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wife's property. The rule is, that where the husband sues in right of his wife, he cannot avail himself of her disability. The disability that saves a claim from the operation of the statute is of a personal character, and can only be set up by the party in whose favor it exists, and those claiming under him; nor is it available to a person claiming under such disabled person, if he has, at all times since the disability accrued, been in a position to assert and enforce the right; and for this reason the husband cannot avail himself of the wife's disability as to rights which he acquired by coverture over, to, or in her estate.1 But this must be understood as applying only to that class of claims which the husband could have enforced during coverture. If the wife's property is taken upon execution upon her husband's debts, or illegally sold, the statute does not begin to run against her until her husband's death; but it begins to run against her heirs immediately upon her death, except as to such property as by law the husband is entitled to a life estate in. In Pennsylvania, it was held that where a sale of land on execution against a deceased debtor has been acquiesced in for thirty or forty years by the family of the decedent, a jury should not disturb the purchaser's title, except upon the most overwhelming proof of fraud, and that, although the disabilities of coverture or infancy have not been removed long enough to make the statute bar complete, yet that the long silence of husbands and guardians is entitled to weight as evidence of such an acquiescence as to protect the purchaser's title. But it is hardly believed that this doctrine can stand. To permit the circumstance that a husband or guardian had acquiesced in an improper interference with the property of the ward, to overcome the protection which the statute is intended to afford to persons under such disabilities, is an assumption by the court of authority to abrogate the clear and une

1 Carter v. Cantrell, 16 Ark. 154. In Greggs v. Tesson, 1 Blackf. (Ind.) 150, where a married woman was the owner of land in which, by force of the law of the State, her husband had a life interest, the grantee of the husband and wife was not saved from the operation of the statute by the wife's disability, because he might have brought ejectment, counting on his interest immediately upon acquiring the right. McDowell v. Potter, 8 Penn. St. 189.

2 McDowell v. Potter, 8 Penn. St. 189. 3 Watson v. Kelly, 16 N. J. L. 517; Thorpe v. Corwin, 20 id. 311.

4 Gregg v. Tesson, ante. In Carter v. Cantrell, 16 Ark. 154, it was held that a right of action for the recovery of slaves belonging to the wife is not, on account of the wife's disability to sue for the same in her own name, saved to the husband in an

action by husband and wife, after the statute would have otherwise attached.

5 State v. Layton, 4 Harr. (Del.) 8. 6 McDonald v. McGuire, 8 Tex. 361; Meanor v. Hamilton, 27 Penn. St. 137; Caller v. Motzer, 13 S. & R. (Penn.) 356. If a married woman loans money to her husband during coverture, the statute does not run upon her claim until his death. Towers v. Hayner, 3 Whart. (Penn.) 18. And the same rule prevails where she loans money to a firm of which the husband is a member. Kutz's Appeal, 40 Penn. St. 90.

7 Carpenter v. Schermerhorn, 2 Barb. Ch. (N. Y.) 314; Marple v. Myers, 12 Penn. St. 122; Lenhart v. Ream, 74 id. 59; Henry v. Carson, 59 id. 297.

8 Meanor v. Hamilton, ante.

quivocal provisions of a statute, and that, too, for the very reasons that led to the adoption of the statute itself.1 In Ohio, it has been held that equity will refuse relief in a case where a part of the applicants for relief are under no disability, even though some of them are under the disability of coverture, where they are all adults, and have slept upon their rights for so many years that the granting of the relief prayed for would operate as a fraud upon the defendants. But in such a case the parties under disability, upon the removal thereof, can stand upon their legal rights. In New York, married women being given control over their own property, and the right to sue in their own name, no provision is made saving their rights from the operation of the statute; and the repeal of the saving clause in their favor is held to apply to claims existing before the repeal. Thus, where a woman, married in November, 1857, when a bond and mortgage became due to her, neglected to bring an action thereon until December, 1877, the saving clause as to married women having been omitted from the statute in 1870, it was held that her remedy was barred by the lapse of twenty years. In Wisconsin, no exception is made in favor of married women, the statute of that State in this respect being the same as in New York. In Iowa, coverture is not within the saving clause. In Massachusetts, the statute only saves the rights of married women where they are disabled by coverture; that is, where they are not clothed with authority to prosecute their rights by suits in their own name. In California and Indiana, married women are not within the saving clause of the statute, except as to those rights for the enforcement of which the husband is a necessary party. In West Virginia, coverture is within the exception of the statute, except in those cases where a married woman holds lands as her sole and separate property. In all the other States, coverture is within the saving clause of the statute; and the circumstance that a married woman is clothed with the power to sue in her own name does not defeat the exception, because, although she may not be within the reason of the statute, she is nevertheless within its letter, and the legislature not having seen fit to repeal the saving clause as to her, the courts have no power to do so.


