Edward Butler & ux. vs. Pearl Howe, 13 Me. 397

The action was continued for advisement, and the opinion of the Court was afterwards drawn up by Weston C. J. The defendant became the depositary of a bed, bedstead and bedding belonging to Polly, then a child of six years old, now the wife of Edward Butler, upon the condition, that ho should deliver them to her, when she became twenty-one, or when she needed them. If he withheld them after he was bound to deliver them, he became liable to an action of assumpsit upon his promise, or of trover for the wrongful detention.

It is apparent, from the condition, that it was contemplated she might want them, before she arrived at twenty-one. They were the bequest of her dying father; and constituted probably the only provision, he was able to make-for her. It may well be presumed, that when she was making preparations for her marriage, she wanted these articles, as an humble outfit on that occasion. Under these circumstances, she was entitled to demand them before marriage; and if withheld, an action would accrue against the defendant. She married at the age of nineteen or twenty.

The evidence, that she demanded them before, depended on her declarations, which were received without objection. No question is submitted to us, under these exceptions, as to its admissibility, or as to its sufficiency to prove the demand. The Judge instructed the jury, and wo think rightfully, that the cause of action accrued before marriage. She was then under the disability of infancy; and we are called upon to decide, whether the statute of limitations began to run, when the first impediment, infancy, ceased.

If several disabilities exist together, at the time the right of action accrues, the statute does not begin to run, until the party has survived them all. 1 Plowden, 375. But in Demarest et ux, v. Wynkoop, 3 Johns. Ch. R. 129, Chancellor Kent examined the authorities, and went into a consideration of the question, the result of which was very clearly in his judgment, that a party cannot avail himself of a succession of disabilities, but only of such as existed, when the right of action first accrued.

And the reason is, that if disability could be added to disability, claims might be protracted to an indefinite period. The same doctrine was laid down in Eager et ux. v. Commonwealth et al. 4 Mass. 182. Our attention has been called to a peculiarity in the' fourth

section of our statute of limitations, where the right to bring writs of formedon, in favor of persons under disabilities, is extended ten years, not from the removal of the disability, but from the end of the twenty years, allowed to persons not under disability. The English statute however allows ten years, after the removal of the disability. 21 Jac. 1, c. 16. And from the caso cited from Johns. Ch. Reports, it may be understood that such is the New York statute. By the statute of Massachusetts, commented upon in Eager et ux. v.

Commonwealth, statute of 1805, ch. 35, five additional years were allowed to persons under disabilities, to bring a writ of error, after the removal of the disability. The authority of the cases cited, and the principle upon which they turned, applies with equal force to the ninth

section of our statute, now under consideration, which after specifying the disabilities, provides that any persons laboring under either of them, may bring the action within the period set and limited, after the removal of such impediment. And by this must be understood the impediment existing, when the cause of action accrued. It results, that more than six years having elapsed after the infancy of her, who is now the wife of Edward Butler, had ceased, which was the impediment existing, when the cause of action accrued, it has become barred by the statute of limitations.

If the plaintiffs had any rights, they should have asserted them sooner. There was nothing to prevent the bringing of the action immediately after the marriage. Exceptions overruled.