King v. Fergus

1 Del. Cas. 303

• Court: Delaware Court of Common Pleas
• Decided: April 15, 1801
• Status: Published

Opinion

Per Curiam. Booth, C. J.

The Court are of opinion that this paper should not be read to the jury.

Note. The Chief Justice after the trial in conversation told me this decision was rather against his own opinion.

Defendant then proved James Fergus to have had possession of Negro Jesse from 1791 or 1792 until his death; that defendant, his executrix, has had possession of him ever since.

Plaintiff proved the Negro Jesse to have been originally the property of Elias Conwell, deceased, and that he gave him to his daughter, the plaintiff, then wife of William King, who was possessed of him until Fergus’s possession commenced. That William King is dead. That James Fergus said he did not think he had a good title to the Negro, but he would credit William King to the full value of him.

Plaintiff’s counsel. The defendant has not shown the property to have been hers or James Fergus’s. The property is proved to have been Elias Conwell’s, and that he gave it us; there- is no further proof of property, and therefore defendant has not established her plea of property. The acknowledgment made by Mr. Fergus, though made since the Act of 1792 [2 Del.Laws 1031], which reduces the limitation from six to three years, will give the plaintiff six more years to sue in, because the original cause of action having commenced when six years was the time allowed for suing in, the acknowledgment revives the original cause of action, which has again the same term of six years to continue, and there have not elapsed six years since that acknowledgment. This construction of the law is established by s. 7 of c. 248b, [2 Del.Laws 1033], which provides that nothing in that Act shall extend to a cause of action that arose before the Act, as this evidently did. That acknowledgments will extend to bar limitation in trover has been decided by the late Chief Justice Read in the case of McCannon, which was trover for a certificate; and there is the same reason that it should revive the cause of action in replevin.

Defendant’s counsel. It must be admitted that defendant has to make good her plea of property, but she is not obliged to show the commencement of her right on such plea. It is sufficient prima facie that she has had the exclusive and peaceable possession, because such possession is title until a better is shown or unless it appear the defendant obtained it illegally from plaintiff. Otherwise any plaintiff, whether he has a lawful claim or not, might recover in replevin against any person, without showing any evidence of title, a chattel of which the latter may be lawfully possessed, — and yet possession is favored in law. The plaintiff can have no claim for the gift to her, and the possession of her husband made the Negro his, and she has not sued as executrix or administratrix nor shown any bequest or conveyance from William King.

The Statute of Limitations is in this case clearly a bar, for upon the supposition that there was a proper acknowledgment by James Fergus, and that such would revive the cause of action in replevin, the construction put upon the 7th section of c. 248 [2 Del.Laws 1033], is not the natural one, for the Act is only thereby prevented from an operation upon causes of action commencing under the former Act; but acknowledgment is a new promise or cause of action, and limitation runs from such promise in all cases as if it was the original cause of action. Otherwise it could never have the effect to prevent the bar, and the time is counted from the commencement of the action. But in this case there is no acknowledgment of plaintiff’s right or cause of action, and therefore on no construction is there a revival of her right, if such she could have had to sue. Fergus only expressed a doubt of the validity of his own title.

Per Curiam. Booth, C. J.

(Charge.) Gentlemen of the jury, the arguments which you have heard have so entirely exhausted the subject that there remains little room for the Court for explanation. This is a replevin for a negro boy. Defendant pleads property in herself and limitation. As to the question of property, that is for your consideration, and we shall not interfere with your province. Possession is evidence of property, though not conclusive, because it may be repelled or destroyed, but unless it is destroyed or repelled, it is conclusive. Unless plaintiff had shown a title in herself, or a prior possession in herself, the defendant ought not to lose the possession. As to the second ground of defense, it is contended that this action is not barred by time, because of a subsequent acknowledgment. We are in doubt how far an acknowledgment will revive the cause of action in replevin. We know of no such determination, but will not say it cannot have such effect; but such acknowledgment ought to be of the party’s right, and if there has been no such acknowledgment this action is barred.

Verdict for the defendant.