Howell v. Rogers

47 Cal. 291

Opinion

By the Court, Crockett, J.:

The grounds relied upon by the defendants for a reversal of the judgment are—first, that the plaintiff did not prove such a possession in himself or his grantors as to entitle him to the benefit of the Van Ness Ordinance; second, that the action was barred by the act of March 5th, 1864, commonly known as the “ Hawes Limitation Act.” (Statutes 1863-4, p. 149). On the first point it will suffice to say that it is untenable. The proof established a sufficient possession in the grantors of the plaintiff to entitle them to the benefit of the ordinance. The second point is also untenable. If the defendant intended to rely upon the act of March 5th, 1864, as a defense, he should have pleaded it specially. The act applies only to a particular class of eases; and a defendant who claims its protection, must set it up as a defense in his answer, or he will be deemed to have waived it. In such cases a plea of the. general statute of limitations will not suffice.

Judgment affirmed. Remittitur forthwith.

Mr. Chief Justice Wallace did not express an opinion.