Layton v. State ex rel. Hazzard

By the Coart.

—In the argument of this case it appears the counsel for the plaintiff in error consider the claim for which the judgment was rendered, could not be recovered bj' action on the administration bond, because six years had elapsed from its date before suit brought, and the party entitled to the amount of the judgment, relies upon the sixth section of the act of limitations, and especially the words thereof, that “ this act shall not be a bar to such action during the continuance of such disability” as excluding the action brought by husband and wife, from the operation of the act during coverture. It has been said the court in rendering the judgment in this case, proceeded upon a construction of the sixth section, different from that which they had given to the eleventh section of the same act. The eleventh section provides, “ that the limitation in respect to any person under disability of infancy, coverture, or incompetency of mind, at the time of settlement of such account, shall begin to run from the ceasing of such disability, and not from the time of settlement.” It has been conjectured that the peculiar phraseology of the sixth section, relative to actions, was adopted to avoid the effect of the decision of the High Court of Errors and Appeals, in Shankland’s case, by which it was adjudged that the husband was not within the saving clause of the former act of limitation.

The uniform current of decisions in England as well under the

The difficulty that has occurred in adopting a uniform rule of construction for the 6th and 11th sections of our act of limitations, appears to have resulted from the verbal variation. It has been supposed that the words of the 6th section which declare, that “ this act shall not be a bar to such action,” are intended to have a different effect from those of the 11th section, which expressly provide “ that the limitation as to any person shall begin to run from the ceasing of such disabilityas if the saving in the former applied to the action, and the latter to the person and not the right of suit.

The embarrassment evidently, was occasioned by allowing particular words undue weight, without a sufficient regard to the design and intent of the act as one of limitation. Similar doubts arose upon the English statutes of limitation in consequence of the peculiar import of particular words, and difficulties arose out of the varied phraseology, until the adjudged cases settled a uniform rule of construction. In reference to this subject, Abbott, C. J., in the case of Murray vs. East India Co., 5 Barn. & Ald. 204, after noticing the decisions which had settled the rule, remarked, that “ the several statutes of limitation being all in pari materia, ought to receive a uniform construction, notwithstanding any slight variations of phrase, the object and intention being the same.” I have already (he remarks,) quoted the words of the statute of fines. The words of the first section of the 21 Jac. 1, ch. 16, as it regards entry into lands are “ that no person or persons shall make entry into any lands, &c., but within twenty years next after his or their right or title, which shall hereafter first descend or accrue to the sameother slight variations of expression may be found in other parts of this and the statute 32 Hen. 8 ch. 2; but it is not necessary to particularize them; the object manifestly being, to limit the time of entry or suit to a person in esse capable of entering and suing, and nothing more. With equal propriety may it be said, that the saving or proviso in our act of limitation, as well in the 6th as the 11th section, is to protect the rights of persons during disability, and three years after removal

In considering the proviso contained in the sixth section the question to be settled, renders it necessary to ascertain and determine, when the act of limitation attaches or commences r.unning. For until the act attaches and begins to run, and the whole period allowed for bringing the action has elapsed, the action is not barred. Hence during the life of the feme covert, and also during infancy or incompetency of mind of the person entitled to the action, the existing personal disability, prevents so far as relates to the person under disability, the act attaching. But the death of the person during disability by transferring the remedy to a representative competent to sue, the administrator of the wife would only have three years in which to bring his action, from the time of death, and grant of administration : and the same would be the case as to the representative of a person dying in infancy. Admitting this to be so, it is insisted that during the life of the feme covert, as during the minority of the infant, the right of action continues, and their rights are exempted from the limitation act, and cannot be barred thereby, and as a consequence thereof, the husband suing in right of his wife, is entitled to bring an action for his wife’s choses in action at any time during coverture, for it is conceded that the guardian is not barred but may sue in the name of his ward at any time during the continuance of the infancy. It may be proper here to remark, that the wife’s right of action equally with all the rights of remedy belonging to her as a feme covert, were saved by our former acts of limitation. As entitled to the action or the person entitled, during the continuance of the disability, her rights being saved, it was never supposed the limitation act affected her right.of action. Hence I consider it must be conceded that the words of the proviso in the 6th section which declare, “that act shall not be a bar to such action, &c.,” have not varied the condition of the wife’s right of action from what it was, under all former limitation acts. It must be so, unless it can be said of those acts, that they suspended or barred her right of action during coverture, and after having thus attached and run during coverture, on the termination thereof, ceased to operate and were suspended for three years, so as to cause her right of action to revive and exist after the disability of coverture was removed. Such a supposition would be contrary to all former experience; would neces

