
    Jones, Adm’r, v. Thurmond’s Heirs.
    A party who would except to the ruling of the court upon any question of evidence arising at the trial must do so at the time of such ruling. And a bill of exceptions ought to be tendered at the trial, or at as early a day as practicable.
    The parties are required to submit to the court in writing such instructions as they may desire, which the court will give or refuse; and as to these no formal bill of exceptions is necessary.
    if there is anything in the charge of the court to which either party desires to except it will be in time to indicate the exception as soon as the jury snail have retired; and the exception so indicated may be reduced to writing, and signed by the judge at any time during the term.
    The pawnee or mortgagee of a slave may assign his claim, but cannot, either at the civil or common law, make an absolute sale of the slave without the observance of certain prescribed conditions and formalities.
    Neither the description nor the statute of limitations commences to run against the right of redeeming a pledge until the pledgee does some act which shows his determination to dissolve the relation of pledgor and pledgee.
    By the Spanish law, M a minor under twenty-five years of age cannot lose his property by prescription.”
    Where possession did not become adverse until after the death of the party out of possession, neither prescription nor limitation commenced to run against the heirs until they attained their majority.
    Although the court below, in the charge to the jury, have mistaken the law upon certain points not properly presented by the pleadings and evidence in the case, yet, if there is no error in the charge in respect; to any matter which was at all material or which could in any manner have prejudiced the defendant’s rights as they are disclosed by the statement of facts, the j udgment will not be reversed.
    Error from Bowie. The defendants in error brought suit on the 4th day of January, 1845, to recover of the plaintiff in error a family of negroes, consisting-of the mother and six children. The plaintiffs claimed as legatees under the will of Richard Thurmond. The clauses of the will, on which they rest their -claim, were as follows: “First, I will and bequeath to my wife, Judith Thur-■tnond, all my negroes, young and old, male and female, during her natural lifetime. * * * * Thirdly, at the death of my wife Judith I will and "bequeath that all m3' negroes, as before mentioned, and (heir increase be enjoyed and go to the proper heirs of my sou. Tilomas J. Thurmond, forever, to be divided equally amongst all the children lie now has and may have by his wife Rebecca.” The will bore date on the 8th day of December, 1S2(5. The petition alleged that the plaintiffs were the only children and heirs of Thomas J. and Rebecca Thurmond; (hat the negro woman Charity, mother •of the others in controversy, was one of those mentioned in the will of Richard Thurmond; and that she belonged to him at the time of his death; that he •died in the year 1828; and that afterwards, and before the commencement of this suit, his widow also died ; that in the year 1828, after the death of Richard Thurmond, the defendant’s intestate, Massack II. Jones, obtained possession •of the woman Charity;- and that he and liis administrator have hitherto withheld from the plaintiffs the said slave and her increase. The will was alleged to have been made in the then Territory of Arkansas, where all the parties resided at the time and where their respective claims had their inception.
    The defendant demurred to tlie petition, and answered, denying the right of .property in the ancestor of tlie plaintiffs and the allegations in the petition not expressly admitted, and setting up the defense of limitation in various forms. Tlie averments of tlie plea of limitation relied on by tlie defendant were, that in the year 1820, tlie said Richard Thurmond pledged the negro girl Charity to one Campbell for the use of three hundred dollars; that the girl remained in tlie possession of Campbell until the year 1S29, when the defendant’s intestate, Massack H. Joues, and one Oakley became legally possessed of her; that on the 1st day of March, 1832, said Oakley sold and transferred his interest in tlie girl to the defendant’s intestate, and' that lie aud his administrator have had uninterrupted possession of her ever since.
    On tlie trial (at the Spring Term, 1849,) the plaintiffs gave in evidence the will of Richard Thurmond. They proved that the negro woman Charity was the property of Richard Thurmond; that lie (Richard Thurmond) died in 1828; that his widow Judith had possession of the woman Charity in the years 1830 and 1831, and that the said widow, Judith Thurmond, died in 1833; that the plaintiffs were tlie only children and lieirs of Thomas J. and Rebecca Thurmond; that the eldest was born in the year 1823 or 1824,- and the .youngest in 1827; they also proved the identity of tlie negro woman Charity -and her children, six in number, and their several value, and that of tlieir hire.
