Gordon v. Preston

Ohio Supreme Court
Gordon v. Preston, 1 Wright 341 (Ohio 1833)

Gordon v. Preston

Opinion of the Court

BY THE COURT.

This 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 That act was wholly repealed in 1824 (22 O. L. 326), except as to actioris'barred under it.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.

The 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.

The judgment is affirmed, with costs.

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

Reference

Full Case Name
GORDON v. PRESTON
Status
Published