It is insisted by the plaintiff in error that the special findings of the court are fatally defective, because they do not find the contract by which the suit was brought, or fix the date when the cause of action accrued, and that for this reason the judgment of the circuit court should be reversed. We might dismiss this assignment of error on the ground that there was a general finding for defendants on all the issues of fact, and that no error can be assigned on such a finding. Tioga R. R. v. Blossburg & C. R. R. 20 Wall. 137. But the special findings also fix specifically the date when the plaintiff's right of action accrued, to-wit, on the first day of April, 1871. In considering the sufficiency of the special findings the stipulation between counsel for submitting the cause to the court must be kept in mind. The only questions which, by this agreement, were to be submitted to the court were the issues raised by the replication to the sixth and seventh pleas, being pleas of the statute of limitations. The contract and breaches as set out in the declaration were, for the purpose of this trial, taken for granted. They were confessed by the pleas, and, as a matter of avoidance, the statute of limitations was set up. The court, by its general and special findings, has declared, as a conclusion of fact, that the matters set up in the pleas of the statute of limitations were proven. We think the findings pass upon every issue submitted to the court, and that they are not imperfect or defective.
The limitation law of Mississippi applicable to this case was as follows:
'Art. 6. All actions of debt or covenant founded upon any bond, obligation or contract, under seal or upon the award of arbitrators, shall be commenced within seven years next after the cause of such action accrned, and not after.'
The Revised Code of Mississippi of 1871, failed to provide any limitation for causes of action under seal which arose after October 1, 1871, the date fixed by section 2938, when that Code should take effect, but did contain the following provision:
'Sec. 2172. The several periods of limitation prescribed by this chapter shall commence from the date when it shall take effect, but the same shall not apply to any action commenced, nor to any cases where the right of action or of entry shall have accrued before that time, but the same shall be subject to the laws now in force; but this law may be pleaded in any case where a bar has accrued under the provisions thereof.'
It will appear from these provisions of the statute law that the absence of any limitation of actions upon contracts under seal, between October 1, 1873, and April 19, 1873, can have no effect upon the controversy in this case. When the cause of action in this case arose, as found by the court, to-wit, on April 1, 1871, article 6, p. 400, of the Code of 1857, above quoted, barring actions on sealed instruments in seven years, was in force, and this limitation was expressly continued by the Revised Code of 1871.
The case of Furlong v. State, 58 Miss. 717, relied on by counsel for plaintiff in error, can have no application to the case, for in that suit the cause of action accrued after the Code of 1871 had taken effect. Nothing was decided in that case which has any bearing on this. Therefore, upon the facts specially found, namely, that the cause of action in this case accrued on April 1, 1871, and that this suit was not brought until December 21, 1878, it is apparent that the sixth plea of defendant is sustained, unless this case is saved by the averment in the declaration that the suit was brought within a year after a former suit for the same cause of action had been defeated for matter of form. It is, therefore, to be considered whether, upon the special findings, the plaintiff is entitled to the saving clause of section 2163 of the Code of 1871, which is as follows:
'If, in any action duly commenced within the time allowed, the writ shall be abated or the action otherwise avoided or defeated by the death or marriage of any party thereto, or for any matter of form, * * * the plaintiff may commence a new action for the same cause at any time within one year after the abatement or other determination of the original suit.'