Allen v. . Gentry

This case depends upon the proviso of the act of 1806. The act requires all persons claiming slaves in virtue of any parol gift, to bring their actions within a limited time after the passing of the act. And the proviso alluded to, is of the saving to infants, femes covert, etc. *Page 312 The wife, in this case, was an infant at the passing of the act, and became covert during her infancy, and has continued so, to the (412) bringing of the present action; and seems therefore so completely within the savings, as to admit of no question. But it has been alleged, that the husband who labored under no disability, might have brought an action in his own name and ought therefore to be barred of the present. And a case decided in this Court some years past, supporting this kind of action in the name of the husband alone, has been relied on. As to that case, it is only necessary to say that there are as authorities to support it, 2 Lev. 101. 3 Salk. 64. 3 Lev. 403, and Bull. Ni. Pri. 50; but that the present affirmative of the proposition by no means disposes of the question. For by that mode of reasoning, the object of the proviso would be totally defeated; because the husband can at all times use the wife's name, and so may any of the persons included in the savings bring and support their actions; but the Legislature, in tenderness to their situations, exempts their claims from the operation of the act, till their disabilities cease. That the husband and wife may join in all actions, which survive to the wife, can admit of no doubt. And, indeed, it seems now settled that, regularly, they ought to join in such cases. We are all, therefore, of opinion that the present action is not barred, and that there should be judgment for the plaintiff. NOTE. — By the act of 1806 (1 Rev. Stat., ch. 37, sec. 17) all parol gifts of slaves thereafter made are void. Cited: Caldwell v. Black, 27 N.C. 472; Williams v. Lanier, 44 N.C. 37. (413)