Tufts v. Rice, 1 Ill. 64, 1 Breese 64 (1822)

Dec. 1822 · Illinois Supreme Court

1 Ill. 64, 1 Breese 64

Samuel Tufts, Plaintiff in Error, v. Thomas K. Rice, Defendant in Error.

ERROR TO MADISON.

An action of assumpsit was commenced in 1822, upon a contract made in 1812, to which the statute of limitations was pleaded. This statute was passed in 1819, and is no bar to such action. .

It seems, that if the five years had run under the territorial government, it might have been pleaded in bar.

Tufts brought his action of assumpsit, at the April term, 1822, of the Madison circuit court, against Rice, on a promissory note, for the payment of twenty-five dollars, executed by Rice to Tufts, at Boston, and dated the tenth day of April, 1812. To this action, Rice pleaded the Statute of Limitations, that he did not undertake or promise, within five years next before the commencement of the suit. To this plea, there was a demurrer, and joinder, and judgment for the defendant on the demurrer. The plaintiff brought his writ of error, and assigned for error, besides the general error, that the court below gave judgment in favor of the said Rice, and against the said Tufts, on the demurrer of the said Tufts, to the plea of said Rice.

Starr, for plaintiff in error.

Smith, for defendant in error.

Opinion of the Court by

Chief Justice Reynolds.

This was an action of assumpsit, for the non-performance of a contract. To the declaration, the defendant pleaded the statute of limitations. To this plea there was a demurrer, and the demurrer overruled by the court below.

To reverse that decision, this writ of error is prosecuted.

The statute, limiting actions in cases like the present, was approved March 22d, 1819, [Laws of 1819, page 141,] and limits the time in which actions on the case upon promises shall "be commenced, to five years. As that statute has not run five years, it can not operate as a bar to this action.

It is not necessary now to decide, whether, if the five years had run under the territorial government, it would not have been a bar, and might have been pleaded. It will be time enough to settle that question, when brought before us ; we can only say at present, that we incline to the affirmative of that question.

Let the judgment be reversed, the plaintiff recover his costs, and the cause remanded for new proceedings to be had, not inconsistent with this opinion. ⁽¹⁾

Judgment reversed.

(1) As a general rule, a statute is to operate in futuro only, and is not to be so construed as to affect past transactions. A retrospective effect will not be given it unless it clearly appears that such was the intention of the legislature. If it is left doubtful what was the real design, the statute must be so construed as to have a prospective effect only. Jones, adm. v. Bond, post. Bruce v. Schuyler, 4 Gilm., 221. Thompson v. Alexander, 11 Ill., 55. Marsh v. Chestnut, 14 Ill., 227.