SEC. 241. Imprisonment. Under the statute of James, the disabil ity arising from imprisonment relates to a restraint of one's liberty under process or color of law, or an involuntary restraint that prevents the person from fully availing himself of the remedies provided for the enforcement of his legal rights. Thus, in this country it has been held that a person held in slavery is imprisoned, within the meaning of the term as used in these statutes, and that the disability does not cease until he is emancipated. In New York, the saving is restricted to

1 Piatt v. Smith, 12 Ohio St. 561.

2 Hansford v. Elliott, 9 Leigh (Va.), 79. 3 Acker v. Acker, 81 N. Y. 143, reversing the same case in 16 Hun (N. Y.), 173.


4 Matilda v. Cranshaw, 4 Yerg. (Tenn.)

Price v. Slaughter, 1 Cin. (Ohio) 429.


persons imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than life; and the provision is the same in Wisconsin, Missouri, California, Oregon, Minnesota, Nevada, North Carolina, South Carolina, Arizona, Dakota, Idaho, Montana, and Utah; while in Maine, Vermont, Massachusetts, Rhode Island, Alabama, Colorado, Florida, Georgia, Ohio, Pennsylvania, Maryland, Nebraska, Texas, and Wyoming this disability applies to any person imprisoned," and therefore applying in all those instances to which the statute of James applied, and embracing persons imprisoned upon civil as well as criminal processes, or deprived of their liberty by any process of law or statute. In Illinois, in order to be within the saving of the statute, the person must be imprisoned upon a criminal charge; in Michigan, in the state-prison; and in Arkansas, imprisoned beyond the limits of the State." In Connecticut, New Hampshire, Iowa, Kansas, New Jersey, Kentucky, Mississippi, Tennessee, Delaware, Virginia, West Virginia, and New Mexico imprisonment is not recognized as constituting a disability, and no saving exists in favor of persons restrained of their liberty.


In those States in which imprisonment constitutes a disability, the circumstance that the plaintiff might have commenced an action upon a claim existing at that time, but did not, does not deprive him of the saving of the statute,1 as it is well settled that the statute does not prevent a person under a disability from suing if he elects to do so; 2 nor is he obliged to sue simply because he can; nor even if he should bring an action while the disability existed, and failed in it upon technical grounds, would he be deprived of the saving of the statute when the disability is removed.

SEC. 242. Alien Enemy. - In Maine, Vermont, Massachusetts, New York, North Carolina, Kentucky, Missouri, South Carolina, Michigan, Wisconsin, California, Oregon, Minnesota, Alabama, Nevada, Arizona, Dakota, Idaho, and Utah, the statutes contain an exception in favor of a person who is a citizen of a country at war with the United States, providing that during the continuance of such hostilities the statute shall be suspended and not considered as a part of the period limited for the commencement of an action. In Nevada, it is provided, however, that a citizen of a State in rebellion against the United States government shall not be treated as an alien. None of the statutes of the other States contain this exception, and consequently in none of the other States is there any saving in favor of an alien enemy. SEC. 243. Injunction. Except in those States where a saving is expressly made in favor of parties, where the commencement of an action is enjoined, the fact that an injunction has been procured preventing the bringing of an action upon a certain claim does not save it from the operation of the statute; nor can a court of equity make any

1 Piggot v. Rush, 4 Ad. & El. 912.

2 Chandler v. Villette, 2 Saund. 117 c.

order which will prevent the running of the statute during such period, but the remedy of the party is through an application to the court for an injunction to restrain the party from pleading the statute. But in

1 Barker v. Millard, 16 Wend. (N. Y.) 572; Robertson v. Alford, 21 Miss. 509; Ingraham v. Regan, 23 Miss. 213; Rice v. Lawan, 2 Bibb (Ky.), 149; Doughty v. Doughty, 10 N. J. Eq. 34. In De Kay v. Darrah, 3 id. 288, it was held that, while the circumstance that the bringing of an action has been enjoined will not save the statute as to the claim involved, yet that a court of equity under such circumstances may enjoin a party from setting up the statute in bar of the action.

In Van Wagoner v. Terpenning, 122 N. Y. 222; 46 Hun, 423, it was held that an injunction order will not be construed to restrain acts beneficial or not injurious to the rights of the party in whose behalf it was obtained, unless its words clearly have that important effect.

A party enjoined from interfering with or disposing of property in his possession cannot, without violation of such mandate, consent or voluntarily permit it to be taken, by one having no right to do so, from his custody, and any attempt he may make in good faith to reclaim possession of the property when taken from him without his consent, or to protect his legal right as owner or bailee, will not be an interference with it prohibited by such injunction.

