Bank of Columbia v. Sweeny

after stating the case, and the provisions of the 14th section of the charter, delivered the opinion of the court, as follows, (nem. con.:)

The expressions in the 14th section of the charter seem to imply that there should be a declaration in some of the usual forms of action. The plaintiffs, in the present case, have selected the action of assumpsit. So far as regards the trial, it is not important’ by what sort of process the defendant is brought into court. There is nothing in the act of 1793, c. 30, (the charter of the bank,) which expressly deprives him of any ground of defence which he would have had, if he had been brought in by the ordinary process of capias ad respondendum, instead of that of capias ad' satisfaciendum. When brought in he has a right to dispute the debt, and to have a full and fair trial. The object of the summary remedy is to prevent delay, and to enable the bank to obtain security; not to deprive the defendant of the means of defence enjoyed by other debtors. So far as it is summary it is in derogation of common right, and must be construed strictly.

It is true that by the 14th section of the charter, the execution is to be “as valid and effectual in law, to all intents and purposes as if it had issued on a judgment regularly obtained in the ordinary course of proceeding;” and so it is while it exists. But if, upon the trial, it should be found that the plaintiffs ought not to have the execution, the court has the power to quash it. The validity of the execution cannot affect the trial.

But it is said that if this execution be the commencement of an action as seemed to be admitted by Mr. Key, in arguing the case of Bank of Columbia v. Bunnel, in this court at April term, 1822, [Case No. 803,] and the case of Bank of Columbia v. Okely, in the supreme court, and as suggested by Mr. Justice Johnson, in delivering the opinion of the court in the latter case. 4 Wheat. [17 U. S.] 239,3 it is not within the description of actions limited by the statute of limitations; which statute affects the remedy only; not the right. To this it may be answered, that no man ought to be deprived of a plain, common right, by doubtful implication or remote inference. The statute of limitations is a general statute. Every man has a right to claim the benefit of it; and some of the wisest judges have said it was a beneficial statute. The prohibition to use it in the present case is doubtful. It is supported only by doubtful inference. The issue to be tried is left to the discretion of the judges, who are required to see “that justice be done in the speediest manner.” It cannot be just that a man should be deprived of a lawful defence, unless by his own neglect to avail himself of it in proper time. This is the first time the defendant has had an opportunity to plead the statute; and we cannot say that a defence which has been authorized by law, and in common use for more than a century and a half, is ah unjust defence. If the plaintiffs had commenced their action by the usual process, which they had a right to do, this defence would have been clearly open to the defendant, and it is not probable that the legislature intended to leave it to the option of the plaintiffs, whether the defendant should or should not be permitted to avail himself of the statute of limitations. We think, therefore, that the defendant has a right to plead the statute, and ought to be permitted • now to file the plea.

Verdict and judgment for the defendant.