Den ex dem. Clark v. Richards , 15 N.J.L. 347 ( 1836 )

Hornblower, C. J.

The premises in question, formerly belonged to John Clark, the- father of the lessor of the plaintiff. Sometime prior to the year 1808, an attachment was sued out against the said John Clark as an absconding debtor; and in the year 1808, or in 1810, Abraham Clark, under whom the defendant claims, entered, in virtue, or at least, under colour of a deed to him from the auditors in that attachment. On the 20th December 1816, John Clark, then out of possession, made a deed of gift of the premises, to his son Joseph Clark, the lessor of the plaintiff. Joseph, at that time, was a minor, and so continued until the 24th December 1819, a period of nearly three years, when he attained his full age. This action was commenced in September 1832; nearly thirteen years after he came of age; about sixteen years after his father gave him a deed; and twenty-four years after Abraham Clark entered, if such entry, was in 1808 ; but only twenty-two years, if Abraham Clark did not enter until 1810. On the trial, it was contended for the plaintiff; 1st. That the proceedings under the attachment, were fraudulent and void; and that no title passed to Abraham Clark by virtue of the auditors’ deed. 2d. That the possession of Abraham Clark did not commence until the year 1810 : and 3d. That if so, then the plaintiff was not barred by the statute of limitations, as he had been under the disability of infancy, for a period of three years since his title accrued; which deducted from the twenty-two years, left but nineteen years of adverse possession, exclusive of the time during which the plaintiff had been under such disability. Had the simple question of fact, whether Abraham Clark entered in 1808, or in 1810, been submitted to the jury, I should think the verdict, ought to stand; because there was evidence on both sides in relation to that matter. But, the jury were instructed, that under the circumstances of this case, if the defendant, and those under whom he claimed, had been twenty years in possession, before this action was instituted, the plaintiff was barred by the statute of limitations. If therefore the jury paid any attention to the charge of the court, which we must presume they did, they had no occasion to decide the question, whether Abraham Clark entered, in 1808, or in 1810: since in either case, more than twenty years had elapsed before the commencement of this suit. * .

The question then arises: was the law on this point, correctly stated to the jury ? And whether it was, or not, depends upon the construction to be given to the 9th and 10th Sections of our statute for the limitation of actions, passed in 1799, and to be found in Rev. Laws, 411.

There would be no room to doubt on this point, but for the difference between the language of our statute, and that employed in the 21 Jac. 1 C. 16, Section 2. Since, it is a settled rule, under all the British statutes of limitation, that when the statute has once began to run, its course will not be impeded, or its operation suspended, by any subsequent disability. 'Man-shard's treat, on stat. of Lim. fol. 19 in marg.

The same rule has uniformly prevailed in this State, and must still prevail, unless a new one has been introduced, in regard to actions' on specialties and records, by the 6th and 7th Sections of the act of 1799: and in suits for the recovery of real estate, by the 9th and 10th Sections of that act. The late Mr. Griffith in the 4th vol. of the Law Reg. 1267, in note, after stating the rule of construction under the statute of 21 Jac. 2, to be as I have just mentioned, says, “ but in respect of actions for real estate, this rule, since January 1st, 1803,” (the period fixed by the 10th Section of the act of 1799, when that section should take effect,) “has not prevailed in New Jersey.” The learned' author, then proceeds to comment upon the provisions of that act, as introducing a new doctrine; and supposes that after the statute has commenced running, its progress may be arrested by every occurring disability, so that no action can be barred, until the full period of twenty years of unobstructed time, has accumulated, by adding together the intermediate periods, during’ which no disability existed. Or in other words, that a suit may be brought, fifty or hundred years after the cause of action first accrued, if deducting from that time, all the periods of disability by reason of infancy, coverture and insanity, that may have intervened, it does not appear, that the days, months and years, during which no disability existed, amount, altogether to twenty years. Taking Jus to be the true construction of the act, the author justly remarks, that “ it may well be doubted whether Mr. Paterson improved upon the English law, in making the changeand he adds, with great propriety, “ it is a most important one.” The unqualified assumption of Mr. Griffith, that such is the rule introduced by the act of 1799, in relation to suits on specialties and records, and for lands, recollecting his usual accuracy and extensive professional experience, led me -to suppose there had been some decisions of this court, settling such a construction of the act; but I can find none in our Reports, nor can • I learn from the Bar that any such has been made.

