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Opinion of the Court.

came to this court from Kentucky, in 1816, Ch. Justice Marshall said :

“The counsel for the defendants in error have endeavored to maintain this opinion by a construction of the statute of limitations of Kentucky. They contend, that after the statute has begun to run, it stops, if the title passes to a person under any legal disability, and recommences after such disability shall be removed. This construction, in the opinion of this court, is not justified by the words of the statute. Its language does not vary essentially from the language of the statute of James, the construction of which has been well settled ; and it is to be construed as that statute, and all other acts of limitation founded on it, have been construed.” Walden v. Gratz's Heirs, 1 Wheat. 292, 296.

And in the subsequent case of Mercer's Lessee v. Selden, 1 How. 37, 51, the court took the same view in a case arising in the State of Virginia, in which the right of action accrued to one Jane Page, an infant within the exception of the statute; and it was insisted that her marriage before she was twentyone added to her first disability (of infancy) that of coverture. But the court held otherwise, and decided that only the period of infancy, and not that of coverture, could be added to the time allowed her for bringing the action. The same doctrine was held in Eager v. Commonwealth, 4 Mass. 182; Fitzhugh v. Anderson, 2 Hen. & Mun. 306; Parsons v. McCracken, 9 Leigh, 495; Demarest v. Wynkoop, 3 Johns. Ch. 129; Bunce v. Wolcott, 2 Conn. 27.

In most of the State statutes of limitation the clauses of exception or provisos in favor of persons laboring under disabilities employ terms equivalent to those used in the English statute, expressly limiting the exception to cases of disability existing when the cause of action accrues. But this is not always the case. The statutes of New York in force prior to the Revised Statutes limited the time for bringing real actions to twenty-five years after seizin or possession had, and the proviso in favor of persons laboring under disabilities was in these words:

Opinion of the Court.

“Provided always, That no part of the time during which the plaintiff, or person making avowry or cognizance, shall have been within the age of twenty-one years, insane, feme covert, or imprisoned, shall be taken as part of the said limitation of twentyfive years.” Rev. Laws, 1813, p. 185, sect. 2; 2 Greenleaf's Laws, 95, sect. 6.

It will be observed that this proviso is stronger in favor of cumulative and subsequently accruing disabilities than that of the act of Congress which we are now considering; yet the Supreme Court of New York, and subsequently this court, gave it the same construction in reference to such disabilities as had always been given to the English statute of fines and statute of limitations. In the case of Bradstreet v. Clarke, 12 Wend. 602, which was a writ of right, and was argued by the most eminent counsel of the State, it was strenuously contended that the proviso referred to, being different from that of the English statutes in not referring to disabilities existing when the cause of action accrued, a different construction ought to be given to it, and the disabilities named, though commencing subsequently, and even after the statute began to run, ought to be held to interrupt it. The court, however, did not concur in this view, but held that the coverture of the demandant occurring after the statute began to run could not be set up against its operation. Mr. Justice Sutherland said:

“It is believed that the same construction has uniformly been given to this proviso in this respect as to that in relation to possessory actions [contained in a different section of the act], that where the statute has once begun to run a subsequently accruing disability will not impede or suspend it.”

Although the case did not finally turn on this point, the attention given to it by counsel and the apparent unanimity of the court, then consisting of Savage, chief justice, and Sutherland and Nelson, justices, give to that opinion a good deal of weight.

The same question afterwards arose in this court in the case of Thorp v. Raymond, 16 How. 247. That was an action

Opinion of the Court.

of ejectment, used in place of a writ of right, to try the title to lands in New York. The plaintiff's grandmother acquired a .right of entry to the lands in 1801, but was then insane, and remained so till her death in 1822. Her only daughter, and heir, was a married woman, and remained such till the death of her husband in 1832. The action was not commenced until 1850. The plaintiff contended that, under the proviso referred to, the daughter's disability of coverture ought to be added to the mother's disability of insanity; and that this would save the action from the bar of the statute, whether under the limitation of twenty-five years or that of twenty years. But the court held that the disabilities could not be connected in this way. Mr. Justice Nelson, delivering the opinion, and having shown that the proposed cumulation was inadmissible under the third section of the act, considering the action as one of ejectment, disposed of the other view as follows:

“But it is supposed that the saving clause in the second section of this act, which prescribes a limitation of twenty-five years as a bar to a writ of right, is different, and allows cumulative disabilities; and as ejectment is a substituted remedy in the court below for the writ of right, it is claimed the defendant is bound to make out an adverse possession of twenty-five years, deducting successive or cumulative disabilities. This, however, is a mistake. The saving clause in this second section, though somewhat different in phraseology, has received the same construction in the courts of New York as that given to the third section.” [Citing the case of Bradstreet v. Clarke, in the decision of which the learned justice had participated.]

