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operation of the statute.' It will be observed that the saving clause in

to that of coverture so as to prolong the statutory saving against the legal effect of the lapse of time. Riggs v. Dooley, 7 B. Mon. (Ky.) 236. In Texas, a female infant upon her marriage immediately becomes of age, and the statute then begins to run against a previously existing claim. Thompson v. Cragg, 24 Tex. 582; White v. Lattimer, 12 id. 61. But the rule is generally other wise, and the statute does not begin to run until she becomes of age. Wilson v. Kil. cannon, 4 Hayw. (Tenn.) 182. But in North Carolina it is held otherwise. Davis v. Cooke, 3 Hawks (N. C.), 608. But see Duckett v. Crider, 11 B. Mon. (Ky.) 188, where it was held that a woman under age was entitled to her action to recover possession of a slave. She married before she came of age, and it was held that the two disabilities of nonage and coverture could be joined for the purposes of deferring the bar of the statute of limitations. See Boyce v. Dudley, 8 id. 511, where a contrary rule was adopted; and Martin v. Letty, 18 id. 573; Clark v. Jones, 16 id. 121; and see Wellborn . Finley, 7 Jones (N. C.) L. 228, where it was held that the disability of nonage and coverture could not be joined to prevent the operation of the statute. In Keil v. Healey, 84 Ill. 104, it was held that the operation of the statute is not arrested by cumulative disabilities, as where a female is not married until five months after age, her coverture does not create a disability as to matters accruing before coverture; and the same doctrine was adopted in a similar case in Cozzens v. Farnam, 30 Ohio St. 491, adopting the invariable rule that the disability which Arrests the running of the statute must exist at the time when the right of action accrued. Hinds v. Whiting, 31 id. 53; Hogan v. Kurtz, 94 U. S. 773; Bozeman v. Browning, 31 Ark. 364; Den v. Moore, 8 Wall. Jr. (U. S. C. C.) 202; Hull v. Deatley, 7 Bush (Ky.), 687; Fritz v. Jones, 54 Ill. 101; Harris v. McGovern, 2 Sawyer (U. S. C. C.), 515; Rogers v. Brown, 61 Mo. 187; Swearingen v. Robertson, 39

Wis. 462.

saving of the statute, except such as existed at the time when the cause of action accrued. McCoy v. Nichols, 5 Miss. 31. And no after-accruing disability can stop the statute after it has once commenced to run. Parsons v. McCracken, 9 Leigh (Va.), 495; Fitzhugh v. Anderson, 2 H. & M. (Va.) 289; Hudson v. Hudson, 6 Munf. (Va.) 352; McDonald v. Johns, 4 Yerg. (Tenn.) 358. In Demorest v. Wynkoop, 3 Johns. (N. Y.) Ch. 129, the court held that a disability to relieve a party from the operation of the statute limiting real actions must exist when the right first accrues, and that although before the termination of the first disability another commences, the statute begins to run from the termination of the first. In Lewis v. Mar-shall, 5 Pet. (U. S.) 469, it was held that a former statute of limitations of Ken-tucky, limiting the right of action against one in the adverse possession of land to twenty years, provided "that if any person or persons entitled to such writ or writs, or title of entry, shall be or were under the age of twenty-one years, feme covert, non compos mentis, imprisoned, or not within the Commonwealth, at the time such right accrued or came to them, every such person, his or her heirs, shall and may, notwithstanding the said twenty years are expired, bring or maintain his action, or make his entry, within ten years. next after such disabilities removed, or death of the person so disabled, and not afterwards." Under this provision it was held that if an adverse possession of land commenced during the disability of a claimant, who died during such disability, the limitation of ten years began to run against his heirs from the time of his death; but if the right of such claimant descended to his heirs before the commencement of the adverse possession, the statute did not operate against them until their disability was removed. In Texas, by statute, a female infant, upon her marriage, becomes of full age although in fact a minor; and this is held to deprive her of both the disabilities of infancy and coverture as to all rights of action which accrued before her marriage. Thompson v. Craig, 24 Tex. 582. The provisions in

1 Bunce v. Walcott, 2 Conn. 32. The rule is, that a party cannot avail himself of any disability to bring himself within the

VOL. II.-9

the statute of James, as well as in all our statutes, is limited expressly to such disabilities as existed at the time the right of action accrued ; consequently, if, at the time when a right of action accrues, a man is of full age, the fact that he shortly afterwards became insane will not save his claim from the operation of the statute.1 Nor if a right of action accrues in favor of a female of full age, and she soon afterwards marries, will the disability of coverture save her rights from being barred by the lapse of the statutory period. This is in obedience to the universal rule, before stated, that when the statute once begins to run no subsequent disability can stop its operation, unless specially so provided in the statute. It may be stated as a general rule, to which there are no exceptions, that, except when the statute otherwise provides, disabilities which bring a person within the exceptions of the statute cannot be tacked one upon another, and that a party can only avail himself of such disability or disabilities as existed when the right of action accrued.* If a the statute exempting from its operation certain persons subject to specified disabilities until ten years after their removal, only applies where some one of such disabilities exists in the person entitled to the estate at the commencement of the adverse possession; and if there be a succession of such disabilities, whether in the person then entitled, or in him or those who succeed to his title, such person or persons are protected by the proviso only for ten years after the removal of the first disability. Clarke v. Cross, 2 R. I. 440.

