190. Courts of equity will not interpose if a party slumber upon his right unreasonably, after the detection of fraud, or the means afforded of detection. A purchase made by an administrator of one of the distributees, shortly after the latter became of age, of all his interest in his father's personal estate, the administrator having rendered no inventory of the estate, or stated an account, and the purchase having been made at a grossly inadequate price, was considered fraudulent and voidable, at the election of the distributee, if application had been made for that purpose within a reasonable time afterwards, or within a reasonable time after obtaining knowledge of the fraud. But a court of equity, after the lapse of eleven years from the making of such contract, will not lend its aid to rescind it, and compel the administrator to account; the distributee having, when the contract was made, or soon afterwards, knowledge of circumstances sufficient to put him on inquiry. However true it may be, said the court, that time does not commence running until after discovery of the fraud, if a considerable period of time has elapsed before the discovery of the fraud, the efflux of time already passed should quicken the diligence of one who desired to avoid a contract for that cause, especially in a case where, by the exercise of any diligence, the true state of the case might have been known at an earlier period.1

191. In the case of Harrisburg Bank v. Foster, in Pennsylvania,2 the court, after citing the case in Massachusetts, of Turnpike Company, as authority for their opinion, that fraud may be successfully

three years of the filing of the bill procured a conveyance of the land to himself, and refused to relinquish the possession to the plaintiff,- it was held, that the statute of limitations was no bar to the relief sought for by the bill in equity. Chapman v. Butler, 22 Me. 191.]

1 Johnson v. Johnson, 5 Ala. 90 (New Series, 1844). [Veazie v. Williams, 3 Story (U. S.), 611; Gould v. Gould, Ib. 516; Stokes v. Lebanon, &c., 6 Humph. (Tenn.) 241; Young v. Cook, 30 Miss. (1 George) 320; Browne v. Cross, 7 Eng. Law & Eq. 263. In this case the Master of the Rolls said: "Courts of equity have always considered it of the greatest importance that parties should not sleep on their rights." Champion v. Rigby, 1 Russ. & Myl. 539; and affirmed by Lord Cottenham, 18th March, 1846. If the mere allegation of fraud enabled any one to open transactions many years after he had notice of it, this doctrine might itself be the means of perpetuating the greatest frauds in cases where, the evidence being lost by the lapse of time, an innocent party might be left defenceless. See also Ferson v. Sanger, 1 W. & M. (U. S.) 138; Gilpin v. Smith, S. & M. (Miss.) 109; Keeton v. Keeton, 20 Mo. (5 Bennett) 530; Moore v. Greene, 2 Curtis, C. C. 202; McLure v. Ashby, 7 Rich. Eq. (S. C.) 430.]

2 Harrisburg Bank v. Foster, 8 Watts (Penn.), 12.

replied to a plea of the statute, held, that the cashier of a bank cannot avail himself of the statute to defeat an action on his note by the bank, unless he can show clearly a performance of all his duties in relation to the note, in exhibiting the same as due and unpaid, to the board of directors. The knowledge of the president, or of the individual directors of the bank, that the note was due and unpaid, is not a fact from which negligence can be inferred on the part of the bank, so as to allow the operation of the statute in favor of the cashier.

CHAPTER XIX.

EXCEPTION OF PERSONS UNDER DISABILITIES.

192. It is provided by the seventh section of the statute of James, that if any person entitled to bring any of the personal actions therein mentioned shall be, at the time of the cause of action accrued, within the age of twenty-one years, feme covert, non compos mentis, imprisoned, or beyond the seas, such person shall be at liberty to bring the same actions within the times limited by the statute, after his disability has terminated. A person held in slavery is "imprisoned," within the meaning of the proviso in the statute.2

193. An attempt was made not many years since, by the counsel, in Piggot v. Rush, in the King's Bench, to support a construction of this section of the statute entirely different from the one which had become established. The decision in the case was, that if a party who is under the disability of imprisonment, when the cause of action accrues, commence an action of indebitatus

1 Since the statute authorizing married women to sue, it is held in Maine that the disability of coverture is abrogated. Brown v. Cousens, 51 Me. 301. And of infancy, also, if the married woman be an infant. Thompson v. Craig, 24 Texas 582. Choses in action of the wife, accruing during coverture, vest immediately in the husband the right to sue for them, and the statute then begins to run. Cook v. Lindsey, 34 Miss. (5 George) 451. The statute begins to run against a non compos at the time of a recovery from lunacy, and is not interrupted by a recurrence of the lunacy. Clark v. Trail, 1 Met. (Ky.) 35. So if a feme covert becomes a widow, and marries again; the second marriage does not interrupt the currency of the statute. Mitchell v. Berry, 1 Met. (Ky.) 602.

