Marsteller and Others v. McClean
| Citation | 11 U.S. 156,3 L.Ed. 300,7 Cranch 156 |
| Parties | MARSTELLER AND OTHERS v. MCCLEAN |
| Decision Date | 02 March 1812 |
| Court | United States Supreme Court |
Present. all the judges.
ERROR to the Circuit Court for the District of Columbia.
This was an action of trespass for mesne profits after a recovery in ejectment by the present Plaintiffs against the present Defendant, who pleaded the statute of limitations, to which the Plaintiffs replied, in substance, that Christiana, the wife of one of the Plaintiffs, and Elizabeth, the wife of another of the Plaintiffs, in whose rights they sue, 'were femes covert when the cause of action accrued, and have ever since continued femes covert'—'and 'that Kitty Hunter,' one of the Plaintiffs 'was a feme covert,' and that the other Plaintiffs, in whose right the suit was brought, were infants at the time the cause of action accrued, and also at the commencement of the action. To this replication there was a general demurrer and joinder, on which the court below rendered judgment for the Defendant.
C. SIMMS and R. I. TAYLOR, for the Defendant in error, contended,
1. That the replication was bad, because it did not show that an the Plaintiffs were entitled to sue, notwithstanding the statute of limitations. It did not state that Kitty Hunter continued a feme covert until less than five years next before the commencement of the suit. If her disability of coverture was removed five years before bringing the action, she was barred by the statute; and the replication, being joint, if bad as to one, is bad as to all.
2. That upon a demurrer the court will give judgment against that party who commits the first fault in pleading. The declaration states all the material allegations under a 'whereas' a quod cum. It is all recital, which is fatal upon a general demurrer, or upon a motion in arrest of judgment.
The courts of Virginia follow the practice of the king's bench in England, where this exception has been always held good. 1 Str. 621, Amyon v. Shore. 2 Hen. and Mun. 595—Hord. v. Dishman. 3 Hen. and Mun. 134. Moore's Admr. v. Dauney—id 271, Lomax v. Ford. 4 Hen. and Mun. 277. Sym v. Griffith.
E. I. LEE, contra.
The objection to the declaration is only an objection to form. The statue of jeofails in Virginia does not justify the cases cited from the Court of Appeals. Upon a demurrer to the replication the Defendant cannot take advantage of an error in the declaration.
As to the objection that the replication does not state that Kitty Hunter continued a feme sole, it is sufficient for us if we show that some of the Plaintiffs are not barred by the statute. Those who were under a disability are not to be prejudiced by the negligence of those who were not disabled. Joint tenants cannot sue severally, they must join. 1 Tidd. Prac. 7. 1 Sanders 291. Note 4, Cobel v. Vaughan, 2 W. Bl. 1077. If the plea is bad as to some of the Plaintiffs it is bad as to all. 2 Sand. 49, 50. 1 Sand. 28.
TAYLOR, in reply.
The case of Perry v. Jackson, 4 T. R. 516, was the first in which it was decided that the statute runs against all the joint Plaintiffs if any of them were free from disability. In that case it was replied to the plea of limitations, that one of the Plaintiffs was beyond seas, and the replication was adjudged bad.
E. I. LEE. The declaration states that some of the Plaintiffs are infants, the plea was no bar to those Plaintiffs. In the case of Perry v. Jackson the Plaintiffs were partners in trade. It was a voluntary association—but here the Plaintiffs are joined by act of law.
March 13th. All the judges being present,
The Plaintiffs in error brought an action of trespass quare clansum fregit—to which the Defendant in error pleaded the statute of limitations. The replication in substance states that, at the time when the cause of action accrued, Christiana, wife of one of the Plaintiffs, and Elizabeth, wife of another of the Plaintiffs, 'were feme coverts, and ever since have continued feme coverts' and 'that Kitty Hunter,' one of the Plaintiffs, 'was a feme covert;' and that the other Plaintiffs in whose right the suit was brought, at...
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Pickeins v. Stout
...at full age, the writ was prosecuted." This means that both were barred by the removal of the disability of one. In Marsteller v. McLean, 7 Cranch, 156, 3 L. Ed. 300, it was held necessary to show that all the plaintiffs were under disability to sue, in order to avoid the plea of the statut......
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Pickens v. Stout
...at full age, the writ was prosecuted." This means that both were barred by the removal of the disability of one. In Marsteller v. McLean, 7 Cranch, 156, 3 L.Ed. 300, was held necessary to show that all the plaintiffs were under disability to sue, in order to avoid the plea of the statute of......
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Cameron v. Hicks
...unius est exclusio alterius." When we go beyond our own reports we find the same principle enforced. Marstella v. McLean, 7 Cranch, 156, 3 L. Ed. 300, was an action of trespass. Judge Story held, for the court, that if one of the plaintiffs was barred all were. That if they were compelled t......
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Cameron v. Hicks
..."Expressio unius est exclusio alterius." When we go beyond our own reports we find the same principle enforced. Marstella v. McLean, 7 Cranch, 156, 3 L.Ed. 300, an action of trespass. Judge Story held, for the court, that if one of the plaintiffs was barred all were. That if they were compe......