Belt v. Hepburn

MAY TERM, 1769.

Debt on a writing obligatory, bearing’ date on the 28th day of November 1745, executed by George Gordon3 *513John Hepburn, (the defendant,) Henry IiamaM, and John Gooke, to Mary Gordon, conditioned, “that whereas ti e «honourable commissary general has lately transmitted «to the justices of Prince-George’s County court, the ba«dance remaining due on the estate of George Forbes, decreased, which appears to be 393Z. 9s. Id. sterling, 111. 8s. “0d. gold, and 9911. 13s. Id. current money; if therefore «‘the above bound George Gordon, or any person on his “behalf, shall and do, well and truly, satisfy and pay «‘unto the said orphan, namely Mary Gordon, her heirs, “&c. or lawful guardian or guardians, her respective part “or portion of the estate of the said deceased, according «‘to the act of assembly in such cases late made and provided, and his last will and testament, that then the “above obligation to be void,” &c.

The defendant, being one of the justices of the provincial court, a bill was exhibited against him on the 27th of May 1767.

Pleas. 1. Mn est factum. 2. Payment hj George, Gordon. 3. The act of limitations, vis. “That the writing obligatory shall not be good and pleadable, or admitted in evidence against him the said John, because he saith, that the said debt or thing in action, for which the said Tobias and Mary have filed their hill in this honour-. able court as aforesaid, was above twelve years standing on the day of the filing the said bill of the said T. & M*. and this,” &c„

4th. The act of limitations, viz. “That the said T. & M. their action aforesaid against him the said J. to have or maintain ought not, because he saith, that the said T. & M. did file their bill in the action aforesaid on the 19th day of May 1767, and not before; and that twelve years and more have elapsed and expired from the day of the date of the said writing obligatory, in the declaration aforesaid mentioned, until the day of the filing the bill aforesaid, to wit, at Prince-George’s county aforesaid j and this,” &c.

Replications. 1. Issue to the first plea. 2. Mm payment and issue. 3. Infancy and coverture, viz. «‘That -she the same Mary, at the aforesaid time of making the writing obligatory aforesaid, was an infant within the age of 21 years, to wit, of the. age of 12 years, and no more, at Prince-George’s county; and that in the time of the infancy of her the same Mary, and before she arrived to her age of 21 years, she the same Mary on the 10th day of June 1752, at Prince-George’s county aforesaid, took to husband the aforesaid Tobias, of whom she hath ever since remained covert, to wit, at the same county; and this,” &c.

4th. Same replication of infancy and coverture.

*514fíiíXTiuu Demurrer to the 3d Replication, and joinder. Rhjoinder to the 4th Replication^“That the said Mary arrived to the age of 31 years before her intermarriage with the said Tobias, to wit, on the 1st day of June 1753, at the county aforesaid.” issue joined.

Verdicts for the plaintiffs upon all the issues in fact.

Chase, for the plaintiffs, upon the demurrer.

This is an action of debt on a bond to Mary Gordon, the plaintiff’s wife, an infant, dated 8th of November 1745, under the act of assembly in 1715, ch. 39, s. 7, 15. The bill was filed on the 19ih of Slay 1767. The defendant pleaded the act of limitations two ways—

1. Agreeably to the act of 1715, ch. 23. s. 6.

S. “That the plaintiff’s bill was filed the 19th of May* 1767, and not before; and that 12 years and more elapsed from the day of the date of the bond, until the day of filing the bill.”

The plaintiffs reply, that the plaintiff Mary, at the time of the bond, was an infant, to wit, of the age of 13 years, and no more; that in the time of her infancy, and before she arrived to the age of 21 years, on the 10th of June 1752, at Prince-George’s county, she took to husband the aforesaid Tobias, of whom she hath ever since remained covert, to wit, at the same county; and thin they are ready, &c.

The defendant has demurred generally.