Under the former acts of limitation in this State it was considered, and in the case of Shankland’s lessee decided, that the husband could not take advantage of his wife’s disability, because he was not within the saving of the act, and none others than those embraced within it could take the benefit thereof. If then under the former acts the husband was excluded, and against him the act commenced running from the time of marriage and cause of action accrued, and the attaching and running of the act was not prevented by the wife’s disability, when as against the wife and her right of action, the act did neither attach nor run; how can the words in the 6th section of the present act sanction a construction that would give to him not only the three years within which to determine whether he will bring his suit, and during all which time he is under no disability or impediment, and may bring his action, but also the whole time of coverture, which in case of his surviving would be during the life of his wife. It seems to me such a construction once established, would be a virtual repeal of the act of limitation in favor of husbands, and they might be induced to delay suit, when in the full possession of all their rights; thereby taking advantage of their wife’s disability, caused by their own ability, contrary to the manifest design and intent of the act, and contrary to the law of limitation, as operating upon them in all other actions instituted. for the collection of their own debts. Then the law designed to protect the feme covert in

Having thus adverted to the several and distinct grounds related in favor of the husband’s right of action during the whole period of the wife’s coverture, and noticed the objection to establishing the same by construction, I shall now proceed to consider the proviso as contained in the 6th section, and the legal effect thereof.

The 6th section provides, “ that if the person entitled to any action, comprehended within either of the foregoing sections, shall have been at the time of the accruing of the cause of such action, under disability of infancy, coverture or incompetency of mind, this act shall not be a bar to such action during the continuance of such disability, nor until the expiration of three years from the removal thereof.

It may be said of the husband’s right of action, in collecting the wife’s choses in action, it involves that of the wife as her action enforces her right; still it must be conceded, that he is the person entitled to the action and under no disability, therefore his action cannot be saved.

Independent of the unity of right requiring joinder of husband and wife in bringing the action, if it be supposed they constitute in the legal technical sense two parties, the disability of the wife as one party cannot be of any avail to the husband, because it is now well settled that a replication to a plea of the statute of limitations must' avoid the effects of the statute as to all the plaintiffs. The disability of one cannot be imparted to the others, and will not prevent the bar; all will be barred unless all be under the disability. (Perry vs. Jackson, 4 T. R. 516; Marlettee vs. M‘Clean, 7 Cranch. R. 156.)

In the further consideration of the 6th section, it may be useful to inquire whether the peculiar phraseology thereof has not been occasioned by the declaration of the preceeding sections, that “ no action shall be brought unless within six years from the date of the bond, and in the other enumerated cases within the time prescribed from the accruing of the cause of action.” The legislature having by the act expressly enacted in each of the five sections preceeding the sixth, which contains the proviso we are considering, that no action shall be brought after the limitation prescribed, thereby negativing and taking away all and every description of action, whether founded on contract or legislative acts authorizing suits on official bonds to the State; it certainly was right and proper, that the rights of persons under disability should be guarded by words sufficiently clear and explicit, leaving no doubt of their being amply and fully protected.