It is certainly remarkable that Judge Paterson, who (is supposed to have penned the statute in question) should have departed so signally from the language used in the 4th Section of the same statute, and in the 2d Section of the act of 1787, Rev. Laivs, 80, both of which follow the language of 21 Jac. 1, unless he intended to introduce a new principle. And if such was his intention, we may be permitted, with Mr. Griffith, to express our astonishment, that he ventured “ to introduce so novel and hazardous a change in our law of limitations;” and if such was not his intention, then, we may be equally surprised, that “ attached as he was to the principles of adhering to ancient law and statutes, '■even to the letter,”'’ he should depart from the well settled language of our own and the British statutes of limitation; thereby throwing open the door of disputation, and letting in a flood of uncertainty upon long enjoyed titles and possessions.

If such is the meaning and sound construction of this act, it cannot be called “a statute of repose.” It must in many cases defeat its own benevolent design. Instead of quieting possessions and estates, it will invite to litigation. Persons and property will be exposed to latent and long dormant claims, to be sustained or defeated, by the result of expensive, and after-all, unsatisfactory inquiry into the histories of individuals and families, for half a century or more; and separating their days, months and years of ability to sue, from those in which they were under some statute disability. Take for instance the case before us; suppose Joseph Clark, the lessor of the plaintiff nineteen years after his title accrued, had died, leaving an infant daughter, a few months old — at the age of eighteen or nineteen she' marries, and continues under coverture for thirty or forty years, and then dies, easting a descent on minor heirs, or married daughters, who may remain under disabilities for as many years afterwards ! In short, we need not imagine any unusual dispensations of Providence, to furnish cases in which a whole century may roll around, before the statute could afford any protection. A few years-more, and John Clark himself would have been effectually barred; and yet under the construction contended for, he could at the last moment, by his own voluntary act, resuscitate his already expiring claim, and give it new vitality and vigor for twenty years; nay, for an indefinite period, by simply making a conveyance to an infant child. Must we do such injustice to the penman of the statute, as to suppose that he intended to introduce a rule, so novel, so destructive to the very design of the institution itself, and so hostile to the admired and favoured maxim of the law, “ interest reipublicce ut sit finis litium f And that too, not only in regard to real estate, but in respect to personal actions on specialties and records ?

The words in the saving clauses of the 6th and 7th Sections relating to aptions on specialties and records, are precisely the same, as in the 9th and 10th Sections concerning real estate; and if the doctrine of cumulative disabilities, is to be derived from the latter, the same doctrine must be applicable to the former; and then we have the startling proposition, that the obligee, or assignee of a bond almost barred by the statute of limitations, may suspend its operation for an indefinite period, by a voluntary assignment of the bond to an infant, or a feme covert.

The settled rule under all the English statutes of limitation, and under the first three Sections of our own act, is that if the person to whom the right of entry or of action first accrues, is at the time when such right accrues, under any of the disabilities named in the statute, the statute does not begin to run against him, until the disability is removed: but the moment such disability ceases, the statute is called into operation, and no subsequent event will arrest its course. This rule was perfectly familiar to the mind of the learned jurist who revised our statutes; and if he intended to break it down, and set up in its place, the monstrous doctrine of cumulative disabilities, I think he would have done so, in express, or at least in plainer terms. If such had been his design, nothing would have been more natural than for him to have said in the saving clause, “ that the time during which the person having such right of action, Ms heirs or assigns, shall have been under age, &c.” But this is not the language of the act: the saving is only in favour of the person, and that person, I think I shall be able to show, is the one, to whom the right of action first accrued. The first clause of the 10th Section declares that every action for lands, shall be instituted within twenty years, after the right or title thereto, or cause of such action shall acme; and then it is added, “ that the time during which the person who shall have such right or title, shall have been under the age of, &e., shall not be computed as part of the said limited period, &c.” Now to an ordinary reader of this statute, I should suppose, the person, spoken of here, would be understood to mean, the person to whom such right or title or cause of action had accrued; and not the person, or any person, to whom the right of action might afterwards, descend or be transferred.

