
    Oliver Eager & Ux., Plaintiffs in Error, versus The Commonwealth and Abraham Munroe, Ter-Tenant.
    A writ of error must be sued within twenty years from the time when the title to it accrued, or within five years after the same disability, which existed at that time, has ceased.
    This was a writ of error brought in the county of Worcester, to reverse a judgment of confiscation of the inferior Court of Common Pleas of that county, in December, 1780, rendered upon a certain complaint, " wherein the commonwealth of Massachusetts, by Levi Lincoln, Esquire, specially appointed by Robert Treat Paine, Esquire, then attorney-general, for that purpose, was prosecutor and plaintiff against * Michael Martin, late of [*183] Northborough, in said county of Worcester, gentleman, and Zilpher, his wife, in which said complaint, it was, among other things, alleged that the said Michael and Zilpher had freely renounced all civil and political relation to each and every of the United States, and had become aliens ; and that three several tracts of land therein described, lying in Northborough aforesaid, of which the said Michael and Zilpher, in her right, had been seised and possessed, ought to escheat, enure, and accrue, to the sole use, benefit, and behoof, of the late government and people of the state of Mas sachusetts Bay, now commonwealth of Massachusetts.”
    The writ of error was sued out by Oliver Eager, of said North-borough, and Seraphina, his wife, who was the daughter and heir of the said Michael and Zilpher, who are both alleged in the writ to be deceased. The writ issued July 31, 1806, and was return' able at the September term following. After oyer of the record complained of,
    The defendants filled the following plea in bar, viz.: —
    
      “ The said Abraham Munroe, for himself in his own proper person, and James Sullivan, Esquire, Attorney-General of the same commonwealth of Massachusetts, under which, by deed of bargain and sale with warranty, the said Munroe holds the lands described in the judgment, on which the same writ of error is brought, come here in Court, and defend, &c., and submitting to whatever, in this Court, in this cause, they by law ought to submit to, for plea say, that by the process and record certified on the writ of error aforesaid, by the said chief justice of the said Court of Common Pleas, and of which oyer has in this case been granted, it appears that the same judgment, on which the same writ of error is brought, was given and rendered at an inferior Court of Common Pleas begun and held at Worcester, within and for the county of Worcester, on the second Tuesday of December, being the twelfth day of said month, Anno Domini 1780, by adjournment from the first Tuesday of the same December, by a resolve of the great and general court. And the said Munroe and Sullivan further, as before, plead and say, that by an act or law of the said commonwealth of Massachusetts, made and passed by the General Court thereof [*184J * on the fifteenth day of February, in the year of our Lord 1806, it was enacted and provided that no judgment in any action or suit theretofore rendered should, from and after the passing of the same act, be reversed or avoided, for any error or defect therein, unless the writ of error, brought for recovering the same, should be sued out within twenty years next after the rendition of such judgment; and this the said Munroe and Sullivan are ready to verify; wherefore, inasmuch as it appears by the record, now on the same writ of error certified, that the judgment, on which the same writ is so brought, was rendered more than twenty years before the thirty-first day of July, 1806, and that the said writ was brought and issued on that day, the said Munroe and Sullivan pray the judgment of the Court here, whether the said Oliver Eager, and Seraphina, his wife, shall have and maintain the same writ of error for the reversal of the said judgment.
    J. Sullivan,
    A. Munroe.
    " And the said Oliver and Seraphina say that, by any thing by the said Sullivan and Munroe in the plea aforesaid alleged, they, the said Oliver and Seraphina, ought not to be precluded from having their writ of error aforesaid maintained; because they say that, at said Northborough, on the thirty-first day of January, 1783, the title of the said Seraphina to her said writ of error first accrued, and at that time the said Seraphina was there a minor, under the age of twenty-one years, viz., of the age of fifteen years, and no more : and that there afterwards, viz., on the nineteenth day of June, 1785, the said Seraphina being still a minor, under the age of twenty-one years, viz., of the age of eighteen years, and no more, she was lawfully married to the said Oliver, and has been ever since covert of the said Oliver to this time ; and this the said Oliver and Seraphina are ready to verify ; wherefore they pray judgment if, by any thing by the said Sullivan and Munroe above in pleading alleged, they ought to be precluded from having their writ of error aforesaid maintained, &c.”
    T. Bigelow
    * “ And the said commonwealth of Massachusetts, by [ * 185 | Barnabas Bidwell, Attorney-General, and the said Abraham Munroe, for himself in his own proper person, say that by any thing in the replication aforesaid of the said Oliver Eager, and Seraphina, his wife, alleged, they, the said Oliver and Seraphina, ought not to have their said writ of error for the reversal of the judgment aforesaid maintained, because, though true it is that the title of the said Seraphina to her said writ of error first accrued on the thirty-first day of January, 1783, and though it is also true that she was at that time under the age of twenty-one years, as in the replication aforesaid is alleged ; yet the said commonwealth and the said Munroe say, that after the title of the said Seraphina to her said writ of error had accrued as aforesaid, and after she had become of the full age of twenty-one years, the term of five years had elapsed before the suing out of the said writ of error, of the said Oliver and Seraphina, in this case, viz., at Northborough aforesaid, on the first day of March, 1794; and this the said commonwealth and the said Munroe are ready to verify; wherefore they pray judgment, if the said Oliver and Seraphina, by any thing in their replication above alleged, ought to have their writ of error maintained.
    B. Bidwell,
    A. Munroe.”
    To this rejoinder the plaintiffs in error demurred generally; and the defendants joined in demurrer.
    Upon these pleadings, the cause was argued at the last September term at Worcester, from whence it was continued nisi, and was at this term again spoken to by Bigelow for the plaintiffs in error, and Bidwell, Attorney-General, for the defendants.
    
