Simmons v. Pickett

Mr. Justice Yerger delivered the opinion of the court. This was an action on the case, to which the defendant [468] pleaded the statute of limitations. To this plea the plaintiffs replied, that one of the plaintiffs was a feme covert, and the other plaintiffs were infants from the time the cause of action accrued until within three years next before action brought. The defendant demurred to this replication, and insists that the fourth section of the statute of limitations of 1844, (Hutch. Code, 830,) establishes the case in his favor. The plaintiffs in error contend that the exception contained in the 7th section of the statute of limitations of 1822, (Rev. Code, 184,) in favor of minors and femes covert, has not been repealed and still exists, and that they are entitled to the benefit of that exception. This view of the law is sustained by the opinion of the court in the case of White v. Johnston, 1 Cushman’s R. 68, in which it was distinctly held that the proviso in the act of 1822, in favor of minors and married women, was not repealed by the act of 1844; but that the same was applicable to the class of cases embraced by the fourth section of that act. The decision of the circuit court was made upon a different construction of the acts of limitation, and is, therefore, erroneous. Let the judgment of the circuit court sustaining the demurrer be reversed, and the cause remanded for further proceedings.