Watson v. Higgins, 7 Ark. 475 (1847)

Jan. 1847 · Arkansas Supreme Court

7 Ark. 475

Watson vs. Higgins.

Previous to the 20th March 1839, (when the Revised Statutes took effect) there was no statute of limitations in this State applicable to writings obligatory ; and on such causes of action then existing the statute commenced running from its passage.

The exceptions in the statute in favor of non-residents being taken away by the act of 14 Jan’y 1843, the statute of limitations as to non-residents on causes of action then existing, commenced running from that date.' but by act of 14th Dec’r 1844 the time of limitation as to non-residents was restricted to two years from that date as to causes of action barred by that or previous acts.

A plea that ten days had elapsed &c. held bad when the limitation was five years.

No question can arise as to the admissibility of the evidence given by the plaintiff, if upon the record he is entitled to judgment — as where the onus, under the issues, is upon the defendant and he offers no proof.

To constitute a valid transfer of an obligation there must be an assignor, an assignee, and an assignment or endorsement and a delivery. If a plea, “that the note sued upon was assigned,” fails to show the assignee, the legal presumption is that it was endorsed in blank ; and if delivery is not averred, the plea fails to set o.ut a legal assignment.

Where the entry is that the party “submitted to the demurrer” the inference is that he admits the demurrer to be well taken.

If the party upon whom the burden of proof rests fails to offer any proof whatever, the adverse party is entitled to judgment.

Writ of Error to the Circuit Court of

This was an action of debt brought by Harrison E. Watson, and determined in court, at the May term 1846, before the Hon. George Conway, judge.

The suit was commenced September 5th 1845, and was founded on two writings obligatory, executed by defendant to plaintiff: one dated 17th Jan’y 1830, due 1st Jan’y 1832 for $754 ; and the other, bearing the same date, due 1st January 1833, for $700.

Defendant ci’aved oyer of the bonds sued on, which was granted, and he filed six pleas.

1st. That the causes of action did not accrue to plaintiff within five years next before the commencement of his action,

2d. That the causes of action Sid not accrue within ten years next before the commencement of the action.

3d. Payment: 4th, nil debet.

5th. “ That after the writings obligatory, sued on, were executed, and before the institution of the suit, to-wit: on the 20th March 1837, at &c., the plaintiff made over, transferred and assigned all his right, title, interest and claim in and to said writings obligatory to a certain E. Warren; and that by force and effect of such assignment, plaintiff transferred his interest in said writings obligatory, to said Warren ; and was not the legal owner and holder of the same, at the time of the commencement of the suit,” &c.

6th. “ That after the making of said writings obligatory, and before the exhibiting of plaintiff’s declaration, &c. to-wit: at Sec., the said plaintiff endorsed and assigned said writings obligatory in said first and second counts of said declaration mentioned and set fourth ; and that by force and effect of said endorsement and assignment, said plaintiff transferred his interest in said writings obligatory, and was not the legal owner and holder of the same, at the time of exhibiting his said declaration as aforesaid; and this” Sea.

To the first plea plaintiff replied, “ that at the time when said causes of action accrued, he the said plaintiff, did reside, and has .ever since, and at the passage of an act entitled An act concerning limitations, passed by the General Assembly of the State of Arkansas, on the 14th day of December 1844, resided, beyond the limits pf the said State, to-wit: in the State of Alabama, and still continues to reside beyond the limits of the State of Arkansas, to-wit: in the State of Alabama aforesaid; and this” &c. To this replication defendant demurred; the court overruled the demurrer, and he rested.

To the second plea, plaintiff demurred, the court sustained the demurrer, and defendant rested.

To the third plea plaintiff replied, and defendant took issue.

To the fourth plea, plaintiff demurred, and, the_ record states, ‘■‘defendant submitted to the demurrer.”

To the fifth plea plaintiff replied, and defendant took issue.

To the sixth plea plaintiff demurred, the court sustained the demurrer, and defendant rested.

The cause was submitted to the court, sitting as a jury, on the issues to the third and fifth pleas, the court found for plaintiff, and rendered judgment accordingly. Defendant moved for a new trial, which was refused, and he excepted; he also excepted to a decision of the court overruling a motion made by him to excl ude depositions offered in evidence on the trial by plaintiff.

Defendant brought error.