It may be contended on the part of the defendant—

í. That the replication is double — Styles, 320. Viu, éb. tit. Limitations, 111. 4 Bac. Jib. 118, 119, 120, 3 21, See 12 Mod. 526. 8 Mod. 180,

3. That the plaintiffs arc barred by the act of limitations, because. 12 years 1 ave elapsed from the marriage in 1752 until bill filed in 1'67. That Belt by his marriage in 1752, was entitled, in r-ght of his wife, to the bond, and that he might receive, release, or sue for recovery; that he having a complete cause of action in 1752, and neglecting to sue in 14 years, is barred by the act of limitations, and that his laches shall prejudice his wife.

The demuirer admits the fact, and refers the lav/ arising on the fact to the judgment of the court.

It may be compared to the case where a fine and non claim of the wife’s land shall bar the husband, (w'ho suffered five years to pass,) and the wife during her cover-' ture. Cro. Gar. 200. 1 Jones, 195. Danvers Jib. 52C, pi. 12. See 1 Bac. Jib. 301. Bar <$p Fern. 136.

The reason why jeme covert hound by c. fine — Bar. Few. 125. 1 Eae. JSb. SOI. A fine levied by a feme covert, as a feme sole, binds her and her heirs, unless avoided by the ericy of the husband.- — Lili. Conv, 194, *515Bar. éj- Fem. 126. But slie cannot — 4 Vin. M. 62, pi. 2, 2. If baron alone aliens the land of the wife by fine and proclamation, and dies, and five years expire after bis death without action or entry of the wife, it is a tiai‘ for ever to the wife and her heirs. — 4 Vin. 50, pi. 11. If baron and feme levy a fine, the feme within age, the whole fine shall he reversed, and not only quoad uxorem —Bar. <$" Fem. 131, 132. Styles, 472. If an executor, administrator, or trustee for an infant, neglects to sue within six years, the statute of limitations shall bind the infant — 1 P. Wms. 309. In this case the infant was not within the exceptions of the statute; nor was it so contended as to the definition of a trust — 2 Atk, 612.

All personal estate is vested in the husband by marriage, and he may dispose of it, in his lifetime, without her consent. — 1 Bac. Ab, 289. If bond is made to a feme covert, daring coverture, conditioned to pay money to the feme,, baron alone may bring action upon such bond. — -1 Bac. Ab. 305. Cites 3 Lev. 403. Vin. tit, Baron tf Feme, 75, pi. 33. If a bond is entered into to baron and feme, baron may sue alone. — 1 Bac. Ab. 305. Bar. Sp Fern. 255. 2 Mod. 217, Vin. tit. Bar. <$* Fem, 75, pi. 32, For all causes of action before coverture, husband must join. — 1 Bac. Ab. 306. And also in those cases where the cause of action will survive to the wife. — 1 Bac. Ab. 304. Bar. cf Fem, 244, 5. Cites Sid, 299. Bar, <§* Fem. 253, 4. 2 Mod. 269. Vin. tit. Bar. <Sp Fem. 79, pi. 30; 76, pi. 3; 73, pi. 22. 1 Sira. 229. Given, 82. A bond to the wife is good, and husband may release it, and if husband dies the wife shall have the action, if the husband has not released. — 4 Vin. 84, pi. 17.

