Rogers v. Durant (140 U.S. 298)

This was an action of assumpsit brought by Henry J. Rogers, January 26, 1884, against William F. Durant and others, as 'surviving partners of the late firm of James W. Davis and associates,' in the circit court of the United States for the northern district of Illinois, upon 20 instruments in writing, bearing various dates from April 12, 1869, to February 12, 1870. Durant alone was served with process. The original declaration consisted of the common counts, and was subsequently amended by the addition of special counts upon each of the pieces of paper sued on, describing eighteen of them as bills of exchange and two as banker's checks. All were payable at sight, or on short time after date, and it was admitted that more than five years had elapsed after they became due before action was brought. The defendant filed eight pleas, which were ordered to stand as pleas to the amended declaration. The fourth plea was as follows: 'And for a further plea in this behalf to said plaintiff's declaration, and each of the counts thereof, the said defendant, William F. Durant, says actio non,' etc., 'because he says that the said several supposed causes of action, and each and all of them, in said plaintiff's declaration, and each of the several counts thereof mentioned, are founded upon bills of exchange, and that no cause of action has accrued upon any or either of said bills of exchange to the said plaintiff, or the holder thereof, within five years next before the bringing of this suit, as the plaintiff hath above complained against him, the said defendant, but that each and all of said supposed causes of action accrued, if at all, after the 10th day of February, A.D. 1849, and prior to the 4th day of April, A. D. 1872; and this he is ready to verify. Wherefore he prays judgment.' etc. To this plea plaintiff interposed a general demurrer, which was overruled by the court, and, the plaintiff electing to abide by his demurrer, (the other pleadings being also at the same time disposed of,) judgment was rendered for the defendant, and the cause brought here on writ of error.

D. J. Wile, for plaintiff in error.

''Chas. H. Lawrence'', for defendant in error.

FULLER, C. J.