Wynn v. Lee

5 Ga. 217

Opinion

By the Court.

Nisbet, J.

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.

[1.] In the construction put upon the Statute of James, (of which ours is, in many particulars, a counterpart,) in England, and in the construction of Statutes of Limitatiohs, very generally in the States of our Union, and in the construction which our limitative Act has received from our Courts, nothing is more firmly settled, as a general rule, than that, when a Statute has once commenced to run, it continues to run, over all impediments. There are some few exceptions, but generally, nothing whatever can resist its progress. The rule of limitation must be general; there can be no two, or more, or many rules. If it were so, the policy of the Statute would be defeated. If it were so, it could rarely be the means of quieting titles; it could rarely inspire confidence; it could not create repose. In England, the general rule is firm ly established. In Duroun vs. Jones, Lord Kenyon said, “ I confess I riever heard it doubted, till the discussion of this case, whether, when any of the Statutes of Limitations had begun to run, a subsequent disability would stop the running. If the disability would have such an operation on the construction of one of those Statutes, it would, also, on the others. I am very clearly of opinion, on the words of the Statute of Fines, on the uniform construction of all the Statutes of Limitations, down to the present moment, and on the generally received opinion of the profession, on the subject, that this question ought not now to be disturbed.” 4 T. R. 310.

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.

No doubt, also, in all the States.

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.

[2.] It is, however, farther said, that at the timo of the conversion, and all the time that Lewis was in this State, the plaintiff' was a non-resident, and that by an exception in our own Statute, it does not run against a non-resident plaintiff. The fact of non-residence was proved on the trial. We find no such exception in the Statutes now of force in Georgia.

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 Act of ’67, except so much of it, as contains the saving in favor of non-resident plaintiffs, and in lieu of that, and precisely in the relative place in which that stood, in the 9th section of the Act of ’67, it substitutes a saving for plaintiff, where the defendant shall remove out of the jurisdictional limits of the State. Now, the Act of December, 1806, by its title, is not an act alone to revive and continue in force the Act of 1767, but it is also an Act to amend the 5th sections of the Act of 1767. The Legislature, then, judging of its object by the title, meant to revive that Act, except the 5th and 9th sections, and those sections, it intended to amend. Accordingly, it proceeded to revive it, and did, at the same time amend the 9th section, by re-enacting it, except the saving in favor of non-resident plaintiffs, which it omitted, and substituted in lieu of that saving, one founded upon the non-residence of the defendant. This statement is of itself conclusive, and would seem to need no illustration. Here is an amendment, to use a parliamentary phrase, by striking out and inserting. Can it be believed, that the Legislature meant that both the 9th section of the Act of ’67, and the second section of the amendatory Act, should stand ? If it did not mean to repeal the 9th section of the Act of’67, why re-enact it literally? And if it did intend not to repeal, more particularly that clause which relates to the saving, for the non-resident plaintiff', why when it in the new Act enumerates all other savings found in the 9th section, does it omit that one ? The last Act contains the latest declared will of the Legislature. As to all its positive enactments, it is the law of the land. All the provisions of the 9th section, identical with those of the latest Act, are of course repealed. This being so, how would the saving in behalf of nomresident plaintiffs in the 9th section stand ? Quite alone, in its statutory and unintelligible solitude. Stript oí its explanatory adjuncts, its context and its original connections, it would be ridiculous in its attitude, and without practicable application. The General Assembly meant to repeal the saving, founded on the non-residence of the plaintiff, and to provide in his behalf one, growing out of the removal of the defendant. I see no good reason, myself, why the non-residence of the plaintiff should protect him from the operation of the Statute. The Courts of the State are open to him. He can always prosecute his remedy. But it is reasonable that he should be pro tected when the defendant has removed. In that event, the fact might be, that be does not ascertain the locality of the defendant until the Statute has barred his suit, or if ascertained, it might be possibly, when he could not sue. There is a difference in the equity of the two savings. It might be said that the plaintiff is within the equity of the Statute. Not so, because his non-residence is not founded upon equal equity with that of the defendants. Besides, the Court has no power to enlarge the provisions' of the Statute of Limitations. Certainly not to add an exception. Beyond all doubt, not to add an exception, when it is manifest that the Legislature intended to exclude the very exception sought to be added. This thing was attempted to be forced upon the Courts of England, and was repudiated. This very point occurred in Brechford et al. vs. Wade. The question grew out of the Limitation Law of Jamaica. It contained no exception in favor of absenting, and it was insisted that on a principle of inherent equity, it ought to be constructively introduced into it. The Master of the Rolls said, “ I have not been able to find any authority for this doctrine; but are wo, therefore, to introduce into a Statute conceived in general terms, all the exceptions which, upon the principles of the Common Law, we may think it reasonable that the Statute should have contained, and in particular, can we do so in cases like the present, when the Statute does notice some of the Common Law disabilities, does adopt some of the Common Law exceptions, but omits others. Is this choice and election made by the Legislature, to be controlled, and in effect annulled by a supposed inherent equity, which is to prevent them from so-legislating, as in reality, it would come to a question of competency % If the Legislature have deliberately made this distinction, how can we refuse to give effect to it, without denying that it was competent for the Legislature, so- to distinguish the case of absentees from that of infants, feme coverts and persons of non sane memory % I have no doubt the omission was intentional.” 17 Vesey, 90. Angel on Limitations, 204, 205.

