CHAPTER V. THE SHORTENING AND THE SUSPENSION OF THE PERIODS General principle in fixing the time of limitation. SECTION I. The Shortening of the Periods of Limitation. THE general principle of the Statutes of Limitation has been to fix the period during which a party having a right to institute legal proceedings may exercise that right, and to bar those only who, having an available right, omit, during that period, to exercise it (a). But for these statutes to operate a complete bar to either the right or the remedy, the full period prescribed by them must elapse (b); and for the benefit of the person with whom it commenced, or of some person claiming under, or in privity with, such person (c). And where the statutable time has run, there is no exception to it, whether the party knows of his right or not (d). In some cases, indeed, the period may and does include time during which no available right exists (e). This, however, is no new principle, but is conformable to the law which prevailed from the time of Henry the Third till that of William the Fourth. The form, indeed, in which this intention is ex (a) 10 C. B. 33; 2 H. L. C. 831. (b) Goodtitle d. Parker v. Baldwin, 11 East, 488; 17 Beav. 429. (c) Ib. See also Doe d. Carter v. Barnard, 13 Q. B. 945; Dixon v. Gayfere, 17 Beav. 421; Asher and Ux. v. Whitlock, 1 Law Rep., (d) 2 Phill. 124. (e) See De Beauvoir v. Owen, 16 M. & W. 565. pressed is somewhat strange and paradoxical, in directing a right of action to be deemed to have first accrued, when none has accrued at all; but the words of the 3 & 4 Will. 4, c. 27, are certainly capable of this sense, which is, indeed, the most obvious one; and a similar arbitrary use of language is not without example in recent legislation, and the substance and effect of the provision, in pointing out the time from which the limitation is to run, is nothing more than might be expected, looking at the law as it had long existed, and at the precedents of legislation on the subject (ƒ). But generally, as respects the times of limitation, The time not the claimant cannot be aided by the equity of the sta- altered by equitable contutes fixing those times, inasmuch as they are positive struction. laws for the time, and, therefore, when they have particularly limited divers times to persons in divers degrees, to make an alteration in that time would be more contrariant than agreeable to the minds and intentions of the makers of the acts, and as they are special, and limit a certainty of time in every point, and are defective in no part as to time, the time limited shall not be altered or enlarged by equity (g); for if titles, unquestionable at law, could be disturbed in equity, these statutes would be useless, and no man would be sure of the possession of his estate (h); and unless the limit pointed out by them be observed, no man is safe, but may be reduced to poverty after long and undisputed possession (i). It has been said, however, that if, to avoid an inconvenience plainly and manifestly arising from a strict construction of the words of the statutes, the words be capable of being modified, the court ought to modify them (k). This is, (h) 2 Sch. & Lef. 71. Dicta in sect. 16 of 3 & 4 Will. 4, c. 27. at least, questionable, and not easy to reconcile with the broad principle just stated, that claimants cannot be aided by an equitable construction of these statutes. Although a suit be commenced before the expiration of the time of limitation in order to avoid the effect of the statutes, yet, after that expiration, such suit cannot be discontinued and a new one commenced for the assertion of the same right (1). In Devine v. Holloway (m) are dicta which, if adopted, would have the effect, under certain circumstances, of diminishing the period of limitation fixed by the sect. 2 of 3 & 4 Will. 4, c. 27. There the first right accrued in 1830 to a person under the disability of absence beyond seas, and who, without asserting his right, died under such disability in 1835, leaving as his heir a grandson, also under the like disability, who, in 1856, returned and brought an action of ejectment. More than twenty years, however, calculated from either 1830 or 1835, having elapsed, his right was barred and extinguished. On appeal by him from this decision, the court said, alluding to sect. 16 of the same statute, that it did not assist the appellant, for the ten years which it gives him from the death of his grandfather, through