uses.

the officer; for in construing statutes particular words ought not to be permitted to control the evident meaning of the context.1 The English statute of mortmain in terms forbade disposition of land to charities by other means than a deed executed a year before the grantor's death, and hence it was claimed, but without avail, that the statute did not apply to copyholds. "If it were perfectly clear," say the court, "that it was impossible for the mode of conveyance pointed out by the statute to be adopted in the case of copyhold, the only consequence that would follow would be that the statute would absolutely prohibit any conveyance of copyhold to charitable But it would by no means be a legitimate consequence that copyhold lands could lawfully be conveyed without the formalities required by that act. The act was passed for the sake of public policy and to prevent persons from conveying their lands to charitable uses in a secret manner at or near to the time of their death." It was suggested by the court that, "admitting that there could not be an operative bargain and sale [in case of copyhold], still the parties might at least have attained the object of notoriety by executing a deed declaring the uses of the surrender in the mode required by the statute." In Maryland, in addition to the ordinary bonds of executors, a statute provided for a bond on the giving of which they were relieved from exhibiting any inventory or account. This bond was conditioned for paying all just debts of and claims against the deceased, and all damages which might be recovered against him as executor, and also all legacies bequeathed by the will. All actions upon administration and testamentary bonds were required by the statute of limitations to be brought within twelve years after the giving of the said bonds and not after. It was held that the bond so provided for was a testamentary bond to which the limitation applied, though not provided for until after the enactment of the limitation law.*

§ 424. In several cases where suit has been brought within the period of the statute of limitations and has abated by death or marriage of one of the parties after the expiration of that period, a new suit commenced within a reasonable time

1 Williams v. McDonal, 3 Pin. 331.

2 Doe v. Waterton, 3 B. & Ald. 149.

3 Act 1798, ch. 101, subch. 14, § 6. 4 State v. Boyd, 2 Gill & J. 365.

by the party to or against whom the action survived has been maintained unaffected by the statute, though it contained no saving for such a case. 1

The nineteenth section of 4 and 5 Anne, chapter 16, provides that if any person or persons against whom a cause of action existed, or any of them, were beyond the seas, the statute of limitations should not commence to run until their return. Where one joint contractor died abroad, it was held that the statute did not begin to run until his death, and that, within

six years from his death, an action might be brought against his co-contractors; for though such a case was not within the literal words of the section, it was within their equity.' It has also been held that where a defendant has pleaded a partnership in abatement and the plaintiff commenced a new suit within a year and a day after the first writ was quashed, the bar of the statute did not apply; that the statute did not run after the commencement of the original action. These decisions seem to proceed upon the cases interpreting old English statutes by their equity. There may be reason in England for adhering to the early decisions while the same statute continues in force, and in any other jurisdiction adopting the same statute, and therefore, presumably, adopting it with the home construction. Crompton, J., said: "I look upon the construction of old statutes as law not to be interfered with; it has been acted upon, and the legislature have taken it for granted. We are therefore to abide by the old decisions." held to be no answer to the plea of the statute of limitations that after a cause of action accrued, and after the statute had begun to run, the debtor, within the six years, died, and that by reason of litigation as to the right of probate an executor of his will was not appointed until the expiration of the six

1 Towns v. Mead, 16 C. B. 123, 134, 141. See Townsend v. Deacon, 3 Ex. 706; Forbes v. Smith, 11 id. 161. The charter of a commercial corporation restrained the making of debts owing at the same time, exceeding three times the amount of stock paid in, and provided that the directors should be personally liable for the excess, as well as the company. On the question whether such a liability of the directors came within the six months' limitation for bringing actions for penalties, fines and forfeitures, it was held that the statute was not penal, but remedial; therefore that it was not within that provision of the statute of limitations. Neal v. Moultrie, 12 Ga. 104.

