within those sorts of actions enumerated by this act. This promise was made to the plaintiff when he was but a

day old, and it would be very hard now, after so [184] many years, to charge the executor.

But Turner, Serjeant, argued, that though an indebitatus assumpsit is not within the express words of the proviso, yet it is within the intent and meaning thereof; and so the rule is taken in Beufage's case quando verba statuti sunt specialia, ratio autem generalis, statutum intelligendum est generaliter. And this is a statute which gives a general remedy; and the mischief to the infant is as great in such actions of indebitatus assumpsit as other actions; and therefore, it is but reasonable to intend that the parliament, which hath saved their rights in debts, trovers, &c. intended likewise that they should not be barred in an indebitatus assumpsit. In the case of Smith v. Colshill, debt was brought upon a bond: the defendant there pleaded the statute of the 5 Edw. VI. c. 16. of the selling of offices, the words of which are, "that every bond to be given for money or profit, for any office, or deputation of any office, mentioned in the statute, shall be void against the maker." In that case, the bond was given to procure a grant of the office, and not to exercise the same. Now, though this was not within the express words of the statute, yet the bond was held void: and if it should be otherwise, the mischiefs which the statute intended to remedy would still continue; and therefore, the intent of lawmakers in such cases is to be regarded: for which reason, if actions of indebitatus assumpsit are within the same mischief with other actions therein mentioned, such also ought to be construed to be within the same remedy. But he took the case of Swaine v. Stephens to rule this case at bar; in which case *this very statute was pleaded to an action of [*185] trover; and the plaintiff replied, that he was beyond sea: and upon a demurrer to the replication, the court held trover to be within the statute, it being named in the paragraph of limitation of personal actions, which directs it to be brought within the time therein limited; that is to say, all actions on the

case within six years; and then enumerates several other actions, amongst which trover is omitted: yet, the court were there of opinion that trover was implied in those general words.

And of that opinion was the Chief Justice, and Wyndham and Atkyns, Js. that, upon the whole frame of the act, it was strong against the defendant: for it would be very strange that the plaintiff in this case might bring an action of debt, and not an indebitatus assumpsit. When the scope of an act appears to be in a general sense, the law looks to the meaning, and is to be extended to particular cases within the same reason; and therefore they were of opinion, that actions of trespass, mentioned in the statute, are comprehensive of this action, because it is a trespass upon the case; and the words of the proviso save the infant's right in actions of trespass. And therefore, though there are no particular words in the enacting clause which relate to this action, yet this proviso restrains the severity of that clause, and restores the common law, and so is to be taken favourably; and this action being within the same reason with other actions therein mentioned, ought also to be within the same remedy.

But Ellis, J. doubted whether actions of trespass could comprehend actions on the case; and that, when the [*186] *parliament had enumerated actions of trespass, trover, case for words, &c. if they had intended this action, they would have named it. He said he was for restoring the common law as much as he could, but doubted much whether this proviso did help the plaintiff.

But judgment was given for the plaintiff.[1]

[1] In an action of assumpsit by husband and wife, for services by the wife before and up to the time of her marriage, the defendant pleaded the Statute of Limitations; and plaintiffs replied the coverture of the wife; more than three years had expired after the marriage before the bringing of the suit---Held, that the Statute barred the action, for that the cause of action accrued to the wife

Case(a) against an executor for 501. received by the testatrix. The defendant pleaded the statute of limitations in bar: and

(a) Nels. 74.

before marriage, and her subsequent coverture could not stop the running of the Statute. Killian & wife vs. Watt. 3 Murph. Rep. 167.

A bill was filed against executors calling upon them to account, after a lapse of thirty-five years. Motion to dismiss the bill, on the ground of lapse of time, refused; HALL, JUDGE, delivering the Opinion of the Court, said; "But we must keep it in view, that the "wife was the meritorious claimant; that she intermarried with "William Tate in her minority, and that after the death of her hus"band, (the first moment she became a free agent) she made herself a party to this suit; for this reason I think the suit ought not "to be dismissed, but made dependant upon facts hereafter to "be ascertained at the hearing." Tate, Admr. &c. vs. Greenlees' Admrs. 2 Hawks' Rep. 486. 489.

In a bill for a specific execution, though some of the complainants may be infants when the cause of action accrues, while others are not, such circumstance does not prevent the running of the Statute of Limitations; all the complainants must labour under a disability, or the Statute will run against all. Allen & Al. vs. Beal's heirs, 3 Marsh. Rep. (Ky.) 555.

Where slaves were conveyed to certain trustees for the use of a wife for life, and after her death for the use of her husband for life, and after the death of the survivor then to the children of the marriage equally to be divided, &c. Held, that the children took not only the equitable, but the absolute legal estate, and that if the parents in their life time, be deprived of their slaves and depart this life leaving children under age, the act of Limitations does not run against the children until they attain the age of twenty-one years. Baird vs. Bland & Al. 3 Munf. Rep. 570.

Motion to dismiss a bill filed against an administrator for an account after a lapse of thirty-seven years, disallowed; because complainants were infants at the time of the intestate's death; some of them married during infancy, and were yet femes covert; and the defendant, moreover had induced them by his representations, to believe he would settle without suit. Falls & Al. vs. Torrance, 3 Hawks' Rep. 490.

A plea of the Act of Limitations is not a bar to an action on a testamentary bond of more than 12 years standing, where the per

the plaintiff replied, she was under age at the time of the promise made: and that, within six years after she came of age, she filed an original against the defendant. The defendant rejoined, that the statute of limitations doth not give liberty to one who was an infant to bring an action on the case within six years after he is of age, &c. And upon demurrer and rejoinder, the plaintiff had judgment; and the judgment in this case was given for the reasons in Chandler v. Vilett.

This question was again raised in Rochtschilt v. Leibman,(a) where the plaintiff brought an action upon a bill of exchange, to which the defendant pleaded the statute of limitations, and the plaintiff replied himself beyond seas; to which the defendant demurred.

And Reeve objected, that no actions on the case are within the proviso, but actions on the case for words; and cited Cro. Car. 245. Show. 98.

(a) Str. 836.

son bringing the action does not become of age until 17 years after the date of the bond, and 4 years before the institution of the suit. Welch vs. The State, use of Smith, 5 Harr, & Johns. Rep. 369.

When an infant is coupled in a judgment as defendant with others of full age, and Error is brought by all, after the expiration of a year from the judgment rendered, but within a year from the time the impediment of infancy is removed, the writ of error is not barred by the Statute of Limitations, but is within the purview of the saving clause. Priest & Al. vs. Hamilton, 2 Tylers' Rep. 44.

Wherever the Statute of Limitations is a bar to the recovery of one of the parties, it operates against the whole, because the disability of one does not save the rights of the others. The statute protects the rights of those who are incompetent to protect themselves; but where some of the parties are competent, they ought to take care of the interest of all by protecting a suit within time. Riden & Al. vs. Frion, 3 Murph. Rep. 577.

Parker, contra. Where the words of a statute are general, they are to be understood in that sense.

10 Co. 101.

*It is impossible to think so trifling an action as for [*187] words should be saved, and not those which are

founded on a contract: besides, it has been determined that the proviso extends to this case.

Et per Curiam.-Judgment for the plaintiff.