    The defendant proved that the woman Charity was pledged by Richard Thur■mond to one Campbell, for the use of three hundred dollars, in the year 1823; that Campbell continued to hold the woman as a pledge until his death in 1828; that she then went into the possession of his administrator, Morrison, who was a witness introduced by the defendant, and who testified that the intestate, M. H. Jones, and one Allen M. Oakley, the latter acting as the agent •of Richard Thurmoud, redeemed the negro, each paying a portion of the three 'hundred dollars for which she had been pledged; that the portion paid by •Jones was for Oakley, Thurmond’s agent, and that the money was paid for tlie redemption of the negro under the mortgage; «that previously Jones had hired her from the witness Morrison. The defendant read in evidence an instrument in writing, by which Morrison, as the administrator of Campbell, relinquished to Oakley and Jones the possession of the negro. The instrument ■did not express any other consideration than the fact which is recited that the negro was placed in the possession of Campbell by Richard Thurmond for the use of three hundred dollars. It bore date on the 12th day of December, 1829, •and had an indorsement upon it bearing date on the 1st day of March, 1832, by which Oakley relinquished to Jones his interest. One of the defendant’s witnesses testified that the negro was in the possession of M. I-I. Jones sometime before and up to 1833, when he (Jones) moved to Texas. Another testified that “ the negro passed out of Morrison’s and into Jones’s possession in tlie fall -of 1828.” And another (Hubbard) testified that in 1829, lie traveled with Allen >1. Oalcley from Washington, in Hempstead county, (Arkansas,) to Cliick-.awinny Prairie; that “ Oakley had along- with him a negro girl which he said he had purchased from some one. perhaps the widow of Bichard Thurmond, deceased; the negro had once belonged to Bichard Thurmond, deceased ; witness afterwards saw the girl in .the possession of .Massack H. Jones. Oakley informed witness that he had sold the girl to M. H. Jones, witness thinks, for five hundred dollars; upon reflection, thinks Oakley said that he purchased the negro from Judith Thurmond or Thomas J. Thurmond.”
    The court instructed the jury “that if Bichard Thurmond mortgaged the ■negro Charity to Campbell, neither Campbell nor his administrator could perfect a legal sale until the mortgagor’s right of redemption had expired, and that it did not expire for twenty years; that no sale made to. one with notice •of the mortgage by Campbell or his administrator would be valid unless the same was made upon foreclosure by judicial authority; that if Oakley or Jones paid the money for which the negro stood pledged, as the agent or agents of Thurmond, the mortgage was discharged, and the negro again the untrammeled property of Thurmond, or if he was dead, of those in whom the estate vested by the will; that the statute of limitations did not run against heirs during minority, and they had until the full limit after majority (deducting the time it had run against the ancestor) to commence their action ; that Jones’s succession claims by the pleadings possession from 1832, and if the statute runs in their favor, it commenced with the alleged date of then- possession, and if at the time of its beginning there existed a legal disability on the part of Thurmond’s heirs, it did hot run against them ; that if the jury find for the plaintiffs, they may find damages iu the nature of hire from the time that the ne-groes wore in possession of defendant, deducting- expenses; that the testimony of the witness Hubbard is indistinct, and refers to a sale not made a matter of defense by the pleadings, — it is in the opinion of the court irrelevant to the matter at issue. However, if the jury can make anything of it, they may take ■it. Morrison’s testimony explains'his sale bill.”
    There was a verdict for the plaintiffs for the negroes or their value, estimated by the jury at twenty-seven hundred and twenty-five dollars, and their hire from the 1st day of March, 1832, at fifteen hundred and ten dollars, exclusive of the expense of their raising. The defendant moved "for a new trial, upon the ground that the court misdirected the jury and that the jury found contrary to law and the evidence. The court overruled the motion, and gave judgment upon the verdict, and the defendant brought a writ of error, and assigned as error the instruction of the court in respect to—
    1st. The right of the mortgagee to sell the property mortgaged.
    2d. The statute of limitations.
    3d. The testimony of the witnesses Hubbard and Morrison.
    