, I shall contend for the plaintiffs, that a chose in action, as a debt due to the wife by obligation, is so. far vested in the husband, that he may reduce it into possession; yet if ho dies before, the wife shall he entitled; nor shall a chose in action survive to Che husband upon the death of the wife; nor shall he have any right but as administrator to his wife — 1 Bac, Ab. 289. Co, Lit. 351, 120, (in note.) Vin, Ab. 5.5, pi. 23, 44, pi. 14. Styles,, 205. 3 Mod. 186. Finch, 31. What laches shall prejudice lite wife — Co. Lit. 246, s. 403, A bill of exchange made to wifi}, durn sola, husband may assign it, and assignee shall bring action in fiis own name — 1 P. Wms. 249, 20 Mad. 246. V:n. tit. Baron and Feme, 57, pi. 18. Husband may release or receive a chose in action — Vin. til. Bar. and Feme, 39, pi. 5, 6, 7; 44, pi. 14. Chan, Pre, 414. Mod. 452. 1 Bac. Ab. 289. Poph, 106. Vin. lit. Bar and Feme, 47, pi. 30, 50; pi. 19, 20; 53, pi, 7; 55,-pi. 23. 1 Salk. 327. 3 Mod. 186. Also to a thing accrued during coverture — -1 Bac. Ab, 290, A receipt brj *516wife alone, fot? a legacy bequeathed to her, is not a suffi ficient discharge against the husband — Fin. tit. Bar. and Feme, 60, pi. 16. Fern. 261. Comyns, 725, pi. 280. Infants si>ouid sue within the time allowed by the statute after the impediment removed — 2 Bac. Jib. 127 See 2 Mod. 71. If a husband assigns a bond of his wife’s for a valuable consideration, this assignment will not bind the-wife, if she survives. — Chan. Pre. 121, 518. Gilb. Eq.103, 415, 100. Chan. Rep. 124. Cha. Ca. 27. 2 Freem. 172, pi. 223, Poph. 106. 3 P. Wms. 87, 197. If she survives she may maintain the action, ergo, this may ba supported, for a personal action once suspended can never be revived — Hob. 10. Finch, 29, 300. If an infant, during his infancy, by guardian brings an action, the defendant cannot plead the statute of limitations, although the cause of action accrued six years before — . 3 Bac. Jib. 513. Cites 2 Saund. 121. English, 110, 111, 1 Sid. 453. 2 ICeb. 646. Bar is when the defendant, in any action, pleads a plea, which is a sufficient answer, and destroys the action of the plaintiff for ever — Lilly Jib. 298. Once a bar, in a personal action, is a bar perpeto al, when a bar to the right, not where action is misconceived, or brought wrong — Cro. Jac. 15, pi. 20. Cro. Elia. 668. 6 Rep. 5, 7. 2 Show. 211. Raym. 472. Skinner, 48, 9, 57. 1 Mod. 207. 3 Mod. 1. 2 Mod. 318. Pol. 634. Gilb. Ev. 267. Fin. Jib. tit. Baron; 18, 25, pi. 12} 31, pi. 1. 6 Rep. 46, a.

It is a general rule, that a judgment on demurrer is as conclusive and binding as if the same had been after verdict, &r — 4 Bac. Jib. 132. Cites 11 Co. 58. 2 Roll. Jib. 89. 1 Ray. 515. Salk. 325.

As to the nature, of coverture — Bar. and Fern. 3, 4, Wherein a feme covert and an infant differ — id. 4. Privileges of a feme covert — id. 24, 25. A fine is an agreement of the parties on record — a conveyance is of greater security than a feoffment, &c. — -2 Bac. Jib. 520. A fine by an infant is voidable during ins minority; and same by a feme covert — id. 526, 527. A deed of a feme covert, with her husband, is void — 9 Fin. 407. Gilb. Evid. 165. An infant may contract for necessaries; may purchase, and a promise to an infant is binding — 3 Bac. 129, 141. But a promise to a feme covert is not binding . — Bqc. 297. If an express promise to feme covert, husband to sue with his wife.— 1 Pac. 305. A wife’s contract, during coverture, to bind the personal estate of her husband, in \Vhioh she hath no property, is void; to bind her own land, in which she hath property, is voidable and not void — Gil. Evid. 211. Bar. and Fern. 4.

The bond upon which this action is brought, is dated the 28th of Navembor 1745. *517The bill was filed against the defendant the 27th of May ¿767, so that upwards of twenty years elapsed from the date of the bond to the filing of the bill. In the other action against John Cooke, another of the securities, the writ issued on the 1st of October 1766, and 20 years and idear 10 months had elapsed before that writ issued. — . Mary was 12 years of age on the 28th ofNovember 1745, so that on the 10th of June 1752, when she married Belt, she was 18 years, 6 months and 10 days old; and up wards of 14 years between her marriage with Belt and issuing the writ on the 1st of October 1766. Mary was 21 years of age on the 28th of November 1754,12 years not elapsed from that time to the 1st of October 1766.

