#### Davis and wife and others v. Cooke.

"} t From Carteret. J

By a strict and literal construction of the act of limitations, an infant must bring his or her action within three years after coming of full age, although he or she shall be covert, non compos, imprisoned or beyond seas before that period arrives. This, however, is not the obvious construction of the act, and a different one has obtained generally in this state since the passage of the act, in 1715, and will, therefore, be adhered to by the Court; so that if an infant female having a right of action, marry before coming of full age, she is not bound to sue within three years after arriving at full age; her co-verture protects her.

This was all action of detinue for a negro slave named Sarah, tried before Badger, Judge. A verdict was taken for the plaintiffs, with leave to the defendant to move to sot it aside and enter a nonsuit on the question presented by the following case.

The negro slave in question was the property of George Bell, who by his will bequeathed the same to his widow for life, with remainder to the plaintiffs Keturah, Clorin-da or Che and Mary Bawl. The testator died in 1794, and the executor having proved the will, assented to the legacy, and put the slave into the possession of the tenant for life, who in 1796 died. In the same year one Nathaniel Pinkham took actual, adverse possession of the slave, claiming her as his own, and retained possession until the year 1815, when he sold her to Thomas Cook, who took and retained possession until his death, when the slave passed into the hands of the defendant as the administrator of Thomas Cook, and he hath ever since retained possession.

At the time the adverse possession of Pinkham commenced, the plaintiff Keturah was an ideot and infant, and hath continued non compos mentis ever since.

The plaintiff Clorinda was born in April 1782, and died an infant in the year 1802, and this action was *609brought within three years after the first letters of administration granted of her estate.

The Plaintiff Mary David was born January. 1787, and was married in 1802 or 1803., then an infant under the age of twenty-one, and hath continued covert of her said husband the plaintiff Thomas C. Davis ever since.

This action was brought February 18th, 1822. If upon these facts, the action of the plaintiffs is barred by the statute of limitations, then the verdict to be set aside, and a nonsuit entered; if otherwise, the verdict to stand and judgment to be entered.

The presiding judge held that the action was not barred by the statute, and rendered judgment accordingly, whereupon the defendant appealed.

Ituffin, for the appellant.

Gaston, contra.

Hall, Judge.

The disabilities expressed in our statute of limitation have all the same effect; neither of them is greater or less than another. A person whether labouring under all or any one of them, is equally excused bringing suits, because all or any one of them incapacitates and destroys free agency. All of them create no greater incapacity than one of them. Incapacity excuses from suing, and incapacities arise from the different sources mentioned in the acts. If, then, one disability excuses from not suing as much as all would, and all disabilities are precisely alike, it would follow that if any of these disabilities existed at the time when the action accrued, the person labouring under them should be excused for not suing whilst any of them continue. If there is no disability at the time the action accrues, the statute of limitation will not be suspended by any intervening one, because at the time the action accrued the person was a free agent and might have commenced one. I am aware that by taking the disabilities mentioned in our act in detail, and considering them as distinct pro*610visions, by a strict grammatical construction, we may arrive at different results: because strictly speaking, no * 1 u particular disability creates an incapacity unless it ex-Jsted at the time the action accrued. But this construction, in my opinion, goes round the spirit of the act, and is an example of the maxim, qui hseret in litera, hseret in cortice. As far as I can learn, the construction I have given it is the one that has been heretofore put upon it; I therefore think judgment should be entered for the plaintiff.

Taylor, Chief Justice.

The Plaintiff Mary Davis, attained her full age on the first January 1808, at which time she was under coverture; and it is contended on behalf of the defendant, that she was bound to sue w’ithin three years from that period, as the proviso of the act extends only to that disability which existed when the cause of action accrued.

