Dissenting Opinion of
William Foster, Esq.I respectfully dissent from the majority of the court, for the following reasons :
First. — The decision of Mr. Justice Dole, filed August 22d, *5191891, made no reference to the plea of the statute of limitations, nor any finding upon that point: the question was, therefore, in my judgment, not then passed upon; nor has it since been adjudicated.
Second. — The entry of judgment on August 25th, 1891, was improper, because exceptions were pending, and because the judgment was entered in vacation in a jury waived case. Such entry was contrary to statutes and rules of court, and was not authorized by stipulation of parties.
Third. — Upon the motion in arrest of judgment, the question of the bar of the statute of limitations was properly before the court, to the same extent as upon a writ of error: in either case, the failure to allege exceptions at an earlier stage ought not to be held to waive or exclude the further remedy.
I am, therefore, of the opinion that the decision of the Circuit Judge, sustaining the demurrer, should be set aside, and the case sent back to him for hearing solely upon the question whether, at the time the original suit at law was brougt in this country, it was barred by our statute of limitations : if it was so barred, then the judgment in that case should be set aside : if it was not barred, the judgment must stand.
It is a matter of regret that final settlement of this case has been so long delayed, and it may well suggest some reforms in our procedure : but it seems to me more inequitable that this Court should now refuse to allow the question of the statute of limitations to be adjudicated, than it would be to further delay an already protracted litigation, in order that a court of equity may know whether a judgment at law ought to be enforced.