But it is

3 Curlewis v. Mornington, supra. This is well illustrated by the interpretation given in this country of the borrowed phrase "beyond seas”— out of the state: Murray v. Baker, 3 Wheat. 541; Forbe v. Foot, 2 McCord, 331; Shelby v. Guy, 11 Wheat. 361; Bank of Alexandria v. Dyer, 14 Pet. 141; Pancoast v. Addison, 1 H. & J. 350; Wakefield v. Smart, 8 Ark. 488; Denham v. Holeman, 26 Ga. 182; Stephenson v. Doe, 8 Blackf. 508; Galusha v. Cobleigh, 13 N. H. 79 ; Richardson v. Richardson, 6 Ohio, 125; West v. Pickesimer, 7 id. 235. Or out of the United States: Mason v. Johnson, 24 Ill. 159; Marvin v. Bates, 13 Mo. 217; Fackler v. Fackler, 14 id. 431; Keeton v. Keeton, 20

2 Downing v. Lindsay, 2 Pa. St. id. 530; Gonder v. Eastabrook, 33

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.3

§ 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 other cases, not coming technically within the terms of the proviso, would still be held to come within its equity." If the cause of ac

1 Rhodes v. Smethurst, 4 M. & W. 42.

2 Daniel v. Day, 51 Ala. 431. Meeks v. Vassault, 3 Saw. 206. 4 Townsend v. Deacon, 3 Ex. 706; Forbes v. Smith, 11 id. 161.

59 Vt. 399.

This case sanctions a latitudinary construction to except cases on the equity of the statute, and is not in harmony with the general current of authority of that state in that regard. The learned judge gives several anal

ogous instances from the reports. He puts them on the ground that the statute of limitations is founded on an arbitrary presumption of payment. "These cases," he says, “are all decided upon the principle of regarding the spirit and intent of the statute rather than a strict interpretation of its terms. We are inclined to adopt the same doctrine here, because we think it just and well warranted by decided cases in reference 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;" 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.3 So,

should be averse to adopting such a rule of construction, as being unsafe and unsatisfactory. But statutes of limitation regard the remedy, and, being founded upon an arbitrary ground of presumption, require to be liberally expounded to prevent injustice."

Tynan v. Walker, 35 Cal. 634, contains a strong protest, well supported by authority, against implied exceptions to the statute of limitations on the theory that the cases were within the reason of the exceptions for which the statute itself provided; the allowance of such exceptions "overturn," says Sanderson, J., "the maxim that courts are authorized to declare the law only, and not to make it. If they may add at all to the exceptions provided for in the statute, under the pretense that the case before them is of equal equity with those given in the statutes, who is to fix the limit of their interpolations, or establish the line between legislative and judicial functions? If they may add one to the list of excepted cases, by parity of reason they may add another, and so on until the

entire body of the statute has become emasculated, and the will of the judiciary substituted for that of the legislature. How much more in keeping with the legitimate exercise of judicial functions are those cases where it has been held that the courts can create no exceptions where the legislature has made none."

1 Fishwick v. Sewell, 4 H. & J. 399; Geiger v. Brown, 4 McCord, 423; Aritt v. Elmore, 2 Bailey, 595; Clark v. Hardiman, 2 Leigh, 347. See Tynan v. Walker, 35 Cal. 634.

2 Parke, B., in Inglis v. Haigh, 8 M. & W. 769; Wood on Stat. Lim. § 16. 3 Wood on Limitations, sec. 16.

4 Denman, C. J., in Pigott v. Rush, 4 A. & E. 912.

5 Harris v. Saunders, 4 B. & C. 411; Bac. Abr. title Limitations, E. I.; Leigh v. Thornton, 1 B. & Ald. 625; Beatty v. Burnes, 8 Cranch, 98; Chandler v. Villett, 2 Saund. 120; Haven v. Foster, 9 Pick. 112; Crosier v. Tomlinson, 2 Mod. 71; Baldro v. Tolmie, 1 Oregon, 176; Williams v. Williams, 5 Ohio, 444; Maltby v. Cooper, Morris (Ia.), 59.