5 Ga. 217 | Ga. | 1848
delivering the opinion.
This was an action of trover for a slave brought by Lee, trustee, &c., against Wynn. A number of points are made in the record. In the consideration of each question, I shall taire such facts as are necessary to the elucidation of each, and shall not state the facts at large in the outset. The defendant bought the slave at Mashal’s sale, in the State of Mississippi. He was sold then, as the property of one Lewis. Lewis bought him in Georgia, from the cestui que trust of the plaintiff, and held possession in this State, for several months; after which he removed to Mississippi, talcing the slave with him. Wynn, the defendant, having bought the slave in Mississippi, as stated, brought him back to Georgia, and here suit was brought against him for the property, by Lee, the trustee of Mrs. McMillan, who, with her husband, were the vendors to Lewis. To this suit Wynn pleaded the Statute of Limitations of Georgia. The plaintiff replied to the plea, that at the time of the conversion of the property by Lewis, (under whom Wynn claims,) and during all the time that he,Lewis, remained in the State of Georgia, he was a non-resident of the State, and within one of the exceptions in the Statute. And farther-, that if the Statute did-commence to run in Georgia, in favor of Lewis,' that he removed without the State, into the State of Mississippi, before the bar was complete; and that it ceased to run, upon his removal. The Court sustained these replies to the defendant’s plea, and he excepted. The latter of the two replies, made by the plaintiff to the defendant’s plea, I shall consider first.
In Cotterell vs. Dutton, the whole Court lay it down as a general rule, “ when once the Statute begins to run, nothing stops it.” 4 Taunt. 828. See also Hickman vs. Walker, Willes R. 28. 1 Strange, 559. Gray vs. Mender, 1 Wilson, 134. Smith vs. Hill, 4 T. R. 406. 2 Salk. 420. 10 Mod. 206. 17 Vesey R. 934. In Waldon vs. The heirs of Gratz, the Supreme Court of the United States, through Chief Justice Marshall, say, “the counsel for the defendants in error, contend that after the Statute has begun to run, it stops, if the title passes to persons under any legal disability, and re-commences after sucha legal disability shall he removed. This construction, in the opinion of the Court, is not justified by the words of the Statute. Its language does not vary essentially from the Statute of James, the construction of which has been well settled — and it is to be construed as that Statute, and as all other Statutes of Limitations founded on it, have been construed.” 1 Wheat. 296.
The general rule is recognized in South Carolina. Faysoure vs. Prather, 2 Nott & McCord, 296. Adamson vs. Smith, 2 Const. Decisions, 273. Richardson vs. Whitfield, 2 McCord, 148.
In Massachusetts. 6 Mass. 328.
In Connecticut. Bush vs. Bradley, 4 Day, 307.
In New York. Chancellor Kent declares, “ that the general rule is, that when the Statute of Limitations once begins to rim, it continues to run on, notwithstanding any subsequent disability.” Peck vs. Randall, 1 J. Reps. 175.
In Pennsylvania. Hull vs. Vandergrift, 3 Binney, 385.
In Virginia. Fitzhugh vs. Anderson, et al. 2 H. D. M. 306.
In North Carolina. Andrews vs. Milford, 1 Hayw. 322. Ibid, 416. Cam. & Now. R. 92.
Such being the general rule, is removal out of the State after the Statute has begun to run, an exception 1 It is not by the terms of the Statute, for our Statute makes no such exception. And it is expressly ruled not to be, by the Supreme Court of New York, in Peck vs. Randall, 1 Jonns. R. 165, and by the Constitutional Court of South Carolina, in Richardson vs. Whitfield, 2 McCord, 148.
So we are satisfied, that if the Statute in this case had begun to run, it did not stop, because the person in possession of the slave, (Lewis,) subsequently removed without the State.
