Iredell County NcArchives Court.....John Watt, Daniel Killian & Wife V. 1819
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File contributed for use in USGenWeb Archives by:
Guy Potts http://www.genrecords.net/emailregistry/vols/00017.html#0004214 January 14, 2009, 6:46 pm

Source: Nc Reports
Written: 1819

Daniel Killian and wife v. John Watt

From Iredell

May Term 1819

Assumpsit by husband and wife for services rendered by the wife before 
marriage. Statute of limitations pleaded, and the coverture of the wife 
replied. The wife had served the Defendant for four years, without making any 
contract in express terms for compensation. The service continued until the 
marriage, at which time she was more than twenty-one years of age, and no 
settlement took place between her and the Defendant. More than three years 
expired after the marriage before the bringing of the suit. The statute bars 
the action; for in whatever way the hiring be considered, the cause of action 
accrued to the wife before marriage, and her subsequent coverture could not 
stop the running of the Statute.

If the hiring was from year to year, then the year's service ought to have 
been completed, before any right of action could accrue. If before the end of 
the year the contract had been altered, so that the services were to be paid 
for pro rata, the wife was then sole and of full age. If the contract might be 
put an end to at the option of either party, the wife put an end to it by the 
marriage, and at that time she was of full age. Upon the first supposition, no 
cause of action for the last year ever existed; upon the two last, a cause of 
action accured to a person who was under no disability, and more than three 
years have elapsed since it did accrue.

This was an action of assumpsit, brought by the Plaintiff and his wife, to 
recover compensation for services rendered by the latter, and a negro girl 
belonging to her, to the Defendant. The statute of limitations was pleaded, to 
which the coverture of the wife was replied. It appeared in evidence, that 
Killian's wife and her negro girl, had served the Defendant four years without 
making any contract in express terms for compensation. The service continued 
until the marriage, at which period, Mary Killian was more than twenty-one 
years of age, and no settlement took place between the parties. The marriage 
was celebrated at the house of the Defendant, where Mary Killian at that time 
resided. More than three years had expired after the marriage before the 
bringing of this action. The Court instructed the Jury that the hiring must be 
considered as a hiring from year to year, and that the statute of limitations 
had run upon the three first years. That as to the last year, if the marriage 
took place within the year, or before its expiration, the Plaintiff could not 
recover, unless his wife quit the service with the Defendant's consent; but if 
that year's service were complete, even for a day, the statute had began to 
run, and consequently barred the Plaintiff. The Jury found for the Defendant, 
and the Plaintiff moved for a new trial, on the ground, that although the 
cause had been once tried in the county, and once in the Superior Court, the 
point as to its being a hiring from year to year, had not been made by the 
Defendant, but was raised for the first time by the Judge in his charge to the 
Jury - That the Plaintiff was thereby surprised, and an opportunity should be 
afforded to him of shewing what was the true character of the hiring. The 
motion for a new trial was sent to this Court.

Taylor, Chief-Justice: If the cause of action had accrued to the wife after 
she came of age, and before her marriage, the statute began to run, and the 
subsequent coverture could not stop it. No deduction can be made from the 
facts in this case, which will, in point of law, entitle the Plaintiff to a 
new trial. For if the hiring was from year to year, and nothing was positively 
agreed on between the parties, then the year's service ought to have been 
completed before any right of action could accrue to the Plaintiff's wife. But 
if such a contract had been made, and before the end of the year, put an end 
by the consent of the parties, and a new one made, by which the services were 
to be paid for pro rata, the wife was then of full age and sole. If the 
contract might be put an end to at the option of either party, the wife put an 
end to it by the marriage, and at that time she was of full age. Upon the 
first supposition, no cause of action for the last year ever existed. Upon the 
two last a cause of action accrued to a person who, at the time was under no 
disability; and more than three years have elapsed since it did accrue. So 
that whichever way it be viewed, the verdict was right.

No Error.

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