It has been taken for granted in the argument, that, on the authority of adjudged cases, if Mary was obliged to sue within three years after her coming of age, and the statute has barred her right, it operates also to bar the right of the co-plaintiff, who was and still continues under disability. It is not necessary for me to express any opinion on the very novel question of law which the peculiar facts of this case present; nor should I be willing to do so without argument and consideration. But I would remark in passing, that in all the cases wherein it has been held that the right of those co-plaintiffs who are under disability is barred by the neglect to sue within due time, of those who were of ability, there was one or more of the plaintiffs free from all the incapacities enumerated in the statute. And Perry v. Jackson, in 4 Term Rep. 519. was decided on the reasoning that the proviso was introduced into the statute in order to protect the interests of those persons, which there was no one of competent age, of Competent understanding, or competent in point of residence, *611to protect. The words of the proviso are, “ if any person or persons that is or shall be entitled to any such action, &c., be or shall be at the time of any such, given or accrued, fallen or come within the age of twenty-one years, then such person or persons shall be at liberty to bring the same actions so as they bring the same within such times as are before limited, after their coming of full age, &c.” The grammatical construction of this clause, it has been properly remarked by the Court, extends only to cases where the person individually, a single plaintiff, or persons in the plural when there are several plaintiffs, are not in a situation to protect their interests. In that case one or more of the partners was resident in England, and free from all disability. In the case of Rider v. Frión, two of the plaintiffs were of full age. (3 Murph.,577.) And in no case has it occurred, that all the plaintiffs were under disability, when the cause of action accrued, and continued so till its commencement. In the absence of express authority, I should pause before I pronounced the right of the plaintiff Keturah defeated by the neglect of her sister Mary, who never has been sui juris since the cause of action accrued.

It is contended on the part of the defendant, that as the cause of action accrued when Mary was a minor, she was bound to sue within three years after arriving at the age of twenty-one years, whereas a period of eleven years beyond that time had elapsed; and that the disability of coverture having supervened to that of infancy, does not give her three years after the dissolution of the cover-ture; that the exceptions in the proviso are to be referred respectively to that disability which existed at the time the cause of action accrued, and do not extend to any occurring afterwards. In support of this objection several cases have been read, which tend strongly to show that is the true construction of the act; and though it may be discovered upon an attentive and critical examination of it, it is not the obvious one. On the contrary, the ge*612neral if not universal impression in this state has been, that the act designed to protect the rights of those whom the law» deemed incapable of taking care of them them-themselves, and that an infant becoming covert during her infancy, was as much an object of the law, as a feme covert on whom a right devolved during her coverture.

lam satisfied from an attentive examination of the act of 1T15, that this is not its true and grammatical construction, but that, according to its terms, the infant must bring the action within three years after his, or her, coming of full age, although he or she shall be covert, non compos, imprisoned, or beyond sea, before that period arrived; that the non compos should bring his action within three years after he became of sound mind, although during his infirmity he became imprisoned, and so on as to the other exceptions. The act, however, has received a different construction, occasioned, perhaps, by its never having undergone a rigid scrutiny; but more probably from the priviledges and immunities possessed by persons at the common law. who laboured under these several disabilities, which by general acceptance have been transferred to the interpretation of the act.

At the common law, no laches were accounted in infants and feme coverts, for not making a claim or entry to avoid descents; and in discussing this subject Littleton states, “ that if husband and wife as in right of the wife, have title and right to enter into lands which another hath in fee or in fee tail, and such tenant dieth seized, &c. in such case the entry of the husband is taken away upon the heir which is in by descent. But if the husband die, then the wile may well enter upon the issue which is in by descent, for that no laches of the husband shall turn the wife or her heirs to any prejudice, or loss in such case, but that the wife and her heirs may well enter where such descent is eschued during coverture,” (Littleton sec■ 403.) In his commentary on this section Lord Coke, after stating that the law' would be different if a feme sole *613were disseised of lands and then take husband, proceeds thus: “ But if the woman were within age at the time of her taking husband, then the dying seized shall not, after the decease of her husband, take away her entry; because no folly can be accounted in her, for that she was within age when she took husband, and after Coverture she cannot enter without, her husband; all which is implied in the. &c.” (Co. Lilt. 246 a.)

This construction of the case of cumulative disabilities, thus clearly stated by Lord Coke, has, by long acquiescence, attached itself to the act of limitations, and cannot directly be changed by any authority less than that of the legislature. The opinion has been general, if not universal, in this state, for the last thirty years, that such is the meaning of the act; and it is not from matter decided only where the point has been raised upon argument, but also from the long continued practice of the Courts, without objection taken, that the rules of law are collected. (15 East 225.) I therefore think the judgment should be affirmed.

Henderson, Judge, being of this opinion also,

Judgment affirmed.