The construction usually given to statutes of limitations, that
a disability mentioned in the act must exist at the time the action
accrues in order to prevent the statute from running, and that
after it has once commenced to run, no subsequent disability will
interrupt it, is to be given to Rev.Stat. § 1008, prescribing the
time within which writs of error shall be brought or appeals taken
to review in this Court judgments, decrees or orders of a circuit
or district court in any civil action at law or in equity.
Where English statutes, such as the Statute of Frauds and the
Statute of Limitations, have been adopted into our own legislation,
the known and settled construction of those statutes by courts of
law has been considered as silently incorporated into the acts, or
has been received with all the weight of authority.
Page 110 U. S. 620
Upon a revision of statutes, a different interpretation is not
to be given to them without some substantial change of phraseology
other than what may have been necessary to abbreviate the form of
the law. Pennock v.
2 Pet. 1, cited and approved.
The English and American cases construing statutes of
limitations as affected by disability provisos reviewed.
The only question decided in this case relates to the taking of
the appeal: it was not taken within the two years named in
Rev.Stat. § 1008. The appellant set up the disability of
imprisonment as cause for the delay.
MR. JUSTICE BRADLEY delivered the opinion of the Court.
The decree appealed from in this case was rendered on the 17th
of April, 1878, and the appeal was not taken until the 6th of
September, 1883. § 1008 of the Revised Statutes declares that
"No judgment, decree, or order of a circuit or district court in
any civil action at law or in equity, shall be reviewed by the
supreme court on writ of error or appeal 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 appeal may be taken, within two years after the
judgment, decree, or order, exclusive of the term of such
As more than five years elapsed after the entry of the decree in
this case before the appeal was taken, of course, the appeal was
barred by lapse of time unless the appellant was within one of the
exceptions contained in the proviso. He claims that he was within
one of these exceptions. He states in his petition of appeal, and
the fact is not disputed, that being sued
Page 110 U. S. 621
in the City of New York upon the decree appealed from, and
judgment being rendered against him, his body was taken in
execution, and on the 7th of February, 1879, he was thrown into the
County Jail of New York, where he has ever since remained, and is
now kept in close confinement. As only ten months elapsed after the
entry of the decree when the appellant was thrown into prison, and
as he has been in prison ever since, he contends that two years,
exclusive of the term of his imprisonment, had not expired when his
appeal was taken.
This answer cannot avail the appellant if that construction be
given to the statute which has almost uniformly been given to
similar statutes in England and this country. The construction
referred to is that some or one of the disabilities mentioned in
the proviso must exist at the time the action accrues in order to
prevent the statute from running, and that after it has once
commenced to run, no subsequent disability will interrupt it. This
was the rule adopted in the exposition of the statute of 21 Jac. p.
1, c. 16, the English statute of limitations, in force at the time
of the first settlement of most of the American colonies. It is
provided by the seventh section of that statute
"That if any person entitled to bring any of the personal
actions therein mentioned shall be, 'at the time of any such cause
of action given or accrued,' within the age of twenty-one years,
feme covert, non compos mentis
imprisoned, or beyond the
seas, such person shall be at liberty to bring the same actions
within the times limited by the statute, after his disability has
Angell on Lim., c. XIX.
It is true that the express words of this statute refer to
disabilities existing "at the time" the cause of action accrues,
and do not literally include disabilities arising afterwards. The
courts, however, held that such was not only the literal but the
true and sensible meaning of the act, and that to allow successive
disabilities to protract the right to sue would in many cases
defeat its salutary object and keep actions alive perhaps for a
hundred years or more; that the object of the statute was to put an
end to litigation, and to secure peace and repose, which would be
greatly interfered with, and often
Page 110 U. S. 622
wholly subverted, if its operation were to be suspended by every
subsequently accruing disability. A very exhaustive discussion of
the subject had arisen in the time of Queen Elizabeth in the case
of Stowel v. Zouch,
Plowd. 365, in the construction of the
Statute of Fines, passed in 4 Hen. 7, c. 24, which gave five years
to persons not parties to the fine to prosecute their right to the
land, but if they were women covert, or persons within the age of
twenty-one years, in prison, or out of the realm, or not of whole
mind at the time of the fine levied, they were allowed five years
to prosecute their claim after the disability should cease. In that
case, a person having a claim to land died three years after a fine
was levied upon it without commencing any suit, and leaving an
infant heir, and it was held that the heir could not claim the
benefit of his own infancy, but must commence his suit for the land
within five years from the levying of the fine, because the
limitation commenced to run against his ancestor, and having once
commenced to run, the infancy of the heir did not stop it. The same
construction was given, as already stated, to the general statute
of limitations of 21 Jac. 1, before referred to. In Doe v.
