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years, and that the plaintiff sued the executor within a reasonable time after probate granted. The death of the party to or against whom an action has accrued will not suspend the statute;' not even if the heir or devisee be under a disability will the running of the statute in such case be arrested.

§ 425. Where a statute limited the time for suing, but gave a further period to persons abroad, after they returned, it was construed as giving that additional time to the executor of a person who never returned but died abroad.* A Vermont statute of limitations provided that when any suit shall fail by reversal, on writ of error, motion in arrest of judgment, plea in abatement or on demurrer, and “the merits of the cause shall not be tried,” the plaintiff may, from time to time, commence another suit within one year after such judgment reversed, etc. In Phelps v. Wood the court, by Redfield, J., said: “It is evident this exception, or proviso of the statute, was intended to reach all those cases where a suit was brought and the merits of the action failed to be tried, without the fault of the plaintiff, and the period of limitation had become complete during the pendency of the suit. So that the present suit is clearly within the equity of the proviso, although not strictly within its terms. It may be said, too, that should a suit be abated, without a plea, but on motion, as may sometimes be done, the case would not come within the exception. The same is true where the plaintiff is compelled by some error in pleading, variance, or otherwise, to become nonsuit, without his own fault. And no doubt these and many


not coming technically within the terms of the proviso, would still be held to come within its equity.”6 If the cause of ac

1 Rhodes v. Smethurst, 4 M. & W. ogous instances from the reports. He 42.

puts them on the ground that the 2 Daniel v. Day, 51 Ala. 431. statute of limitations is founded on 3 Meeks v. Vassault, 3 Saw. 206. an arbitrary presumption of pay

4 Townsend v. Deacon, 3 Ex. 706; ment. “These cases," he says, “ are Forbes v. Smith, 11 id. 161.

all decided upon the principle of re59 Vt. 399.

garding the spirit and intent of the 6 This case sanctions a latitudinary statute rather than a strict interpreconstruction to except cases on the tation of its terms. We are inclined equity of the statute, and is not in to adopt the same doctrine here, beharmony with the general current of cause we think it just and well warauthority of that state in that regard. ranted by decided cases in reference The learned judge gives several anal- to this subject. As a general rule I

tion accrues after the intestate's death it has been considered in some cases as existing only from the time there was some one capable of suing, and hence that the statute commences to run only from the grant of administration.

$ 426. The statute of James I. was “worded very loosely;"2 and its beneficial operation during the long period it has been in force has been ascribed to its liberal interpretation. Mr. Wood in his valuable work on limitations thus succinctly epitomizes some instances of that liberal construction: “Although there is no express mention of the action of assumpsit, which was at the period of its enactment the most important of all actions, yet as it was clear that this omission was unintentional,' it was construed as embracing that action by fair intendment, and as coming within the reason of the statute, and also as coming under the head of trespass on the case. So,

should be averse to adopting such a entire body of the statute has become rule of construction, as being unsafe emasculated, and the will of the juand unsatisfactory. But statutes of diciary substituted for that of the limitation regard the remedy, and, legislature. How much more in keep being founded upon an arbitrary ing with the legitimate exercise of ground of presumption, require to be judicial functions are those cases liberally expounded to prevent in- where it has been held that the courts justice."

can create no exceptions where the Tynan v. Walker, 35 Cal. 634, con- legislature has made none." tains a strong protest, well supported 1 Fishwick v. Sewell, 4 H. & J. 399; by authority, against implied excep- Geiger v. Brown, 4 McCord, 423; tions to the statute of limitations on Aritt v. Elmore, 2 Bailey, 595; Clark the theory that the cases were within V. Hardiman, 2 Leigh, 347. See the reason of the exceptions for Tynan v. Walker, 35 Cal. 634. which the statute itself provided; 2 Parke, B., in Inglis v. Haigh, 8 M. the allowance of such exceptions & W. 769; Wood on Stat. Lim. $ 16. "overturn,” says Sanderson, J., "the 3 Wood on Limitations, sec. 16. maxim that courts are authorized 4 Denman, C. J., in Pigott v. Rush, to declare the law only, and not to 4 A. & E. 912. make it. If they may add at all to 5 Harris v. Saunders, 4 B. & C. 411; the exceptions provided for in the Bac. Abr. title Limitations, E. I.; statutz, under the pretense that the Leigh v. Thornton, 1 B. & Ald. 625; case before them is of equal equity Beatty V. Burnes, 8 Cranch, 98; with those given in the statutes, who Chandler v. Villett, 2 Saund. 120; is to fix the limit of their interpola- Haven v. Foster, 9 Pick. 112; Crosier tions, or establish the line between V. Tomlinson, 2 Mod. 71; Baldro v. legislative and judicial functions? Tolmie, 1 Oregon, 176; Williams v. If they may add one to the list of ex- Williams, 5 Ohio, 444; Maltby V. cepted cases, by parity of reason they Cooper, Morris (Ia.), 59. may add another, and so on until the