The question is, are the plaintiffs barred by the act of limitations of 1715, ch. 23, s. 6, notwithstanding the matter set up by them in avoidance? for if that matter does not excuse, it is a proper subject of a demurrer.

The more particular questions are—

1st. Whether the cause of action arose to Mary at her age of 16; if it did, whether the statute runs from that age or her age of 21; if from 16, the statute is a flat bar?

2d. Whether the cause of action arose to Tobias at hiss marriage; and if it did, whether the statute shall run against him and vafe from that time notwithstanding the covert of Mary in whose right he claims?

As to thqfirst question. Females are to be paid at 16, or day of marriage, which shall first happen. Act of 1715, eh. 39, s. 15.

As to the second question. By the intermarriage the husband acquires an absolute power of disposing of the wife’s personal property — 1 Bar. 286.

The goods in possession, (at the marriage,) ofthe/emc. are absolutely vested m the husband- — 1 Bar. 289, 290. Co. Lit. 351.b. Things in action, as debts due to the wife by obligation, &c. are so far vested, that the husband may reduce them into possession at his pleasure — 1 Bar. 289, 290. Co. Lit. 351. Boot. Sp Stud. ch. 7. Boll. Jib. 342. Moor, 45, 452, 229. Things in action are so far vested that he may assign them — 1 P. Wms. 249. He may release them or give them away; they shall be assigned on his bankruptcy — >1 P. Wms. 249. A small matter reduces them into possession, as if he makes a letter of attorney and he receives them, and the feme dies, the husband shall have an action of account against his attorney, for his receipt reduces them into the possession of the husband — = 1 Bar. 289. Boll. Jib. 342. .Albor, 45. Golds. 160. Where-over the plaintiff has a complete cause of action the statute will run, if no impediment to bringing the suit — S Bar. 511. Qodb.'437. 2 Salk. 422. pi. 9. 2 Baipn. 838. I Bur. 279, 290? «. Yen. 261. Moore, 239, 452. 1 *518Salk. US, Í18. 2 Roll. 495. 4 Yin. 105, pi 4. If the statute, is no bar in this rase all tlic incouveniencies tho law intended to prevent would be let in. The husband was under no disability or impediment in this case, and is therefore barred by the act of 1715, eh. 23, s. 6. Infant barred, because the administrator had a right to sue, but forbore to do so — 3 P. Wms. 309. The statute of limitations is one of the best statutes — 7 Mod. 12. Them is no case where the coverture of the wife will excuso the negligence of the husband. If a husband and wife have right of entry into land whereof another is seised in fee tail, &c. and such tenant died seised, the entry of the husband is taken away; but if the wife survives she may enter. — Co. Lit. 246. a. But if a feme sole is disseised of land and taketh a husband, the husband and wife may enter, yet if disseisor dies seised, the right of entry of the wile is taken away after the death of the husband, because she might have entered before coverture, and it was her folly that she took a husband that would not enter; but if in the last case she was an infant, she may enter after the death of her husband — -Co. Lit. 246. ft. A, seised in fee devises to B. an infant, in fee — C. the heir of A. enters and levies a fine with proclamation in tho infancy of B. B. dies an infant, leaving his sister tho wife of D. his heir; five years elapse; D. the husband io barred notwithstanding the covert of his wife; but the wife shall have new five years after the death of the husband — Cro. Car. 200.

