Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1889-12-02

ope alton of the statute of limitations. This is
manifest when the Act is continued in connec-
ton with the legislation bearing on the same
subject, beginning with the Act of 1858. all OF
which show complete plan to fund and ADJUST
certain Indebtedness OF the city. AS an induce
ment for its creditors to cooperate with
it in the accomplishment of this object
the Act OF 1883 held out the opportunity, II
taken advantage of before June l, 1883, suDse-
quently extended to January /. 1852, TO obtain
the bonds in exchange for the old ones in one
OF the four classes that would run respectively
until 1888, 1898, le9S, and 1903, dependent upon
the order Of issuance. These bonds would run
from fourteen years to twenty-five years longer
than the old bonds, and would draw interest at
the rate of per cent. per annum, payable an
nually, and carried with them the pledge of an
annual tax for municipal purposes and an in
terest and sinking fund to pay the interest on
the bonds as it accrued and to effect the re-
demption Of the bonds at maturity. The same
opportunity was again renewed by the Act of
1894, except all new bonds issued hereunder
were to run until 1908, or twenty
years longer than the bonds held by petitioner
and the interest would be payable from jan
uary l, 1883, and annually after the first six
years.
The benefit of the interest and sinking fund
was material advantage that would be gained
by the surrender of the old bonds, as they were
naked promises to pay, for which the general
faith and credit of the city alone was pledged
AID upon which the payment of interest stopped
in 1855, no provision of the payment thereof
having been made in the Act of 1888 or any sub
sequent legislation, which we think is circum-
stance showing a desire on the part OF the Leg
islature to compel creditors to fund their claims
Therefore, to say the Act 1854 was intended to
withdraw all claims therein mentioned from
the operation of the Statute of Limitations would
be to ignore the object of the legislation
referred to and encourage the holders of such
claims to defeat the efforts of the city to Just
and fund its Indebtedness. Besides. as the
bonds Of petitioner had ten years to run before
maturing when the Act OF 1854 was passed.
--fe If
statute of Limitations, and aside from what seems
to US to be the object of the Act it Is not reason
sible 10 impute to the Legislature who passed
it any intention to provide for necessity which
did not exist, when they failed to give any ex-
preston in their Act from.which such an inten-
ton might be inferred. Again, it is well SET
tied rule that the repeal of statutes by i'm
pic t on is not favored, and we are
OF the opinion that the same principle
should apply with equal force to the suspension
of the operations of statutes 1t was, of course,
optional with the petitioner to exchange the
bonds or not, but having refused TO exchange
them from 1858 to 1874. and waited thirteen
years longer before offering to do SO, his right
now to have his bonds funded is now barred, if
it is within the provisions of Sections 337 and
$3.50 of the Code of Civil Procedure, pleaded in
defendants answer to his petition.
The Code of Civil Procedure, Section 337, pro-
vides that IAN action must be commenced
within four years upon any contract, obligation
or liability founded upon an instrument in writ
ing executed in this State" When petitioner, by
his assignors accepted the bonds from the city
of Sacramento, the contract was thereby created
between them, whereby the city became obli-
gated to pay the principal and interest on the
bonds on or before the frs. day of July, 1874
This contract, it will be observed, was in writing
and was evidenced by the bonds. The right to
maintain an action on the bonds after July ,
1878, four years after the maturity thereof,
therefore, depended upon whether the plea of
the statute of limitations would be made The
statute of limitations is personal privilege that
may be used as a means of defense by pleading
it otherwise, it is waived. Grant VS.. Burr, 81
Cal 1881 In this case this defense was not
waived. the defendant having especially plead
the bar of said Section 337 and it constitutes a
complete defense to this action. 1t follows that
the judgment and ordered appealed from must
be affirmed. SO ordered. Fox, ].
We concur Mcfarland, j., Sharpstein, Works,
Patterson.
A DISSENTING OPINION.
Justice Thornton rendered an unusually
lengthy dissenting opinion. He held that
the proceeding is not barred by the Statute
of Limitations, and concluded as follows:
II am of the opinion that the lapse of
time in asking for the funding of the bonds
herein involved, furnish no reason or ex-
cuse why the prayer of the petitioner
herein should not be granted; that to re-
fuse such prayer would be highly unjust
and sanctioning the Reputation of an hon.
est debt; and that the judgment should be
reversed and the cause remanded with the
direction to the Court below to enter a
judgment for petitioner as asked for by
him."