whom he claims, "expired in 1845, long before the expiration of the twenty years to which he was entitled under sect. 2." "It is plain that under that section the right of the appellant was barred at the end of ten years after the death of" the grandfather. If this were so, the consequence will be, that when the right first accrues to a person who is under disability, and the disability ceases the next day, he would have but ten years from the cesser; and if he died the next day under the disability, the person claiming through him would have but the same time. That is, each (1) Leigh v. Leigh, 2 Bing. N. C. 464; Foot v. Collins, 1 Myl, & C. 250. (m) 14 Moore, P. C. C. 290. person, by reason of the disability, would have only ten years instead of twenty years, and be in a worse position from these provisions as to disabilities than if those provisions had been entirely omitted. This, however, would seem to be utterly opposed both to the spirit and the intention of the legislature. These provisions were manifestly intended for the protection of persons under disability, by giving to them an extended period beyond that fixed by the section 2. But if this interpretation be adopted, such persons may be, in many cases, greatly prejudiced. The meaning of the statute would seem to be, that they, as well as other persons, shall have twenty years under the sect. 2, although during half or any less portion of that period disabilities may have existed, but also an additional allowance of time for disabilities, so as to give them at least, in every case, the full period of twenty years. They may have a longer period, but not in any case, on account of disability, longer than forty years. The language of this statute is, in substance, the same as the old Statute of Limitations (n); and the case of Doe d. George v. Jesson (o) upon that statute supports this view, although even there the full period of limitation had expired before the action was brought, and more than ten years after the disability had ceased. Devine v. Holloway was decided in 1861, but is not noticed by Lord St. Leonards in the last edition of his Treatise on the New Statutes relating to Real Property, published in 1862. Hand as to same section. In Hogan v. Hand (p), the same court said the Hogan v. sect. 16, in the case of a person beyond the seas at the time when his title accrues, saves his right for ten years after the twenty years given by the 2nd section. The right first accrued to a person under disability, who (n) 21 Jac. 1, c. 16. (0) 6 East, 85. See also Cotterell v. Dutton, 4 Taunt. 830. (p) 14 Moore, P. C. C. 318, 327. continued under it to the time of commencing his action. In Devine v. Holloway the right first accrued to a person under disability, who died under it at the end of five years afterwards, and the right descended to his heir, also under disability, who continued under it to the time of commencing his action. Time having commenced is SECTION II. The Suspension of the Periods of Limitation. In general, when the period of limitation has once not, in general, commenced, no suspension of it will take place as resuspended. gards the claimant, not even by reason of any subsequent disability in him (q), or by the creation of successive life estates by an owner in fee (r). So where the time has commenced, but before it expires, and before any action or suit has been commenced, the person to sue (s), or the person to be sued (t), dies, no suspension of the period of limitation by reason of there being no personal representative of either of such persons, will take place. Notwithstanding the person against whom the claim arises being under disability, except perhaps that of absence beyond seas, the period of limitation will commence, and will not be suspended (u) by reason of such disability. (4) Stowel v. Lord Zouch, Plowd. 353; Doe v. Jones, 4 T. R. 310; Doe v. Jesson, 6 East, 80; Cotterell v. Dutton, 4 Taunt. 826; Tolson v. Kaye, 3 Brod. & B. 217; Rhodes v. Smethurst, 4 M. & W. 42; 6 Ib. 351; Freake v. Cranefeldt, 3 Myl. & C. 499; Penny v. Brice, 18 C. B., N. S. 393; Goodall v. Skerratt, 3 Drew. 216. (r) See Poole v. Griffith, 15 Ir. L. R. 239, 270. (8) Hickman v. Walker, Willes, 27; Smith v. Hill, 1 Wils. 134. (t) Rhodes v. Smethurst, 4 M. & W. 42, affirmed on error, 6 Ib. 351. (u) See Jones v. Tuberville, 2 Ves. Ir. 14; Rock v. Cooke, 1 De G. & S. 675; Fladong v. Winter, 19 Ves. 196; Towns v. Mead, 16 C. B. 123. |