The plaintiffs can only argue upon a supposition that the cause of action and debt itself will survive to the femej and it will be said, that if it will so survive, the statute can bo no bar in this case, because that would be a temporary suspension of the action, which, according to the, legal rule, that a personal action once suspended, is extinct, and gone for ever; and therefore the" /ms, if sho should survive, would by tíiat rule be barred for ever. In answer to this, I allege that the above rule is not an uni > versal one; there are many cases where a suspension is no extinguishment of a personal action, If the cbligco makes the obligor his executor, this is a suspension o? the action, (and an extinguishment of the debt if acscic to pay creditors,") because the obligor cannot sue himself, and the same person who in to pay is to receive; but it is not an extinguishment if no assets besides to pay debts; bat suppose flic, executrix cf the obligee marries the obligor, this is only a suspension, and upon this death of the executrix the administrator de bonh non may bring suit on the bond. Suppose administration of tho goods of the obligee are committed to the obligor, this is only a temporary suspension cf the action? and the ;;d«xi=> *519lílsííaíüí* de lonis non of the obligee may sue the : >:ccuior oí* administrator of the obligor. A difference may be taken between suspensions which are occasioned by act of law, and the act of the party. Is the present case a suspension by act of law or the act of the party? It is a suspension by act of law, and not of the party, with respect to thofeme, because the law will not impute negligence to her, (she being an infant and/esrie covert,) to deprive her of her right; and therefore may well be a suspension without an extinguishment- — Sail:.. 299. 5 Bw con, -379, tit. Executors and Jldmhústrators. Suppose it the-act of Oie party, (viz. the husband,) his act will not pi*sJatlice tbs wife, because she could not sue, as ia the case rof the marriage, by executrix of obligee with the obligor.

TEjc cases relative to the real estate of the wife apply £n this case, for if the husband by his negligence is bar-i«i«l of his wife’s inheritance, when his power over it is very small, and of which he cannot dispose but for a time without her consent, much stronger is the reason that she .’shall be barred of her personal estate over which he has the absolute power of disposition.

The question is, whether the matter disclosed in the replication is sufficient to avoid the act of limitations?

We contend, that the plaintiffs, having suffered upwards of 22 ycais to elapse since the coverture, are barí red of their suit.

How fai* the wife may have a remedy in cane of survivorship, is not now the question; therefore, w hctlier this neglect of the husband shall affect the wife is immaterial, and the sole consideration is whether it shall not preelude him.

By the act of assembly, all suits on bonds are to be brought within 12 years after cause- of action accrued, mil css party labours under the disability in the proviso of the act; therefore it is proper to consider when this cauce of action first accrued to the husband, for it nofc being alleged, cannot fee supposed he laboured under any of the impediments mentioned.

*520This obligation, made to the feme when sole, Was at the time of her intermarriage a thing in action, and agreeable to what has been premised, the husband bad immediately a power of reducing it into possession by suit; therefore the cause of action then accrued, consequently 12 years having elapsed since such cause of action accrued, he is barred by the express words of the act of assembly.

This point being determinable under a positive law of our own, might be very well settled by only adverting to the particular expressions in the act, which are plain and explicit, that the suit must be brought within 12 •years from the time the cause of action accrued. Here a cause of action accrued on the intermarriage of the plaintiff. It does not appear that he was under the disabilities mentioned, at the time the cause of action accrued; and this suit not being brought within 12 years from the time such cause of action accrued, therefore plaintiffs are barred.

The principle then laid down is, that a husband having an interest in his wife’s property, may defeat that interest, and deprive himself of any advantage from it, And here it is proper again to observe, that we say nothing about its depriving the wife, it being totally foreign to the present question, which is how far the husband’s laches shall bind himself, and not how far they* shall bind his wife after bis death. To establish which, I will shew that the husband’s delinquency shall in many instances bind his wife, but shall always bind him t — Baron and Feme, 73, pi. 1, 2, 3, 76. Co. Lit. 351, a. 4 Fin. tit. Baron and Feme, 104, pi. 1. 2 P. Wms. 608. 3 F. Wms. 309. Co. Litt. 246, a. 5 Co. 70. Hob. 253. 1 P. Wms. 258. Cro. Car. 200. Cites 4 H. VIH. 24. Moor, 92, pi. 229.

The art of limitations is a law calculated for the repose of the people — see the preamble. It has always met with a most favourable interpretation — Far. 12. Salk. 422. 2 Burr. 961. if ever proper to be countenanced in any suit, it certainly is so in this; for this bond has been standing upwards of 20 years; the principal who could defend the suit is dead, and the matter fallen into hands unacquainted with the affair, the very inconvenience the act intended to guard against.

The act docs not say that the suit of a husband shall he protected, but only of a feme, if she is under coverture; had it intended to have protected Ills interest as much as her’s it would have been expressed.