Disabilities which may bring a person within the exceptions of the statute of limitations cannot be piled one upon another, so as to defeat its operations; but a party who claims the benefit of the proviso in the statute can only claim the benefit of the disability in existence at the time the cause of action accrued. When there are two or more coexisting disabilities in the same person at the time the cause of action accrues, as, for instance, infancy and coverture, the statute of limitations does not run till both or all are removed. But if at the time the cause of action accrues only one disability exists, others which arise afterwards cannot be tacked to the first disability so as to prevent the operation of the statute of limitations. Scott v. Haddock, 11 Ga. 258. In Young v. Mackall, 4 Md. 362, a right of action accrued on one of two bonds in 1834, and on the other in 1835, and the obligee died in 1837, in which year his executor filed a bill against the obligor,

which suit abated by the death of the complainant in 1841. The obligor died in 1846. An administrator de bonis non on the obligee's estate was appointed in October, 1849, and the claim on the bond was filed the same month. Held, that as the statute of limitations (running twelve years on bonds) had begun to run in the lifetime of the obligee, none of the facts above stated stopped its operation. If a suit be abated and not revived, it takes no time out of the statute.

1 In Adamson v. Smith, 2 Rep. Con. Ct. (S. C.) 269, a person who was under no disability at the time when a note given to him became due shortly afterwards became non compos mentis, and this was urged as a disability which saved the note from the operation of the statute; but the court held that this supervenient disability did not check the operation of the statute.

2 Carlisle v. Stitler, 1 Penn. 6.

3 Crosier v. Gano, 1 Bibb (Ky.), 257; Faysoux v. Prather, 1 N. & M. (S. C.) 296; Rogers v. Hillhouse, 3 Conn. 398; Peck v. Randall, 1 Johns. (N. Y.) 165; Ruff v. Bull, 7 H. & J. 14; Dillard v. Phellson, 5 Strobh. (S. C.) 213; Stevenson v. McReary, 20 Miss. 9; Byrd v. Byrd, 28 id. 144; Pendergrast v. Foley, 8 Ga. 1; Smith v. Newby, 13 Mo. 159; Parsons v. McCracken, 9 Leigh (Va.), 495; Hudson v. Hudson, 6 Munf. (Va.) 352.

4 McFarland v. Stone, 17 Vt. 165; Mercer v. Selden, 1 How. (U. S.) 37; White v. Latimer, 12 Tex. 61: South v. Thomas, 7 T. B. Mon. (Ky.) 59; McDon

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right of action accrues to a married woman during coverture, and she becomes discovert, and before the statute has run upon her claim marries again, her second marriage does not prevent the statute from running upon the claim, because the statute, having once attached to the claim, overrides all after-accruing disabilities.1 When several disabilities exist at the time when a right of action accrues, as, if a woman should be both an infant and a feme covert, or a feme covert and insane, she may elect to avail herself of either of the disabilities, and, if no election is made, the court would give her the advantage of the one which was most available to defeat the operation of the statute; and in the language of EDMOND, J.,2" It will always be a sufficient answer to an objector to such an election to say, 'the disability on which I rely is pointed out by the proviso. It existed at the time my right or title accrued. I have prosecuted my claim within the time allowed after its discontinuance, and come within both the letter and spirit of the law.'" The disabilities are not merged, but each remains disald v. Johns, 4 Yerg. (Tenn.) 258; Thorp v. Raymond, 16 How. (U. S.) 247; Starke v. Starke, 3 Rich. (S. C.) 438; Rankin v. Tenbrook, 6 Watts (Penn.), 388; Doe v. Barksdale, 2 Brock. (U. S. C. C.) 436; Scott v. Haddock, 11 Ga. 258; Demorest v. Wynkoop, 3 Johns. (N. Y.) Ch. 129; Dease v. Jones, 23 Miss. 133; Den v. Richards, 15 N. J. L. 347; Bradstreet v. Clark, 12 Wend. (N. Y.) 602; Jackson v. Wheat, 18 Johns. (N. Y.) 40. The effect of this rule is salutary and within the spirit of the statute, and essential to give it effect. In the language of HOSMER, J., in Bunce v. Wolcott, 2 Conn. 36, "It avoids the intolerable inconvenience of accumulated successive disabilities, which, for an interminable period, might subvert titles apparently well established, and produce the most ruinous instability." 3 Bac. Abr. 206; Stowel v. Zouch, Plowd. 356; Duroure v. Jones, 4 T. R. 300; George v. Jesson, 6 East, 80; Eager v. Commonwealth, 4 Mass. 182. In Minnesota, Oregon, New York, and California, it is specially provided that no person shall avail himself of a disability unless it existed when the action accrued, and that if two or more disabilities existed when the cause of action arose, the statute shall not begin to run until all are removed. In all the States except Texas, Mississippi, and Indiana, the disability is expressly restricted to the time when the cause of action accrues; but in those States the words, "when the right of action accrues," or, "when the

