Triplett vs. Scott.

effectually without the aid of his own presence, did not attend the court, and had no intimation of Bramlette's condition and non-attendance until after the expiration of the term; and the admitted allegations also show a sufficient defense for defeating the action.

As Bramlette was prepared and authorized to file an answer and make complete defense in Scott's absence, Scott's non-attendance should not be considered culpable negligence, especially as he lived so remote from the court, and as, moreover, he had reason to expect that his co-defendant would also represent him.

The "accident" to Bramlette is, therefore, as available to Scott in this case as if it had occurred to himself; and, according to both the common law and our Code of Practice, the petition presented a sufficient excuse for Scott's technical default, and entitled him to a new trial as ordered.

Wherefore, the judgment for a new trial is affirmed.

5bu 86 107 395

Board vs. Jolly.

CASE 13-PETITION ORDINARY-APRIL 22.

Board vs. Jolly.

APPEAL FROM BRECKINRIDGE CIRCUIT COURT.

1. The petition, and merchant's account filed with it, showed that the action was apparently barred by the statute of limitations. The petition failing to show the non-existence of any ground of avoidance, the circuit court erred by dismissing the petition on demurrer.

2.

The statute of limitations, being regarded as a matter of strict defense, must, if relied upon, be pleaded by the defendant in all actions, unless the petition shows that the action is barred by time, and that the defendant is not within any of the exceptions, mentioned in the statute, when any exceptions are contained in the statute, which prescribes the limitation. (Chiles vs. Drake, 2 Met., 146; Rankin vs. Turney, 2 Bush, 555.)

2 Met., 146; Chiles vs. Drake.

Civil Code, secs. 118, 145.

15 B. Mon., 446; 5 Littell, 281; 11 B. Mon., 195.

JUDGE HARDIN DELIVERED THE OPINION OF THE COURT:

In this action, which mainly sought a recovery on a merchant's account, the circuit court seems to have sustained a demurrer to the petition, and dismissed the action on the ground that the petition and account exhibited showed that the action was apparently barred by limitation. The judgment cannot be sustained.

Board vs. Jolly.

It does not appear from the petition that if the statute had been pleaded the plaintiff might not have avoided it by showing some saving or suspending disability.

It was said by this court in Chiles vs. Drake (2 Met., 146), that "the statute of limitations, being regarded as a matter of strict defense, must, if relied upon, be pleaded by the defendant in all actions, unless the petition shows that the action is barred by time, and that the defendant is not within any of the exceptions mentioned in the statute, when any exceptions are contained in the statute. which prescribes the limitation."

And in Rankin vs. Turney (2 Bush, 555), this court, after stating the rule substantially as it is in Chiles vs. Drake, supra, said that "the only exception from the general rule is, when the petition shows not only a sufficient lapse of time, but the non-existence of any ground of avoidance, which the plaintiff is not apt ever to do, and which was not done in this case."

Wherefore, the judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Renaker, &c., vs. Lafferty's adm'r.

CASE 14-PETITION EQUITY-APRIL 22.

Renaker, &c., vs. Lafferty's adm'r.

APPEAL FROM HARRISON CIRCUIT COURT.

Testator devised land to two sons, requiring them to pay four thousand dollars. It appeared that he considered the land as worth much more than that amount-that sum being undisposed of, passed by descent to his heirs. The excess of the value of the land at his death should be ascertained and charged against the two sons as an advancement, and they should receive no part of the four thousand dollars paid by them, until the other descendants were made proportionately equal with them, as provided by section 17, chapter 30, Revised Statutes. (1 Stanton, 426.)

W. W. TRIMBLE,

CITED

Revised Statutes, sec. 17, chap. 30.

For Appellants,

1 Met., 286; Gordon's heirs vs. Gordon.

17 B. Mon., 705; Clarke vs. Clarke.

15 B. Mon., 394; McGaughey's adm'r vs. Henry, &c. 13 B. Mon., 528; Hook vs. Hook.

1 Met., 582; Ford, &c., vs. Thompson.

BOYD & WARD,

For Appellees.

JUDGE PETERS DELIVERED THE OPINION OF THE COURT:

It is evident, from the terms of the will, that the testator considered his land which he devised to his two sons of much more value than the four thousand dollars which he required them to pay; and that he intended the difference between the true value of the land and the four

Renaker, &c., vs. Lafferty's adm'r.

thousand dollars which he charged his sons with as an advancement to them.

Of the four thousand dollars he made no disposition; consequently, that money passed by descent to his heirs, to be distributed by the law of descents.

The court below, therefore, should have ascertained, by a report of his master, the difference between the value of the land at the death of the testator and four thousand dollars, which his sons John and James are required to pay; and when the difference is thus ascertained, the four thousand dollars should be distributed as provided in section 17, chapter 30, 1st volume Revised Statutes, 426, the said sons receiving no part of said four thousand dollars until the other descendants of said testator are made proportionately equal with them.

Wherefore, the judgment is reversed, and the cause is remanded, with directions for further proceedings consistent with this opinion.