      Morrill, for plaintiff in error.
    
      Trimble, for defendants in error.
   Wheeler, J.

The instructions of the court, which are assigned as error, are presented by a hill of exceptions which appears to have been filed on the day after the trial, and it is insisted on behalf of the defendants in error that they are not, therefore, properly the subject of revision.

It doubtless is true that a party who would except to the ruling of the court upon any question of evidence arising at the trial must do so at the time of such ruling. And a bill of exceptions ought to be tendered at the trial, or at as early a period as practicable. (6 Johns. R., 279; 9 Id., 345 ; 4 Tex. R., 170; 5 N. H. R., 336.) But there appears to have been some diversity of decisions and practice in different courts respecting the time at which exceptions to a charge of the judge must he taken. In Pennsylvania it has been held that unless exceptions to a charge are taken at the time of trial, with a request that they may be filed, they are not a ground for assigning error, though after-wards filed by the judge at the request of the party. (5 Watts R., 69.) And in one case in New York it was held that an exception to the judge’s charge-will not be received after the jury have withdrawn. (7 Wend. R., 34.) But in Connecticut the court will not reject a bill of exceptions to a judge’s charge-merely because it was not, filed till after the verdict, no specified time being fixed by law. (9 Conn. R., 545.) And in Massachusetts it is said that it is-seasonable if exceptions to instructions to the jury are first alleged after the verdict is returned. (3 Pick. R., 173.) In New York, Pennsylvania, and Kentucky a bill of exceptions, tendered after the jury have returned into court’ with their verdict, but before it is delivered, has been held to be in season as to any charge of the judge, though not as to any question of evidence arising on the trial. (1 Binn. R., 38; 4 Dall. R., 249; 8 S. and R., 211; 10 Johns., 212 ; 5 Mour. R., 177.)

In our practice the parties are required to submit to the court in writing such instructions as they may desire, which the court will give or refuse, and as to these no formal bill of exceptions is necessary. (Acts of 1846, p. 390, sec. 100.) If in the charge of the court there is anything to which either part}*- desires to except, it will be in time to indicate his exception as soon as the jury shall have retired ; and the instructions indicated, when reduced to writing and signed by the judge, may be filed at anytime during the term and made a part of the record. The whole term is allowed for reducing to form the statement of facts. No reason is perceived why the same period may not also be-given for placing upon the record the instructions of the court, provided the exceptions to them were taken in time. It is the common practice, where exceptions were taken during the trial, to reduce to form and sign the bill of exceptions afterwards. (4 How. Miss. R., 272.)

It appears that the defendant in this case excepted to the instructions, and although they do not appear to have -been filed until the day after the trial the presumption is that the exceptions were taken in due timo, and that the judge took until the following day to reduce them to writing. This it was-competent for him to do, and we are of opinion that they constitute properly a part of the record before us for revision.

The first objection, indicated in the order in which they have been presented in the argument of counsel for the plaintiff in error, goes to that portion of the charge in which the court instructed the jury in effect that the mortgagee could-not make an absolute sale of the property'until the mortgagor’s right of redemption was barred; that it would not become barred under twenty years, and that no sale made to one with notice of the mortgage would be valid unless-made by judicial authority.

The first branch of this instruction, (omitting for the present what was said upon the subject of the limitation of the right of redemption,) as a legal proposition, was certainly correct. The mortgagee may assign and transfer the mortgage, and this proposition was not denied by the judge. He was speaking not of an assignment of the mortgage, but of a sale of the property; and bis language could have conveyed to the understanding of the jury no other idea than that of an absolute sale.