In an action for conversion, it appeared that the alleged cause of action accrued in 1875; prior thereto a temporary injunction, issued in an action brought by another claiming the property, had been served upon plaintiff, which enjoined him from disposing of or in any manner interfering with the same. The injunction was dissolved in April, 1881, and this action was commenced in January, 1883. It was held that the action was barred by the statute of limitations; that the injunction did not operate to stay the commencement of the action, as it did not deny to plaintiff the right to protect his possession of the property against the acts of others, and so it did not, under the code, suspend the operation of the statute. Fincke v. Funke, 25 Hun, 616; Stubbs v. Ripley, 39 id. 626; McQueen v. Babcock, 41 Barb. 337;

3 Keyes, 428; 3 Abb. Ct. App. Dec. 129, distinguished.

In Brehm v. Mayor, &c., 104 N. Y. 186, by the judgment in an action for the foreclosure of a mortgage upon premises in the city of New York owned by G., the plaintiff's intestate, the referee appointed to sell was directed to pay all assessments on the mortgaged premises, out of the proceeds of sale. At the time of the sale there was an assessment on the premises for a local improvement, which the referee paid. This assessment was on the application of G. subsequently vacated. In an action brought to recover back the amount paid, held, that although the assessment was paid without the knowledge of G., yet as it was paid by the order of the court, out of the moneys belonging to him, the court had power to direct the payment so long as the assessment was not vacated, and as its validity could not be determined in the foreclosure suit, the payment was equivalent to a collection from G. under process of law, and he was entitled to recover; also that it was not necessary, as a condition of recovery, to have the foreclosure judgment set aside or annulled; it was not the adjudication which created the apparent lien or the authority upon which the right of the city, as between it and the property owner, to collect the assessment, depended. The order vacating the assessment was granted Dec. 4, 1871; plaintiff presented his claim to the comptroller Nov. 17, 1877, pursuant to the requirements of the city charter, and this action was commenced Dec. 18, 1877. The statute of limitations was pleaded as a defence, but the complaint was dismissed upon the trial wholly upon other grounds. Held, that the statute could not be invoked to sustain the dismissal, as, if error was committed in the ruling, it could not be cured by raising a question on appeal not raised on the trial; also, held, that the claim was not barred by the statute; that as by the code "when the commencement of an action has been stayed . . . by statutory prohibition, the time of the continuance of the stay is not

Vermont, New York, Arkansas, Iowa, Illinois, Kentucky, Missouri, Minnesota, North Carolina, and South Carolina, it is provided that, when the commencement of an action is enjoined, the time during which the injunction" is in force" shall not be deemed a part of the time limited for the commencement of the action. In Alabama, California, Oregon, Wisconsin, Nevada, Arizona, Dakota, Idaho, Montana, and Utah, the same exception is made not only where the commencement of an action is prevented by injunction, but also where it is prevented by any statutory prohibition. In Mississippi, the same provision is made where the commencement of an action is prohibited by law, or restrained or enjoined by the order, decree, or process of any court of the State. In Michigan, no exception is made where an action is enjoined, but it is provided that the time during which any case in chancery, commenced by any debtor, has or may be pending and undetermined, shall not be computed as constituting any part of the time. limited, as to the particular debt or subject-matter of such proceeding. in chancery.

It will be noticed by the language of these statutes that the suspension only exists while the injunction is in force, therefore the circumstance that an application has been made for an injunction, and is. pending, will not save the statute, whether the injunction is or is not subsequently granted; and if the statute runs upon a claim while a petition for an injunction is pending, but before it is granted or denied, the claim is barred, as the suspension exists only while an injunction. is actually in force.

SEC. 244. Absence of Defendant from State, Statutory Provisions as to. — In several of the States the statute contains a provision that if at the time a cause of action accrues against a person he shall be out of the State, the action may be commenced within the time limited after he comes into the State, and that if after a right of action. has accrued against a person he shall be absent from and reside out of the State, the time of his absence shall not be taken as any part of the time limited for the commencement of the action. This is substantially the provision existing in the statutes of Maine, Vermont, New Hampshire, Massachusetts, Rhode Island, Florida, Missouri, Minne

action, the time within which the action must be commenced must be computed from the time when the right to make the demand is complete; that this provision only applies where an immediate right of action follows a demand.

a part of the time limited for the commencement of the action," and as by the city charter the plaintiff was prohibited from bringing suit until after the lapse of thirty days from the presentation of the claim, the running of the statute was sus pended during the thirty days. The presentation of a claim, although Dickinson v. Mayor, &c., 92 N. Y. 584, a necessary preliminary to the bringing of distinguished.

Also held, that the question was not affected by the provision of the code which declares that when a demand is necessary to entitle a party to maintain an VOL. II.-8

a suit against the city, is not the commencement of an action or proceedings to collect the claim within the meaning of the statute of limitations.

1 In New Hampshire, the statutory

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