Hempstead, for the plaintiff

The first plea averred that the cause of action did not accrue within five years, to which the plaintiff replied that when the cause of action accrued, he resided, and ever since and at the passage of the act concerning limitation of the 14th of December 1844, resided beyond this State, namely, in the State of Alabama, -and still continued to reside there, to which replication, the defendant demurred, assigning various causes of demurrer, but relying principally on the ground that the replication failed to show that the plaintiff was under twenty-one years of age or insane, or imprisoned beyond the limits of the State, when the cause of action accrued. The demurrer was overruled — thus presenting the sufficiency of the replication, in point of law. The obligations sued on, were dated the 17th of December 1830, and one was due the first of January 1832, and the other the first of January 1833, on one, the cause of action had accrued more than 13 years; and on the other more than 12 before the institution of the suit. Being sealed instruments, there was no statutory limitation prior to the Revised Statutes, and they were only subject to the presumption of payment on common law principles. The law concerning the limitation of actions in the Revised Code, went into force March 20th, 1839, and this case is embraced in the 11th section of that law, which provides that “all actions not included in the foregoing provisions, shall be commenced within five years after the cause of action shall have accrued.” Regarding this statute as prospective in its operation, and giving it an equitable rather than a literal construction, the obligations referred to, although in point of fact due years before, would be considered as having accrued, when this became a law ; so as to require the obligee to commence suit within five years after the passage of the law.

The 6th section with regard to another class of cases, and where the cause of action had accrued, required suits to be commenced, within three years after the passage of the act of limitation ; but where it had not then accrued, within three years after the cause of action should accrue. Rev. Sfat. sec. dp. 527. Conceding then, that this limitation law, did not and could not operate, upon past óontracts so as to cut off all remedy, where the cause of action had already accrued; and that five years was allowed thereby, after its passage — that is to say the time it took effect — on sealed instruments, let us see whether the plaintiff Higgins can claim the benefit, of the exception, contained in the 13th section relative to persons being “ beyond the limits of the State,” and if he cannot his case is at an end; and his claim barred: unless he can make some other showing than his replication now contains. As a matter of policy alone, it would be difficult to perceive any sound reason for allowing a non-resident a remedy, which is withheld from a citizen. And in Erwin vs. Turner, 1 Eng. 17, this court declared, that they could not consent, to place non-resident creditors on a better footing than the citizens of the State, without the express requisition of the law itself. That it is competent for the legislature to do so is not controverted, but unless it is clearly and unequivocally expressed, the courts certainly cannot do it. Now statutes of limitation are intended to supply the place of evidences of payment or .discharge, supposed to be lost by accident and lapse of time; to place non-residents beyond the inilence of a statute of limitation, and to bring it to bear upon residents, is not only making an unjust discrimination against our own citizens; but, it proceeds upon the absurd idea, that as against a citizen, a defendant may lose the evidence of the payment or satisfaction of a claim in a short time, whereas as against a non-resident, he never can so as to entitle him to rely upon the statutory bar. Against citizens a two edged sword, but against foreigners a mere reed!

This suit was commenced on the 5th of September 1845; more than five years after the law concerning limitation in the Revised Statutes went into force. Now the 13th section did except persons beyond the limits of the State, but the legislature on the 14th of January 1843, repealed the whole of that section by express words, and then restored so much of it as related to persons under the age of twenty-one years, or of unsound mind, and married women. The object and intention was to destroy an unjust privilege, given to non-residents. The authority of the legislature, was as ample to abrogate, as it was to create the privilege, and no one it is presumed can dispute the propriety and legality of this exercise of power. Acts of 1842,page 57.

On the 14th of January 1843, non-residence was no sufficient answer to the statute of limitations. That exception no longer existed — and was entirely gone. The 14th of December 1844 the legislature passed another act concerning limitation, which expressly repealed the act of the 14th of January 1843 above alluded to. This act too makes no exception in favor of non-residents, but is made applicable to them as well as residents. Acts of 1844, p. 24.

The repeal of the act of the 14th of January did not reinstate the repealed 13th section of the Revised Code concerning limitation; nor restore the exception based on non-residence as contained in that section.

“ Where a statute shall be repealed and the repealing statute shall afterwards be repealed, the first statute shall not thereby be revived, unless by express words.” Rev. Slat. chap. 146,pag-e741.

The only exceptions, which exist at this time are to be found in the act of 1844. (Tire act of 1843, and the 13th section of the limitation law in the Revised Code, having been expressly repealed, and never revived.) The only difference in the exceptions in the act of 1843 and 1844, is that in the latter, imprisonment beyond the limits of the State is added to the excepted cases in that of 1843— but both of them utterly disallow mere non-residence.

