Addison vs. Christy & Company.

torts would have been barred by the passage of the Act, towit: an action for slander or for a personal tort committed in July, 1865. That though by the suspension Acts, the right of action therefor may have existed in March, 1869, yet, they would have been eo instanti barred at the passage of the Act. Suffice it to say, that in such cases, it would not have been competent for any legislation to have effected such a result, and such actions would at least have been entitled to all the rights secured in the instances of other torts, as provided in the 7th section.

It was also objected that the 8th section could not have been intended to take away the benefit of the suspension Acts. No one has ever denied, or can deny, that it did have, and was, without all doubt, intended to have that very effect in all cases of actions which accrued prior to June 1st, 1865. It simply said, that all such actions must be brought by 1st January, 1870. A note was due December 25th, 1862, or December 25th, 1864. Under the operation of the suspension Acts, it would not have been barred until July 21st, 1874. But the iron heel of the Act of March 16th, 1869, limited the right to January 1st, 1870. If plain words accomplished this, equally as plain terms operate on contracts made since June 1st, 1865, and put them within the provisions of another law, as unmistakable as to the time in which actions may be brought, as the Act of 1869. If in the first cases they lose all benefit from the suspension Act, how can the latter escape. Doubtless special cases may be imagined, in which special difficulties arising out of this construction would seem to occur. But even in those, the great fundamental principle that a reasonable time must be provided for creditors in all cases, would meet the necessity that might arise.

It has been further said that the 8th section, in adopting the "limitation laws as set forth in the Revised Code adopted by the Constitution," was intended to take those laws as affected by the Suspension Acts. It is difficult to see the force in this position. There is nothing in the words of the Act or

Garrard vs. Dawson.

the Constitution to suggest it: See Constitution, Article XI., section 3. It would have been a strange and incomprehensible act of legislation to have adopted certain provisions of the Code, which said in plain words, four and six years, and at the same time intended those words should be changed by the effect of other and temporary acts to mean five years and seven years, or it might be seven years and nine years; and yet that would be the result in many instances. After the fullest consideration, we feel constrained to hold, that under the 8th section of the Act of March 16, 1869, the provisions of the Code, as to the limitation laws therein, apply to contracts made since 1st June, 1865. And as in this case, no credit by contract or by custom was proven, and as more than four years had expired from the time of making the contract, it being by account, to the bringing of the action, the Court below erred in holding that the plaintiff's right of action was not barred.

Judgment reversed.

WILLIAM U. GARRARD, executor, plaintiff in error, vs. WILLIAM C. DAWSON, defendant in error.

1. The legal representative of a deceased partner may be sued in the same action with the survivor, on a firm contract.

2. Where an action is brought against warehousemen for the value of two bales of cotton entrusted to them, which they had failed to deliver on demand, it was not error in the Court to charge that the plaintiff was entitled to interest on the value of the cotton from the day of the demand as a part of his damages, and to refuse to charge that the jury might allow or withhold interest in their discretion.

Partnership. Warehousemen. Damages. Interest. Before Judge JOHNSON. Muscogee Superior Court. October Term,

1872.

William C. Dawson brought complaint against John R. Ivey, and William U. Garrard, as executor upon the estate of

Garrard vs. Dawson.

William W. Garrard, deceased, for $600 00, upon a contract made by said deceased and Ivey, as warehousemen and partners, under the firm name of J. R. Ivey & Company. Pending the suit Ivey died. The plaintiff suggested his death and dismissed the action as to him.

For the remaining facts, see the decision.

R. J. MOSES, for plaintiff in error.

PEABODY & BRANNON, for defendant.

WARNER, Chief Justice.

