STATE, use of William Hazzard and wife vs. C. S. LAYTON et al., 3 Harr. 469

By the Court: Booth, Chief Justice. This is an action of debt brought under the act of assembly relating to bonds and penal sums, in the name ofl the State, for the use of William Hazzard and Elexine, his wife, late Elexine Wilson, against the defendant, upon the administration bond executed by him, as the administrator with the will annexed, of John Wilson, deceased, and by the sureties of the defendant, bearing date the 11th of January, 1826.

The suit is instituted to recover the shar of said Elexine of the personal estate of her father, John Wilson, deceased; which, by his will, was directed to be paid on her attainin. to the age of twenty-one years. The case presents a good and sub sisting right of action in her, upon this administration bond, whicl: she could not prosecute, because of the disability of infancy and th supervening disability of coverture; and which no person could pro secute for her, or in her right, sooner than the commencement o: this suit.

The only question submitted by the counsel on the argument of the demurrer, is whether this present action is barred by th act for the limitation of personal actions. The first

section declared that “no action shall be brought upon the official recognizance of an sheriff, or upon any administration bond, or upon any testamentar bond, against either the principal or sureties, after the expiration o| six years from the date of such recognizance or bond.” The secón third, fourth and fifth sections relate to other personal actions. Th sixth

section provides “that if the person entitled to any action com] prehended within either of the foregoing sections, shall have bee. at the time of the accruing of the cause of such action, under disa bility of infancy, coverture or incompétency of mind, this act sha 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 defendant’s counsel insists that the present suit is barred b the positive terms of the first section, and is not within the protectio of the sixth; or in other words, that this action prosecuted' by the husband, for the use of himself and wife, is barred by the act of limitation before the right of action accrues. This proposition in itself untenable, is adverse to the object of all acts of limitation, which is to urge parties to prosecute their legal rights, and not to slumber over them; to quiet stale demands, but not to bar actions before the right to sue arises.

In support of it the defendant’s counsel contends, that this case comes within the principle decided by this court in the appeal from the Orphans’ Court, between these same parties: that there the appeal, although taken by the husband in the name of himself and wife, was deemed to be his suit; because instituted by him in the exercise of his marital rights, and for his own exclusive use: pat for the same reason, this present action on the administration bond, being instituted by him for his exclusive use and benefit, is to Ire considered as his suit; and as he is under no disability himself, he cannot be shielded by the infancy of his wife, and her supervening ¡disability of coverture, and thus be protected by the sixth

section from the operation of the first. I In answer to this argument, let us consider what was the principle decided in the appeal from the Orphans’ Court. The present defendant, as administrator with the will annexed, of John Wilson, de-feased, had passed several administration accounts before the regis-jer, upwards of three years prior to the marriage of William Haz-iard, then of full age, with Elexine Wilson, then and for- several fears afterwards an infant. The eleventh

section of the act for the imitation of personal actions, declares that no exceptions to an ac-lount of an executor, administrator or guardian shall be received in lie Orphans’ Court after the expiration of three years from the set-lement of such account; and then provides that this limitation, in re-Buect to any person under disability of infancy, coverture or incom-■etency of mind at the time of the settlement of any such account, mall begin to run from the ceasing of such disability, and not from le time of such settlement.

The right to take exceptions to the ac-fcunts of the administrator with the will annexed, by way of appeal B the Orphans’ Court, accrued to the said Elexine immediately upon Beir settlement by the register, and was saved to her by reason of ¡r disability of infancy.

This right passed to the husband at the ne of their marriage; and he then, in the language of the' constitu-ía, became a party concerned_ in the settlement of the accounts. r right to take the appeal then accrued; and as there was then a cause of action, a person competent to sue, a person competent to be sued, and a jurisdiction in which the suit might be maintained, this court decided that the act of limitation began to run against him from that time; and as he was then under no disability, and did not take the appeal until after the expiration of three years from the accruing of his right, he was barred by the act.

