Opinion of the Court-Hawley, C. J.

the property in her own name as her separate property, and, under the provisions of section 9 of the act defining the rights of husband and wife, (1 Comp. Laws, 159,) she • had authority to execute the mortgage in her own name. As the respondent does not ask for any judgment against the estate, and as the estate has no longer any interest whatever in the property, it was unnecessary for her to present the note and mortgage to the administratrix for allowance. She could thereafter maintain this action against Hutchinson alone for the foreclosure of the mortgage against the property, and it was unnecessary to serve the administratrix as she was not after such dismissal a necessary party to the action. (Christy v. Dana, 34 Cal. 553; Schadt v. Heppe, 45 Cal. 438; Corbett v. Rice, 2 Nev. 334; Bliss, Code Pl. sec. 102.)

If the statute of limitations could have been successfully interposed by the administratrix of the estate of Mrs. Wheat at the time appellant filed his deed for record, or at the time of the commencement of this action, there would not, of course, be any question as to his right to invoke the aid of the statute as a defense to this action; but it is apparent, from the facts stated, that the action was not barred by the statute as against the estate, (1 Comp. Laws, 1036,) and it is also apparent that appellant has not brought himself within any rule which would entitle him to plead the statute in his own behalf upon any other ground. He was not in possession of the premises at the time the mortgage was given, nor at any time thereafter until 1880. Respondent had no knowledge of the secret trust existing between him and his mother, or of appellant's interest or claim to the property until he had his deed recorded, which was more than four years after the maturity of the note.

The claim contended for by appellant, that the action as against him should have been brought within four years from the time of the maturity of the note, cannot be maintained upon reason or authority.

The allowance of counsel fees for the foreclosure was

authorized by the terms of the mortgage. The amount

Opinion of the Court-Hawley, C. J.

allowed was not, under the facts of this case, unreasonable. The judgment of the district court is affirmed.

By the Court, HAWLEY, C. J., on rehearing:

A rehearing was granted in this case for the purpose of considering the question whether section 23 of the act defining the time of commencing civil actions (1 Comp. Laws, 1038) is applicable to this cause, and whether, under its provisions, this action was barred by the statute of limitations, it not having been commenced within one year after the issuing of letters testamentary on the estate of Mrs. Wheat. Appellant claims that when a cause of action has matured, and the statute of limitations has commenced to run, before the death of the party against whom such cause of action accrued, no suit can be maintained unless brought within one year from the death of the party; that the presence of the executor or administrator in, or his absence from, the state makes no difference with reference to the running of the statute. We do not think this position is sustained by the authorities cited in its support. We are of opinion that the plaintiff was entitled to have a person in esse, within this state, against whom she could bring suit, for the full period of time prescribed in section 16 (1 Comp. Laws, 1031), and that the object of section 23 was to extend the time, in certain cases, within which the actions might be commenced, and was not intended, and should not be so construed, to limit the time given by other sections of the

act.

If Mrs. Wheat had lived, and been absent from the state for the same length of time as the administratrix was, the suit would have been commenced in time. Is the plaintiff not entitled to bring her suit within the time it could have been commenced, under similar conditions, if Mrs. Wheat had lived?

In California there is a provision in the Code identical with section 23 of our statute. In Smith v. Hall the supreme court of that state said that the object of the section "was not to curtail, but to prolong, the period for suing in the given category." (19 Cal. 86.)

Opinion of the Court-Hawley, C. J.

In Lowell v. Kier the action was brought within the period limited for its commencement against the deceased party had he lived. The court said: "It is not barred merely because it was not brought within one year after the issuance of letters" to the executors of the estate; that the section of the Code, "while it may, under some circumstances, prolong the time originally limited, cannot operate in any case to shorten it." (50 Cal. 647.)

The views herein expressed are in accordance with the decisions of this court in Wick v. O'Neale (2 Nev. 303), instead of in opposition to it, as claimed by appellant. There the court correctly construed section 23 so as to extend the time for the commencement of the action to "one year from the time of the issuing of letters testamentary" in a case where the action would, under the other sections of the act, have been barred before that time. Our former decision was correct.

The judgment of the district court is affirmed.

REPORTS OF CASES

DETERMINED IN

THE SUPREME COURT

OF THE

STATE OF NEVADA,

JANUARY TERM, 1884.

[No. 1163.]

N. C. HAMMERSMITH, RESPONDENT, . G. W.

AVERY, APPELLANT.

DAMAGES-SEIZURE OF PROPERTY EXEMPT FROM EXECUTION-EVIDENCEWAGES OF BARBER.-In an action to recover damages against an officer for closing a barber shop and taking the implements of the barber's trade, which were exempt from execution: Held, that evidence of the customary wages of barbers is inadmissible to establish the damages resulting by reason of the interruption of the barber's business.

IDEM-VALUE OF PROPERTY-OFFER.-Evidence of the plaintiff of an offer made to him for the property, taken by the officer, is inadmissible; but a witness, in giving his own opinion of the value of the property, may testify as to an offer made by himself. Such evidence tends to prove the opinion of the witness, and is admissible.

IDEM-RIGHT OF EXEMPTION-PERSONAL PRIVILEGE-OFFICERS NOT TRESPASSERS. The right of exemption is a personal privilege, which if not claimed is waived by the debtor. An officer who seizes property exempt from execution is not a trespasser ab initio.

**

IDEM-INSTRUCTIONS.-The fourth instruction, referred to in the opinion, was
as follows: "If plaintiff *
was in the possession as a tenant of
the premises described in the complaint, and then and there carried on his
trade as a barber, and the defendant, by virtue of a writ of attachment,
ejected plaintiff therefrom and refused to allow him the use thereof, then
the defendant was a trespasser, and is liable to the plaintiff for all damages
that he directly sustained by reason of said withholding the possession
thereof from him :" Held, correct.

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Argument for Appellant.

DEMURRER-MISJOINDER OF PARTIES-WAIVER.-The question of misjoinder of parties, raised by demurrer, is waived by filing an answer.

APPEAL from the District Court of the Seventh Judicial District, Washoe County.

The following instructions, in addition to the one in the head notes, were given on the part of plaintiff :

1. "The plaintiff claims certain personal property as exempt, as a barber, and I therefore instruct you that the tools and implements of a mechanic or artisan necessary to carry on his trade are exempt from execution, and if the defendant * * * took the same from the plaintiff, then he was a trespasser and liable to him for all damages that were the direct result of such acts."

2. "The statute of exemption being remedial, beneficial and humane in its character, must be liberally construed, and if it does not clearly appear to the jury whether certain property is or is not embraced within the excepting statute they will allow the debtor the benefit of the doubt, and suffer him to retain the property."

3. The object of the statute of exempting tools neces sary to carry on his trade is to save to the debtor the means of earning his support. * * * And it is too narrow a construction of this statute to deny to a debtor, whose business required him for its successful prosecution the employment of journeymen, the necessary means of their employment.

Clarke & King, for Appellant:

I. The court erred in overruling demurrer to amended complaint. Distinct causes of action are improperly united. (1.) Eviction from real property and the taking and detention of personalty. (2.) Interruption or destruction of plaintiff's business.

II. Evidence of what plaintiff might have earned by hiring out his labor in another situation, and without reference to the property in question, real or personal, was not pertinent, and could only take the defendant by surprise and mislead the jury.