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 protected from the operation of the Statute of Limitation of Georgia, by reason of his residing out of the State.

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 , note. Ibid, 530. 1 Gallis, 371. 2 Mason, 321. 10 Barn. & Cress. 903. 1 Barn. & Adol. 284. 2 Bing. N. C. 20, 209. 212. 5 Clark & Finell, 1 B. 14, 15, 16, and 17. 3 Conn. 472. 3 Ibid, 523. 8 Peters, 361. 11 Pick. 36. 3 John. Ch. R. 190. 6 Wend. 475. Story’s Conf. of Laws. sect. 577.

[3.] We'have determined that title by possession of personal property, acquired under our own Statutes of Limitation, is not only a good defence, against an adverse claimant, but invests the possessor with the absolute property. Paschal, Admr. vs. Davis, 3 Kelly, 265. Sims vs. Canfield, 2 Alab. R. 561. Brent vs. Chapman, 5 Cranch, 358. Goodman vs. Munks, 8 Porter R. 94. Doyle vs. Bowler, 7 Ala. R. n. s. 246. 2 Bay, 156. 3 H. & Munf. 57. According to this decision, Lewis, in the State of Mississippi, had such a title to this slave as would have enabled him, if disposessed there, to sue for and recover him; that title passed to' Wynn, and in that State the Act of Limitations would not only,have jDrotected him, but upon his title derived from Lewis, he could then have maintainedhis action. Coming into this State, and bringing here the slave and his title, he encounters a suit.

[4.] Can he defend himself upon that title ? We have seen that according to the general rule, he cannot. But according to an exception to that general rule, stated by Mr. Story in his Conflict of Laws, and upon the authority of cases determined in accordance with the principles of that exception, we think he can. The learned winter thus states the distinction. “ Suppose the Statutes of limitation or prescription of a particular country, do not only extinguish the right of action, but the claim or title itself, ipso facto, and declare it a nullity, after the lapse of the prescribed period, and the parties are resident within the jurisdiction during the whole of that period, so that it has actually and fully operated; under such circumstances the question might properly arise, whether such Statutes of limitation or prescription, may not afterwards be set up in any other country to which the parties may remove, by way of extinguishment, or' transfer of the claim or title.” In Story’s Conflict of Laws, sec. 582, Mr. Story illustrates his position, by supposing the case of property adversely held in one State, until the statutory title is perfect and the owner removes into another State with his property, where there is a longer time of prescription, or none at all. In such a case, he intimates very plainly, that the title could not be impugned in the State to which the possessor may remoye. The case supposed, is, in all the principle, involved the case before this Court. Judge Story says, that it has been determined, that such a title under such circumstances, cannot be impugned. The case of a debt, possibly, might stand upon somewhat different ground. The decisions have been upon personal property. The Supreme Court so decided. In Shelly vs. Gray, that Court determined, that five years possession of a slave, constitutes a title in Virginia, which might be set up as a defence by the defendant in the Courts of Tennessee. 11 Wheat. Rep. 361, 371. Here then, is the authority of the highest tribunal known to our laws, upon the point I am now considering. The Supreme Court of the United States have adjudged, that a title to a slave acquired under the limitation laws of Mississippi, may be set up, in defence in this State, to an action brought for his recovery. I do not perceive that the principle has been tested in any of the States, except in Massachusetts, where it was seriously and ably controverted by Chief Justice Shaw. In Bulger vs. Roche, the decision in Massachusetts was against it. It is worthy of remark, that the Supreme Court, in Shelly vs. Gray, do not insist upon the qualifications which Judge Story annexes to the principle. That is authority, therefore, for the rule, without qualification. All that appears to he necessary by the judgment of the Supreme Cou'rt, is, that the title shall have accrued according to the laws of the State from which the owner of the property removes. We are not, however, prepared to adopt the rule, without the qualifications. Let us now see what they are. They are two. First, the limitation Act of the foreign §tate, must not only bar the right of action, but it must also bar the title or claim. Second, the situation of the parties must be such, that the Statute has fully and actually operated on the case. The latter qualification is not stated as Judge Story states it. He states it thus : “ The parties must be resident within the jurisdiction, the whole of the prescribed period, so that the Statute has actually and fully operated upon the case.” The qualification which he designs to express, is clearly this, to wit: the Statute must have actually and fully operated upon the case. The residence of both parties is required by him, because generally, the Statute cannot actually andfully operate upon the case, without such residence. And that for the reason, that Statutes of limitation very generally contain a saving in fav- or of non-resident plaintiffs, or in their favor by reason of the non-residence of defendants. These exceptions, one or both, are found in almost all the limitation Acts of the world. As in England, Massachusetts, Virginia, Georgia. Hence, speaking of this subject, in reference to these Acts at large, there is a perfect propriety, in the formulary of words adopted by him. Parties must reside within the jurisdiction the whole period. Why' 1 So that the Statute ma,y actually and fully operate in the case. In a State^ where there is an exception to the operation of the Statute, growing out of the non-residence of either plaintiff or defendant, the Statute could not actually and fully operate upon the case, except in cases where both parties reside within the jurisdiction. I think it is perfectly manifest, that the qualification intended is, that the Statute roust actually and fully operate in the case, and hence the propriety of stating it as I have done. If by law, the situation of the parties is such, that the Statute has as fully operated upon the case, although one of them has not resided in the jurisdiction the whole period, as it could were they both resident all the time within the jurisdiction; then, the qualification is fulfilled. And that is the case where the defendant has resided the whole term within the jurisdiction, and there is no exception ire the Act in favor of non-resident plaintiffs