The statute of limitations of Texas is another instance in which language is used quite different from that of the English statute. After prescribing various limitations, the eleventh section provides for disabilities, as follows:

“No law of limitations, except in the cases provided for in the eighth section of this act, shall run against infants, married women, persons imprisoned, or persons of unsound mind, during the existence of their respective disabilities; and when the law of limitations did not commence to run prior to the existence of

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Opinion of the Court.

these disabilities, such persons shall have the same time allowed them after their removal that is allowed to others by this and other laws of limitations now in force.” Oldham & White, Art. 1352.

According to the literal sense of this section, if one disability should prevent the statute from running until another supervened, the latter would be equally effectual to interrupt it. But the Supreme Court of Texas, in White v. Latimer, 12 Texas, 61, held otherwise, and decided that one disability cannot be tacked on to another; but that the long-established rule in construing statutes of limitations must be applied. The court say:

“ The 11th section of the statute is not in its terms materially different from the exception contained in the statute of James, and cannot claim a different construction from that ; and a departure from the rule so long and well established, that it applies to the particular disability existing at the time the right of action accrued, would introduce the evil so strongly deprecated by the most eminent English and American judges, of postponing actions for the trial of rights of property to an indefinite period of time, by the shifting of disabilities, from infancy to coverture, and again from coverture to infancy, an evil destructive of the best interests of society, and forbidden by the most sound and imperious policy of the age.”

The authority of these cases goes far to decide the one before us. The proviso in the New York statute certainly was more general in its terms in describing the disabilities which would stay the operation of the statutes—described them more independently of the time when the cause of action accruedthan the act of Congress under consideration; and the courts, in giving it the construction they did, seemed to be largely influenced by the established interpretation given to similar statutes in pari materia, without having in the statute construed any express words to require such a construction. But in the case before us, the fair meaning of the words leads to the same result. The language is as follows:

Opinion of the Court.

“No judgment, decree or order... shall be reviewed in the Supreme Court, ... unless the writ of error is brought · or the appeal is taken within two years after the entry of such

judgment, decree or order : Provided, That where a party entitled to prosecute a writ of error or to take an appeal is an infant, insane person, or imprisoned, such writ of error may be prosecuted or such an appeal may be taken within two years after the judgment, decree, or order, exclusive of the term of such disability.”

Is an infant,” when?“ Is an insane person, or imprisoned,” when? Evidently, when the judgment, decree or order is entered. That is the point of time to which the attention is directed. The evident meaning is, that if the party is an infant, insane, or in prison when the judgment or decree is entered, and therefore when he or she becomes entitled to the writ of error or appeal, the time to take it is extended. In all the old statutes this was expressed in some form or other; this was their settled meaning. It will also be deemed to be the meaning of this statute unless its language clearly calls for a different meaning. But, as seen, it does not.

Section 1008 of the Revised Statutes was taken directly from the “Act to further the administration of justice,” approved June 1st, 1872, and is a mere transcript from the second section of that act. 17 Stat. 196. But this was a revision of the twenty-second section of the Judiciary Act of 1789, and if we turn back to that section we shall find that, with regard to the point under consideration, its language was, in effect, substantially the same as that of the present law. It was as follows:

“Writs of error shall not be brought but within five years after rendering or passing the judgment or decree complained of; or in case the person entitled to such writ of error be an infant, feme covert, non compos mentis, or imprisoned, then within five years as aforesaid, exclusive of the time of such disability.”

Be an infant,” when?Be a feme covert, non compos, or imprisoned,” when? The same answer must be given as before, namely: when he or she becomes entitled ; i.e., when the judgment or decree is entered.

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