Upon a careful comparison, the difference between the language of 21 Jac. 1, and that of our statute, is not so material, as has been supposed. The only substantial difference between the two statutes, I think is this: that by the former, the time when the disability which is to suspend the operation of the ■statute, is to exist, is specified, namely, it must exist, when the cause of action first accrued. For the words, “ first descended, accrued, &c.,” do not refer to, and are not descriptive of, the person, who is to be saved from the operation of the statute; but they relate to, and are descriptive of, the disability, which is to save from its operation, by fixing the period when, that disability must exist; namely, when the right of action first accrued, and not that, which may occur at any time afterwards. But the person in whose favour such suspension is to operate, is altogether matter of construction — and yet under that statute it has uniformly been held, that the saving clause does not extend to any person, but the one to whom the right of entry or of action first accrued; and that if the statute has once commenced running against him, it runs over all subsequent disabilities. Whereas, our statute, more distinctly designates the person in whose favour the saving clause is made, but does not, (in terms, at least,) confine'its influence to disabilities-existing when the cause of action accrued. What I mean is this : that the saving clause in the British statute, is notin terms limited to' the person, to whom the right of action, first accrues; but it is made in favour of him and him only, who was under disability, when the right of action first accrued to him; whoever he may be; whether, the person, who first acquired the right of action, or one, to whom it has descended or been transferred. The language of that statute is, “ that if any person, “ who shall have ” a right or title of entry, shall be, at the time, such right first accrued, &c. within the age of twenty-one, &c. then, &c.” This evidently means, that if any person, when, the right first descended or accrued, to him, be under disability, &c. It surely does not mean, that if any person who shall have a right of action, shall be under disability^ at the time, such right first accrued to his ancestor or grantor,then that the period of such disability shall not be computed against him. Such a saving would- be unmeaning and nugatory. I have been thus particular in my remarks upon the statute of 21 Tac. 1, because upon the argument, that statute was cited as-if, in very terms, the saving clause was limited to the person to whom the right of action first accrued; instead of which, it only gives a saving effect to such- disabilities as existed at a particular period; to wit, at the time when the right of action first accrued, to the person claiming it. The question, who is the person that, may claim the benefit of the saving clause,, was as much a question of construction under the British-statute, as it is under ours. Good policy — sound legal discernment and the spirit of the maxim, I have already quoted, led the courts of Westminster Hall, long since to determine, that the person to whom-the right first descended or accrued, was: alone, within the saving clause of the statute. That if a right of entry accrued to A,*and he was under no disability at the time, the statute instantly commenced its course, and would not be interrupted by any subsequent disabilities, either in him, or in any person to whom the right might descend, from, or be transferred, by him.

So long therefore as I do not find myself bound either by the terms of our statute, or by any decision of this court to the contrary, 1 must adopt the construction given to the 21 Jae. 1, at least so far as respects the person entitled to the benefit of the saving clause. That person in the present case, was John Clark. The action accrued, (if it ever did accrue) to him; not to the lessor of the plaintiff. The moment Abraham Clark-entered and took possession of the premises, the right; title and cause of action accrued to John Clark. To him the statute immediately addressed itself, and he was the person against whom any period of disability should not be computed. But he was under no disability at that time or at any time after-wards, until he voluntarily parted with his right of action. The statute then, commenced running against him, and against his right of action ; and more than twenty years having elapsed before this suit was brought, it is barred by the statute.