The plea in this case, that the cause of action in the declaration,did not accrue to the plaintiff at any time within five years next before the commencement bf the suit, was unquestionably good.The replication merely alleges non-residence; and was no answer to itj in point of law, because it was claiming a privilege that had no existence; in other words was setting up an exception where no exception existed — and which had been destroyed more than two years before. How then could the plaintiff rely upon it, unless this court Can say that it was not competent for the legislature to take it away and thus place residents and non-residents upon the same footing, and the court must go further and preserve an exception, which the legislature has expressly abolished. Wherein would this kind of judicial legislation differ from making an exception in the first instance. “ Where the legislature have made no exceptions fhe judge can make none.” Erwin vs. Turner, 1 Eng. IT. ■

The plaintiff cannot complain, that our legislature has deprived him of his remedy. When he brought his suit, the time which had elapsed from the date of these obligations, was more than 15 years; they had been due almost long enough to raise the presumption of payment, on common law principles, in the absence of any statute of limitation. By the Revised Code he had five years from the 20 th of March 1839, to bring his suit in our courts; and as he did not commence it until after the expiration of that period, can he complain that he has lost his remedy ?

The replication purports to be based on the act of December 14th 1844. Now it is sufficient to observe that when this act was passed the claim was absolutely barred by previous statutes of limitation, and could not be revived by it, as was expressly held by this court in Couch vs. McKee, 1 Eng. and Hawkins vs. Campbell, ib. The decisions of this court just alluded to, that in the case of Baldwin m. Cross, 5 Ark. 512, and Erwin vs. Turner, 1 Eng. 16, and the principles therein enunciated, clearly and conclusively show that these obligations were barred when this suit was commenced; and that the court erred in overruling the demurrer to the replication; which presented an issue utterly immaterial.

The finding of the court was against law and evidence, and a! new trial ought to have been granted. The fifth plea asserts, that Higgins, before the institution of the suit transferred and assigned the writings obligatory to a person by the name of E.- Warren,which was denied* and an issue made up to the country. The proof furnished by the plaintiff himself distinctly shows, that these obligations were assigned to Warren in 1837, but for the purpose of collection. It is not pretended that they -were ever re-assigned to Higgins, so as to revest the legal title in him. The defendant read in evidence the endorsements, upon the writings obligatory,» which though erased are still legible and are as follows, viz: “ I assign the within note to E. Warren for value received this 20th March 1837, W. Higgins.” There is nothing on the obligations to show a re-assignment, and these endorsements, without any other evidence would cast upon the plaintiff the burden of proving a re-assign'ment from Warren to Higgins, and of explaining the erasures, in-order to overthrow the presumption of transfer arising from these-endorsements. This he has not done or attempted to do; But the endorsements taken in connection with the depositions read by the plaintiff, prove an assignment to Warren in 1837, beyond all kind of doubt — and by virtue of that assignment and transfer the legal-interest was vested in Warren, and has never béen revested- in Higgins, and consequently he had no right of action.

The assignor has no right to strike out and erase the assignment after he has once executed it and by delivery it became complete, nor can the assignee after assignment in full and delivery to him,' restore the legal interest in the bond to the assignor by the erasure* or cancellation of the assignment; he may destroy the evidence of his own claim but that will not re-instate the legal and equitable interest in the assignor. Block vs. Walker, 2 Ark. 4. Plea that a note was assigned to A — replication, that it was assigned to' A as agent of the plaintiff for the purposes of collection ; and that A was not the owner — the replication is insufficient and A can only revest the legal title in the assignor by re-assignment. Purdy vs. Brown, 4 Ark. 536. In Roane vs. Lafferty, 5 Ark. 466, it was expressly held by Ringo C. J. who delivered the opinion of the court, that an assignment vested in the assignee the legal interest in, and right of action on the note which could not be divested otherwise than by a new assignment thereof to some other person or party.

In Lafferty vs. Rutherford, 5 Ark. 649, Sebastian, J. who delivered the opinion of the court, said “ By the assignment the legal title passes to the assignee who is then clothed with the right of action, and who cannot divest himself of it except by the same means by which he acquired it. This principle has heretofore been held by this court in Gamblin vs. Walker, 1 Ark. R. 220, in which the question was fully examined and decided.”