      \By statute of 1805, c. 35, it is enacted that no judgment therefore or thereafter rendered, shall be reversed or avoided for any error therein, unless the writ of error brought for reversing the same shall be sued out within twenty years next after the rendition of such judgment.
    
    Provided, that if any person entitled to such writ shall, at the time such title accrued, be within age, covert, or non compos mentis, then such person, his or her heirs, executors, [ * 186 ] * fyc.,may bring such writ, as he or she might have done, if this act had not been made; so as the same writ of error be sued out within five years after the coming of age, discoverture, coming of sound mind, or death of such person, whichever shall first happen, and not afterwards.]
    
      Bigelow.
    
    The question before the Court is, whether the plain tiffs in error have, by these pleadings, brought themselves with in the proviso in the statute. I contend that Seraphina, the feme plaintiff, has never ceased, since her title to her writ of error ac crued to her, to be within one or the. other of the disabilities de scribed in the proviso. So that the statute has never begun to run.
    In the case of Strithorst vs. Graeme, 
       it is said by the court that, “ while any of the disabilities mentioned in the statute of limitations continue, the party may, but is not obliged to, commence his action: the statute doth not run while any of those disabilities continue.”
    It is true that in the case of Duroure vs. Jones, 
       the court consider it as a rule of law not then to be disturbed, that when any of the statutes of limitations had begun to run, a subsequent disability would not stop their running. But in this case the statute had not begun to run before the subsequent disability attached. If, before coming of age, the feme plaintiff in error had become non compos, and so continued to the time of bringing this writ, shall the statute be construed to deprive her of her title to the writ? Shall it be said that in that case a subsequent disability shall not attach ? would not this be contrary to the humanity of the law which declares that the act of God injures no one ? Having never been free to exercise her will in the prosecution of this writ since her title to it accrued, she is neither in the words nor the equity of the statute, but is clearly within the meaning and intent of the legislature in the proviso.
    
      Bidwell.
    
    There is no case that I ;an find expressly in point. But the statute is peremptory and universal, and unless a party can bring himself within the intent of the proviso, he is concluded. And to bring himself within the proviso, he * must show [ * 187 ] that the same cause, wnich existed at the time his title to the writ first accrued, continued to exist until within five years before the writ brought. Under the English statutes of limitation, if the party is within the realm at the time the judgment is rendered, although he goes out of it the next day, and continues thenceforth absent, yet it is held that the statutes attach.
    The second disability was voluntary in the feme plaintiff; she had a right to contract it, and she brought it upon herself, and has no reason to complain of its legal consequences; and this essentially differs her case from that of one becoming non compos. It seems hardly correct to call this a disability, since she might, during its existence, have brought her writ, as in fact she has now brought it before it has ceased. There is no ground to admit equitable considerations in the construction of this statute ; and if there were, the great good produced by its general operation will more than countervail any particular inconveniences
    