This is all that is necessary to be determined for the decision of this cause. Whether, if John Clark had been under disability when the cause of action arose, and had continued so until his death; and the right had then descended to an infant heir, or a feme covert, the statute would not have been postponed, until the right of action vested in some person capable of suing: or whether if John Clark was under no disability when his right of action accrued, but afterwards became insane, the period of his insanity, ought not be excluded, under the peculiar phraseology of our statute, are questions, which need not now be settled. -But whatever may hereafter be decided upon those points, I cannot believe that the framers of the statute, intended that a person might have a right of action upon a bond, or a record, or a right of entry into lands, and retain that right, unasserted for nineteen years and -eleven months, and then by contracting marriage, or by a voluntary assignment or conveyance to' a minor or feme covert, protract and continue the right of action, for an indefinite period. ■ Such a construction would be repugnant to the name, nature, and design of the statute itself. It would be better, far better, to have no statute at all; for then the courts might quiet law suits and possessions, upon the common law doctrine of presumptions.

I am aware that it is no difficult task for a brilliant imagination, strongly to excite our sympathies, as has been done in this case, in behalf of the unhappy woman whose intoxicated and brutalized husband neglects to prosecute her claims; or the helpless and unprotected orphan, or the still more wretched and 'miserable lunatic. But, the same sprightly imagination could be at no loss for materials from which to give us an equally soul stirring picture, of the thousand unfortunate victims, who under the doctrine of cumulative disabilities, may be turned out, houseless and homeless, from the dwellings of their fathers, or the lands they have bought in good faith, and which have been paid for, improved, and adorned, by the labour of their hands, and the sweat of their brows.

In short, the construction contended for, is contrary to the policy of the law and the spirit of the times in which we live. Much of the prosperity of our country, is owing to the facility with which real estate is permitted to change owners, and the security afforded, by the quieting influence of the statute of limitations. Every thing therefore that would impede the transfer of land, or hang doubt and uncertainty upon the validity of its title, would depreciate its value, and retard the improvements of our country. But however that may be, I am very much inclined to believe with the learned and lamented Judge Griffith, that “ it will be found in the end, that all exceptions ought to be abolished: and that twenty years of adverse possession, should be a bar against all the world. “ Imprisonment,” he remarks, “ and beyond seas, have been discarded, and such now are the means and capacities which infants, feme coverts and insane persons, possess to have their rights asserted within twenty years, that it may well be doubted whether much greater injury does not flow' from keeping up these savings, then would follow from the bare possibility, that now and then, a person might suffer from such incapacity.”

In my opinion, the rule to show cause ought to be discharged with costs.

Note: after the foregoing opinion had been pronounced, my attention was directed to the case of Den ex dem. West and al. v. Pine and al. 4 Wash. Cir. C. R. 691,4. In which, Judge Washington says, in his charge to the jury, that “ The act of 1799, may be dismissed, with a single observation, which is, that if this be the only act, w'hich is to govern the case, it does not operate as a bar to this suit; inasmuch as twenty years have not run from the time, when the right of Joseph West accrued, to the bringing of this suit, after deducting the years during which o the 2d Joseph West and his children, the lessors of the plaintiff, were under the disability of infancy. That this deduction is to be made according to the true construction of this act, we understand to be conceded, by the defendants counsel; and indeed we do not see any satisfactory ground, upon which a different construction can be maintained.” The learned judge then proceeds to show, that the act of 1787 was not repealed by that of 1799, and that the plaintiffs were barred by the operation of the former.

The deliberate opinion of that distinguished judge, directly on the point, in a case necessarily involving the construction of the act of 1799, would have a very commanding influence on ' my mind. But it is manifest that the remarks above quoted, were not the result of much reflection. He had understood the counsel, as conceding the point, and it was not necessary to settle the construction of the act, for the determination of that cause. I see therefore nothing in the case to shake my confidence in the opinion delivered.

Ryebson, J. The great question in this cause, relates to the construction of our statute of limitation.

