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1 Wright 341

Gordon v. Preston

Ohio Supreme Court

Decided August 15, 1833

Ohio Supreme Court · decided 1833-08-15

<p>Statute of limitations — debt—pleading—certainty—demurrer—judgment.</p> <p>The act of limitations in Ohio of 1810, did not provide any bar for debt on simple contract except for rent.</p> <p>A plea of the statute of limitations of a foreign state, is bad, unless it describe its terms with such certainty, that the court may know the provisions relied upon.</p> <p>A demand to take a case out of the statute, made before the law passed, providing thatmode of taking a case out of the statute, is not good.</p> <p>Since 1830, contracts made in other states between their citizens, which are barred by their laws, are held barred in Ohio.</p> <p>A statute will not be construed to have a retroactive operation, if to be avoided. Where a note is payable on demand, it is not due until demanded.</p> <p>On demurrer, the court look to the first fault in pleading, and give judgment accordingly.</p>

Decided 1833-08-15

BY THE COURT.

¶1This contract was made in 1818, and so far ,as it is affected by the general acts of limitation in Ohio, is within "the act of 1810; 8 O. L. 62. By'that law, debt upon simple contract, 'except for rentj is not barred at all. '■ Debt on .specialty is barred in fifteen years. That act was wholly repealed in 1824 (22 O. L. 326), except as to actioris'barred under it. It ‘was revived andmade *349bperative as to 'causes existing within its timé, the 8th February, 1826. The demurrer, therefore, to the fourth, fifth, sixth, seventh, ' and eighth pleas, was well taken, and the court did not err in so. deciding. The first plea is also bad, because it sets ,up the statute of a'foreign state without disclosing its terms, so that the court, can be advised of its provisions.

¶2The second plea is no bar to the action, because the demand averred to have been made six years before the suit was brought, appears to have been made before the passage of the act relied upon •to bar the suit. The act of assembly of the 22d February, 1830 (28 O. L. 34; and 29 O. L. 215), enacts, for the first time in this state, that actions founded on contracts, made by non residents, and barred by the laws of the country where made, shall continue barred when sued in this state. The limitation relied upon, is six years, and the plea avers a demand six years before suit brought. The suit-was brought in March, 1831, six years before which would carry the demand back to a period before the passage of the law, and throw the cause upon the statute of New Hampshire of 1791; which is defectively set out; or, make the act of June, 1825, retroactive. The third plea is still worse, omitting to aver a demand on the note payable on demand, and therefore, showing that no cause of action had accrued. As these pleas are bad, it is unnecessary to inquire whether the rejoinders are good. We look to the first fault.

¶3The judgment is affirmed, with costs.

¶4[Demurrer searches the record; Railroad Co. v. Monatt, 35 O. S. 284, 286.]

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