cause of action arises," are not used in the statute, and there would seem to be no obstacle in the way in those States in tacking cumulative disabilities. Indeed, the right of doing so would seem to be given by a fair construction of the language used. Thus, in the Texas statute, Whereas femes covert and persons non compos mentis excepted, who shall have and be allowed two years after their maturity, marriage, or return to sound mind," &c. In Indiana, the language employed is, "Saving, however, the rights of infants, femes covert, persons non compos mentis, and persons without the jurisdiction of the United States, until one year after their several disabilities are removed." But in Texas it is held that the statute relates to such disabilities only as existed when the right of action arose. White v. Latimore, 12 Tex. 61.

1 Downing v. Ford, 9 Daną (Ky.), 391 ; McDonald v. McGuire, 8 Tex. 361; Den v. Moore, 3 Wall. Jr. (U. S.) 292; Mitchell v. Berry, 1 Met. (Ky.) 602.

2 Bunce v. Wolcott, 2 Conn. 34. In Dugan v. Gittings, 3 Gill (Md.), 138, the same doctrine was held. In Allis v. Moore, 2 Allen (Mass.), 306, it was held that, where an owner of land has been disseised, his subsequent insanity will not prevent the disseisor's title from maturing by twenty years' adverse possession.

Butler v. Howe, 13 Me. 397; Keeton v. Keeton, 20 Mo. 530; Start v. Mellish, 2 Atk. 616; Jordan v. Thornton, 7 Ga. 517.


tinctively until it is extinguished by lapse of time; and, as we have already stated, either may be set up to defeat the statute, as the party may elect.

SEC. 252. Disability must be one provided for by Statute. - The statute of limitations begins to run against a party immediately upon the accrual of a right of action, unless at that time he was under some of the disabilities named in the statute; and a saving or exception not found in the statute will not be implied, however much it may be within the reason of other exceptions.2 Thus, the circumstance that the debtor

1 Martin v. Letty, ante; Robertson v. Wurdeman, 2 Hill (S. C.), 324; Layton v. State, 4 Harr. (Del.) 8; Carter v. Cantrell, 16 Ark. 154.

2 Warfield v. Fox, 53 Penn. St. 382; Howell v. Hair, 15 Ala. 194; Favorite v. Booher, 17 Ohio St. 548; Pryor v. Ryburn, 16 Ark. 671; Bucklin v. Ford, 5 Barb. (N. Y.) 393; Wells v. Child, 12 Allen (Mass.), 333; The Sam Slick, 2 Curt. (U. S.) 480; Baines v. Williams, 3 Ired. (N. C.) L. 481 ; Dozier v. Ellis, 28 Miss. 730; Sacia v. De Graff, 1 Cow. (N. Y.) 356; Harrison v. Harrison, 39 Ala. 489.

In a case recently decided in Iowa, Carrier v. Chicago, &c. R. R. Co., there is a dictum to the effect that the specification by the legislature of exceptions to the operations of the statute of limitations will not preclude the court from applying exceptions to such statute which are recognized by the common law, other than those prescribed by the legislature. This dictum and this doctrine were wholly unnecessary to the decision of the case, and the actual decision of the case was placed upon another ground entirely. And it is quite difficult to know precisely what the court meant by the words " from applying exceptions to such statutes as are recognized by the common law," inasmuch as the common law made no exceptions whatever to the statute except such as the statute itself contained. There was, however, a class of cases in which it was held, although the statute made no exception upon that ground, that where a cause of action had been fraudulently concealed from the person in whose favor the right of action existed, the statute did not begin to run until the fraud was discovered, although this doctrine never found much support in the courts of this country or of England. Indeed, independent of the

statute making them, no exceptions to the operation of the statute existed, except in equity, nor even in that court where the statute was in express terms made applicable to courts of equity, as well as to courts of law. In that case an action was brought to recover from the defendant the excess paid by the plaintiff for freight charges over the defendant's road, over and above those which were charged to other shippers for the same service; the agent making such charge representing to the plaintiff that the price charged was the usual price for such services. of limitations in lowa provided simply that in actions for relief on the ground of fraud or mistake, and in actions for trespass to property, the cause of action shall not be deemed to have accrued until the fraud, mistake, or trespass complained of shall have been discovered by the party aggrieved.