This decision then is in direct opposition to the ground taken by the defendant’s counsel. If his argument be correct, that the present suit is barred because instituted after the expiration of six years from the date of the administration bond; then for the same reason, the appeal to the Orphans’ Court ought to have been barred, because it was taken more than three years from the date of the settlement of the administration accounts.

But as the court decided that the act of limitation did not I begin to run against the husband until his right of appeal accrued; it follows, upon the same principle, that the act does not begin to run[ against him in the present case, until the accruing of the cause ol action, namely: the arrival of his wife to the age of twenty-one years;l and therefore, as this suit was instituted immediately after that period,| the act of limitation interposes no bar. In the appeal from the Orphans’ Court between these parties, this! court viewed the proviso or saving in the eleventh

section of th< present act of limitation, as substantially the same with that in th< former act (Del. Laws 890, vol. 2, sec. 2,) which, according ti the plain import of its language, had respect only to persons laboring under the usual disabilities. It interposed to protect them, an< not those who could assert their rights at any time before the expiration of the period of limitation. The latter were within the operation of the act; but against the former, it did not begin to run untij the ceasing of the disability.

Upon this ground Shankland’s cas< was decided by the former Court of Errors and Appeals; and thi; court being of the opinion that the case between these parties, in th( appeal from the Orphans’ Court, fell within the principle of Shankl land’s case, decided accordingly. But the proviso or saving in th< sixth

section of the act now in force, on which this case dependsl differs from that in the eleventh

section of the same act, and fronl the saving in the second

section of the former act in vol. 2 Del. Law\ 890. And although it was well observed in Murray vs. The East India Company, 5 Barn. & Ald. 205, that the several statutes of limi tation being in -pari materia, ought to receive an uniform construí tion, it may also be remarked, that'where the expressions in tw| the

section of another act s proviso, saving or exception several sections of the same act, and in on the same subject, each containing a from the limitation of certain actions are different, the reasonable in fcrence is, that a different meaning was intended. The phraseology of the sixth

section is peculiar to itself. The saving is to the action to which the person under disability is entitled. It does not declare that as to the persons under disability, the limitation shall begin to run at the ceasing of the disability; but that the action to which they are entitled shall not be barred by the act, during the continuance I of such disability, nor until the expiration of three years from the removal thereof. Why were the words “during the continuance of skc/i disability” inserted? If the legislature intended, as in the second

section of the former, and in the eleventh

section of the present act, merely to save to persons under disability the right to bring their action within a certain time after their disability ceased, the saving [of the action during the continuance of the disability was nugatory; because during such continuance they are incompetent to sue or act for themselves; and therefore their rights would be equally well protected without such clause, by simply allowing them to bring their action within a limited time after the removal of their disability. It leems then, that it was intended in the sixth

section of the present pet, to allow the action to which a person under disability was enti-lied, to be prosecuted by a party in right of such person, during the fcontinuance of such disability. At the time of the marriage of William Hazzard with Elexine Wilson, and for several years after, she Ivas an infant; and thus was under the double disability of infancy Ind coverture. When the right accrues, on her attaining the age of Iwenty-one years, to demand from the defendant, as administrator with the will annexed, her share of her father’s personal estate, she k still under the disability of coverture.

She is then a person enti-led to an action upon the administration bond of the defendant, and Inder the disability of coverture at the time of the accruing of the lause of such action. In positive terms it is declared, that the act liall not be a bar to such action during the continuance of such disa-Iility.

And although the present suit, according to the argument of lie defendant’s counsel, is to be considered the husband’s suit, and lot the wife’s; prosecuted by him for his, and not for her benefit; Iver which he has the whole control, and she none; the proceeds of |hich wrhen obtained under judgment and execution, belong to him, lid not to her; still it is an action to which she is entitled; and it is only because she is so entitled that he has a right to prosecute it, or take any step respecting it. It would seem, therefore, by the very terms of the sixth

section of the act of limitation now in force, that the legislature intended to avoid the principle established in Shank-land’s case, and that such an action as the present should not be barred during the continuance of the disability of the person entitled to it. . The opinion of the court is, that judgment on the demurrer be rendered for the^plaintiff.