To accomplish this object they adopted the plain and unequivocal language in that part of the proviso which says, “ this act shall not be a bar to such action during the continuance of such disability, nor

Having considered the peculiar phraseology of the Gth section, and ascertained the necessity and propriety of the words used to produce the same result that flows from the saving clause of former acts, and of all the English statutes, I shall now proceed to inquire which are the husband’s rights, and how they are affected by the statute of limitations. I have already remarked, he is not personally embraced within the proviso of the act. The case there contemplated, so far as the person is concerned, is that of a feme covert, who being entitled to the action, becomes by marriage disabled, and by the law of coverture incapable of bringing the action ; therefore, the proviso protects her righ1; and, as against her action, the act does not run during her disability, nor does the act operate as a bar until three years after the removal thereof. But as the husband comes not within the reason of the proviso and is under no disability, if the action instituted by him to recover his wife’s chose in action is his action, there being a complete cause of action, it follows as a necessary consequence of the established rule, that the act attaches. It is true he derives the right to the chose in action from and through his wife, but the remedy or action brought to reduce it to possession is his act or action and not hers. By the marriage he acquires and the law confers upon him the right of action; the necessity he is under of joining the wife does hot impair his right of action ; it is a marital right, perfect and exclusively under his control and direction, unaffected by her assent or dissent. Now, according to the long established and received opinion, all actions brought by the husband in right of his wife during coverture to reduce the wife’s choses in action to possession are the actions of the husband, and although the disability of the wife will not avail him so as to prevent the act attaching and running against his right of action, yet until the cause of action accrues, the act of limitation cannot attach or commence running.

Such is the rule in all causes of action founded on contract; and

If then in the present suit the record avers the fact that the cause of action accrued during coverture, the suit instituted within three years thereafter was not barred. This I consider the result of the legal and correct construction of the 6th section of our act of limitation, and it is in accordance with the adjudged cases, as well in England as our own State.

The first case I shall advert to is the decision made by the High Court of Errors and Appeals of this State, in the case of Shankland’s lessee, in which the husband being barred as to his right, brought the action in right of his wife joining her name in the suit; and as the wife’s right was within the act of limitation, or the saving clause thereof, it was contended that he was protected because she was under the disability of coverture, and the point decided by the court was, that the saving clause of the act could not be extended to the husband, because he was under no disability.

The same principle we find adopted in the case of Hulm vs. Heylock, Cro. Car. 200, under the statute 4 Hen. 7 , chap. 24, J. M. being seized of land devised it in fee to J. G. an infant of the age of three years. The son and heir of J. M. entered and levied a fine with proclamations in the life of J. G. being within age, who after-wards died being within age, the wife of Keylock being his sister and his heir. It was decided that the fine and non claim barred the husband, who had suffered the five years to pass.

In Doe on the demise of Wright vs. Plumptree, 3 Barn. & Ald. 474, the husband who was the lessor of the plaintiff, and claimed in right of his wife, the defendant having levied a fine with pro

It has been suggested that the construction I have given to the 6th section, will not effect the object of the act of limitation. For it is said, the right of action of the wife continuing until three years after her discoverture, the husbandas her administrator, if he survives, will then be enabled to bring an action, or the wife surviving may bring her action. This wmuld be the case should the husband neglect his right of action. But the objection is not well founded, for it is to be presumed that in all cases, the husband will take care of his own right of action, wrhile he may and has the power to do it, and not abandon the exercise thereof because he may possibly survive his wife and gain a new right of action as her administrator. If he does assert his marital right, then the object of the act is accomplished, and the litigation settled within three years from the accruing of the cause of action, while the parties interested are presumed to be cognizant. of their rights, and the vouchers and evidence can be available. The husband’s action being prosecuted extinguishes the wife’s right of action, for the chose in action being thereby reduced by the husband into possession, the property therein becomes his absolutely, and nothing remains to her surviving, nor can any right be transmitted on her death to her administrator. Hence it appeal's, that the construction which limits the husband’s right of action to three years from the accruing of the cause of action does sustain the policy of the act of limitation, and therefore must necessarily conduce to the peace of society; for it is the interest of the public that there should be an end of controversy.