The statute

GIVEN, J., in delivering the opinion of the court, said: "These are law actions, and clearly not such as were heretofore solely cognizable in a court of chancery, and therefore not within this exception to the general statute of limitations.

"It is not contended that they are within any of the other expressed exceptions to the general statute; but appellees rely upon the rule laid down in Boomer Dist. Twp. v. French, 40 Iowa, 601, and cases cited as approving and following that case. That was an action to recover moneys alleged to have been received by the defendant, French, as treasurer of the plaintiff township, and appropriated to his own use. The petition alleged that at the close of his term a partial settlement was had with the defendant, but, by means of false and fraudulent entries in his books as treasurer, and by means of fictitious entries and corrupt and fraudulent concealments and misrepresentations, the defend

is insolvent, and that a suit against him would be fruitless, or that the

ant kept from the plaintiff's knowledge the fact of the receipt of said sum until October, 1883, and plaintiff had no knowledge of the facts, or of the gross frauds perpetrated by defendant, till said date. The petition showing that the action was not brought within three years, defendant demurred, on the ground that the action was barred. The demurrer was sustained, and plaintiff appealed. This court, after citing Code, sec. 2530, says: "This action does not come within the language or meaning of the section quoted, for the reason that the action is not for relief on the ground of fraud, but on the ground that the defendant failed to pay, over money received by him. The cause of action does not grow out of the fraud alleged. It existed independent of the fraud. Under the provisions of the section quoted above, the fact that the plaintiff, by reason of the fraud of the defendant, failed to discover the cause of action, does not defeat the bar of the statute. This is defeated by the terms of that section, only where the cause of action is grounded in fraud.'

"There is some contention as to whether these actions are for unreasonable charges and unjust discriminations, or for unreasonable charges only. Mere discrimination, without injury, would not be actionable. When the discrimination is by charging unreasonably, it is the unreasonable charge that is the ground of the action. The ground of the action against French was his failure to pay the money received; the ground of these, the defendant's failure to pay back the money charged and received in excess of what was reasonable. In each case the plaintiffs have a cause of action independent of the frauds alleged. These cases, like that of Boomer Dist. Twp. v. French, measured by the statute alone, are clearly barred; but in that case this court held the rule to be that "where the party against whom a cause of action existed in favor of another, by fraud or actual fraudulent concealment prevented such other from obtaining knowledge thereof, the statute would only commence to run from the time the right of action was discovered, or might, by the means of diligence, have been discovered.'

"Appellant contends that these cases are distinguishable from that; that French occupied a fiduciary relation towards the township, by virtue of which it was his duty to disclose the truth, and especially not to deceive, while such was not the legal duty of this defendant. The defendant is a quasi public corporation, owing certain duties to the public, and, in the absence of statute, fixed its rates without other restriction than that they should be reasonable.

"It was said in Heiserman v. Burlington, C. R. & N. R. Co., 63 Iowa, 736, that

railroad companies are public carriers, and those who employ them are in their power, and must bow to the rod of authority which they hold over consignors and consignees of property transported by them.'

"The reason for the rule requiring disclosures and fair dealing applies to this defendant with the same force that it did to French.

"Appellant contends that when exceptions are provided to a general statute it excludes all others than those expressed, and that courts are not at liberty to ingraft other exceptions than those expressed upon such a statute. This claim finds strong support in the following cases, cited by counsel: Chemical Nat. Bank v. Kissanne, 32 Fed. Rep. 429; Engel v. Fischer, 102 N. Y. 400, 3 Cent. Rep. 303; Fee v. Fee, 10 Ohio, 470; Amy v. Watertown, 22 Fed. Rep. 418; Alabama Bank v. Dalton, 50 U. S. 9 How. 526 (13 L. ed. 243); Kendall v. United States, 107 U. S. 125 (27 L. ed. 437); Favorite v. Booher, 17 Ohio St. 554; Woodbury v. Shackleford, 19 Wis. 55; Somerset Co. v. Veghte, 44 N. J. L. 509; Demorest v. Wynkoop, 3 Johns. Ch. 143; Miles v. Berry, 1 Hill, L. 296; Troup v. Smith, 20 Johns. 33.

"These precise questions were presented and passed upon in a number of those cases, and the doctrine announced that the general statute was an exclusion of all others, and that when the legislature has made exceptions the courts can make none, as that would be legislation. Several decisions by this court are also cited in support of these propositions.

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