3 Stew. 172 | Ala. | 1830
Out of the several matters assigned for error, the following questions arise:
. is there error in the refusal of the Court to strike out the second plea of the defendant on motion?
2nd, Did the Court err in refusing the instructions asked, and in giving others as expressed in the bill of exceptions?
1st. It is too late for the plaintiff to object that the Court erred in refusing to strike out the second plea of the defendant. The motion to strike out, may in most respects, he assimilated to' a demurrer, if after demurrer overruled, the defendant had replied, he could not have objected that the judgment of the Court upon the demurrer was erroneous. In this case, the plaintiff has replied, and by analogy, the refusal of the Court to strike out, is not an available objection'on error.
The plea in the present instance, is obviously defective, if in nothing else, at least in not averring that possession of the slaves by the defendant in South Carolina, was for a sufficient length of time to bar the action, according to the laws of that State, and that the bar was complete before’they wére removed thence. We will not however say, that for this object the motion to strike out should have prevailed; it was competent for the Court to have either directed, the plea to be stricken out, or forced the plaintiff to demur. And the motion to strike out being addressed to the discretion of the Court, is not revisable by us.
2nd. The second inquiry, for the sake of perspicuity, may be subdivided thus: 1st, when did the statute of limitations begin to run against the representatives of Ramsey? 2nd, Did the slaves vest in Ramsey so as to go to his representatives after his death?
Bacon thus lays down the law on this point. “If A receives money belonging to a person who afterwards dies intestate, and to whom B. takes out administration, and brings an action against A., to which he pleads the statute of limitations, and the plaintiff replies, and shews that administration was committed to him sucha year, which was infra sex annos, though six years are expired since the receipt of the money, yet not being so since the administration committed, the action is not barred by the statute.” 4. Bacon’s Abridgment, 479; Salkeld, 422; Curry vs. Stephenson, Skinner, 555; 4. Modern, 376, and Carthew, 336, are cited. In the last case cited, it is said Holt was of opinion that the administrator should have six years from the time of granting administration, according to Stanford’s case cited in Saffin’s casc,
We have not had leisure to examine all the authorities cited, to sustain the text of Bacon, but have looked into the report of Curry vs. Stephenson by Salkekl, and find that the facts are misreciled by Bacon, and are entirely such as the editor supposes.
Let us inquire whether the rulo, deduciblc from these authorities, is countervailed by the decision in Webster vs. Webster,
The legal conclusions which these cases establish, are 1st. that the statute of limitations docs not begin to run untilsome one is entitled to sue, or liable tobe sued; 2nd. when the statute once begins to run, the death of neither party impedes its operation; and these conclusions are in our opinion founded on correct principle.
2nd. With regard to the last subdivision, it is a rule too well settled now to admit of controversy, that the husband’s representative is-not entitled to the personal property of the wife, unless it came into the husband’s possession in his life time; but the wife will take as survivor, and reference need only.be made to authority, for the purpose of shewing its application.
in Wallace et ux. vs. Taliaferro et ux.
Reeves, in his Domestic Relations,
Chancellor Kent, in remarking upon this very interesting topic, expresses himself thus: “What will amount to a change of property in action, belonging to the wife, so as to prevent it from going back to the wife, in case she survives her husband, was discussed in the case of Schuyler vs Hoyle
From the facts as presented by the bill of exceptions, it is apparent that the plaintiff’s intestate never had either the actual or potential possession of the slaves, for the alleged conversion of which this action is instituted; and it would thence follow that the plaintiff is not entitled to recover, though the statute of limitations interposes no bar.
The Court are unanimous in the opinion that there is error in the refusal of the Judge to instruct the jury that the statute of limitations only began to run, from the time a right to sue vested some where. But a majority of the Court are of opinion, that in as much as it appears from the bill of exceptions, that a witness offered by the plaintiff, proved that the intestate never had the possession of the slaves, and that consequently the plaintiff is not entitled to recover, that the judgment should be affirmed.
Satisfied so far as the facts are before us, that justice has been done; I yet believe that the judgment should be reversed and the cause remanded. When this Court is called
Though it is not competent for a party to discredit a witness introduced by himself, yet he is not inhibited from examining different witnesses to the same point, because their statements may be contradictory. Now as the bill of exceptions does not shew the reverse, it may be that other witnesses than the one named were examined, whose
relations of facts were not coincident. These are briefly the reasons why I believe that the judgment of this Court should be different.
Judgment affirmed.
Minor’s Ala Rep. 21, 178, 350.
Cro. Jac. 60 61.
10 Vesey 93.
2 Call 457 marginal.
1 Vesey 161
Baron and Fem.
5 John. Ch. Rep. 196.
2 Kent's Com 115 and 16.