The first I shall advert to is the insufficiency of the replication, and whether the objection taken can avail the plaintiff upon the general demurrer. It has been insisted that the omission to allege and aver the full age or maturity of all the children on whose arrival to the age of maturity the estate was to be divided, is fatal, for without it no cause of action appears.

This matter has been relied on as well against the replication to the plea of the statute of limitations, as in the assignment of the breaches. In reference to the omission in the assignment of the breaches, it has been said the verdict cures the defect and that in the replication to the plea of the statute of limitations it was not necessary, as the plea to which the replication applies admits the cause of action. If the omission be a mere defect in the form of stating the right or title, then the verdict and judgment would preclude the party from taking advantage thereof as error. The distinction is clearly recognised by lord Mansfield in the case of Rushton vs. Aspinall, Doug. 658. He says, on looking into the cases we find the rule to be, that where the plaintiff has stated his title or ground of action defectively or inaccurately, because to entitle him to recover, all circumstances necessary in form or substance to complete the title so imperfectly stated, must be proved at the trial, it is a fair presumption after verdict, that they were proved; but that where the plaintiff totally omits to state his title or cause of action, it need not be proved at the trial, an4 therefore, there is no room for presumption. The case cited from Shower, comes within the distinction; for the grant of the reversion was stated, which could not have taken effect without attornment, and therefore, that being a necessary ceremony, it was presumed to have been proved. But in the present case it was not requisite for the plaintiff to prove either the demand on the acceptors or the notice to the defendant, because they are neither laid in the declaration, nor are the circumstances necessary to any of the facts. If they were presumed to have been proved, no proof at the trial can make good a declaration which contains no ground of action on the face of it. The promise alledged to have been made by the defendant is an inference of law, and the

If, therefore, it be possible to apply the rule, in the case now before us, it would be proper to do so, if it could be done consistently with the decided cases and without violating the established rules of pleading. But we are not left to dispose of the case exclusively under the operation of the common law intendment; for supposing it might be thereby concluded, of which there seems to be much doubt, we would be compelled to consider the objection as it meets us under the demurrer to the replication. For if the facts omitted be essential to the right of action, the want of the allegation and averment thereof must be fatal.

In this case, tracing the line of pleading from the declaration, through the plea of the statute of limitations, the replication and demurrer, we find the narr. founded upon the administration bond, upon which alone, and exclusive of collateral matter, the right of action is restricted or limited to six years from the date thereof. The plea of the statute of limitations relies upon the expiration of the time, or

We will now take up the replication which the plaintiff below relied on as bringing the case within the proviso of the 6th section, and which has been demurred to by the defendant below. It is in the words following: “precludi non,” &c. because he saith that the said John Wilson, carpi, deceased by his said last will and testament, in writing bearing date the 29th day of November in the year last aforesaid, did among other things devise as follows, that is to say: “ Item, It’s my wish and desire that my estate shall, after taking out the legacies that I have given my daughter, be equally divided between my sons, David, James and daughter Elexine Wilson, when they arrive to the age of maturityand that the said Elexine Wilson afterwards intermarried with and became the wife of the said William Hazzard, on the 9th day of January, A. D. 1834, and that the said Elexine arrived to the age of twenty-one years on the 22d day of June, A. D. 1840, and this suit was brought and instituted within three years after the said Elexine had arrived to the age of twenty-one years or maturity as aforesaid, and this, the said, J. W. H., who sues in this behalf as aforesaid is ready to verify, wherefore he prays judgment, &c.

The facts alleged in this replication are, 1st. that John Wilson deceased, made his will devising his estate to be equally divided between his three children when they arrived to the age of maturity. 2d. The marriage of Elexine with Wm. Hazzard, January 9th, 1834. 3d. The time when Elexine arrived to the age of twenty-one years,

The plaintiff below having omitted to aver the fact that all the children had arrived at the age of maturity, has failed to state the fact essential to his right of action, and therefore, upon the demurrer, the defendant below was entitled to the judgment of the court sustaining his demurrer. This omission the Court of Errors and Appeals consider a fatal defect in the replication, and are unanimous in the opinion that, therefore, the judgment of the Supreme Court should be, and the same is hereby reversed. The defendant in error is ordered to pay the costs of the writs of error and proceedings thereon, and the record is remanded to the court below.

