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Wilkes v. Allen

Supreme Court of North Carolina
Nov 1, 1902
42 S.E. 616 (N.C. 1902)


(Filed 18 November, 1902.)

LIMITATIONS OF ACTIONS — Married Women — Free Traders — Judgment — The Code, Sec. 1827.

The statute of limitations does not run against a married woman who is a registered free trader.

ACTION by Jane R. Wilkes against T. W. Allen and others, heard by Judge A. L. Coble, at October Term, 1902, of MECKLENBURG. From a judgment for the plaintiff the defendants appealed.

Burwell, Walker Cansler for the plaintiff.

Clarkson Duls for the defendants.

This is an action of debt upon a judgment (280) of the Superior Court of Mecklenburg, recovered by the plaintiff against the defendants at February Term, 1886, and this action was commenced on 9 March, 1899, and the defendants plead the statute of limitations in bar of the plaintiff's right to recover.

This plea imposes the burden upon the plaintiff to show that the action is not barred, as more than ten years had elapsed between the taking the judgment sued on and the commencement of the action. This the plaintiff undertakes to do by showing that she was a married woman at the time the judgment was taken, and has continued to be such ever since. To this the defendants reply by showing that the plaintiff has been a registered free trader, under section 1827 of the Code, continuously since 25 March, 1875.

It is plain the action is barred if the statute runs against the plaintiff. But married women are excepted from its operation, and the fact that the plaintiff had the right to sue and maintain actions in her own name does not put the statute in motion against her. Lippard v. Troutman, 72 N.C. 551; Campbell v. Crater, 95 N.C. 156; Smith v. Briggs, 83 N.C. 306.

The case, then, depends upon the fact that the plaintiff was a registered free trader, and we do not see that this has any effect upon the case. It is her status that exempts her from the operation of the statute, and the fact that she registered as a free trader does not change her status. This view of the case is supported by Stubblefield v. Minzies (C. C.), 11 Fed., 268, 274, 275; Asheley v. Rockwell, 43 Ohio St. 336, and many other authorities. But the fact that the plaintiff became a registered free trader did not affect the relations of the parties to this action. She had the right to sue the defendants before she became a free trader, and that is all she had after she became a free trader. Neither did it affect the rights or duties of (281) the defendants. They were under the same obligation to pay they would have been if she had not been a free trader.

It is presumed that section 1827 of the Code was passed for the benefit of married women who wish to engage in business, in order to give them credit, as was the right to sue alone given as a benefit to them (Shuler v. Milsaps, 71 N.C. 297), but it did not change their status nor remove the exemption which excluded then from the operation of the statute of limitation. Lippard v. Troutman, supra. Neither was the right of married women to sue alone, nor to become free traders, intended for the benefit of their debtors.

We see no error, and the judgment of the court below is


Cited: Featherston v. Merrimon, 148 N.C. 207.

Summaries of

Wilkes v. Allen

Supreme Court of North Carolina
Nov 1, 1902
42 S.E. 616 (N.C. 1902)
Case details for

Wilkes v. Allen

Case Details

Full title:WILKES v. ALLEN

Court:Supreme Court of North Carolina

Date published: Nov 1, 1902


42 S.E. 616 (N.C. 1902)
131 N.C. 279

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