2 Matilda v. Cranshaw, 4 Yerg. (Tenn.) 299. [And the statute runs from the date of emancipation. Price v. Slaughter, 1 Cin. (Ohio) 429. The party who sets up disability must prove it clearly. Hall v. Timmins, 2 Rich. (S. C.) 120. A person for whose use a suit is brought is entitled to the benefit of any disability to which he would have been entitled had the suit been in his own name. Davis v. Sullivan, 2 Eng. (Ark.) 449. But the grantee of one who could have availed himself of the disability of infancy cannot avail himself of that exception. Williams v. Council, 4 Jones, Law (N. C.), 206. And where a party shows himself within an exception, he will be presumed to remain within it until such time as will take the case out of the statute, unless the contrary appear. Ibid.]

assumpsit, after the time limited by the statute has passed, but during the continuance of the imprisonment, the operation of the statute is barred by the saving clause in this section. But it was contended, by the counsel, that none of the words mentioned. in that proviso, applied to assumpsit; for, although it had been so held,1 yet it was at a time when courts leaned strongly in favor of restricting the operation of the statute; and that latterly it had been construed as one passed "for quieting men's estates and of avoiding suits;" and that many of the early decisions had been overruled on this ground. Lord Denman said, the court could not overrule the cases, which had decided that the action of assumpsit was included in the statute; and, though he thought them rather wrong, the omission was so palpably unintended, that the courts were perhaps justified in straining the language. Littledale, J., said: "We are bound by the cases. If it were res integra, I should be of a different opinion." Patterson, J.: "We cannot decide in favor of the defendant without overruling those cases." Coleridge, J.: "We cannot overrule cases which have been followed by such invariable practice."

194. But in respect to persons, the statute has been less liberally construed. It was contended in the Supreme Court of New York, that the case came within the equity of the section above mentioned; that the defendant had been discharged under an insolvent act; and that the discharge would prevent the statute from running against an action of assumpsit, upon a contract made before that act, and the money not falling due on the contract until after the discharge. But the court held otherwise, and said: "Though the defendant's virtual protection from prosecution by his discharge produces the same result as his absence from the State, yet we are not warranted by any rule of construction, in deciding, that every cause which produces the same effect, as the one mentioned in the act, comes within it. It is true that the reason why the absence of the defendant from the State excuses the plaintiff from prosecuting, is, that the defendant is beyond the reach of the process of the courts; and the defendant's discharge placed him equally without the reach of any recovery against him, till the decision of the Supreme Court of the United States, in Sturgis v. Crowninshield. But it is not for the court to extend the law to

1 See ante, Ch. IX. § 70.

2 Sacia v. De Grapp, 1 Cow. (N. Y.) 356.

all cases coming within the reason of it, so long as they are not within the letter." Indeed, there appears to be no authority, in favor of the doctrine, that if the persons mentioned in the above section are not expressly excepted from the operation of the statute of limitations, there exists a virtual exception. But it has been holden, that no exception can be claimed, unless expressly mentioned.1 General words of a statute, it is considered, must receive a general construction; and unless there can be found in the statute itself some ground for restraining it, it cannot be restrained by arbitrary addition or retrenchment. And on this principle, it was adjudged by Sir William Grant, that absentees, who are not expressly excepted in the act of limitations of Jamaica, were intentionally rejected, and therefore could not be introduced by construction. And it was also declared by Sir Eardly Wilmot, in the House of Lords, that infants, like other persons, would be barred by an act for limiting suits at law, if there was no saving clause in their favor. To enforce the policy of the statute limiting suits against executors and administrators, the statute is an absolute bar; and the fact of the plaintiff's having been under the disability of infancy, during the time that the estate of the deceased was under administration, will not prevent his claim from being barred by the lapse of the time limited by such statute.1

[Bucklin v. Ford, 5 Barb. (N. Y.) Sup. Ct. 393; The Sam Slick, 2 Curtis, C. C. 480; Howell v. Hair, 15 Ala. 194; United States v. Maillard, 4 Ben. (Dist. Ct. U. S.) 459. And see post, § 485. But, when the statute does not in terms limit a particular case, the court will not extend it, although the case comes within the reason of the statute. Thus, in Illinois, where the action of debt will lie wherever indebitatus assumpsit will, and justices of the peace have jurisdiction of both actions, the summons being the same in both forms of action, where the statute of limitations is pleaded, the law will presume that to be the particular form which is best calculated to advance the plaintiff's remedy. Bodell v. Janney, 4 Gilm. (Ill.) 193. So the Alabama act, which permits an action to be commenced within a year after the reversal of a previous judgment, was held, in favor of the plaintiff, to apply to a case where, by the action of the inferior court, the cause was discontinued as to two of the defendants, and thus caused a reversal of the judgment as to the other defendant, although not within the letter of the statute. Givens v. Robbins, 11 Ala. 356.]

2 Beckford v. Wade, 17 Ves. 87.

3 Buckinghamshire v. Drury, cited in the above case. The disability of being "beyond the seas," generally provided for, is omitted in the statute of New Jersey (see App. p. Ixix.), and consequently is not recognized by the courts. Beardsly v. Southmayd, 3 Green (N. J.), 171; Taberrer v. Brintnall, 3 Harr. (N. J.) 262.

Hall v. Bumstead, 20 Pick. (Mass.) 2. [The statute will not be prevented from running by the disability of the heir, if the executor had a right of action. Darnall v. Adams, 13 B. Mon. 273.]