—On the 29th of Nov. 1825, John Wilson made his last' will and testament, and died on the 20th of Dec., following. The will was proved on the 29th of Dec. 1825, and the executor named in the will having renounced, the defendant, Caleb S. Lay-ton, was appointed by the register, administrator with the will annexed, on the 11th of January, 1820, and thereupon gave the bond upon which the suit below was instituted. The testator, John Wilson, who left to survive him two sons, David and James, and one daughter, Elexine, directed by his will, that his estate after the payment of certain legacies, should be equally divided between his two sons and his daughter, upon their attaining “ their age of maturity in other words, upon their attaining the age of twenty-one years. Elexine was married to William Hazzard, on the 9th of Jan. 1834, and attained the age of twenty-one years on the 22d of June, 1840. William Hazzard and Elexine, his wife, claiming a balance as due to her from the defendant Layton, the administrator, on account of her third part of the estate of her father, John Wilson, bequeathed to her as above stated, brought the action of debt in the Superior Court, which is the subject of the writ of error now depending in. this court. The record, which is now before the court, exhibits the-following pleadings. The declaration counts upon the administration bond of the defendant Layton, who craves oyer of the bond and of the condition, and having set forth the condition on the record,, pleads first, non est factum ; secondly, performance, and thirdly, the statute of limitations. To the first plea there is a replication and issue. To the second plea there is an assignment of breaches, rejoinders, surrejoinders and issues; and to the third plea there is a replication stating the terms of John Wilson’s will, that the estate was to be equally divided between the sons, David and James, and the daughter Elexine, when they arrived at their age of maturity, and that Elexine was married to William Hazzard on the 9th of Jan. 1834, and arrived at her age of twenty-one years, on the 22d of June, 1840. To this replication there is a demurrer and joinder in demurrer. In the court below the demurrer was overruled, and judgment rendered against the defendant'Layton. The issues joined in the other pleadings were afterwards tried, and a verdict given in favor of Hazzard and wife for the sum of $3,109 84, upon which judgment was rendered in their favor. Several errors have been assigned, but the one mainly relied on in the argument of this cause is the rendition of judgment in favor of the plaintiffs on the demurrer. In relation to which branch of the case, it is contended that

In order to understand the objection, it is necessary to consider the terms of the statute itself. The first section of the act declares, that no action shall be brought upon any administration bond after the expiration of six years from its date. In this respect, it differs from all the other sections of the act, in making the time of the limitation run from the datc’of the bond, instead of the accruing of the cause of action. This section embraces the official recognizance of the sheriff, and administration and testamentary bonds. In the case of all other official bonds, and of all personal actions, the statute does not begin to run but from the accruing of the cause of action, and no reason can be perceived why a different rule should have been established in relation to sheriff’s recognizances, and administration and testamentary bonds. The absurdity may follow, that a person may be barred before his cause of action arises. The 6th section provides, “ that if the person entitled to any action comprehended within either of the foregoing sections, shall have been at the time of the accruing of the cause of such action under disability of infancy, coverture, or incompetency of mind, this act shall not be a bar to such action during the continuance of such disability, nor until the expiration of three years from the removal thereof.”

The result would be, that the common case of a legacy to be paid to a child on his attaining his age of twenty-one years, if he were under fifteen years of age when the will was proved, and the administration or testamentary bond given, would not come within the terms of the proviso. And thus the very bond which was given to secure its payment, among the other duties of the administrator, would be barred by the statute, since supposing the legatee to be a boy, and to be compos mentis, he would be under no disability when the cause of action arose. For as the legacy would be payable only, when the individual had attained his majority, at which time alone the cause of action would arise, it results as a necessary consequence that the legatee not being under any disability when the cause of action arose, he would not come within the terms of the proviso, and therefore, would be barred by the first section, which requires that the action should be brought within six years from the date of the bond. It would seem that there must have been some inadvertency in framing the 1st section of this act, which however, the legislature alone is