This it is believed has become the settled doctrine of this court, and if so the verdict in this case was clearly wrong; for, even without resorting to the depositions of the plaintiff, there is a distinct showing that the obligations were assigned to Warren in 1837 — and not a particle of proof that there was any re-assignment. Of course then this judgment must be reversed, or the decisions of this court must be overturned.

The depositions in this case were improperly admitted. 1st, because it does not appear that the witnesses were sworn to testify the whole truth; 2d, that it does not appear, that the depositions were written down in the presence of the witnesses; 3d, that the officer does not certify the place of residence of the witnesses, nor was there any proof showing that such witnesses were beyond the reach of the process of the court, or that their personal attendance could not be had, so as to entitle the depositions to be read in evidence. If the other objections are not good the last unquestionably is. Rev. St at. chap. 48.

Watkins & Cukkan, contra.

1. Was the' decision upon the demurrer to the replication to the 1st plea correct? We insist that there never was any limitation to actions upon sealed instruments, until the act of Dec’r ’44, and that the plea in this case presented no bar to the action, the obiter dicta in Baldwin vs. Cross, 5 Ark. and Morison vs. Dickinson, 1 Eng. to the contrary notwithstanding. Such actions are not embraced by the 11th section Revised Statutes, title “ Limitations,” — the language of which is that “ all actions not included in the foregoing provisions shall be commenced within five years after the cause of action shall have accrued.” The term ‘action’ as used in that section applies to forms, and not causes of action, as for instance, detinue and trover — no provision having been previously made in relation to the detention or conversion of chattels.. The term ‘action’ is defined to be “the form given for the recovery of one’s due, or the legal demand of one’s right.” 1 Jacob’s Law Die. 30. 1 Rouvier Law Die. 4. Co. Lit. 285. From the fact that the phrases ‘action’ and ‘cause of action’ are both used in the 11th section, it is evident that a distinction was intended between the two terms — that the term ‘action’ was used in contradistinction to the term ‘cause of action.’ That this is the proper construction, is evident from the fact that by the 31st section of the same statute, it is provided that after the expiration of ten years the presumtion of payment should rise against writings obligatory. If such actions are included within the 11th section the 31st would be altogether useless — for certainly no party would rely upon a mere presumption of payment [which the slightest circumstance, as for example, that the parties resided in different States., or that the residence of the defendant was unknown, or that he had been insolvent or in embarrassed circumstances during the greater portion of the time, is sufficient to rebut. Moms Woodsworth, 17 Wend. Rep. 103,] arising in 10, when the statute made 5 years an absolute bar. Again, no previous statute of limitation had ever embraced writings obligatory and for that reason if for no other it is necessary that the statute should have been express — mere im-. plication is not sufficient to change or overturn a rule of such long standing* and introduce an entirely new one, not only in derogation of the common law, but differing from any statute previously passed, either in England or in this State. We have a legislative construction of this statute, which, whether it be deemed entitled to the weight of authority or not, is at least, worthy of attention, as showing the opinion of the legislative department. By the act of the 14th of Dec’r ’44 — the limitation of actions upon writings obligatory is fixed at 10 years, and without noticing the 11th sect, the 31st is expressly repealed.

But if the plea is a bar the replication is a sufficient avoidance of jt. This replication is so framed as to meet any possible construction that can be placed upon the several statutes upon the subject— it covers both the 13th section of the old statute and the 3d section ,of the act of ’44, and as to the act of ’42 it can have no effect whatever upon the case. At the time of the passage of the act of ’42 a n.on-resident holding a claim upon a person in this State, 'had an unlimited right of action, which by that act (if operative) is instantly divested. Although there is a distinction between the obligation of a contract and the remedy upon it, yet if there are certain remedies existing when it is made, all of which are afterwards extinguished by a new law, so that there remains no means of enforcing the .obligation, and n.o redress; such an abolition of all remedies operating in presentí is an impairing of the obligation of such contract; but every change or modification of the remedy does not involve such a consequence, so that some substantive remedy be in fact left. pide Story’s Com. on Const, p. 504. The replication cannot be said to be double, because under any construction that can be placed ¡upon the statutes it was intended to meet, it only presents one material point — a single issue — if the act of ’42 is void, the question is whether Higgins was a non-resident at the time the cause of action accrued — but if that act is operative, then the material point presented is whether Higgins was a non-resident at the passage of the act of Dec’r 14th ’44, (because if the remedy could be taken away by one it certainly could be and was revived by the other,) .consequently the only objection that can be urged is that one of the allegations is superfluous, which amounts to nothing — utile per inutile non vitiatur.

