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of limitations, the defendant may, in- bis *rejoin- [ *239 ] der, show the true time of suing out the writ, though an averment contrary to the record.(a)
A variance in the replication from the declaration, in an immaterial matter, is no departure.
Trover and conversion of a ship and nine pieces of — and declares that 1st March, 21 Jac. I., he was possessed of, and the same day lost them, which came to the defendant's hand, who, 3d October, 3 Car. I., converted them to his proper use. The defendant pleaded the statute of limitations; and that the 20th March, 19 Jac. I., causa actionis accrevit ; so as not only three years and more are incurred since the parliament, but also six years after the conversion before any
action conmenced; et hoc, 8c. The plaintiffs replied, that they were possessed of the said ship as of their proper goods; and so being possessed before the 20th March, 19 Jac. I., viz. 1st March, 19 Jac. I., they agreed at London aforesaid, in parochia et warda prædicta, that the said defendant, as their servant, should transport the said snip and goods to T. in Spain, being parts beyond seas,
and should afterwards restore them to the plaintiffs upon request; whereupon the defendant, taking the said ship the said 1st March, 19 Jac. I., transported her to parts beyond seas, viz. to T. and 20th Mar, 19 Jac. I., there sold the said ship and goods to persons unknown, and converted them to his proper use : and that the defendant; aster the said conversion, remained in partibus transmarinus usque 1st May, 1 Car. I., by reason of which stay they could not sue him per legem terræ : and that,
(a) Burr. 962. Ante, 119.
In Chancery, a pure plea of the Statute of Limitations in answer to a Bill charging circumstances to take the case out of the statute, is no bar unless it be supported by an answer, denying or destroying the force of those circumstances. Bloodgood & Al. vs. Kanes, (On Appeal.) 8 Cow. Rep. 360. & Vide Kanes vs. Bloodgood & Al., 7 Johns. Ch. Rep. 90, Same Point.
1st May, 1 Car. I., he returned; whereupon, 1st Oc[ *240 ] tober, 3 Car. I., at *London, they required him to de
liver the said ship and goods, which to do he refused; but the said ship and goods, ad hunc et ibidem, converted and disposed prout superius continetur ; et hoc, &c. And upon this replication the defendant deinurred.
It was urged, that here the replication was a departure from the declaration ; for, by the declaration the plaintiffs suppose a casual loss, and a trover by the defendant, 1st March, 21 Jac. I., but in the replication they suppose an agreement to transport the said ship and goods, and afterwards to restore them to the plaintiffs; and that the defendant sold and converted them to his proper use the 20th March, 19 Jac. I., and so a variation between the declaration and replication in the time and manner how the defendant had them.(a)
Richardson, Jones, and Berkeley, Js. held, that the replication was no departure, but was pursuant to the count, and fortifies it; But Croke, J. conceived it was a departure, because it varies in the matter and in the time; for the declaration supposeth a possession of the goods, and that 1st March, 21 Jac. I., he lost them; and the same day the defendant found them; and the 1st October, 3 Car. I., converted their : and the plaintiff, in his replications, shows, that he, the said 1st March, 19 Jac. I., delivered them to the defendant, to transport them to T. in Spain, and to redeliver them upon request; and after shows, that the defendant, 21st March, 19 Jac. I., at St. T., sold and
converted them to his own use; so it varies in the ( *241 ] point how the goods *came to the defendant's hands,
both for the matter and time.(b)
In assumpsit, on a promise made the 1st May, 3 Car. I. for money lent, the defendant pleaded that the writ was first brought the 4th February, 14 Car. II. and that he did not promise with
in six years before the said. 4th of February. The plaintiff replied, that he assumed within six years before the said 4th of February. And after verdict, it was moved in arrest of judgment, for that the replication was a departure from the count.
But by the Court—The replication is to departure from the declaration; for the time put in the declaration was not material, for he might declare of an assumpsit at any time; but when the defendant makes the time material by his plea, the plaintiff may, by his replication, answer to that plea, for maintaining his action, by the time that before was not material.
