95 CHAP. III. Of the Proviso contained in the second Section. THIS statute provides,(a) that if any person entitled to a writ of formedon, or having a right to enter, be, at the time of such right or title first descended, within age, feme covert, non compos mentis, imprisoned, or beyond the seas, such person and his heirs may, notwithstanding the twenty years be expired, bring his action, or make his entry, as he might before, so that he sue forth the same within ten years after the disability removed, or the death of him having the right. It is to be observed, that the statute of limitations only runs in bar of the action or right therein mentioned; but if the plaintiff have a right of a higher nature, if he can maintain a writ of right for the same lands into which he could have entered but for the statute, he may do so notwithstanding; so that he prosecute such right within(6) sixty years of the seisin of his ancestor for a bar(c) is of the particular action, or of any of the same nature or degree only, and not of any action of a higher nature; which makes this difference between the statute of limitations and the statute of fines; under the latter, a fine duly levied, and non-claim, bars every right; but the former, in many cases, bars only a specific remedy. (c) Co. Litt. 303, (a) 2d section. (b) 32 H. III When the statute begins to run, no subsequent disability stops it; therefore, if the person, at the time of the accruing of the right, could have made his entry, or brought his action, though he should be immediately after imprisoned; or if, when the right accrued, he were under any disability, which was removed, and shortly he should fall under some other, the right of action or entry is not saved to him. In Doe,(a) on the demise of Count Duroure, against Jones, it appeared on the special verdict, that in Trinity term, 1775, a fine sur conusance de droit come ceo, &c. was levied of lands between C. Langlois, plaintiff, and the defendant, deforciant; and the last proclamation of that fine was in Easter term, 1776. The lessor of the plaintiff, when the fine was levied and proclaimed, was an infant, but attained the age of twenty-one on the 26th of February, 1784 he was then at large in England, and continued so to be until the 17th of December, 1784, when he was arrested, and imprisoned for debt; and was kept and detained in prison continually from that time until the 16th of September, 1789; and on the 17th day of that month, he, claiming title to the premises in question made an actual and personal entry thereon, in due form of law to avoid the fine, and ejected the defendant, &c. In argument for the plaintiff, a passage was cited from Shep. Touch. 30. from whence it should seem that the party is not bound by the fine, unless he have five entire years to make his claim free from any of the disabilities mentioned in the act, except where such disability is incurred by his own voluntary, act; for, speaking of (a) 4 T. R. 301. absence out of England, it says, that if a party be in England at the time of the fine levied, and after go beyond seas, and suffer the five years after the proclamation to pass, in this case he shall have no longer time, except he be sent in the king's service, and by his commandment; which, it was argued, seems to mark a distinction between voluntary and involuntary disabilities; and supposes, that in the latter instance, the fine would not continue to run, although the party was in England when it first began to have its operation. Now imprisonment must be considered as equally involuntary with the case there put; and is so considered in Plowden, 366. where it is said, that taking husband, or going beyond the seas, are voluntary acts; but insanity of mind, and imprisonment, are against the will of the party: then, what ought to be the construction of the court so as best to answer the intention of the legislature? In introducing those exceptions, they certainly intended that the parties labouring under the disabilities mentioned, should have the full benefit of the indulgence given them. Every reason which operated for the exception in the first instance, is equally urgent as to any subsequent disability. This act was intended to allow all such persons five years clear from any of the disabilities mentioned: the words imply as much; and as the act was restrictive of the right which such persons had before, it ought to be construed literally and strictly. Lord Kenyon, Ch. J. The two questions which have. been raised in this case are certainly of great importance; though, in my opinion, of no difficulty. It is of importance that it should be known who are deemed naturalborn subjects, on account of the various rights to which they are entitled. It is also important to know how far the operation of the statute of fines extends, not only as it affects questions arising on that particular act, but, also, as it involves in it questions arising on a very beneficial system of statutes, the statutes of limitations: for if we were to suffer any innovation on the established construction of fines, it might also endanger the uniform construction of the other statutes of limitations, which are of the greatest importance, inasmuch as they are statutes of repose. But from the time when I first read this case, down to the present moment, I have not seen any fair reason to doubt on either of these points. His lordship having disposed of the first question, continued-But on the other question, which is of infinitely greater importance, inasmuch as it respects an infinitely greater number of cases, it is not fit that we should be silent, lest our silence should be deemed an acquiescence in the plaintiff's argument. I confess, I never heard it doubted till the discussion of this case, whether, when any of the statutes of limitations had begun to run, a subsequent disability would stop their running. If the disability would have such an operation on the construction of one of those statutes, it would also on the others. I am very clearly of opinion, on the words of the statute of fines, on the uniform construction of all the statutes of limitations down to the present moment, and on the general received opinion of the profession on the subject, that this question ought not now to be disturbed. It would be mischievous to refine, and make nice distinctions between the cases of voluntary and involuntary disabilities; but in both cases, when the disability is once removed, the time begins to run. Ashhurst, J. I also concur with my lord. Our decision is warranted by the uniform construction which has been put upon this statute; and a contrary determination would be productive of all those mischievous consequences which the different statutes of limitations intended to prevent. If the disability be once removed, the time must continue to run, notwithstanding any subsequent disability, either voluntary or involuntary; and even if there were any distinction between the two kinds of disability, the present is against the plaintiff; for the imprisonment for debt was in consequence of his own voluntary act. Grose, J. agreed. Mr. Justice Buller was sitting for the Lord Chancellor. In Doe, on the demise of(a) Griggs and another, v. Shane, at the trial before Gould, J. the defendant set up a fine in order to bar the plaintiff's title. It appeared in evidence, that the person under whom the lessors of the plaintiff claimed, and to bar whom the fine was set up, was of sane mind when the fine was levied, but that he became insane about two years afterwards; and the question was, whether the time continued to run against him while he was in that state? for, if it did not, the lessors of the plaintiff had made their entry in time. A verdict was taken for the plaintiff, with liberty to the defendant to move to enter a nonsuit, in case the court should be of opinion that the party was barred. Erskine was to have shown cause against the rule for entering the nonsuit; but he said, that the current of authorities, on looking into them, was so strong against him, that he (a) 4 T. R. 306-7. |