      Bigelow, in reply.
    The Attorney-General has argued upon the supposition that the statute had begun to run before the second disability attached. But I contend that the five years had not then begun, nor have they yet begun ; since she has never been at liberty to bring this writ at her own will. The law allows a minor to contract marriage; for that purpose she had a legal discretion. But '.<ie iaw never considers an infant to have such discretion, as voluntarily to deprive himself of his legal rights, so as to be bound when he come to full age.
    
      
       3 Wils. 145.
    
    
      
       4 Term Rep. 300.
    
   The opinion of the Court was afterwards given by

Parsons, C. J.

Error to reverse a judgment in favor of the commonwealth, vesting, by way of escheat, certain lands claimed by the plaintiff’s wife, as heir to Michael Martin and his wife, against whom the judgment was rendered in December, 1780.

The commonwealth pleads, in bar of the writ, the statute of 1805, c. 35, limiting the bringing of writs of error to the term of twenty years from the rendition of the judgment.

The plaintiffs in error, to bring themselves within the proviso of the statute, reply that the wife’s right first accrued *when she was an infant, and that the plaintiff inter- [ * 188 ] married with her during her infancy.

The defendants, in their rejoinder, agreeing the infancy of the plaintiff’s wife at the time her title accrued, and also their intermarriage during her infancy, say that, after her title to the writ of error accrued, and after she became of full age, five years had elapsed before suing out the writ in this case.

To this rejoinder there is a demurrer and joinder.

In the proviso of the statute before referred to, it is declared that if any person, entitled to his writ of error, shall, at the time the title accrued, be an infant, feme covert, or non com/pas mentis, he may sue his writ of error after twenty years, so that it be sued within five years after the disabilities are removed, or the death of the person disabled, whichever first shall happen.

It is therefore very clear that the infancy of the wife, at the time her title accrued, cannot bring her within the exception, because the writ was not sued out within five years after her coming of age. But the plaintiffs contend that, as another disability of coverture occurred before the termination of her infancy, which disability existed when her right accrued, they are within the proviso ; because there has been no moment of time, since her right accrued, in which she has not been disabled.

As tlie plaintiffs are barred by the enacting clause, unless they are within the proviso, the effect of their replication must depend upon the construction of the proviso. And we are all satisfied that ,.e disability, to be sufficient to bring the plaintiffs within it, must oe existing at the time their right first accrued. This opinion is supported by the express words of the proviso, and we have no power, by an equitable construction, to defeat the operation of the enacting clause.

Statutes of limitation are beneficial statutes, made to quiet people in their possessions, and to prevent suits at law, after an unreasonable delay in commencing them. In the case of Lloyd vs. Vaughan, the reversioner brought error to reverse a common recovery, after twenty years from its being [*189 ] * suffered, but within twenty years after his title accrued ; and he was barred, because he was not a person within the proviso made to relieve against the disabilities there mentioned ; and it was holden that he had no remedy, unless the reversion had fallen within twenty years after the recovery. And in Prideaux vs. Webber, where the statute of limitation was pleaded to an action of assault and battery, and the plaintiff replied that the courts were shut up by a rebellion, the plea was holder, good, because the exception replied was not within the statute. Both these cases may be considered as hard cases, but hey were barred.

In the present case, the husband might have sued his writ within the twenty years. He was not under any disability, and ought to have prosecuted the rights of his wife. If we were once to admit a disability not existing when the right accrued, as within the proviso, it would be difficult to decide how far we must go. In the limitation of personal actions, the plaintiff, a female infant, may marry after her right has accrued: or an infant just before he is of age, and after the cause of action accrued, may go abroad; and, however long absent, he would prevent the effect of the statute until his return. We must, therefore, adhere to the express words, and natural and clear import, of the proviso; and the rejoinder must be holden good and sufficient in law.

Let the plaintiffs take nothing by their writ. 
      
       Str. 1257.
     
      
       1 Lev 31
     