Girdner v. Stephens

lawgiver; but the rights which have been acquired under it while it was in force do not thereby cease." The same doctrine is to be found in Bracton (Lord Bacon, in Bacon's abridgement), and was a maxim of the civil law. It is to be found in many European codes of law; and in England, where there is no absolute restriction upon the legislative department of the government, it has been adhered to with great strictness.

The principle being well settled and established, the next inquiry is, does the case before us come within it? A statute which takes away or impairs any vested rights is retrospective and retroactive. Society for Prop. of Gospel v. Wheeler, 2 Gall. 105. And we hold, both on authority and principle, when a cause of action is barred by a statute of limitation, in force at the time the right to sue arose, and until the time of limitation expired, that the right to rely upon the statute as a defense is a vested right that cannot be disturbed by subsequent legislation,

Judge COOLEY, in his work on constitutional limitations, 369, says: "As to the circumstances under which a man may be said to have a vested right to a defense, it is somewhat difficult to lay down a comprehensive rule. He who has satisfied a demand cannot have it revived against him; and he who has become released from a demand by the operation of the statute of limitations is equally protected. In both cases, the right is gone; and to restore it would be to create a new contract for the parties-a thing quite beyond the power of legislation."

The power of the legislature to regulate the remedy, or to extend the time of limitation before it has completely run, are questions. not involved in this case, and stand upon different principles. The question is, as to the power to extend the time, when the cause of action is already barred; and it has been uniformly held, so far as our researches have extended, that it cannot be done. In the case of Woart v. Winnick, 3 N. H. 473, it was expressly held that an act of the legislature repealing an act of limitation was, with respect to all actions pending at the time of the repeal, which were previously barred, null and void. This case, however, was decided under a provision in the constitution of that state. But in many other cases, in the states of Massachusetts, Michigan, Arkansas, Mississippi, Pennsylvania, Iowa, Indiana and Vermont, cited by Mr. Angel in his highly esteemed and authoritative work on limitations of actions at law, the same general doctrines seem to have been held.

Girdner v. Stephens.

Ang. on Lim. 22, 23, note. Although our own courts seem not to have been called upon heretofore to adjudicate this precise question, yet they have uniformly held that a claim barred by a statute of limitation is deemed in law to be extinguished and discharged (9 Yerg. 543); and consequently to revive it is to interfere with a vested right. In some of the cases, and also in some of the text. writers, as in Cooley, 365, the subject-matter of the controversy and of the application of the doctrine is mentioned as property; in others, the rule is stated as being appplicable to all demands that are barred. There can be no difference in principle whether it is a right to recover land or personal property in specie, or damages for the breach of a contract or for a tort. We, therefore, hold section 4 of the schedule of the amended constitution of 1865, and section 4 of the schedule of the new constitution of 1870, and the act of May 30, 1865, chap. 10, § 1, so far as by their terms and effect they authorize the institution of suits to recover on demands, whether arising ex contractu or ex delicto, that were, at the times of these several enactments and resolutions, already barred by existing laws, to be null and void.

It is further insisted that the alleged cause of action originated during a civil war, whereby the courts were closed, which continued. during the whole time of the limitation, and for that reason the statute did not run. This is a question which, to our knowledge, has never received in this country any direct judicial consideration, and as to which there appears to be some conflict of opinion among the English authorities. "It seems agreed," we read in Bacon's Abridgement, vol. 6, p. 395 (Bouvier's ed.), "that there being no court, or the courts of justice being shut, is no plea to avoid the statute of limitation; as where, after the civil war, an assumpsit was brought, and the defendant pleaded the statute of limitation; to which the plaintiff replied, that a civil war had broken out; and that the government was usurped by certain traitors and rebels, which hindered the courts of justice, and by which the courts were shut up; and that, within six years after the war ended, he commenced his action; this replication was held ill, for the statute, being general, must work on all cases which are not exempted by exception." In Guion v. Bradley Academy, 4 Yerg. 253, and in Cocke & Jack v. McGinnis, M. & Y. 361, 367, in which, on other grounds, it was insisted that the statute had not run, it was held, that nothing was better settled than that the courts can VOL. II.-89

Cover v. Davenport.

make no other exceptions to the enacting and barring clauses of the statute, but such as are made by the legislature, for it would be legislating to do so. And such seems to have been the opinion of our legislative bodies from the times of the civil commotions and disturbances of the revolutionary war down to the present time, for, by a very old statute, to be found in 1 Scott's Laws of Tennessee, 277, a provision is made for the suspension of the statutes of limitation, during "the intrusion of a destructive war;" and it is further to be seen, by a provision in the same statute, that it was the sense of the body that enacted that statute that it had no power to revive a cause of action that was already clearly barred. During the continuance of the war other and similar laws were passed, all to be found preserved in the same venerable collection of our early statute laws.

