Cooper v. Allen , 57 Miss. 694 ( 1880 )

Campbell, J.,

delivered the opinion of the court.

The opinion of this court delivered in this case at a former term is contained in 53 Miss. 329 et seq. Afterwards, the complainants exhibited their amended bill, averring the liability of the separate estate of Mrs. Lenoir, now Mrs. Cooper, not by virtue of the mortgage, which had been pronounced to be void as to her, but because of the dealings had between the complainants and Mr. Lenoir. The bill, as amended, brings the case within the principle of the case of Guion v. Doherty, 43 Miss. 538,-repeatedly followed in this court, and the evidence maintains the amended bill. The original bill was filed Dec. 16, 1868, and the amended bill was exhibited May 16, 1877. The Statute of Limitations is pleaded against the demand of the amended bill. The Chancellor maintained this demand to the amount of three thousand dollars, because, to that amount, it was asserted in the original bill, which was filed in December, 1868. The excess of the claim over three thousand dollars, not being demanded by the original bill, was held to be barred by the time elapsed before the exhibition of the amended bill. Counsel for the appellants lay stress on the fact that the note was paid by credits admitted by the ap-pellees. This may be true, and it does not affect the right of the complainants to recover on their account to the extent that it is not barred by lapse of time.

The gist of the amended bill is that the complainants are entitled to charge the separate estate of Mrs. Lenoir, because of the purchases made by her husband, in the manner and under the circumstances detailed by the bill. The answer denies the allegations of the bill as to the liability of the estate of Mrs. Lenoir, and relies on the lapse of time, as a bar to the claim against her estate, if it ever was liable. We think the bill is maintained by proof, as we have before stated; and the answer to the defence of lapse of time is, that to the amount of three thousand dollars, the demand of the complainants was asserted in their original bill, and although the amended bill was exhibited in 1877, the claim asserted by it is the very one asserted originally, and the amendment in the statement of the claim, and the relief sought in the varied statement of the demand are to be viewed as if embraced in the original bill. Decree affirmed.