2. We suppose the 2d plea is based upon the act of 14th Dec’r 1844, which had only been in operation a few months, and according to Baldwim vs. Cross, 5 Ark. Rep. 510, could not possibly apply more especially since the case of Hawkins vs. Campbell, 1 Engf R. decides that the act is wholly prospective and applies only to future causes of action — for the same (and also for the further reason that the presumption is only available under the plea of payment) the plea cannot be founded upon the 31st sec. Rev. Stat. title “ limitation,” which authorizes the presumption of payment in ten years. Even tho’ this plea presents a valid bar, the judgment should not be reversed, because the party had the full benefit of the first plea.

3. The 3d error assigned is not true in fact. The record shows that the defendant below submitted to the demurrer to the 4th plea, which was tantamount to a withdrawal of the plea or a judgment of the court sustaining the demurrer thereto; but even if such was not the case, the plaintiff could well have disregarded such a plea.

4. The 6th plea was insufficient. It did not show to whom the bonds were endorsed and consequently fails to show any contract, such a plea to be a bar must aver such facts as constitute a full endorsement, and no endorsement would be full unless an endorsee or assignee was shown. Block vs. Walker, 2 Ark. R. 4. In the case cited, which is the leading one upon the subject, the decision proceeded upon the ground that the plea showed a contract and that that contract of assignment could not be cancelled without the' consent of all the parties. There must be two parties to any valid contract, consequently inasmuch as this plea fails to show a contract it is essentially defective and presents no bar to the action. This defect is not aided by the allegation in the plea “that by the force and effect of the assignment Higgins transferred his interest and was not the legal holder” — because that is not a fact but a conclusion of law. The words ‘certain’ ‘duly’ ‘lawfully’ ‘sufficient’ .‘legal’ and such libe words as involve conclusions of law, without showing the matter of fact with convenient certainty, are of no avail. 1 C/i. PL 170, 573. Facts not law must be stated in pleadings. 1 CL PL 245.

5. Should a new trial have been granted ? The onus probandi under all the issues formed rested upon the plaintiff. There was no proof in support of the plea of payment, and the presumption .could not .arise under the 31st section Rev. Stat. page 531, for the reason that 10 years had not elapsed since the passage of that statute. The court could not find for Watson under the issue formed on the plea that the bonds had been endorsed, for various reasons, 1st, the question as to whether the matter appearing on the back of the notes constituted an endorsement to Warren, under the peculiar circumstances of the case, could only be determined by an inspection of the originals. In copying a record a clerk can only give a transcript of the letters and words, and any effect, or question not shown by the words and letters, can only be shown by an inspection of the original record itself. A true copy does not imply a fac simile but a transcript verbatim et literatim. An adjudication of this question upon this attempted fac simile, will amount to nothing more than a decision by the clerk; but independent of all this, the fac simile itself is not legible; 2d, Watson failed to prove that the supposed assignment was made by Higgins or that it was signed by or was in his hand-writing. Wo instrument is evidence in a court of justice unless the hand-writing of the party charged with its execution is first proved. The only change of this rule made by our statute (Rev. Stat. page 633, section 102) is that where, any pleading is founded upon an instrument or note in writ-, ing charged to have been executed by the other party, proof of the hand-writing is dispensed with, unless its execution is denied by plea under oath. But this plea cannot be said to be founded upon an instrument in writing — if it is, proferí (which is the criterion) should have been made in the plea, because it is by reason of this clause of the statute that proferí is necessary of unsealed instruments. Beebe et al. vs. R. E. Bank, 4 Ark. Rep. This objection is not obviated by the 4th section, Rev. Stat. title “ assignments,” because that section is restricted to “the assignee” who “brings suit on assigned paper.” 3d, But conceding that the endorsements were legible, and that it was not necessary to prove the hand-writing, no delivery was proved. The writings were in the hands ofHiggins at the trial, and there being no proof to the contrary the presumption is that they were never delivered in pursuance of the endorsements. Where a bill or note is specially endorsed or endorsed in full (as must have been the case in this instance, if at all) the property does not pass before delivery.- Chitty on Bills, p. 263. -Where a transfer is by endorsement a delivery is now deemed indispensable to complete the title. Story on Bills sec. 203, Marston vs. Allen, 8 Mees <$• Weleb Rep. 494, 503. Brind vs. Hampshire, 1 Mees 4* Weleb 369. Adams vs. Jones, 12 Adolph fy Ellis R. 494. Where an acceptor having once written his acceptance with the intention of accepting the bill afterwards changes his mind,- and before it is delivered back to the holder obliterates and cancels his acceptance,he is not liable as acceptor. Cox vs. Tory, 5 Barn. Sf Adi. R. 474. 8 chap. 7 Eng. Com. Law R. 163. Bantrick vs. Dorrien, 6 East Rep. 200. Thornton vs. Dick, 4 East 270. Roper vs. Benback, 15 East R. 20. So if a holder after an endorsement is filled to another, but befpre it is delivered, erase the endorsement no title vests in the endorsee. Ibid.

