By JUDGE COLLIER.
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?
[179]*1793 si. Iu the action of trover, the conversion is the gist of the action, there is consequently no right of action, til the possessor asserts a claim to the property, or does some other act incompatible with the existence of title in another. The usual indicia of a conversion, are a tortious possession, or a refusal to deliver the property sought to be recovered, on the demand of the party claiming; in either of which instances the cause of action has accrued, and the statute of limitations begins to run. But a cause of action can only have accrued, when there is some one authorized to prosecute it; for though a party may have rendered himself liable to an action, yetas no one is entitled to its benefit, strictly, there cannot be said to be a cause of action existing against him; and hence, the statute of limitations cannot begin to run, until the right to the remedy vests some where.
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,a Mr. Wilson, the learned editor of Bacon, remarks that the facts of Curry vs. Stephenson are incorrectly stated by Bacon in the quotation we have made, that the report of the case by Skinner, shews that the money was not received until after the death of the intestate; so that before administration was granted, there was no person who could claim it, and the statute begins to run only from a time to demand the thing, vests in some one:” again, “had the money been received in the life time of the person who died intestate, that person would'have had a right against A. vested in him, and from that period, the time of limitation would have commenced, and the statute would have been a bar. For when once the time of limitations has begun to run, it suffers no interruption from the death of [180]*180the claimants, nor does it reyivein favor of any person n whom the right of claim may devolve.”
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,a to which we have been referred by the defendant’s counsel. In that case, the testator died in 1786, probate was taken in 1802. The Lord Chancellor allowed the plea of the statute for the reason expressly, that the defendant, wiio was the executor, had possession of the goods, and might have been sued as executor de son tort, more than six years previously to the commencement of the action, but that if no person was suable previous to 1802, the statute could not have been successfully pleaded. The principle of this decision is clearly in accordance with that of Curry vs. Stephenson.
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.b it appears ^at husband, in conjunction with his co-executors, had possession of personal property, bequeathed to the wife by the testator’s will, and died leaving his wife. Yet it was ruled, that as the husband was possessed as executor, and not as husband, that his devisee was not entitled to recover as against the wife or her representatives. So it has been determined that money in the hands of trustees, for the benefit of a wife, not her separate property, on the death of her husband should go to the wife, and not to the ex®cu^or fhe husband.c
Reeves, in his Domestic Relations,d examines many [181]
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By JUDGE COLLIER.
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?
[179]*1793 si. Iu the action of trover, the conversion is the gist of the action, there is consequently no right of action, til the possessor asserts a claim to the property, or does some other act incompatible with the existence of title in another. The usual indicia of a conversion, are a tortious possession, or a refusal to deliver the property sought to be recovered, on the demand of the party claiming; in either of which instances the cause of action has accrued, and the statute of limitations begins to run. But a cause of action can only have accrued, when there is some one authorized to prosecute it; for though a party may have rendered himself liable to an action, yetas no one is entitled to its benefit, strictly, there cannot be said to be a cause of action existing against him; and hence, the statute of limitations cannot begin to run, until the right to the remedy vests some where.
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,a Mr. Wilson, the learned editor of Bacon, remarks that the facts of Curry vs. Stephenson are incorrectly stated by Bacon in the quotation we have made, that the report of the case by Skinner, shews that the money was not received until after the death of the intestate; so that before administration was granted, there was no person who could claim it, and the statute begins to run only from a time to demand the thing, vests in some one:” again, “had the money been received in the life time of the person who died intestate, that person would'have had a right against A. vested in him, and from that period, the time of limitation would have commenced, and the statute would have been a bar. For when once the time of limitations has begun to run, it suffers no interruption from the death of [180]*180the claimants, nor does it reyivein favor of any person n whom the right of claim may devolve.”
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,a to which we have been referred by the defendant’s counsel. In that case, the testator died in 1786, probate was taken in 1802. The Lord Chancellor allowed the plea of the statute for the reason expressly, that the defendant, wiio was the executor, had possession of the goods, and might have been sued as executor de son tort, more than six years previously to the commencement of the action, but that if no person was suable previous to 1802, the statute could not have been successfully pleaded. The principle of this decision is clearly in accordance with that of Curry vs. Stephenson.
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.b it appears ^at husband, in conjunction with his co-executors, had possession of personal property, bequeathed to the wife by the testator’s will, and died leaving his wife. Yet it was ruled, that as the husband was possessed as executor, and not as husband, that his devisee was not entitled to recover as against the wife or her representatives. So it has been determined that money in the hands of trustees, for the benefit of a wife, not her separate property, on the death of her husband should go to the wife, and not to the ex®cu^or fhe husband.c
Reeves, in his Domestic Relations,d examines many [181]*181English authors on this point, from which these deductions may be made: (1st.) that the property of the wife the husband did not reduce into possession in his life time, vests in her as survivor, if he die in her life time; (2nd.) that the husband may assign them for a valuable consideration, but cannot bequeath them by will.
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 a. it Was shewn that “the husband may assign 1’or a valuable consideration, his wife’s choses in action to a creditor, free from the wife’s contingent right of survi-vorship; but a voluntary assignment by the husband of the wife’s choses in action, without consideration, will not bind her if she survives him.” Again, the learned commentator remarks, “the Court of Chancery has always discovered an anxiety to provide for the wife out of her property in action, which the husband may seek to recover. If he takes possession in the character of trustee, and not of husband, it is not such a possession as will bar the right of the wife to the property, if she survives him. The property must come under the actual control and possession of the husband, quasi husband, or the wife will take as survivor, instead of the personal representatives of the husband.b
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 [182]*182onto revise the decisions of inferior jurisdictions, in my judgment it is not authorized to institute the broad inquiry justice has been achieved. If a legal error isdis-coverecj Up0n a point, material and pertinent, duty requires the reversal of the judgment, without regard to the ulterior benefit which will result to the plaintiff in error. The jury are the legitimate arbiters of fact, and I cannot pretend to say what influence the instructions with regard to the statute of limitations may have had upon their verdict; it may have been upon the ground alone that the statute was a bar to the action, that they found in favor of the defendant If so the material facts of the case have not been passed on by the jury.
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.
Judge Creushaw not sitting.
Minor’s Ala Rep. 21, 178, 350.