Wynn vs. Lee.

without risk, or responsibility to another? Wynn, then, by the laws of Mississippi, acquired, by the purchase of the boy, a good title in Mississippi, and having done so, it is insisted that the title can be nothing the worse for having been transferred to this State. Having, by negligence, lost his claim in Mississippi as against Lewis, how can the defendant in error ask to be allowed to recover it here, of one who with all the strength of Lewis' claim in hand, is additionally still farther removed from the act of original conversion of the property, in which the right to sue, if it ever existed, sprang up? What is this but to incur the absur dity and injustice so pointedly rebuked by the Supreme Court of the United States, in the case of Shelby vs. Guy, of "converting a title, good and valid in Mississippi, into a defeasible one in Georgia; sufficient title in the vendor into a defeasible title in the vendee." Argumentum ab inconvenienti plurimum valet in lege, is a maxim that bears with peculiar force upon the relation which the people of these States bear to this disputed question of right of property.

3. Yet more obviously did the Court err in overruling the ninth plea, taken by the plaintiff in error to the action below. That plea, as is seen, avers that by the laws of Mississippi, in the circumstances in which Wynn became the purchaser of the property in dispute, "the cause of action" itself of defendant in error was extinguished. It is deemed unimportant to adduce authority to show that the Circuit Court mistook the law of the case in the respect here complained of.

4. That in respect of the refusal of the Court below, on the trial of the case, to charge the jury that if, from the evidence, they believed the said Lewis held possession of the slave for the periods of four and six years, (by analogy to the Statutes of Limitations or prescription of the States of Georgia and Mississippi, respectively,) under a claim of title, that said Lewis acquired thereby, an absolute title, the Circuit Court, in refusing to give the charge requested, flatly contravened the language of this Court in the case of Paschal's adm'r vs. Davis, as also of the cases quoted from the 2 and 3 Hen. and Munf. and the 8 Porter. It is observable that the cases just cited distinguish prescription from statutory limitations of actions, as such. An "analogy" is adduced from Statutes of Limitations, which is applied to cases in which Statutes of Limitations, co nomine, might be deemed, for reasons simply

Wynn vs. Lee.

technical, inoperative; as Courts of Chancery, which, though not bound by Statutes of Limitations, ex proprio vigore, yet adopt and enforce them in circumstances similar to those in which they are enforced in the Courts of Law. For example, the issue decided in Garth's executors vs. Barksdale, arose between a creditor, relying upon adverse possession in the debtor, for a period of time analogous to that fixed by the Statutes of Limitations of the State, and one representing the prior legal title. The Court regarded the possession, by analogy to the Statutes of Limitations, as equivalent to title in the debtor. On the other hand, and yet in pursuance of the same principle, when Doyle, a judgment creditor, sought to subject to execution, certain slaves as the property of Bouler, by tracing title to it in him, the claimant was adjudg ed to have shown in turn, a transfer of the title from the defendant in execution to herself, through the medium of adverse enjoyment of it, by her. And in the case last mentioned, the Court, with characteristic good sense added, “and the bar (growing out of the adverse possession,) will be recognized in any country into which the property may be taken."

It may be allowable, in passing from this point in the case, to ask attention to the fact, that the Mississippi Statute of Limitations, while it provides certain exceptions in respect of persons to be affected by it, makes none in favor of non-resident plaintiffs.

5. Is it not true, that when the defendant in error delivered the property sued for, to Mrs. McMillan, the cestui que trust, in execution of the deed of trust, on which he founds his right to maintain his action, that he parted from the right of possession, without which he is in no event entitled to a verdict? The deed of trust conveys the property to the defendant in error, "for the following uses and purposes, that is to say, to permit and allow the said Mary Ann McMillan to have the free and uninterrupted possession, use, occupation, direction and enjoyment of it." Can, then, the right of possession in him co-exist with the right of possession in her? This action is not brought by Mrs. McMillan, nor has it been shown that it was brought by her request or consent, even. Could she not have hired the boy to the plaintiff in error for a period of time not yet expired? And if so, may she not have done it? There is no proof to the contrary of it. Hence, we conclude that the Court mistook the law in its charge in this particular.

Wynn vs. Lee.

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 take 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, taking 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;

uld not create repose. In England, the general rule is firm

1

1

Wynn vs. Lee.

ly established. In Duroun vs. Jones, Lord Kenyon said, “I confess I never 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 such a legal disability shall be 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 run, 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.

Wynn vs. Lee.

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? 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 time 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 excep tion 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 Statute 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 9th 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