But we do not feel ourselves called upon to decide the question at present, as it does not appear in this record that the courts were closed against the institution of process in the years 1861 and 1862, and this could not, in fact, have been made to appear, as we judicially know that such was not the fact.

(The remainder of the opinion is on questions of practice.)

Judgment reversed.

COVER, plaintiff in error, v. Davenport.

(1 Heiskell, 368.)

Breach of promise to marry — contract between married man and single woman.

A contract by a married man with a single woman to marry her, if entered into by her in ignorance of his condition, is valid on her part, and she may maintain an action for a breach thereof. But if, after learning his con dition, she freely, and uninfluenced by fraudulent representations, consents to the continuance of the contract, the jury may consider that fact in miti. gation of damages.

THIS was an action for breach of promise to marry. Judgment was rendered for defendant below and appeal brought. We have

Cover v. Davenport.

omitted from the first part of the opinion a lengthy history of the case, not necessary to an understanding of the decision.

The material facts will be found in the opinion.

R. H. Barton, for plaintiff.

A. S. Marks, Maynard & Washburn, for defendant.

NICHOLSON, C. J. The most important question in the case is, whether there was error in the charge of the circuit judge to the jury, in view of the facts given in evidence. That portion of the charge on which the question is raised is as follows:

"If the plaintiff was legally free to contract and consummate marriage, and the defendant was not, because of a then existing marriage, and the parties entered into such a contract, the plaintiff having no knowledge of the defendant's disability to consummate it, the defendant would be liable. * * * But to authorize a verdict for the plaintiff under this last stated proposition, the testimony must show the plaintiff to have acted in legal good faith -she must have been wholly ignorant of the want of legal ability on the part of the defendant at the time of the contract; ard if, afterward, it came to her knowledge, and she took steps, or sought in any way, to procure or secure its execution, or gave her consent thereto, knowing its illegality, she would thereby so place herself in the wrong as to require her exclusion from the court. Ir such case the law would require you to find the issues in favor of the defendant."

There are three counts in the declaration; the first two allege that plaintiff, being unmarried, at the special instance and request of defendant. promised to marry the said defendant, and the defendant then and there promised to marry the plaintiff; the first count alleging in a reasonable time, the second count omitting any allegations as to the time of marriage, etc. The third count alleges that, in consideration that the plaintiff, being sole and unmarried, at the request of the defendant, who falsely and fraudulently represented himself to be sole and unmarried, promised defendant to marry him within a reasonable time; and the plaintiff, confiding in defendant's promise and undertaking, has hitherto remained unmarried, and has alwavs been ready to marry the defendant, until she

Cover v. Davenport.

had notice he was a married man; and the plaintiff avers that the defendant has not married her, but, on the contrary, at the time the defendant made his promise, he was married, and still is married, to another woman."

The evidence in the cause proves that the contract of marriage was made in July, 1864, and that at the time defendant was a married man, but represented himself to be unmarried, and that the fact of his being at the time a married man was not known to plaintiff. Upon these facts the circuit judge charged the jury correctly, that plaintiff would be entitled to recover. But, he added, if afterward it came to her knowledge that he was a married man, and she took steps or sought in any way to procure or secure the execution of the contract, or gave her consent thereto, knowing its illegalit. she would thereby exclude herself from court. If we rightly comprehend the language of the judge, he intended the jury to understand that, although the plaintiff would be entitled to recover if she was ignorant of defendant's being married, yet, if she did not repudiate the contract when she obtained knowledge that he was a married man, she would not be entitled to recover.

To apply this charge to the facts before the jury: It was in proof that, early in July, 1864, the contract was expressly made, though for several months the proof shows that there was an implied promise on both sides. As plaintiff did not know that defendant was married, it was a lawful contract on her part, and she was entitled to damages for its breach. But the proof further showed, that, in a short time after the making of the express contract, plaintiff was apprised of the fact that defendant was a married man; and the jury was instructed that if, upon obtaining this knowledge, she did not repudiate the contract, but was still willing to carry it out in a reasonable time, she would thereby forfeit all right to recover. Whatever may be our views, as a question of propriety and morality, as to the course plaintiff ought to have pursued when she obtained knowledge that she had made a contract of marriage with a man who was then disabled from executing the contract by reason of his being then married, we do not understand that she forfeited her right to damages, by waiting a reasonable time to see if he might not be able, lawfully. to execute his contract.

In 2 Saunders on Pleading and Evidence, 347 a declaration is set out, of which the declaration in the present cause is a copy, on