It lias been shewn that the neglect of the husband shall bind himself and the wife during coverture, in matters where his interest is not so great; in things which *521lic contó not of himself acquire the sole property, and it would be strange that the less interest a man has in a thing the greater power he should have over it.

All tiie cases which are produced to shew the law in some instances protects the wife, do not orce mention that the husband shall not be prejudiced, but say it shall Hot bind the wife after the coverture; which shews it shall bind them both during coverture; for you cannot benefit the wife without benefiting the husband; and it is not right, that where he was culpable he should receive benefit; therefore the law postpones the wife's benefit till his death.

Acquiescence of the husband is not to defeat a statute calculated to promote the general tranquility, and to deprive me of the benefit of it.

Suppose, words spoken of wife during coverture, must not suit be brought witliin twelve months? yet hete both must join, and action will survive.

Trover may be brought for wife's goods before marriage, by husband only ' — 2 Lev. 107.'1 Mod. 25.

It is said that it is for the- wife’s benefit that the husband should recover the money. I answer, this is contradicting the policy of the law in protecting the wife in every other instance, which for her benefit restrains the husband from having all in his power. If this debt is recovered, and husband dies, it goes to his executors. Ami cannot it be a question which is most for her benefit, to have a thing at her husband’s death or not? If this reasoning is just, and the more of the wife’s estate, the, husband gets the greater her advantage., why does not the law' give him all the wife’s property whatever on the iiitermawiage?

The husbaiul may bring suit alone on a bond debt due Bis wife. Vern. 396. Ch.Pr.A15.

This would defeat the act ot limitations altogether; most women nrnrry under age — Bonds given to them must be by persons of full age; therefore the chance of survivorship is against obligors, and the meninge may continue many years, 20, SO, or 40, and then this dormant claim is to be set up. The husband is entitled to tins debt when recovered; and is it not ¡nope reasonable that the neglect of the person solely interested in the recovery should rather prejudice him than defeat tbs statute-

A man, it has been said, cannot assign Ms wife’s things in action. I answer, no more can he his own things in action; and for the reasons. — See Gilb. Eq. Rep. 103.

Chase, in reply

The fact however, of the grandchild and legatee aforesaid, being under the age of 21 when she intermarried with Belt, is differently stated, and it is supposed, on the contrary, that she was more than 21 when she last married; and on this part of the case it is further stated, that G. G. is dead, having made his will, and therein, after devising the use of his real estate to his wife, and applying the produce of his estate, (beyond, &c.) to ¿he discharge of his just debts, directed, &c. Again G. G. in his will, makes use of the following words, viz. “Item. My will is, that all the rest of my personal estate, after my legal debts are paidP be sold,” &c.

The questions put are, 1st, Whether the act of limitation may he set up as a bar upon a suit on the bond at law? 2d. Whether supposing a bar at law on the bond, there is any remedy in equity? 3d, How the bequest to M. M. will operate?

As to the first — -The answer will depend upon the fact whether Mrs. Belt was of age or not when she intermarried with Mr. Belt; if she was, there will be a bar; if she was not, I conceive there will not be a bar.

Mrs. Belt, it is said, was born in December 1732, and her present husband, it is said, married her in the year 1752. I presume it will be an'easy matter to ascertain the fact of her age when she married'..

But taking it that there would be a bar at law.

2diy. I conceive that there will be a bar in equity with respect to the sureties in the bond, it not being in the power of G. G. by expressions in his will, to make his sureties liable beyond the operation of their own act in executing the bond, and the act of limitation being as obligatory in equity, where there is no circumstance of fraud, &c. as at law; but I conceive, that there maybe full remedy in equity against G. G’s estate. If it were any way necessary, the parts of G. G's will, so far as his estate is concerned, above mentioned, would take this case out of the act of limitation, especially as the demand is on the behalf of a child of G. G. but I apprehend a suit in equity ought to take the matter up on the footing of Forbes’s will claiming the legacy, ante calling for a discovery and account, without paying any regard to the bond.