1. This was an action brought by the plaintiff against William U. Garrard, executor of W. W. Garrard, and John R. Ivey, who were partners and warehousemen, to recover the value of two bales of cotton. The defendant filed a special demurrer to the plaintiff's declaration for misjoinder of Garrard, as executor, with Ivey, surviving partner, which was overruled, and defendant excepted. The Court charged the jury, among other things, that if they found for the plaintiff, their verdict should be for the value of the cotton not delivered, with interest from the time of demand, and that the principal and interest together would be the amount of damages. The defendant requested the Court to charge the jury that they might allow interest, or withhold it; that the allowance of interest was in the discretion of the jury; which charge the Court refused to give; whereupon the defendant excepted to the charge as given, and refusal to charge as requested. According to the provisions of the 3272d and the 3273d sections of the Code, the demurrer was properly overruled.

2. The cause of action was a debt against copartners on a contract, for the performance of which they were liable. It is true that the 1897th section of the Code declares that the surviving partner, in case of death, has the right to control the assets of the firm to the exclusion of the legal representatives of a deceased partner, and he is primarily liable to the

Bass vs. Irvin.

creditors of the firm for their debts. The statute, however, gives the right to sue the representative of the deceased partner in the same action with the survivor, without qualification or restriction. If there are any legal or equitable grounds why the representative of the deceased partner should not be made liable for the debt, he can plead and prove the same at the trial, and the verdict can be so moulded as to do full justice to the parties in the same manner as a decree in equity: Code, 3504. The right to join the representative of a deceased partner in the same action with the surviving partner, is one thing. What shall be the liability of the representative of the deceased partner in such an action so brought, will depend on the facts, and the law of partnership applicable thereto; and the verdict and judgment should be rendered in accordance therewith. By allowing the representative of the deceased partner to be joined in the same action with the survivor, the statute does not alter or change the liablility of partners, as defined by law, but, on the contrary, it assumes that the representative of the deceased partner will protect himself by pleading any legal or equitable defense he may have to such action so brought against him as the representative of such deceased partner. There was no error, in view of the facts of this case, in the refusal of the Court to charge as requested in relation to the question of interest, or in the charge as given: Code, 2894.

Let the judgment of the Court below be affirmed.

CHARLES W. BASS, plaintiff in error, vs. SAMUEL D. IRVIN, defendant in error.

1. A Judge of the Superior Court cannot open Court and receive a ver dict from the jury on the Sabbath day, and such a verdict so rendered, is illegal and a nullity.

2. Where a verdict has been so rendered and entered by the jury, through mistake, on the wrong writ, on the hearing of a motion at a subsequent term of the Court to transfer the verdict to the proper declaration and

Bass vs. Irvin.

to enter judgment nunc pro tunc, and it appears from the verdict or by the admission of the party, that it was rendered on the Sabbath day, it is proper for the Court to consider that question, if made in the answer to the motion.

Verdict. Sabbath. Practice in the Superior Court. Judgment. Before Judge CLARK. Sumter Superior Court. October Adjourned Term, 1872.

Samuel D. Irvin, as administrator of James Bond, brought ejectment against Charles W. Bass for a lot of land in Sumter county. The verdict of the jury was as follows:

"We, the jury, find for the defendant the premises in dispute, the defendant paying to the plaintiff $200 00, with interest from December 15th, 1859."

This verdict was entered upon the declaration in the case of Irvin, administrator, vs. Thomas D. Speer, at the October term, 1871. At the October term, 1872, the following motion was made:

"And now, at this term of the Court, comes the defendant and moves the Court to transfer the verdict rendered in this case (Irvin, administrator, vs. Bass,) from a declaration in the case of Samuel D. Irvin, administrator of James Bond, vs. Thomas D. Speer, on which it was written and signed by the jury, by mistake, to the declaration in this case, the motion having been made at the term at which this verdict was rendered, and not heard or disposed of at that term on account of the opposition of defendant's counsel, and his petition to the Court for time to be heard in argument opposing said motion; the plaintiff also moves the Court to enter judgment in said case nunc pro tunc."

The defendant showed for cause against said motion, as follows:

1st. That no legal verdict was rendered in said case, the pretended verdict having been returned on the Sabbath day, in the absence of and without the consent of the defendant.

2d. That two declarations, to-wit: the declaration in ejectment, and a declaration in a suit in favor of Irvin, adminis