By the act, Rev. Laws, 411, Section 9,10, the right of entry into lands is taken away, and all actions for the recovery thereof, barred by the laps# of twenty years. To these sections are .annexed provisoes — “ That the time during which the person who hath, or shall have such right or title of entry, ~(or such right or title, or cause of action) shall have been under the age of twenty-one years, feme covert, or insane, shall not be taken or computed as part of the said limited period of twenty years.” These provisoes it will be observed, are clothed in very different language from that of the statute, 21 Jac. 1 on the same subject. In the English statute, disabilities existing at the time of the right, or cause of action first accrued, are alone recognized; and that too by the express words of the statute. Hence no subsequent, successive, or cumulative disabilities are allowed in its construction. Cru. Pig. 3d vol. Tit. 31. Ch. 2, sec. 50, 51, &c; Doe v. Jones, 4th Term, R. 300; Demarest v. Wynkoop, 3 John. Ch. R. 129. And whenever the limited period has begun to run, it is not arrested by the happening of any of the disabilities mentioned in the statute. ° But the language and structure of our statute, are so far variant as at least to render plausible the position that an entirely different xuxle was intended. This.seems to deprive us of the aid ordinarily derived from English jurists, ixxsettlixxg the constructioxx of our statxxte. The privation is the more severely felt, as xxo assistance caxx be derived froxn adjudicatioxxs ixx sister States, to xvlxich I have had access. In 'xxxost of the States, their enactments differ in their phraseology so much from ours, so far as this poixxt is concerned, that all the decisioxxs seexn alike inapplicable. There is one point however, in which all the adjudications to which I have had access, on this subject, closely resemble each .other. This is the strong dispositioxx manifested, to give efficacj'to the statutes, and not to extend their exceptiorxs by constrxxction. The peace of society is not aloxxe concerned: but the due cultivation and improvement of our lands, so much dependr ent, ixx this couxxtry at least, on a qxxiet title, is also an object of very great private and public interest.

What meaning then, are we to affix to our statxxte ? Who are to possess the protection of its saving clauses ? Is it to be-confined to oxxe person, or a dormaxxt claim left to “ travel through minorities for two centuries,” or more ? And again, is a female claimant xxot oxxly to be allowed to strike out of the account her twenty years of non-age, but also her some forty* fifty, or even sixty years of coverture, and transmit this dormant claim to her heirs, to remain in full force in their hands for the entire period of twenty years allowed by the statute ? And when at the close of nineteen years, time and the statute are about to shed their tranquilizing influence over the parties and their titles, shall the death of one, and a descent of his right on his infant heir, suspend the whole process for at least twenty years more? Nay, what is still more intolerable, and nearer' to the case before the court, shall a man against whom the statute has almost completed a bar, by a voluntary conveyance to some infant member of his family, child or grandchild* wholly defeat the object of the legislature, for any period o£ time, not exceeding an entire minority, which he thinks proper ? These questions present themselves under the plaintiff’s com struetion of the statute. They are certainly important, if not difficult.