too, although the saving clause in cases of disability does not in terms mention any actions on the case except actions on the case for words, yet it has always been construed as extending to all actions on the case from the manifest inconvenience of a contrary construction.”! The general rule is, undoubtedly, that the statute of limitation begins to run against a party immediately upon the accrual of the right of action, and continues to run, unless he was then under a disability mentioned in it, or its running is prevented or arrested by some fact specified for that effect in the statute.?

$ 427. Where the legislature has made no exception the courts of justice can make none, as this would be legislating.” The insolvency of the defendant or the plaintiff's want of means to prosecute a suit, or his bankruptcy, will not suspend or prevent the running of the statute. But one implied exception has been extensively recognized, namely, that the statute does not run during a period of civil war as to matters of controversy between citizens of the opposing belligerents.” Another example of avoiding a positive statute upon grounds of equity is afforded by those cases in which courts of equity give effect to unwritten contracts relating to lands on the ground of part performance. The great object of the statute of frauds is clearly expressed in the title prefixed to it. It is for the prevention of frauds and perjuries. It is not, therefore, to be presumed that it was intended in any instance to

i Wood on St. of Lim. sec. 16. lard, 16 Wend. 572; Sands v. Camp

? Wells v. Child, 12 Allen, 333; The bell, 31 N. Y. 345. In North Carolina, Sam Slick, 2 Curt. 480; Harrison v. it was held in Vance v. Grainger, Harrison, 39 Ala. 489; Dozier v. Ellis, Conf. 71, that where the evidence of 29 Miss. 730; Barnes v. Williams, 3 debt sued on had been detained in Ired. L. 481; Warfield v. Fox, 53 Pa. the hands of a master by order of a St. 382; Bucklin v. Ford, 5 Barb. 393; court of equity, the statute was meanSacia v. De Graaf, 1 Cow. 356: Pryor time suspended. v. Ryburn, 16 Ark. 671; Favorite v. 3 Bank v. Dalton, 9 How. 522; Booher, 17 Ohio St. 548; Howell v. McIves v. Ragan, 2 Wheat. 29; Hair, 15 Ala. 194; Conover v. Wright, Troup v. Smith, 20 John. 33; Callis 6 N. J. Eq. 613; Clark v. Richardson, v. Waddy, 2 Munf. 511; Hamilton v. 15 N. J. L. 347; De Kay v. Darrah, 14 Smith, 3 Murphy, 115. id. 288; Thorpe v. Corwin, 20 id. 311 ; * Mason v. Crosby, Davies, 303 : Pinckney v. Burrage, 31 id. 21; Kist- Harwell v. Steel, 17 Ala. 372. ler v. Hereth, 75 Ind. 177; Parsons v. "Wood on St. Lim. $ 6; $ 368, ante. McCracken, 9 Leigh, 495; Rogers v. 6 2 Story's Eq. $ 752 et seq. Hillhouse, 3 Conn. 398; Barker v. Mil

encourage fraud, and we may infer that any construction which would have a certain tendency to do so would counteract the design of the legislature by advancing the mischief intended to be prevented. As the statute was intended to prevent frauds and perjuries, any agreement in which there was no danger of either has been held to be out of the statute;ż or if within the statute, it is taken out when specific performance is necessary to prevent fraud, as in case of one party refusing to perform when the other had partly performed.

$ 428. Statutes which are to be liberally construed will, like all others, be so construed as to exclude all cases which, though within the letter, are not within the mischief to be remedied, or the remedial or benign object in view, and, therefore, not within the intention of the law-maker. A statute enacting that any deed from a husband to a wife for her use shall be void as against his creditors, who were such at the time of execution, does not prevent a voluntary conveyance by the husband of a chattel which is exempt from execution.' As this interpretative function, however, of excluding cases and applications which are not within the legislative intention is not peculiar to liberal construction, a few cases by way of farther illustration will suffice. Municipal corporations, by reason of the purposes for which they are organized and for which they raise money and possess property, are excepted by implication from various statutes which apply to corporations generally. They are generally held not subject to garnishment. In some of the states, either by force of statutes

I Wilber v. Paine, 1 Ohio, 117; 2 9 Colo. 204; Covington v. McNickle, Pomeroy's Eq. S 921.