The last branch of this instruction — that is, as to the right of the pawnee or mortgagee to sell the pledge — was the subject of consideration, in reference to-the English law, in the case of Luckett et al. v. Townsend et al. (3 Tex. R., 119.) it is unnecessary in the present case to inquire whether by the common or Spanish civil law the pawnee or mortgagee of a chattel can sell otherwise than by a judicial sale. By neither could lie sell at private sale or without the observance of certain prescribed conditions and formalities. (2 Kent. Comm., 582, 583, and notes; 5 Partida, tit. 13, L. 42.) No other than a private sale was relied on or is pretended in the present ease, and the effect of the instruction was that such a sale was not valid and effectual to pass the absolute, ultimate title and right in the pledge to a purchaser with notice. This proposition was true; and it was an immaterial inquiry whether any and what other character of sale would have passed the title, none other being asserted.

This appears to have been the ease of a pledge without any time limited for the redemption. Where a stipulated time is fixed for the payment of the debt, “if (says Story) the pawnee does not choose to exercise his acknowledged right to sell, he still retains the property as a pledge, and upon a tender of the debt, he may at any time be compelled to restore it, for prescription or the statute of limitations does not run against it.” (Story on Bailm., sec. 346.) “The Roman law (he adds) also has declared that prescription shall not run against the pawnor in respect to the pawn, for the pawnee is always considered to hold by his title as such until some other title supervenes.” “Nevertheless, where the title of the pawnee lias remained undisturbed for a great length of time, it seems that such an extraordinary prescription may be insisted on as a bar for the sake of the repose of titles founded on long possession.” (Id., sec. 347.) “But where no time of redemption is fixed by the contract, there, upon the general principles of law, the pawnor has his whole life to redeem, unless he is quickened, as he may be by the pawnee, through the instrumentality of a court of equity, or by notice in pais to the party.” And should the pawnor die without having redeemed, the right to do so will descend to his legal representatives. (Id., sec. 348; 2 Kent Comm., 581, 582; Angell on Lim., 500.) The right of the pawnor to redeem in this case was recognized by the pawuee shortly before his death, and by his administrator afterwards. There was no act of either which indicated an intention to hold adversely to the right of redemption. Prescription did not commence to run against the right of redemption in the lifetime of Richard Thurmond, the ancestor of the plaintiffs. Until after his death there was no act or pretension adverse to his right of redemption. If the defendant claimed merely as assignee of the pawn, lie must be deemed to have taken under all the responsibility of the original pawnee; (2 Kent, 579;) and not having instituted any proceeding, or given any notice to redeem, prescription or the statute of limitations did not run in his favor. In this view of the defendant’s case, supposing him to have claimed merely as the assignee of the pawn, the instruction of the court respecting the time requisite to bar the plaintiffs’ equity of redemption was wholly immaterial. No time whatever had ruu against them which could possibly have availed the defendant under any law of prescription.

But the defendant may have intended to rely upon adverse possession, with a claim of absolute property, commencing at the date of his alleged purchase from Oakley in the year 1832, or at the time of the alleged acquisition of possession by himself and Oakley in 1829. His plea does not allege that his title is adverse to the rights of the plaintiffs, or in what manner it had its origin. But it has been treated in argument as asserting in the defendant an adverse possession, and may be so considered, for the purpose of disposing of the remaining portion of the charge of the court upon the subject of the statute of limitations.

It is admitted that Richard Thurmond, the ancestor of the plaintiffs, died in 1828. The defendant does not claim to have obtained possession of the negro in controversy until some time in the year 1829. The English and American statutes of limitation generally contain a saving in favor of those persons who were laboring under the disability of minority when the cause of action accrued. (Angell on Lim., 203; Acts of 1841, p. 166, see. 11.) The common law limits the period of minority to twenty-one years. The laws of Spain declare that “a minor under twenty-five years cannot lose his property by prescription. (3 Partida, tit. 29, l. 8.)