But after the most mature consideration which I am capable of giving this subject, I conclude, that the words in the proviso, “ The person who hath, or shall have such right,” &c. must be restricted to the person who had it, when the cause of pction or right of entry first accrued. The statute (in the enacting clause,) never could have been intended to mean, (and has nevei been so construed) that any and every person successively who might acquire a right of entry, by descent or purchase, should have his twenty years in which to make his entry or bring his action. The words have always been restricted, and without a shadow of doubt, as to the correctness, to the person to whom the right first accrued. Not that every person to whom it may subsequently come by descent or purchase, shall have the twenty years from the time it first accrued to him. If a man be dispossessed of lands and remain out of possession te'ii years* and then claim his right, ox dying cast it on his heir, by this descent or alienation, a right of entry, or of action hath accrued to the alienee, or heir. And the general language of the statute would seem at first not to prohibit his entry at any time within twenty years from his acquisition. But this has never been held the true meaning. But the enacting dause, is quite as broad and general in its terms, as is the proviso. If the former is to be restricted in its terms, why not the latter ? By “ the person who hath such right or title,” in the proviso, should be understood, the person who first hath it, who was ousted or dispossessed, and not he or they to whom the dormant right may be aliened, or descend. It is the claimant, and the situation of the claimant, to whom the cause of action or of entry originally arose, to whom, and which, the statute in both its sections and their provisoes, hath regard, and to none other who may have become interested by operation of law, or the merely voluntary action of the parties. In fact, the utter injustice and departure from the spirit of the statute, resulting from the allowance .of a disability voluntarily interposed, raises a strong presumption, that no interpretation of the proviso, of which that would be the consequence, can be true, or in accordance with the intention of the legislature. The statute is too general to admit of a distinction between voluntary, and involuntary disabilities, unless by merely judicial legislation, which ought not at this day, to receive the sanction of the court. Again, it may be observed, the proviso is in the singular number. But one person, according to its literal reading, is allowed his non-age, or other disability. The words are, “ the-person,” and not the person or persons “who hath or shall have such right,” &c. May we not thence infer, that the design of the legislature was, to extend the operation of the proviso to a sipgle person, and not to a succession of persons ? Nor does the proviso of the act employ the language, the person, his heirs or assigns, or any equivalent expression; which certainly would be very appropriate, if not necessary, if it were intended to embrace such succession of persons within the same. And the constant practice of the legislature of multiplying words, to express more fully their meaning, even in cases of less necessity than the present, strengthens the argument, that in this case there did not exist such intention, which additional words might have been appropriately employed to communicate. (Vide our acts of Assembly, passim.) I conclude therefore, that in enacting the statute in question, our legislature had in their view, the disability of one person only, the person ousted, or to whom the cause of action, or right of entry first accrued. It may also he observed, although not necessary to the decision of the cause, or the point in question, that it would seem to result from this mode of viewing the subject, that the disability to be regarded, is only such as existed at the time the right of action or of entry first accrued, to the exclusion of all subsequent, or cumulative disabilities. This however, is a mere suggestion not a settled opinion.

It seems our statute has now existed for more than thirty-seven years without any judicial construction of its novel language. At least I have heard of none, except some recent opinions at Nisi Prius, given more to bring up the question, than to declare the law. This not only adds to the embarrassment, but to the responsibility, of the judgment now to be pronounced. Mr. Griffith in his Law Register, 4th volume, 1268,9, has noticed the peculiarity of the language. He has also given an opinion on its construction, from which however, I am constrained to differ. He expressed his wonder, that Judge Paterson, the penman of the statute, “ ventured to introduce so novel and hazardous a change.” If Judge Griffith be right in his view of the statute, that all disabilities, •successive, cumulative, and voluntary, are entitled to the protection of the saving clauses, Judge Paterson, and all concerned in its passage, are indeed to be wondered at. But if they meant no such change in the law, but, only to simplify its language, the wonder is at an end.

I can, on the whole, find no error in the instruction given to the jury, involving this question. And this conclusion, renders it unnecessary to look into the other questions, discussed at the bar of the court. The rule to show cause, &c. must be discharged, with costs.

Ford, J. In the year 1796, John Clark became seized in fee simple of a house and five acres of land, and occupied them from thence until the year 1804 ; he then absconded, leaving his wife and children in possession, and they continued on the place, after he left them, peaceably, until the year 1810, when Abraham Clark made a forcible entry, turned out the wife and children, and began an adverse possession. This he transferred to Samuel Richards, and Samuel transferred it to Augustus Richards the present defendant, who had, at the time this action was commenced against him, a possession of twenty-two years adversely to the title of John Clark. This John Clark never returned to his family, but by his deed of the 20th of December 1816, for valuable consideration, he sold and conveyed the said premises to his son Joseph Clark, a minor under the age of twenty-one years; he was born the 24th of December 1798, and at the time of his purchase was eighteen years old and no more. By this deed he acquired the legal title to the laud, and had an immediate right to enter and maintain an ejectment. But he delayed to sue ; he did not bring the present action tjll May term, 1832, by which time Augustus Richards, and those under whom he claims, had been in adverse and peaceable possession for a period of twenty-two years. And the defendant sets up the statute of limitations as a bar to the plaintiff’s action. The statute enacts, “ That no person who hath or shall, have any right or title of entry into any lands, shall make any entry therein, but. within twenty years next after .such right or title shall accrue, and such person shall be barred from any entry afterwards.” Rev. Laws, 411, see. 9. But the plaintiff claims a deduction of three years, for the time he was under age, leaving, instead of twenty-two, only nineteen years of adverse possession ; whereas the statute requires twenty full years to constitute a bar. The proviso in the above statute is, . “ that the time, during which the person, who hath or shall have such right or title of entry, shall have been under the age of twenty-one years, feme covert, or insane, shall not be taken or computed as part of the said limited period of twenty years.”

