Wynn vs. Lee. 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? So that the Statute may actually and fully operate in the case. In a State where there is an exception to the operation of the Statute, growing cut 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 must 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 in the Act in favor of non-resident plaintiffs. In this case, it will not be questioned but that the Statute did *NOTE.-Copy of the provisions of the Mississippi Statute of Limitations, applicable to actions of trover. JUNE 7, 1822. “Sec. 91. All actions of trespass quare clausum fregit, all actions of trespass, detinue, trover and replerin, for taking away goods and chattels, all actions of debt founded upon any lending or contract without specialty, or for arrearages 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 and sued within six years next after the cause of such actions shall have accrued, and not after." (See 1o6, 103, 109, 110, 111.) Provisions as to minors, feme coverts, and insane persons. “Sec. 94. If any person or persons, who is, or are, 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 any such cause of action accruing, within the age of twenty one years, feme covert or insane, then such 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. Wynn vs. Lee. operate as fully and actually upon the case, as if Lee, the plain-. tiff, 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 provis ions 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 affect ing 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 Wynn vs. Lee. Satisfied as we doctrine of our own not less renowned STORY. 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 trust, having possession of this slave from her trustee, Lee, the deed of trust was executed; and that he, as 'trustce, 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 legal 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 Wynn vs. Lee. 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 on his 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 the 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 Wynn vs. Lee. 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 opening 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 some 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 Court, 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. |