18 B. Mon. 262; Wheeler v. McCor2 Att’y-Gen'l v. Day, 1 Ves. Sr. 221. mick, 8 Blatchf. 267; Maxwell v.

3 Bond v. Hopkins, 1 Sch. & Lef. Collins, 8 Ind. 38; Vane v. Vane, 433; Wilson v. West Hartlepool Co. L. R. 8 Ch. 383; Union Canal Co. v. 2 De G. J. & S. 475; Humphreys v. Young, 1 Whart. 410. Green, L. R. 10 Q. B. Div. 148; Nunn 6 Erie v. Knapp, 29 Pa. St. 173; v. Fabian, L. R. 1 Ch. 35.

Bulkley v. Eckert, 3 Pa. St. 368; 4 Smith v. Allen, 39 Miss. 469. McLellan v. Young, 54 Ga. 399;

5 Commercial Bank v. Foster, 5 La. Mobile v. Rowland, 26 Ala. 498; Ann, 516; Ayers v. Knox, 7 Mass. Hawthorn v. St. Louis, 11 iso. 59; 306; Green v. Commonwealth, 12 Pendleton v. Perkins, 49 id. 565; Allen, 155; Stockett v. Bird, 18 Md. Fortune v. St. Louis, 23 id. 239; Had484; Electro-M. etc. Co. v. Van Auken, ley v. Peabody, 13 Gray, 200; Boone

which indicate the purpose to subject them to such process, or by the courts' refusing to except the reasons operating elsewhere and thereon to accept them by implication, these corporations are liable, like natural persons and other corporations, to garnishment. The revenues of public corporations are the essential means by which they are enabled to perform their appointed work. Deprived of their regular and adequate supply of revenue, they are practically destroyed, and the very ends of their creation thwarted. It is settled doctrine that the taxes and public revenues of such corporations cannot be seized under execution against them, either in the treasury or in transit to it.?

$ 429. The application of the words of a statute may be restrained to bring the operation of it within the intention of the legislature, when no violence is done by such interpretation to the language employed. On this principle the provision that no person shall be sued before any justice except in the township where he resides was held to have no application to a defendant who resided out of the state or in another county. The object of the statute was to prevent justices at the county seat of a county from engrossing the principal business at the expense of the justices of the other townships. “ An act concerning conveyances” provided that every partition of any tract of land or lot made under any order or decree of any court, and every judgment or decree by which the title to any tract of land or lot shall be recovered, shall be recorded;

and until so recorded, such parti

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Co. v. Keck, 31 Ark, 387; Stillman v. v. Hartford, 12 Conn. 404; Wilson v. Isham, 11 Conn. 123; Derr v. Lubey, Lewis, 10 R. I. 285; Wales v. Musca1 MacArthur, 187; Bradley v. Rich- tine, 4 Iowa, 302; Drake on Att (5th mond, 6 Vt.121 ; Parsons v. McGavock, ed.) S 516. 2 Tenn. Ch. 581; Memphis v. Laskie, 2 Dillon on Municipal Corporations 9 Heisk. 511; Burnham v. Fond du (2d ed.), SS 9, 65, and cases cited; ChiLac, 15 Wis. 193; Buffham v. Racine, cago v. Hasley, 25 Ill. 595; Egerton 26 Wis. 449; McDougal v. Hennepin v. Municipality, 1 La. Ann. 435; MuCo. 4 Minn. 184; Merwin v. Chicago, nicipality v. Hart, 6 id. 570; New Or45 Ill. 133; Greer v. Rowley, 1 Pitts- leans, etc. R. R. Co. v. Municipality, burgh, 1; Mayor, etc. v. Root, 8 Md. 7 id. 148. See Smoot v. Hart, 33 Ala 95; Brown v. Gates, 15 W. Va. 131. 69; Newark v. Funk, 15 Ohio St. 462.

| Adams v. Tyler, 121 Mass. 380; 3 Maxwell v. Collins, 8 Ind. 38; Whidden v. Drake, 5 N. H. 13; Bray Wheeler v. McCormick, 8 Blatchf. v. Wallingford, 20 Conn. 416; Ward 267.

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