23 Ala. 480 | Ala. | 1853
The ruling of the court below on the demurrers filed to the defendant’s replications, constitutes the sole question for the revision of this court.
It is contended by the defendant in error, that the demurrers should have been sustained, because the plaintiff had no right to file more than one replication to each plea, and that the pleas, in reply to which the replications are filed, do not fall within the statute of 1846. The language of the section of the act referred to, is as follows: “ That hereafter the plaintiff shall have a right to reply as many several matters to any plea of the defendant of set-off, or plea with notice of set-off, or plea of infancy, or the statute of limitations, as the circumstances of the case may seem to require; provided, the several matters replied are pertinent to or in avoidance of the matter of the plea,” It is undoubtedly true that, where several replications are filed to one plea, unless they are authorized by some special act of the legislature, a general demurrer will prevail as to all of them together, whatever may be the individual merits of each one when considered by itself.—Vance v. Wells & Co., 8 Ala. 401. But in the present case, we consider the language of the above recited act broad enough to cover the case presented, and that the plaintiff was authorized to file as many replications
The first replication presents the question, whether the plaintiff is within the proviso or saving clause of the statute of Florida, set out in the plea- The demurrer, of course, admits all of the allegations of the replication to be true; the question presented, therefore, is, whether a non-resident of the State of Florida, who was such at the time the cause of action accrued, and who has never been in that State from the time that such cause of action accrued up to the commencement of the present suit, is within the saving clause of the statute or not.
We remark, in the first place, that, if language can be made plain, it would seem that a portion of the language of the proviso quoted, has its meaning stamped upon it too plainly to be mistaken. After stating that, if any person or persons, who shall be entitled to any action, (the one adopted in the present suit included eo nomine,) ii shall be beyond the seas, or out of the country, then such person or persons shall be at liberty to bring the same actions, so as they take the same within such times as is before limited after their coming to, or being returned from beyond the seas, or from without this country, as by other persons having no such impediment should have been done.” This language is extremely broad, and would seem to include as well non-residents as those who resided in Florida but were temporarily abroad. “ Beyond the seas, or out of the country,” are the terms used to define the classes of persons to whom the saving clause extends; and again, in speaking of commencing their actions after the impediment is removed, the terms are, “ after their coming to, or being returned from beyond the seas, or from without this country.” The first of the last named phrases seems to have been employed by the legislature with the distinct view of defining those persons who never had resided in the State, as distinguished from those who resided there, but were temporarily absent. To this latter class
We do not, however, choose to rest our decision solely upon the construction which we think the language of the proviso above quoted naturally demands upon its face- We think the authorities' are clear also, in favor of such a construction, and nearly, if not quite undisputed. In the case of Faw v. Roberdeau’s Executor, 3 Cranch 174, Chief Justice Marshall remarks : u Beyond tho sea and out of the State are analogous expressions, and are to have the same construction.” In speaking of this same expression, “ beyond the seas,” Mr. Angelí remarks : “ The before mentioned exception is not confined to subjects who may occasionally leave the country, but is general, and extends to foreigners who are constantly resident abroad.— Thus, it was adjudged that the statute of James only begins to run against a plaintiff, a foreigner, from, his coming to England. So that, if he did not go to that country for many years after the commencement of the cause of action, he will still be entitled to six years from the time he goes there, to bring his action. And if he never should go to England, he has always a right of action after six years are elapsed. But, if one of several plaintiffs be abroad, and the other in England, the action must be brought within six years after the cause of action arises. The act of Maryland, of 1818, repealed the exceptions or savings in former statutes in favor of persons beyond seas. The unlimited latitude, it was thought, granted to persons beyond seas, was considered by the Legislature as unreasonable; and it could constitute no actual grievance or just cause of complaint, if they were reduced to the same standard as the citizens of Maryland. Neither was the repeal a violation of any constitutional obligations of the State; nor was any obligation of contract at all violated or impaired by it.” — Angelí on Limitations 213 § 13.
This authority would be conclusive, to show that the demurrer to the first replication should have been overruled, even if no other term had been employed in the saving clause than that of “ beyond seas.” Tho text of the author above quoted wo find based upon authorities in England, and in this country, of a
But it is insisted, that this construction gives to the non-resident of the State of Florida a superiority over a citizen, inasmuch as five years bar the action of detinue against a citizen, whilst a foreigner or non-resident would be entitled to his action at any distance of time. This is true, but it is not for us to criticise or find fault with the policy of the State of Florida in adding such a saving clause to her statute of limitations; it is enough for us that she has thought proper to adopt it, and it is our duty to declare the law as we find it, whatever may be our own peculiar views as to the Correct policy of that State.
Again; it is insisted that the cases of Howell v. Hair, 15 Ala. 194, and Newcombe v. Leavitt, 22 Ala. 631, are decisive of the question under consideration in favor of the ruling of the court below. In this we cannot concur with the counsel. We are unable to see how either of the above cited cases has any bearing whatever upon the question. In the case of Howell v. Hair, the statute of limitations of Georgia was relied upon to show title in the plaintiff. The court sustained the title, ruling that the title made by the statute of Georgia, after the slave was taken from the possession of the defendant, would override the title of the latter. Judge Collier, in delivering the opinion in this case, puts it upon the ground that there is no saving clause in the statute. He says : “ This enactment, it will be observed, contains no saving or exception, under the influence of which a plaintiff’s right of action is continued beyond the period of prescription, and we are not authorized to presume that any such exists in the legislation of Georgia, applicable to the present case. If there is such a provision, it was incumbent upon the defendant to have produced it, and not upon the plaintiff to negative its existence.” So in the case of Newcombe v. Leavitt, the statute of Mississippi was interposed as a bar to the right to condemn the property levied upon, and this court decided that said statute did constitute a bar; but ‘there was no saving clause in that statute, and nothing said about any saving clause whatever. The only application that either of the above cited cases could have to the case at bar, would be to sustain the defendant’s plea. For this they are undoubted authority, but have no other application. The present replication, how
The reasoning that we have employed to show that the first replication was good, is equally conclusive to show that the second is bad. It will be observed that the first replication derives its genuineness entirely from the saving clause of the statute of Florida, without which it would have been no answer to the plea interposed by the defendant. The second replication is made up of the averments that the conversion was made in Alabama, in 1889, and the slave taken thence to Florida, where she was retained until 1841, and then delivered to the defendant, who brought her hack to Alabama, with the further fact that the plaintiff had not in the meantime been in Florida, nor had said slave in the meantime been in Alabama four years.— W e see nothing in this replication that answers the plea, or shows any reason why the statute of Florida would not perfect a title in favor of the defendant, and consequently a bar to the plaintiff’s suit in Alabama for the slave. The replication does not rely upon the saving clause of the statute, but upon facts outside of it. The demurrer to it was properly sustained.
For the error above noted the judgment of the court below is reversed, and the cause remanded.