The meaning of the act and proviso seem to me to be this: that any person who has a good title to land in the possession of another, shall enter and bring his action to enforce that title within twenty years from the time it accrued, or such title shall be barred forever, but the time during which the owner of -such title may have been under age shall not be computed as any part of the said twenty years; there shall be twenty years beside if. After the utmost consideration that I can give to this proviso, the words of it convey no other meaning to my mind. In computing the twenty years there is a certain description of time which shall not be reckoned; it is called the time during which the person shall have been under the age of twenty-one years ; it is the time of infancy or minority ; advantage shall not be taken of any default of an infant to sue; he is not able by law to contract or deal for himself; he wants knowledge; he is reckless ; he has no circumspection; he wants prudence and discretion; he has not come to his estate, dor the means of carrying on a lawsuit against men of age, craft and subtility; and his neglect to sue shall be pitied and forgiven rather than be punished by a forfeiture of his land.

The next question is, whose infancy shall not be computed as part of the said twenty years ? The proviso describes him thus —“'dhe person who SHALL have such right or title of entry ”; he who hath the right of entry when it first accrues, or he who shall have it afterward t If a man of full age, sixteen years after being turned out of possession, die, and the right descends to his infant son, a child swinging in the cradle, the time of that child’s infancy shall not be computed, in reckoning against him the said limited period of twenty years; for if it were otherwise, the consequence would be, either that its estate must be forfeited, or, the child must bring an ejectment before it is four years old, not knowing good from evil, or its right hand from its left. The proviso does not employ an ambiguous word, on which my utmost ingenuity can raise a doubt, nor would one ever have arisen, had it not been for the proviso in the British statute, of 21 Jac., eh. 16 ; and yet it is necessary only to state the statute of James, in order to see the difference between them. It runs thus: “provided, that if any person that hath or shall have sueh right or title of entry, be or shall be, at the time the said' right or title first descended or accrued, within the age of twenty-one years, feme covert, non compos mentis, imprisoned, or beyond seas; then sueh person, and his heir, shall or may, notwithstanding the said twenty years be expired, bring his action or make his entry, as he might have done before this act, so as sueh person or his heir, shall, within ten years next after his or their full age, discoverture, coming of sound mind, enlargement out of prison, or coming into this realm, or death, take benefit of, and sue forth the same; and at no time after the said ten years.” Bac. Abr. Limitation of actions, B. I will not stop to prove that our legislature had a right to vary from the British statute; nor need I stop to prove, by an elaborate comparison of the two provisoes, that- they did vary from it, for they are so utterly unlike as to have little or no similarity. The British proviso has a -saving for persons imprisoned, or beyond seas, whereas our’s has none for either of them. One allows only ten years after the first imbecility shall have ceased, ours deduct the whole time of imbecility, and no more, from twenty years. But there is another variance greater than all the- rest. The British proviso saved none other, by its express words, than the person to whom the right of entry “ first accruedIf that first person lay under no disability, the statute began to run. If by his unfortunate death, the right of entry descended to an infant, a lunatic or feme covert, the statute paid no regard to the incapacity of these secondary persons ; the poor infant was left to bring an ejectment before it could tell its name ; no pity for a heaven-struck lunatic ; if a married woman could not persuade her drunken or brutal husband to go to law for her estate, it was barred ; once the British statute began to run, it pursued its reckless course, like the car of Juggernaut and crushed infants, lunatics and married women as unpitied victims if they lay in its way. But when our legislature came to revise that statute, the words “ first accrued ” were entirely-abolished, so that the proviso should extend to “ the person who hath, or shall have, the right of entry,” and if such person, (without distinction of first or second to whom the right accrued,) be an infant, lunatic or feme covert, the time during which he or she was such, shall not be computed as any part of the limited period of twenty years.