Footnotes

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In this case, it will not be questioned but that the Statute did -operate as fully and actually upon the case, as if Lee, the plaintiff, had resided, as well as Lewis, the whole of the term in that State. Lewis’s title was as perfect, the property in the slave was as immovably fixed in him by the limitation laws of Mississippi, as it could have been had Lee resided there all the time. The reason is, that notwithstanding his non-residence, by the provisions of those laws the Statute bar attached. So also in this case, the other qualification is fulfilled ; for it was admitted on the argument, that the Statute of limitations of Mississippi, barred not merely the right of action, but also the title or claim. The case, then, is fully within the distinction taken by Mr. Story, and much stronger- than the case determined by the Supreme Court of the United States. In case of contracts, it is conceded that the law of prescription of a particular country, does not form any part of the contract; it merely operates upon it ex post facto, by affecting the remedy. Yet it might admit of a doubt, whether this is true, when the law of prescription absolutely annuls the contract as well as bars the remedy, after a limited time. It may be a question, whether in that case the prescriptive law does not enter into the contract. If it does, then it will be respected by foreign jurisdictions ; for as to the construction and effect of contracts, the lex loci contractus governs. This view of the matter is presented by -Chief Justice Tindal, in commenting in a late cause, upon the distinction taken by Mr. Story. He says, “ With such restriction, it does indeed appear but reasonable, that the part of the lex loci contractus which declares the contract to be absolutely void at a certain limited time without any intervening suit, should be equally respected by the foreign country, as the part of the lex loci contractus, which gives life to, and regulates the construction of the contract; both parts go equally ad valorem contractus, both ad decisionem litis.” Huber vs. Steiner, 2 Bing. New R. 202. In that case, the proposition of Judge Story, with the qualifications which he makes, met with the approval of the English Court of Common Pleas; an indorsement, which constitutes of itself, very satisfactory authority. So also it was approved by Lord Brougham, in Don vs. Lipman, in the House of Lords. He calls it excellent, and seems not to have enforced it, because the case before him did not come within the prescribed qualifications. I cannot permit myself to doubt, but that both of these distinguished Jurists would, in cases falling within it, give effect to the doctrine of our own not less renowned Storst. Satisfied as we are of its soundness, and this case being, as we conceive, fully within its requirements, we give it our sanction, and determine it accordingly.