*524Whether a bond extinquishcs a legacy upon a question between a court of law, and the spiritual court, on the point of jurisdiction, has been a question differently determined; but I do not know that it has been held to be a merger in equity, and am inclined to think the doctrine of extinguishment, which a court of law might favour, to controul the jurisdiction of the spiritual court, would be not so favourably regarded, in equity to oust chancery of its jurisdiction; but be that as it may, the notion of merger does not apply in this case; for where it does, the superior debt is tine, which by the subsequent account passed by G. G. it appears was not the case, and as G. G. unrav.lied the settlement on account of the error, a cause for which it might have been unravelled in equity, and the bond there set aside, I conceive that the bond cannot be set up in equity to answer the purpose of a merger, i. e. it cannot be considered in one view as not obligatory on G. G. in case a demand had been made upon it, and in another view as obligatory upon the obligee to work an extinguishment. Moreover, the bond directed to be given by our testamentary act, is merely f<»r the security of the minor, and comes up to the reason assigned by Dodaeridge in Gardner's case, 2 Ro. Rep. why a bond does not deprive a legatee of his remedy in the spiritual court.

As to the last question — 1 conceive that the bequest to M. M. ought to be made good for the whole. If the testator had bequeathed specifically'thr corn, &c. in such a house, and there had been none, or less than the quantity there, it might have been otherwise; but 'his was an absolute unspecific bequest. If an ox, or cow named A. is given, and afterwards destroyed, the legacy fails; hut if 1 give an ox, or a cow, and have neither, the executor must buy one out of the assets; or if 1 give ten of either, and have only nine, the deficiency, for the like reason, ought to be made good out of my estate. Even in the first case I have put under this question, some books, seem to consider the legacy as absolute, with a demonstration only how to be paid.

Another opinion of Daniel Bulany, Esquire, the first and latter parts of which are m slaid:

«The case in 3 P. Will, does not appear to me to be material. Without doubt, if the trustee of infant neglects, the art of limitation will hind both at law and in equity; at. law very dearly, because the person having the legal claim is only considered, trust being in no sort the subjectoflegal consideration;fortheverydeffniti(iaoftrust *525¡fo where. fhere is anrh a “confidence between parties that “no action at law will lie- but is merely a case for the “consideration of equity,” vide 2 JUlins, 612,* and if wanted, many other books to the same purpose.

Wherefore the eesiuy que trust is not taken notice of at law, and consequently, no doubt, hut the trustee’s neglect will bind him there.

The above description of a trust shews, that even in, the » :;sideration of equity, the confidence is merely between the parties; and that another person cannot be affected by it. The case in P. Will, speaks in the same language, “as to the trust, that is only between the ad“minisirator and the infant, and does not effect the com« *‘pany.m>

A trust is not affected by the act of limitation. The matter being understood as above, this rule applies only between the parties, and not to a stranger.

The res-dt is, that inasmuch as neither at law, nor in equity, is a trust considerable, but between the parties, the act of limitation Id pleadable by every one not a party to the trust; buf by a party it is not, (that is,) so far as the trust is in contemplation.

The case in Cro. Car. 200, 201, though the other reports of the case do not correspond with it, is, certainly, good law. Co. Lift. 246, a. b. may also be cited, and Ziff. sect. 403. But, as they seem to me, are wide of the point The entry of the husband is a remedy to vest an estate of freehold in himself, and, if neglected, his own estate is affected thereby. He may lose his entry! and his wife’s, after his death, be preserved! but if, in the present case, the action were not maintainable, the debt would be altogether extinguished,* for a personal action, (as this is,) being once suspended, can never be revived = — Hob. 10 Tryer £• Gildridge. In Cro. Car. the husband alone is affected, the remedy of the wife is preserved. Where there is a legal right it cannot be destitute of a legal remedy. The debt in the present case is a chose in action belonging to the wife, who was an infant till after she married. During her infancy and coverture, n«* laches are imputable to her. Suppose her to survive her husband, might she not maintain the action? If she might, so can the present action be maintained, because, as is said above, if it be suspended for an hour, it will be totrily extinguished. It cannot be maintained that she night support the action after her husband’s decease, and jn he maintained that the present action cannot be supported; and if it he advanced, that she would not he able t« maintain it after the death of her husband, the saving in (he act, of infancy and coverture, world he of little or wn fí.ví!Ü? as will be hereafter shewn.