I am therefore, of the opinion, that an action by husband and wife, comes within the terms of the proviso, if the cause of action accrue during the coverture. But in this case, it is not shown by the replication, that the cause of action has yet arisen, and non constat, that it will arise during coverture. The bond was given on the 11th of January, 1826, and the action was instituted in March 1841. But the proviso of the sixth section declares, that “ if the person entitled to the action shall have been at the time of the accruing of the cause of action, under disability of infancy, coverture, or incompetency of mind, the act shall not be a bar during the continuance of such disability, nor until three years from the removal thereof.” In order to avoid the bar of the statute, it was necessary for the plaintiffs to show in their replication that their cause came strictly within the terms of the proviso. In other words, it was necessary to show that the person entitled to the action was under some one of the disabilities of infancy, coverture, or incompetency of mind, when the cause of action arose.

Admitting then that wife is the person entitled to the action and is under coverture, and has been so since the year 1834, yet as the cause of action could only arise upon all three, David, James and Elexine, attaining their age of twenty-one years, it was indispensable to show that fact. The replication only stated the fact that Elexine attained her age of twenty-one years, on the 22d of June, 1840; but

As a member of the court below, before whom this case was heard, I think it due to myself as well as to my associates to state, that this objection to the pleadings was not noticed in the argument of the demurrer.

—The record in this case exhibits a suit brought under the provisions of the act relating to bonds and penal sums in the name of the State, for the' use of William Hazzard and Elexine, his wife, against Caleb S. Layton. The action is founded upon the bond given by the defendant as administrator, with the will annexed, of John Wilson, deceased.

The questions necessary to be decided, arise under the demurrer to the plaintiff’s special replication to the plea of the act of limitations. That portion of the pleadings opened by the demurrer, consists of the declaration upon the bond, which contains no assignment of breaches; the oyer of the condition and the plea of the act of limitations, and the special replication. This replication states the testator’s bequest of the residue of his estate: that the said Elexine intermarried with William Hazzard on the 9th day of January, 1834; that she arrived at the age of twenty-one years, on the 22d day of June, 1840, and that the suit v/as brought within three years after her arrival at the age of twenty-one, or maturity.

The administration bond is dated the 11th day of January, 1826. The 1st section of the act of limitations declares, that no suit shall be brought upon any administration bond after the expiration of six years from its date. By the 6th section it is provided, that if the person entitled to the action shall have been at the time of the accruing of the cause of action, under either of the disabilities mentioned, the act “ shall not be a bar to such action during the continuance of such disability, nor until the expiration of three years from

A remedy for legal injury must be provided for by fundamental law. It is one of the first principles of every social compact, and is expressly secured by the constitution. Legislative power may limit and restrain, but cannot take it away without infringing upon those essential and inalienable rights, which are placed beyond its control. In accordance with these principles, it has been uniformly decided, that acts of limitation do not begin to act upon the remedy until the right, under the general rules of law, has been fully consummated. This can occur only where there is a competent jurisdiction, a person to sue and to be sued, and a complete cause of action.

In this case it is contended, that the plea of thq act presents an absolute bar to the remedy of the husband, and that the action is exclusively his. It is admitted that had Elexine Hazzard remained sole, she would have had a subsisting right of action at and after ibo period when the present suit was instituted. The assumption that the title of the husband is affected is founded on the fact, that at the moment of the marriage there was a person competent to sue, although the wife was still an infant. By the marriage'the husband acquired a conditional right to the choses in action of the wife, but still subject to all their original contingencies. Here the replication alleges, that by the will the wife’s proportion of the residue was not payable until she arrived at maturity, or the age of twenty-one years. The husband then could not reduce this chose in action into possession until the happening of the event upon which it was made payable. Had he sued previous to the wife’s arrival at maturity, the actian would have been prematurely brought. A complete cause of action did not exist until the time of payment had elapsed. The replication, therefore, substantially alleges, that the cause of action did not accrue until the 22d day of June, 1840. The writ was issued on the 19th of March, 1841.