The proof in respect to the plaintiffs was that the oldest was born in the year 1823'or 1824. He did not arrive at majority until some time in 1844 or 1845; and this suit was commenced on the 4th day of January, 1845. The plaintiffs, then, were minors when the possession of the defendant is alleged to have had its commencement; and by no law which may be supposed applicable to the case did prescription commence to run against them until after the removal of the disability of infancy. Between that period and the commencement of this suit a sufficient period did not intervene by the provisions of the act of 1841, then in force, to bar their right of action. Prescription or the statute of limitations, therefore, had no application to the case in any aspect in which it can be viewed. It could not possibly have shielded the defendant under any instruction which the court might have given.

It undoubtedly-is in general true that under the English and American acts of limitation it is held that where the statute has once commenced to run it will continue to run, notwithstanding any subsequent disability of the party entitled to sue, and in so far as to the instructions contravened that principle, they were in the abstract erroneous. But, as in this case, the statute had not commenced to run, it was an immaterial error — one which cannot have prejudiced any right of the defendant, and cannot, therefore, afford a ground for reversing the judgment.

But it is said the plaintiffs have admitted in their petition that the negro came into the possession of the defendant’s intestate in 1828. The plaintiffs do so allege, but they also allege that it was after the death of Richard Thurmond. The pleadings and evidence conclusively fix the commencement of the defendant’s possession at a period subsequent to the decease of the ancestor of the plaintiffs, but at what precise point of time is left uncertain by the evidence, and is immaterial. The material fact in reference to prescription or the statute of limitations, as applicable to this case, is the date of the commencement of the defendant’s possession, in its relation to the time of the death of Richard Thurmond, and that is placed beyond a question at a period subsequent to that event, and consequently, when time did not run against the plaintiffs.

The remaining objection is to that portion of the charge which relates to the testimony of the witnesses Hubbard and Morrison.

In reference to the testimony of the witness Ilubbard, the charge was, in effect, that, iu the opinion of the court, it was too in definite and uncertain to prove anything material to the issue; lienee, that it was irrelevant; and we are of the same opinion. If there was any error in the ruling of the court respecting this testimony, it was in permitting it to go to the jury; but of this the defendant cannot complain, as it was introduced by him.

In respect to the testimony of the other witness, Morrison : The instruction of the court merely indicated to the jury that it might be considered by them in connection with and as explanatory of the giving of the instrument of sale or release made by the witness, and under which the defendant claimed. In this there was no error. The court did not undertake to instruct the jury, as to the weight to be given to the evidence, but merely to inform them of the application they were at liberty to make of it. Both the instrument of release and the testimony of the witness Morrison were introduced in evidence by the defendant. Both related to the same transaction and established the same facts; they proved that Morrison did not assume to make an absolute sale of the property, but merely, as the administrator of Campbell, to release in favor of the pawnor the negro pledged to his intestate, and that the defendant Jones acquired his pretended title with a full knowledge of the pledge and of the character of the title. This was the defendant’s own testimony, and there was nothing in the instruction complained of which could have had a tendency to mislead the jury as to its import or to prevent them from giving it all the weight to which it was entitled.

Upon the whole we conclude that although the court may have mistaken the law upon certain points not properly presented by the pleadings and evidence in the case, yet there was no error in the charge in respect to any matter which was at all material or which could in any manner have prejudiced the defendant’s rights. And we have repeatedly decided that an erroneous instruction upon an abstract question, one which was not properly involved in the ease., and which could not have prejudiced the rights of the party, will not authorize a reversal of the judgment. (2 Tex. R., 297, 305; and see 2 How. U. S. R., 457; 1 McLean R., 509; 9 Cow. R., 674; 1 Por. R., 139; 4 Ham. R., 79, 388; 1 Cr. R., 318; 1 Scam. R., 407; 2 Pike R., 133.)

We are of opinion that the judgment he affirmed.

Judgment affirmed.  