If the depositions objected to had any effect upon the case it was favorable to Watson, but even if they had been introduced by him they would not have sustained the issue. We can concede that the circuit court erred in admitting these depositions, and still sustain the judgment, because where there has been a motion for a new trial, if this court upon a view of the whole case, conceives the verdict to be correct, the judgment will not be reversed, notwithstanding the judge at the trial may have erred in admitting or excluding evidence or in giving or refusing instructions. Edmon-son vs. Mitchell, 2 Tenn. R. 4. Howell vs. Webb, 2 Ark. R. 359. 10 T. R. 447. 2 T. R. 46. 3 T. R. 528. 1 John. Cas. 250. 1 Wills. 57. 3 John. Cas. 125. 2 Caines R. 85, 224. 4 Wend. Rep. 458. Crary vs. Sprague, 12 Wend. R. 41. Benjamin vs. Smith, 12 Wend. R. 404. Gray ham vs. Houston, 4 Dev. R. 203. Ingram vs. Watkins, 1 Dev. 4' Bat. R. 442.

Watson did not make his exceptions to the depositions a ground of his motion for a new trial. It has been decided by this court in a number of cases, that a party after moving for a new trial, can only avail himself of the benefit of an exception previously taken by making it a ground of his motion. Danley vs. Robin’s heirs, 3 Ark. R. 144. Waller et al. vs. The State, 4 Ark. R. 87. Ashley vs. Hyde fy Goodrich, 1 Eng. R.

Oí/DHam, J.

The first question to be determined in this case is ■Whether the circuit court erred in overruling the defendant’s demurrer to the plaintiff’s replication to his first plea of the statute of limitations. The plea avers that the cause of action did not accrue within five years before the commencement of the action. The' replication avers that at the time the cause of action accrued “ the said Higgins (the plaintiff below) did reside and has ever since and at the time of the passage of the act entitled “ an act concerning limitations,” passed by the General Assembly of the State of Arkansas, on the 14th day of December A. D. 1844, resided beyond the limits of said State, to wit, in the State of Alabama, and still continues to reside in said State.”

At the date of the writings obligatory set forth in the plaintiff’s declaration and at the time his right of action accrued upon them,' there was no statute of limitation applicable to them in the then Territory of Arkansas. On the 20th March 1839, when the Revised Statutes took effect, the right of action upon the writings obligatory was not barred. It is a rule laid down by courts in the construction of acts of limitation that they apply to demands existing at the time of their going into operation and regard them' as demands accruing on the day they took effect. The People vs. Supervisors of Columbia, 10 Wend. 363. In Baldwin vs. Cross, 5 Ark. Rep. 510, it was held that the limitation act contained in our Revised Statutes “operated upon demands existing at the time, the same as upon those accruing upon the day it took effect, and that all demands existing when the act went into operation must be sued for within the time prescribed, or they will be' barred.” In Dickerson vs. Morrison, 1 Eng. Rep. 264, it was held that five' years was the time fixed by the act as a bar to actions upon writings obligatory. According to the principies thus settled the defendant’s plea, that the cause of action had not accrued within five years next before the commencement of the suit was a valid plea, and, if true, was a good defence to the defendant unless th6 plaintiff by replication brought himself within one of the savings contained in the 13th section of the act. This he did by replying that he was a non-resident of the State of Arkansas and a resident of the State of Alabama.