The statute of James uses the word “ first ” accrued. If the person to whom the right of action first accrued was under a disability, that proviso saved him; but the word let in none subsequent to him. It was impossible for a subsequent one to be the first, and therefore impossible to save him under that proviso. If the first was under no disability the statute began to run against him, the instant the cause of action accrued to him. If he died the next day, leaving his son and heir not a week old, the infant would not be the first to whom the right of action accrued, for his father had it before him; and therefore it was held that the infant could not take the benefit of the proviso; he was not within the letter or meaning, which applied to none but the first; and on this ground it became a settled rule, that if the statute once began to run, it did not stop again for disabilities subsequent to the first, but run over and disregarded them all. Idiots, lunatics, and married women, wore left to forfeiture in the same manner; the will of the former to sue for their rights being denied to them by the act of God, and taken away from married women by the act of the law itself, yet that merciless proviso afforded them no relief. This rule, that when the statute of James once began to run, it could not stop for any subsequent disabilities, must have been well known by that able civilian "who was entrusted to revise the British statutes, as well as that it unavoidably resulted from the all potent word “first,” in that proviso. To suppose that great man was ignorant of the English rule, and of the remarkable word on which the harshness of it depended, would be a gratuitous calumny, which no person of that generation would harbor in his mind ; it would extend also to several learned jurists who had seats in the legislature at the time of the revision. The casting away of that potent word, and introducing nothing instead of it into our proviso, shows an intent of the legislature that the English rule, and the very foundation on which it rested, should be done away. No attempt was made to amend the English proviso in form or substance ; they discarded it altogether, and drew one entirely anew, admirable for conciseness, simplicity and accuracy, extending its benefits to every owner equally, while under a disability to sue. The time of infancy under the English proviso, was computed in all cases save one; our proviso is ihat the time of infancy shall not be computed in any case, and I am bound to adhere to the written law of the State, even if T deemed it an inexpedient one. Admit that a female infant, having the right of entry, becomes a feme covert before she is twenty-one, and dying, after a long life, transmits the right of entry again to an infant heir ; the greatest hardship of their successive incapacities to sue, falls on themselves; they lose the enjoyment of a lawful estate, and a natural decay takes place during the whole time, of the evidences of their title, and multiplies the chances in favor of the wrong-doer, who takes, in the mean time, all the profits of their land, without a scrap of title or right. If the magnitude of the evil were greater to a wrong-doer, and to those claiming under him, than it is, the enormous evil the other way would have to be incurred, viz : that the public law should deprive a poor muttering lunatic, for instance, of his rightful estate.; not for any crime, but merely because the providence of God will not give him the sense to sue for it. The legislature must have weighed every word of this proviso with more than ordinary care, as they employed the same words, four times running, to qualify four successive sections, by repeating them over, at the end of each one, in this same act. If we adopt the English rule, that, when the statute onee begins to run, no disability arising afterward, can stop it, we shall contravene, as it appears to me, every word in the proviso. Suppose this John Clark, on hearing that his wife and children were turned out of doors, into the street, had become insane ; and after being so twenty years, had recovered his senses ; the proviso says that “ the time during which the person (who hath the right of entry) shall have been insane, shall not be computed ; a judicial decision that it shall be computed, repels the statute in express terms. A statute may not be resisted (except it be 'unconstitutional) for any reason whatever, much less because another country has a different rule that is supposed to be better.

On the whole case, Joseph Clark is the Iona fide owner of the land, unless his title is barred by length of time; but as the time of his infancy cannot be computed against him under the proviso, there is not enough time without it to make out the twenty years, therefore there ought to be a new trial. Then if the defendant really has a title under the attachment, he will have another opportunity to show it r and I am fully satisfied that the minutes of a court are competent evidence of their proceedings in attachment.

Rule discharged.

Cited in Thorpe v. Corwin, Spencer, 314; Howell v. Howell, Id. 413 ; Pinckney v. Burrage, 2 Vr. 26.