Marriage operates as a conditional gift to the husband of all the the wife’s choses in action. The cause of action here is the breach of the condition of the bond, which could not occur until the failure, to pay over at the time appointed by the testator. The husband at

At the time of the intermarriage in 1834, the wife being an infant, the obligation of the administrator was still subsisting, and unaffected by the statute. The husband then acquired his marital rights, and became entitled to avail himself of the provisions of the act relating to bonds and penal sums, as soon as his right of action should be perfected. Had the legislature subsequently repealed that law, without substitution, and thus deprived him of redress, it could not have affected his rights, because as to him their action would have been void. But the positions assumed on behalf of the defendant, if sustained, do in effect operate as a repeal of the remedy existing at the time when the marital rights were acquired, and show that the husband never could have sued on this particular cause of action. Such a construction would lead inevitably to the conclusion, that the statute is unconstitutional in its application to the circumstances of the present case. But this difficulty is avoided by referring to the general rule, that the statute does not begin to run until there is a complete cause of action, as well as competent parties and jurisdiction.

Verbal or literal construction has very seldom prevailed in the interpretation of the acts of limitation. The courts almost invariably look only to their spirit and policy. The first section of our statute contemplates a limitation commencing with the date of the bond. The proviso regards only the accruing of the cause of action, and saves the right to sue in all cases where the specified disabilities exist at that time.

If, where no disability exists, the act is to be held a bar in cases where the cause of action does not accrue until after the period of limitation has elapsed, then it forestalls the remedy, and impairs the very obligation of the contract. Besides this, such a construction would be directly adverse to the acknowledged policy of preventing delay in the prosecution of suits, and would not only impose the penalty of default upon an innocent party, but also introduce a most absurd conflict of principles. From these considerations 1 draw the conclusion, that notwithstanding the words of the 1st section, the act is not a bar to the present suit. This view of the case is entirely

The writ was issued within a few months after the cause of action was complete, and the replication specially alleges that the suit was brought within three years. ‘The several questions of the right of the husband to avail himself of the wife’s disability, and whether such right continues during the whole period of coverture do not inevitably arise. I sit as a judge in and for the .present controversy alone. The tenor of my commission is to try and decide this particular case. I am unwilling, therefore, to express my views upon any questions beyond those which musí be decided. Such opinions would be particularly extra-judicial and without authority.

There remains, however, another point to be disposed of. It is contended, that the plaintiffs have shown no right to sue, inasmuch as they have stated in their replication, that the residue of the estate was to be equally divided between the testator’s three children, when they arrived at maturity ; and there is no allegation that they had all arrived at such age at the time of bringing the action. Were this a question of construction arising upon the will of John Wilson, with that will before the court, it is very probable that there would be little difficulty in its settlement. But it is insisted upon as a defect in pleading, and the omission of a most material allegation.

The replication is unquestionably argumentative, and the right of the children of the testator to sue as they severally arrived at maturity, must be a mere matter of inference from the words of the will as stated. Considering it as a question of construction, we would be at liberty to look through the record to ascertain in what aspect the pleader has elsewhere placed it. The rule which forbids resort to other branches of the pleadings to help out the allegations, where there are no words of reference or connexion, does not apply to the question of construction. If the matter stated be capable of different meanings, it certainly does not clash with any principle to interpret it in that sense in which the party framing the allegation must be understood to have used it, if he-intended that his statement should be consistent. This is the established rule even in criminal proceedings. By reference, then, to the other replications it will be found that in the 1st, 2d, and 3d breaches, the mode of statement is such as to render the inference no longer doubtful. It is expressly alleged, that the division was to be made when all the children had arrived at maturity; and that fact is nowhere stated, nor is it in any

Ridgely and Frame, for plaintiff in error.

Houston and Wootten, for defendants in error.

Judgment reversed.