*526I liave already observed, that a legal right cannot be destitute of a legal remedy, and the case in Croke, well considered, is rather, in principle, for the action. Ger-min argued, that if one enters after a devise, before the devisee enters, and dies seised, the descent shall not take away the entry; so fine and non-claim shall not bar, where it is not turned into a right. The Court, contra — • Though a descent in the case put should not bind, because then no action could be maintained, there never having been a seisin, and so there would he no remedyi In the case, though the husband was barred of his entry, the right of the wife was admitted. Why did not the descent bar? Because if it did, no remedy would be leftj for thesake ofthe right, the remedy is preserved. Though the husband was barred in respect of his interest, yet the wife was not. But suppose the consequence of the husband’s being barred, would have, been the barring of the wife, then the case put by Germin, of devise and descent, would have ruled it.

Since the case put by Germin, of devise and descent, did not apply to the case of the fine, and non-claim, wherein is the difference between the two cases? The entry was not taken away, because then there would have been no remedy left. In the latter, though the entry of the husband taken away,-the wife’s right preserved. If the former case did not properly apply to the latter, neither would the latter apply to a case similar to the former, as the present, wherein, if the present action be not maintainable, there never can be remedy.

The case put by Littleton is this — If there be title of entry in husband and wife, as in right of the wife, the entry of the husband is taken away by descent; but on his death the wife may enter; for that no laches shall turn the wife to any prejudice or loss. Suppose the husband’s loss of entry would have deprived the wife of hers, then the laches of husband would have turned to her prejudice or loss, and the very reason given would have been against it. This case, and the case in Croke,. shew only that the husband may be affected where the wife’s, right is preserved undestroyed by the husband’s laches., But how would it be in the present case? Lord Coke in his explication observes, if a feme sole be disseised, and then marry, and disseisor die seised, the descent shall take away the entry of the wife, because she might have entered whilst sole, and it Was her folly to take a negligent husband; but if an infant,, whilst sole, she would not be barred. In the present case, had the feme been sole, and of age when the cause of action arose, I admit, according to the former case put by Lord Coke, the feme would be affected by the neglect of the husband; but she *527leaving been an infant, I contend she is not bound according to the latter case, and that this action is necessarily maintainable to preserve her remedy, for the reason above mentioned.

Tike present suit is in jure uxoris — the judgment would not sua ii transfer the debt to the husband, for the wife surviving would be entitled to it»

"When the law grants or preserves a right, it allows every thing necessary to its preservatiom-Co. 56. a. <53. a. Cro. Jac, 170, 1S9, 190. Noy, 123.

The law, I mean the saving in the act of limitation., preserves the right of femes covert. Let the nature of this saving be considered — A woman marries, afterwards a debt becomes due to her — She under coverture upwards of 12 years after the debt became due — Is she barred? If she is, where is the protection to her afforded by the sav~ ing? How is this distinguishable, if a bar, from a debt originally due to the husband? If the bar should arise in the former, it could do no more in the latter case.

This would be a construction too against the very terms of the act, which gives 5 years, after the eoverturej the 5 years are given. In all instances, whatever the duration of the coverture; not 5 years where part of the 12 years ran during the coverture, and part remained.

But if the running of the 12 years during the coverture is to be a bar, that would be the effect of the saving, and then the saving would only be where part of the time was to come at the death of the husband, i. e. there would be only a particular instance for the act to operate on, when She words are equally comprehensive of other instances, and the construction therefore arbitrary.

If it be contended that there is only a suspension, and that, the wife may have her remedy after the dissolution of the coverture, that is answered above. There is either a total extinguishment of the debt, or the action liesj there is no medium. If there he a suspension only, moreover, the defence *****

The Defendant withdrew the demurrer, and a judgment was confessed upon terms»