#### Daniel Killian and Wife v. John Watt.

From Iredell.

Assumpsit by husband and wife foi* 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 mating 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 lining 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 accrued 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 hy 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 consi-*168tiered as a hiring from year to year, and that the statute limitations bad 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 recoi'er, 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 shelving what was the true character of the hiring. The motion for a new trial was sent to this Court, and

Tayiok, Chief-Justice,

delivered the opinion of the Court:

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 neiv trial. For if the hiring ivas from year to year, and nothing was positNely 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 to 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, the1 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, *169a 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 he viewed, the verdict was right. The rule for a new trial must be discharged.