Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-11-27
CONDEESED DECISIONS or THE SU-
PWEWE COURT or TEShESSEE, BIZ
Ii. CLAY KING, ESQ.


JACKSON, NOVEMBER TERM.
| Lyons vs.. Mason. From Memphis Chancery
The plaintiff sued out general at
| tachment against the defendant and le-
| We'd the same on the steamboat South
/ ern n as the property of the defendant
| The defendant file1 plea in abatement
! averring that he was citizen and resi-
| dent Of Tennessee, denying the grounds
| of the attachment generally, and aver
! ring specially that the steam boat South
| erner, his property, was engaged in COM
! merCe and trade between the ports OF
/ Memphis and New Orleans, making
regular trips between said ports that
/ said boat was about leaving the port OF
| Memphis for the port of New Orleans,
! but to return again TO the home port, IN
/ the usual course Of trade. The plaintiff
! demurred to the plea.
/ = JTel,I That although the attachment
/ laws OF this State are to be literally con-
| strusd in favor Of creditors, it is. equally
| true that public policy requires that
| commerce and trade are to be favored,
| and that sending a vessel belonging TO
! port IN this State beyond the limits Of
| The State to return in the usual course Of
4 trade. Is not such a removal Of property
| out of this State as will authorize an at
| tRchment under the attachment laws Of
| Tennessee.
| Memphis Chancery-
In May, 1858, plaintiff Anderson fled
/ his bill against Bedford, as administrator
! If Kinney. who died in 1851, to hold de
| fendant to an account for the agency Of
| Kinney in his lifetime, in the manage
mept Of lands and negroes belonging TO
DIaiptiff. Defendant qualified as admin
| 'strator 1st Monday Of November, 1857.
| In Nav, 1860, there was an iDterlOcutOry
| decree Of right Of recovery. On the 9th
| of February, 1851, on motion OF the de-
| fendant the bill was dismissed for cham
| perty appearing in the proof; but without
| prejudice. On the 23d of March, 1861,
| his bill was filed by plaintiff and wife,
! seeking a recovery, as in the former bill.
| To this bill there was q demurrer, inter
/ uosiup the statute Of ~limitation, and
| want of equity, and Of right TO recover.
! Held: l. The Code does not apply TO
! the case, under section A, because the
! cause of action accrued prior to October
| 1, 1855.
wears after the qualification Of the
administrator, is barred by the act OF
1 l7S9, ch. %, sec. 1. This act, as well
! ss the act of l7i5, ch. As, stand alone and
| unconnected with the general statute Of
/ limitation. The act of l7l5 makes nc
/ execution in favor Of any person unde,
| disability. The act of 1859 contains eE,
! ceptions only in favor Of infants, feDles
| corert, and persons non cOnlpOtes nlelltts.
| The set Of l7l5, ch. 27, sec. 6, and 1919,
| cb. 2S, sec. 3, make provisions for the
| bringing Of q new suit, which saves the
bar in only three cases, viz: l. Where
| Judgment for the plaintiff has been re-
versed for error. 9 Where judgmenthas
| been arrested. 8. Where the defendant
cannot be served with process. In all
! these cases the new suit must be Brought
within one year. But these provisions
/ are not contained in the act of l7l5, ch.
| As. nor in the act of 1888, CHI 3. The
| Code Incorporates the exceptions con-
| tanned IN sec. Of act of Ills, and sec. 8
Of the set Of 1919, and none others, into
I sections 2754 and 2755 in relation to the
limitations Of actions. Bnt the Code
does not apply 10 this case. The case
must be governed by the act Of 1889,
/ ch. %, standing alone.
8, But if the case bad fallen within
the provisions Of the other acts
| alluded TO, the plaintiff has not
brought himself within the saving OF
| the exceptious-it il being true that q nom
suit. or dismissal Of bill by party, or
the court, or the failure Of the action be-
| cause in the wrong forum, or when the
suit was defeated by the acts and de
vices OF the defendant, is not within the
letter or equity Of these acts. And, now
II is equally true that the dismissal of an
action caused by the wrongful act, such as
champerty, or the lRches Of the plaintiff,
does not come within the letter or spirit
1 Of these provisions preventing the bar Of
the statute and allowing a new suit.
But il has been held that an abatement
1 OF s suit by reason Of death Of the plaintiff,
being sn act Of God, does come within
the spirit of the exceptions, Hum. 46.
| 4 There being plea Of the statute Of
limitstionsIfled in this cause-which it is
contended by the defendants counsel
overruled the demurrer in the cause-it
is further held: That although IS gen
sral rule the filing of plea ovsrrules the
demurrer, yet the plea not beiug sworn
TO. and the same being highly techni-
cal defence, the Chancellor did right in
treating it as nullity, and as the statute
prohibits q reversal in this court except
. upon the merits, the pies viii be disTe-
. gsrded here. Decree below affirmed.
. | AFluar ~ MorroF From Hardeman Chan