those for whose benefit the general enacting clauses were made, as in 2 *Mod. 71.*It was, therefore, concluded that when a strict construction of a remedial statute is the most beneficial to those for whose benefit it was made, such construction shall prevail.

That by a strict construction in this case, the bond ought not to be admitted in evidence where above twelve ye air standing, which can have no other meaning than that a bond, *when*it is offered in evidence, shall not be admitted, if *then*it is above twelve years standing.

That no part of the clause ought to be rejected, but if the time does not relate to the offering the bond in evidence, that part of the act upon which we rely must be totally rejected, which would be *maledicta expo sitio.*

That from the different expressions of the act in different parts of it, it must be concluded the law-makers (should an equitable construction prevail) intended that the plaintiff should be barred, if the bond was above twelve years standing when offered in evidence. For by the first enacting clause, the time is expressly limited to the bringing of the action, and speaks nothing of the evidence; for instance, no action shall be brought upon a promissory note after three years, but'the act does not say, that a promissory note shall not be *given in evidence*after three years.

Suppose the words of the act had been, “ *no bond shall*“ *be admitted in evidence after twelve years*standing,” it would then have been clear that the time related *only*to the offering the bond in evidence, and if so, in the case put, for the same reason it must be so here, for the act is in the disjunctive, and every part of it is for the benefit of the defendant, and *in disjunctivis sujpcit alteram partem esse veram. Pollex. Hunt*v. *Price.*

It was admitted that the act ought to be construed *secun* dum subjectam*materiam, and that indeed no act can be *204construed otherwise; and it was further said, that supposing the subject matter to be the limitation of time for the commencing of actions, our construction is correspondent to it, for the limiting of the time when the bond shall be given in evidence, necessarily limits the time for the commencing of the action. That there is no absurdity in a double limitation to different purposes, and that the limitations have their effect to different purposes; but the construction on the other side rejects all the words *or admitted in evidence.*That where the trial is not in twelve years from the date of the bond,, the plaintiff may be chargeable with neglect, for a plaintiff may compel the defendant to a trial within two years from the issuing of the writ, and it is his own default if he does not do it: had the words of the act been, “ where “ the debt or thing in action is above *ten*years standing,” there would have been nothing unreasonable in it, for the time might have been limited as well to ten as to twelve years. That there is no difference between the words, *-where the debt or thing in action hath*been, *or is txuelve years standing*: when it is said the debt *is*above twelve years standing, the expressions impart that twelve years have *expired;*and so when it is said the debt *has*been, &c. In this case thirteen years have expired, and we can, therefore, say the debt *has been*or *is*above twelve years standing.

That if the construction of the word *or,*as if it were *and,*were admitted, still our objection would be the same, for then the effect of the clause would be this: The plaintiff shall not maintain his action unless he *pleads and offers*his bond *in evidence*in twelve years ; if, therefore, itbe made a copulative, both parts of it must be complied with to entitle the plaintiff, and if the plaintiff fails in either, he fails in his action, which amounts to the same thing in effect as a disjunctive, for the defendant cannot take advantage of the disjunctive, unless one part of it happens, which cannot be when the plaintiff complies with both, so that the case in *Co. Litt.*272. may be admitted, as it cannot possibly effect our case»

*205*■J.*Chase, for plaintiff.

*S.*Bordley, for defendant.

That the debt or thing in action, may be as well said to be standing after, as before the action brought. The debt remains upon its original foundation, till it is extinguished by passing *in rem*judicatam. Suppose after the action brought, there had been a release of the debt, without doubt it might be pleaded, which shews the debt to be standing, for no release can operate upon that which does not exist at the time of giving it, as where *A.*is bound to *B.*in covenant, a release of all demands will not bar an action upon a future breach because no demand existed at the time of the release.

“ But the said Court, although no proof was made, for “ attempted, that the said bond was delivered at any day <c subsequent to the date thereof set forth in the said de» “ claration, declared their opinion to be, and accordingly “ ruled, that the plaintiff in this cause had taken out the *u*original writ in this cause on the 8th of November, 1752, “ and the said bond (the aforesaid act of Assembly not- “ withstanding) might and ought to be read and shewn to “ the Jury in evidence. And the same was done accord- “ ingly, whereto the defendant excepts,” &c.

The defendant prayed an appeal to the Court of Appeals. It does not appear that the appeal was ever prosecuted.