Opinion
May Term, 1819.
From Burke.
Action of debt on the statute of usury; pleas, general issue and statute of limitations. Motion by plaintiff to amend the pleadings by replying to the statute of limitations, "a former suit between the same parties, and a non-suit therein, and that this action was brought within a year and a day thereafter, according to the provisions of the act of 1715." Motion disallowed; for,
1. The amendment, if made, would be unavailing. The statute limiting penal actions contains no such saving as the Plaintiff wishes to reply, nor a saving of any description; nor is it in pari materia with the act of 1715.
2. The nature of this action forbids the amendment. This was no particular man's cause of action until brought. It became his by the suit, and he lost it by the dismission. It then became common and liable to be brought by any person. If brought by a stranger, it was a new suit; so, if brought by the same person. It was not a continuance of his old suit; for it was his no longer than it depended.
This was an action of debt founded upon the statute against usury. The defendant pleaded "the general issue and statute of limitations." The case came on to be tried at the next term after the pleas were pleaded, when the plaintiff moved, as there was no replication stated in the pleadings, that he be permitted to have the benefit of a replication "of a former suit between the same parties, and a non-suit therein, and that this action was brought within one year thereafter, according to the provisions of the act of 1715;" or, if not permitted from the present state of the pleadings to have such benefit, that he be permitted to amend by adding such replication. The motion was sent to this Court, and it was agreed that if this Court should be of opinion against the plaintiff upon both points, a non-suit should be entered.
In this case, which is brought by a common informer on the statute of usury, application was made at a term subsequent to the making up of the pleadings, (238) to reply to the statute of limitations, that he the informer heretofore brought suit for the same cause of action against the Defendant, that that suit went off otherwise than on its merits, and that the present suit was brought within a year and a day of its determination.
It is a rule of our Courts, founded on common sense, to admit of no amendment which would be unavailing. For wherefore should a thing be done when it can profit nothing? The statute pleaded in this case, contains no saving such as the Plaintiff wishes to reply, nor, in fact, a saving of any description; nor is it in pari materia with the act of 1715; for nothing is there said of limiting penal actions. But if there were any doubt in applying the savings under the act of 1715, to subsequent statutes of limitations, limiting the time of bringing actions not enumerated in the act of 1715, the nature of this action forbids it. This was no particular man's cause of action until brought. It became the informer's by the suit; and he lost it by the dismission. It then became common, and liable to be brought by any person. If brought by a stranger, it was a new suit; so if brought by the same person. It was not a continuance of his old suit; for it was no longer his than it depended. Suppose after the dismission of the first suit, some third person had commenced one before the commencement of the present action; must his suit be discharged, because the present plaintiff afterwards brought his? Or, must his suit be suspended until the year and the day expire, to see whether the old informer intend to commence again? These are all strong reasons why there should be no saving in the words of the statute, and they are still stronger why they should not be inserted by judicial construction. Let the motion to amend be disallowed.
Cited: S. v. Hawkins, 28 N.C. 430. (239)