The comet. [volume] (Jackson, Miss.) 1877-1882, 1880-01-24
THERESA SHOULTS,


j. NJ. KEMP.
Error to the Circuit Court of Alcorn
county, Hon. j. A. Green Judge.
This is an action by plaintiff in error
against the defendant in error to recover
damages for enticing away and abducting
her minor child.
The declaration states that in the year
1866 the defendant wrongfillly and unIaw-
fully entinced, persuaded, procured and
forced her child to depart from and leave
her and her service, and that the child con-
tinued and remained absent from plaintiff
and her service, from that time till the 9TH |
day of july 1876, Il period of ten years.
The declaration further averred that the
defendcnt concealed from plaintiff the pres
ence and whereabouts of her said child,
and her cause Of action against him, until
the year 1876, and that she could not and
did not, after the most diligent search and
inquiry, ascertain the whereabouts and
place of residence of her said child, and of
her cause of action against defendant. until
the year 1876. TO this the defendant filed,
amoug others, Il plea alleging that the
plaintiffs cause of action did not accrue !
within six years next before the commence
ment of this suit. To this the plaintiff de- I
INJURED, because there was no denial in the !
plea Of the concealment Of the cause of ac-
ton as alleged in the declaration. This de- {
mlrrer was overruled which is made the "
first ground of error in this court.
Plaintiff then filed replcations to said f
plea, in the first of which she alleges that "
the trespass complained of in the decIara-
ton was Il continuing one, and that from
the date of the abduction of said child by l
defendant in 1866, the said child has been :.
detained and held in custody by the defcn- ~
liant up to 1876. To this the defendant de- c
nurred and the demurrer was sustained r
which forms the second ground of error. :
". M. Inge for plaintiff in error. is
Whitfield a. Young for defendant in error G
GEORGE, c. eal
Held ,
1. Section 215S, of the Code of 1871 pro- R
-ides: "lf any person liable to any of the t!
ctions mentiOnedin this article shall frudu- Ct
entity conceal the cause Of such action from nv
he knowledge of the person entitled there a
D, the cause of such action shall be deemed Il
D have.tirst accrued at, and not before, the
hight have been, first known or dscOy-
red. -
The matter of this section would proper
7 constitute replication to the statute of
but this Court, in jacobson ct
!. VS.. Horne, 81 Miss, ISL, held that mat
II which might properly he in the replica
on, might also be set out in the declara-
on, and that this course was not inadmis-
bic under the system of pleading estab- n
shed in this State. And it appears less n
lJectiOnable when the matter so set out ~
IS the effect to prevent the operation of a va
efensc which otherwise would appear pr-
a facie valid from the declaration itself.
he declaration i'll the case undertakes to =
It out the facts which, under the section of rI n
e Code above quoted, would prevent the =,
inning of the statute of limitations till pat
&c year 1876. The attempt to do this is
1t altogether successful. owing to the fail
e to state in the declaration that the con- ]
alment was fraudulent. The defendant
,WeYer, made no objection by demurrer
d must be held to have waived the i'm
rtection.
J. Nor can the demurrer of the plaintiff
the defendants plea be extended back VI.
the declaration and made to reach the vi
feet Section Gil of the Code provides
1t ''when Il demurrer shall be put in the ar
Irt shall not regard any defect or i'm U
rtectiOn i'll the proceedings, except such cons
shall be assigned rs causes of demurrer, prof
defense, as Judgment according to law efhc
d the right of the cause cannot be given, cons
Ill be omitted" We do not understand t ta IL
: section to repeal the rule of the COM &c
N law which requires wnen demurrer prem
Dut in at any stage of the proceedings by spec
her party that it shall be extended back ana
the first defect in the proceedings, but it paft'
Is prescribe the nature of the impertec-
II in the former pleading which can be ON A
ehed by Il demurrer expressly put i'll to VI ID
lbScquent pleading.
. The declaration must be regarded as
ing validity set out the fraudulent con-
lment of the cause of action. and the de-
dant's plea setting up the statute oflim-
ions was, therefore, bad for its failure
leny the allegation of the declaration in
renee to the fraudulent conccalmcnt of
cause. The Court erred in Oyerrung NAN
ntitfS demurrer to this plea. " til
The defendants demurrer to the repli- be TOT
on was properly sustained. The deca- house
Oh complained of a single treSpass-the PACE Ia
uction and entieing away of the child '>"iO
S66. 1t stated that the child remained
mt from the plaintiff for ten years. but II =,
lied to state. a. the replication does. 10 -
the defendant did anything after the
treSpas> to prevent his return. The
of actiO non acCreVit mira sex ammo
therefore, good answer to the whole Il
e Of action set out in the declaration
,Ner~pd and reminded.