By the Act of 1767, in which is found the limitation upon actions of trover, of and in which is found the larger amount of our Law of Limitations, an exception is made, as to suits for the recovery of lands, in favor of plaintiffs beyond seas. This exception is found in the first, section of that Act. In the 9th section of that Act there is also an exception in favor of non-resident plaintiffs, in actions of trover. This is the section of the Act of 1767, upon which the defendant in error relies. We think that it is repealed. The whole Act 1767 was repealed by the Act of December, 1805, revived by the Act of June, 1806, as to all actions and causes of action, which originated under it; and in December, 1806, an Act was passed, entitled “ an Act to revive and continue in force, an Act for the limitation of actions, and avoiding suits in law, passed the 26th day of March, 1767, and to amend the 5th and 6th sections of said Act.” By the 10th section of the last named Act, the Statu'te of 1767 is declared to be fully in force, from the first day of February, 1793. It is argued that this Statute, which in the terms of the first section, revives the whole Act of ’67, as a matter of course, revives the'Mth section of that Act, which contains the exception in favor of the defendant in error. And so it would, if there was nothing else in the Act of December, 1806, but that section. But let us see farther. The second section of this Act of 1806, re-enacts in totidem verbis, the 9th section of the
The intention of the Legislature to disallow this exception is manifest in this, that in 1817, they passed a declaratory law, expressly excluding it. The constitutionality of that law was denied in the argument, but as we are satisfied that the 9th sect, of of the Act of ’67 is repealed, we rest our opinion there, without deciding the constitutionality of the Act of 1817. It is our opinion that the Court erred in deciding -that the plaintiff below was
As before'stated, Lewis carried the slave in controversy, with him' to the State of Mississippi, and retained possession until the statutory bar of that State had fully attached, when' Wynn, the defendant, bought him at public sale, under a judgment against Lewis. He plead in bar of this suit, his title to the negro through Lewis, and Lewis’ statutory title acquired under the Statute of Limitations of Mississippi. The Limitation Act of that State was formally pleaded and set forth. To this plea the plaintiff demurred, upon the ground that Acts of Limitation are in bar of remedies, and that as to remedies in personal actions, the lex furi governs. The Limitation Acts of Mississippi, therefore, and rights acquired under them, could not be a defence to a suit brought in Georgia. The presiding Judge sustained the demurrer, and the defendant excepted.
There is no doubt of the correctness of the two general propositions insisted upon by the plaintiff below, to wit, that unless Limitation Acts, in their provisions, bar rights, they relate only to remedies, and that in actions for the recovery of personal property, the law of the forum obtains as to the remedy. However the soundness of these positions, or rather of the latter position, may have been questioned by writers on the European continent, particularly by civil ones ; yet it is a firmly established and universally conceded rule of the Common Law, not, however, as we shall see, wholly without exception. The rule that suits must be brought within the time prescribed by the law of the State wherein the Court sits in which they are instituted, is based upon principles of international justice and policy. Every nation must have the right to prescribe the time and manner in which, and the circumstances under which suits shall be litigated in its own Courts. Foreigners ought to be subjected to the same laws which govern citizens • property ought not to be subject to the various laws of surrounding States. The Limitation Law which protects a citizen against his fellow citizen, ought also to protect him against a foreigner, and the law which bars from our halls of justice a citizen, ought equally to exclude a foreigner. So also, the time which the law gives to a citizen, within which to prosecute his rights, ought in justice and in comity, to be. given to a foreigner. For the general rule, see 4
In this case, it will not be questioned but that the Statute did
The legal estate was in the trustee ; of that, he had never been divested. The trust was not alone for Mrs. McMillan, it was also for her children. It was not a trust consummated when the slave was delivered into her possession. She would not by a sale, defeat the limitation over to her children. The trustee held the lega\ title for the purposes of the trust, and was entitled to the possession as against strangers to the deed; at law, as against Mrs. McMillan herself. We think the Court was right in sustaining the action. Lerrin on Trusts, 247, 481. Willis on Trustees, 72, 73, 77, 84, 109, 482. See also Blake vs. Irvin, 3 Kelly, 345. Hill on Trustees, 274. Goodtitle vs. Jones, 7 T. R. 47. 4 B. & Ald. 745. Jones vs. Jones, 3 Bro. C. C. 80.
It is not, however, to be understood that the counsel who is in conclusion, and who is also entitled to open the cause, shall not be at liberty, if he chooses to do so, to argue the case at large in his opening speech.
Note. — Copy of the provisions of the Mississippi Statute of Limitations, applicable to actions of trover.
June 7,1822.
“ Sec. 93. All actions of trespass qteare clausum fregit, all actions of trespass, Minnie, trover and replevin, for talcing away goods and chattels, all actions of debt founded upon any lending or contract without specialty, or for arrearage© of rent due on a parol denied, and all actions of account, and upon the case, except actions for slander, and except, also, such actions as concern the trade or merchandise, between merchant and merchant, their factors, agents, and servants, shall be commenced aud sued within six years next after the cause of such actions shall have accrued, and not after.'’ (See 196, 108, 109, 110, 111.)
Provisions as to minors, feme coverts, and insane persons.
“ Sec. 94. If any person or persons, who is, orare, or shall be entitled to any of the actions specified in the three preceding sections of this Act, is, are, or shall be, at the time of auy such cause of action accruing, within the age of twenty one years, feme covert or insane, then snch person or persons shall be at liberty to bring such action, so as he, she, or they institute or take the same within such time as is before limited, after his, her, or their coming to or being of full age, discovert, or of sane memory, as by other persons having no such impediment,might be done.