And they gave judgment for the plaintiff.(a)
And also, where the defendant, at the parish of Bow, in the ward of Cheap, London, was indebted to the plaintiff, he promised to pay, &c. The defendant pleaded the statute; and the plaintiff replied that the debt was contracted at Teneriffe, beyond sea, viz. in the parish and ward aforesaid; and that, within six years after his return, he brought the action. The defendant demurred, for that the replication was a departure from the declaration, which lays the indebitatus at Bow, in London, and the replication is at Teneriffe, beyond sea.
*But by the Court—"Tis well enough, it also say- [ *242 ] ing in the parish and ward aforesaid.(b)
The plaintiff declared upon a promise made the 16th of January, 1706. The defendant pleaded in bar the Statute of Limitations; and that the cause of action did not accrue within six years before the exhibiting of the bill. The plaintiff replied, the bill was exhibited the 23d January, 1713, and that cause of action did arise within six years before exhibiting the bill. To this the defendant demurred.
Parker, Ch. J. delivered the resolution of the Court. Judginent must be given for the plaintiff; for this being the case of a parol promise, the day in the declaration is not material ; and, therefore, the plaintiff, in his replication, has only departed from an immaterial part of his declaration, which would be cured by a verdict, and is now aided upon a general demurrer, by statute for amendment of the law. Were it more than matter of form, a verdict finding the promise at another day could never cure it, as most certainly it would. And for this purpose was quoted the case of Lee v. Rogers, where this learning is laid down, that for the plaintiff to vary from the time or place in his declaration, in order to follow the defendant's plea, is not a departure. In the old books, indeed, this would have been a departure. And unless what, strictly speaking, is a departure, be sometimes allowed; unless the plaintiff, where the defendant, by his justi
fication, makes the time or place material, may follow [ *243 ] the defendant's plea, though it *lead him to another
time or place; all that doctrine, that in transitory actions, where time and place are not material, the plaintiff may declare at any time or place, must fall to the ground.
Judgment for the plaintiff.(a)
(a) 10 Mod. 318.
NOTE (A) As the doctrine of " Adverse Possession," lies at the root of all the decisions, which have been made, on those parts of the Statutes of Limitations, that relate to real and possessory actions, (except some few of the cases embraced by the provisoes,) an accurate knowledge of the whole extent and bearing of that doctrine, is indispensable to a correct understanding of such parts of those statutes.
A full, careful and impartial examination of this important topick it is, therefore, believed, will not be deemed either useless or unacceptable : The references to all the American authorities on the subject, and to such of the English decisions as are not commented upon in the text, will enable the candid and intelligent reader to examine and decide for himself, whether or not, the conclusions at which the Editor may arrive, are founded upon a just view of the Statutes, and sanctioned by the authority of express adjudications; and if not, to discover and correct any misapprehensions or errors into which he may chance to fall.
Adams, in his valuable treatise on the action of Ejectment, (page 47) says,
“It is not easy to define what will constitute an adverse " holding of this nature, but it may be safely laid down that an " adverse possession will be negatived, when the parties claim • Under the same title, when the possession of one party is - consistent with the title of the other, when the party claiming title “has never in contemplation of law been out of possession, and * when the possessor has acknowledged a title in the claimant."
This doctrine is confirmed by the following authorities :
1st. Where the parties claim under the same title.
“ To constitute an adverse possession there must be a possession under colour and claim of title; but Beekman's entry, claiming as tenant in common under the same title as that of the Lessors of the plaintiff, qualified his entry and admitted the title of the Lessors; so that neither Beekman nor the defendants, [they claimed title under Beekman] could set up that entry as adverse to the common title, or as injurious to the rights of the other teaants in common." Smith cx dem. Teller of others vs. Burtis & Woodward, 9 Johns. Rep. 179, 180. And to the same purport Vide