It is insisted however that inasmuch as the 13th section of the act was repealed by the act of 14th January 1843, the replication is no avoidance of the plea. This leads us to inquire into the effect of the repealing statute. Until the time of its passage there was no limitation as to non-residents. It is correct as insisted by the plaintiff in error that non-residents should not be placed upon á better footing than our own citizens, but the legislature had so placed them. Did the legislature by repealing the saving in favor of non-residents remit them back to the time when the Revised Statutes took effect? If such be the case many causes of action existing at the time of the repealing statute were by that act barred instanter. Such consequences would have been exceedingly unjust and were surely not designed by the legislature. We’ conceive that the true construction is that the legislature by repealing the saving in favor of non-residents in effect enacted a limitation law applicable to non-residents and which took effect from the date of its passage. Hence all causes of action existing in favor of non-residents upon writings obligatory on the 14th January 1843 had five years to run from that date, and consequently the plaintiff’s cause of action at the time of the institution of his suit was not barred.

The legislature again on the 14th Dec. 1844, passed another act concerning limitations, by which it was enacted “ that all persons who reside beyond the limits of this State at the passage of this act may institute suit or suits upon any cause or causes of action which they may have, within two years after the passage of this act, notwithstanding such suit or suits may be barred by this act or any other limitation act now in force” &,c. The plaintiff shows by his replication that his right of action was not barred at the time of the passage of the last mentioned act, consequently, twb years not having expired from the date of that act to the institution of his suit the replication was a good avoidance of the plea,' and the demurrer was properly overruled.

It is insisted that the court below improperly sustained the demurrer to the defendant’s second plea of the statute of limitations. This plea averred that the cause of action had not accrued within ten years. It has already been shown that five years was the bar to actions upon writings obligatory by the first act containing a limitation to such actions. But had the Revised Statutes enacted that such causes of action should run ten years then it is clear that the plea was bad, for ten years have not yet elapsed since the statute commenced. Baldwin vs. Cross, 5 Ark. Rep. 510. Dickerson vs. Morrison, 1 Eng. Rep. 264.

It is assigned for error that the court permitted the depositions taken on the part of the plaintiff below to be read in evidence. This is a groundless objection. There were two issues of fact to be tried; the first, payment upon the third plea: and the second, whether there was an assignment of the writings sued upon to E. Warren, as alleged by the fifth plea. The onus was upon the defendant upon both these issues: he held the affirmative, and the plaintiff was entitled to a verdict in his favor without any proof, unless the defendant had supported his pleas by proof. The defendant introduced no testimony whatever, and it was a nugatoiy act, a work of supererogation on the part of the plaintiff to introduce evidence to obtain a verdict in his favor to which he was entitled by the pleadings on record. It is wholly immaterial, a fruitless inquiry to consider whether the depositions were properly admitted.

The next question to be determined is whether the circuit court correctly sustained the demurrer to the sixth plea filed by the defendant below. The plea avers “that the plaintiff after the making of the two writings obligatory in the first and second counts of the said plaintiff’s declaration mentioned and set forth, and before the exhibiting of the declaration of the said plaintiff against the said defendant, the said plaintiff endorsed and assigned the said writing obligatory in the said declaration mentioned, and that by the force and effect of said endorsement and assignment said plaintiff transferred his interest in said writings obligatory and was not the legal owner and holder of the same at the time of exhibiting his said declaration.” To constitute aTvalid transfer by endorsement or assignment so as to divest the obligee or payee of his legal right and interest in any instrument made assignable by law, and to vest the same in the assignee or endorsee, there must be an assignor, and assignee and assignment or endorsement of the instrument which is consummated by delivery. This plea is defective in not showing that the writings obligatory were assigned to any person and also'in not averring a delivery to any person. It is a rule that every pleading must be construed most strongly against the party pleading. Inasmuch as no assignee is named, the conclusion is that the assignment was in blank, and as no delivery is averred, the presumption is there was none, and this presumption is supported by the plaintiff’s declaration.

It is alleged for error that the court did not adjudicate upon or dispose of the plaintiff’s demurrer to the defendant’s fourth plea. In this we conceive the plaintiff in error has mistaken the record. It appears that he joined in the demurrer to his other pleas and M submitted to the demurrer ” to the fourth plea, leaving it plainly to be inferred that he conceded the demurrer, which would have been sustained by the court.

Lastly, there was no ground whatever to have authorized a new trial. By the pleadings the burthen of proof rested upon the defendant below, and he failing to introduce any evidence whatever to support the issues on his part the plaintiff was entitled to a verdict and judgment upon the facts admitted by the record. Upon the whole record we are of opinion that the judgment should be ¡affirmed.