[5.] The demurrer to the pleas of the Mississippi Statute of limitation having been sustained, the defendant proposed to read in evidence under the general issue, a certified copy of the record of that Statute, which was refused by the Court, and upon that refusal the defendant excepted. Holding the opinion he did as to the admissibility of this defence, the circuit Judge was right in repelling this evidence. Holding the opinions we do as to this defence, as a question of pleading and evidence, we think the record was admissible under the general issue. Conversion is the gist of the action of trover. The general issue puts in issue that fact, and evidence which negatives the conversion, is admissible under that plea. If the defendant had a title to the property, good against the plaintiff, he made no conversion; and as the record went to show title in him, and those under whom he claimed, it was competent. It was better, however, to plead it; more in accordance with the spirit of our Statute.'

[6.] The defendant in the Court below insisted, that Mrs. McMillan, the cestui que tmst, having possession of this slave from her trustee, Lee, the deed of trust was executed ; and that he, as trustee, could not maintain trover for him. The circuit Judge disaffirmed this doctrine, and so do we.

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.

[7.] It was further urged by the defendant in the Court below, that when a plea is demurred to, the demurrer roves through the whole record; and that it is the duty of the Court, to look through the 'record and give judgment against the party first in default. He farther insisted, that this writ was insufficient; it is a mere fiction, and does not, as required by our Statute, plainly and distinctly set forth the plaintiff’s cause of action ; and the plaintiff having demurred to the pleas, and the plaintiff being first in default, judgment should be rendered against him onhis declaration. The rule, as stated, was not recognized by the circuit Judge, as applicable to our Courts. Nor do we recognise it as applicable to our Courts. Our Statute, sends the case to the jury upon the declaration and answer, and thus overrules the old English practice, as claimed by the counsel for the plaintiff in error. So thinking, we give no opinion as to the sufficiency of the declaration in trover. • ,

[8.] .By rule of Court, the plaintiff, unless the defendant introduces no testimony, is entitled to open and to conclude the argument of the cause before the jury. In this case, the plaintiff’s counsel declined to open his cause. The defendant moved the Court, that he be required to open his cause, which the Court declined to do ; and he excepted. Our Courts are organized to administer justice according to law. It is the right of a party to appear by counsel and in his own proper person, not only in the conduct of his cause, but in the discussion of its merits before the jury. Lightly as some may esteem it, this is one of the most valuable of the rights of the citizen. It is necessary to a fair and impartial trial according to law ; a right long denied to our British ancestry. • Appearance by counsel, is an aid to the Court in the ascertainment and application of the law, however profound the learning or admirable the wisdom of the Bench. It is one of the most salutary checks upon a weak or .corrupt Court. British liberty is as much indebted to the eloquence and learning of Erskine, before the Courts and juries of that country, as to the labors of any one of' its wisest statesmen in the halls of legislation. The object is not to secure, by management, or trick, or dexterity, against the law and against the evidence. Such is not the legitimate object of appearance by counsel. Such is not tlie vocation of our noble profession, always distinguished, as it has been, for its liberal views, its enlightened patriotism, and its consecration of virtue, justice, and order. Its object is to aid in the ascertainment of truth — in the strict, and, therefore, equitable administration of the laws of the land. Important as this privilege is, it becomes necessary, so to order its exercise as to maintain it equal, or as nearly so as practicable, between the parties. To maintain this equity, in the privilege of argument before the jury, our rules of Court give the opening and the concluding address to the plaintiff in the action, except in cases where the defendant introduces no evidence; then he is entitled to the conclusion. The ojjening is not merely a privilege to the plaintiff, it is also a privilege to the defendant, that the plaintiff open to him the grounds of law, arising upon the facts and pleadings in the case. If, as in this case, the plaintiff is permitted to waive his right of opening, the opposite party is in the dark, to spine extent at least, as to the grounds upon which he will rely. Each party ought to be heard upon those grounds upon which each relies for 'a recovery. This is certainly* equitable. And this is not the case if the party in conclusion is not required to develop the grounds of his reliance. The Court, too, has an interest in the matter. He ought to desire discussion upon the points upon which he is called to decide, if not always, yet very generally. If they are not made until the conclusion, he hears but one side, unless, indeed, he chooses to disturb the regularity of the proceeding, by allowing.the other side a reply. We think, therefore, and such is our judgment, that the party who is entitled to the concluding, argument in all cases under our rules of Oonrt, should be required to state to his adversary, before he addresses the jury, the grounds in the pleadings upon which he will rely, and the points of law that he will make in the case, and also be required either to read, or present to him the authorities which he expects to use, and farther, that the party in conclusion shall be confined, in his argument, to the grounds, points, and authorities thus exhibited.

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.