4 T.R. 300, Lord Kenyon said:
"I confess I never heard it doubted till the discussion of this
case whether, when any of the statutes of limitations had begun to
run, a subsequent disability would stop their running. If the
disability would have such an operation on the construction of one
of those statutes, it would also on the others. I am very clearly
of opinion, on the words of the statute of fines, on the uniform
construction of all the statutes of limitation down to the present
moment (1791), and on the generally received opinion of the
profession on the subject, that this question ought not now to be
disturbed. It would be mischievous to refine, and to make
distinctions between the cases of voluntary and involuntary
disabilities [as was attempted in that case], but in both cases,
when the disability is once removed, the time begins to run."
To the same effect are Doe v. Jesson,
6 East, 80, and
many cases in this country referred to in Angell on Limitations,
and in Wood on Limitations, sec. 251. In a case
Page 110 U. S. 623
came to this Court from Kentucky in 1816, Chief Justice Marshall
"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
1 Wheat. 292, 14 U. S.
And in the subsequent case of Mercer's
Lessee v. Selden,
1 How. 37, 42 U. S. 51
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,
and infant within the exception of the statute, and it was insisted
that her marriage before she was twenty-one 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.
4 Mass. 182; Fitzhugh v. Anderson,
Hen. & Mun. 306; Parsons v. McCracken,
9 Leigh 495;
Demarest v. Wynkoop,
3 Johns.Ch. 129; Bunce v.
2 Conn. 32.
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 seizing or possession had, and the proviso in favor of
persons laboring under disabilities was in these words:
Page 110 U. S. 624
"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
1 Rev.Laws 1813, p. 185, § 2; 2 Greenleaf's Laws 95, § 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
"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, C.J. and Sutherland and Nelson,
JJ., give to that opinion a good deal of weight.
The same question afterwards arose in this Court in the case of
16 How. 247. That was an action
Page 110 U. S. 625
of ejectment, used in place of a writ of right, to try the title
of 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 the 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
Page 110 U. S. 626
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,
Tex. 61, held otherwise, and decided that one disability cannot be
tacked onto another, but that the long established rule in
construing statutes of limitations must be applied. The court
"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 accrued -- than 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
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:
Page 110 U. S. 627
"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."
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 1,
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 compose mentis,
or imprisoned, then
within five years, as aforesaid, exclusive of the time of such
an infant," when?
covert, non compos,
or imprisoned," when?
answer must be given as before -- namely when he or she becomes
when the judgment or decree is
Page 110 U. S. 628
The phraseology of the act of 1872 and of the 1008th section of
the Revised Statutes is so nearly identical with that of the 22d
section of the act of 1789, in reference to the point under
consideration, that we must presume they were intended to have the
same construction, and the act of 1789 contains no language which
requires that it should have a different construction from that
which had long been established in reference to all the statutes of
limitation then known, whether, in the mother country or in this.
On the contrary, as we have seen, the terms of the act of 1789
fairly call for the same construction which had for centuries
prevailed in reference to those statutes.
It is a received canon of construction, acquiesced in by this
"That where English statutes such, for instance, as the statute
of frauds and the statutes of limitations, have been adopted into
our own legislation, the known and settled construction of those
statutes by courts of law has been considered as silently
incorporated into the acts, or has been received with all the
weight of authority."
2 Pet. 1, 27 U. S. 18
Smith's Commentaries on Stat. and Const. Law § 634; Sedgwick on
Construction of Stat. and Const.Law 363.
And even where inadvertent changes have been made by
incorporation different statutes together, it has been held not to
change their original construction. Thus, in New Jersey, where
several English statutes had been consolidated, a proviso in one of
them, broad enough in its terms to affect the whole consolidated
law, was held to affect only those sections with which it had been
originally connected. Chief Justice Green said:
"Where two or more statutes, whose construction has been long
settled, are consolidated into one, without any change of
phraseology, the same construction ought to be put upon the
consolidated act as was given to the original statutes. A different
construction ought not to be adopted if thereby the policy of the
act is subverted or its material provisions defeated."
In re Murphy,
3 Zab. 180.
Page 110 U. S. 629
So, upon a revision of statutes, a different interpretation is
not to be given to them without some substantial change of
phraseology -- some change other than what may have been necessary
to abbreviate the form of the law. Sedgwick on Const.Stat. 365. As
said by the New York court for the correction of errors, in
Taylor v. Delancy,
2 Caines' Cas. 143, 150:
"Where the law antecedently to the revision was settled, either
by clear expressions in the statutes or adjudications on them, the
mere change of phraseology shall not be deemed or construed a
change of the law unless such phraseology evidently purports an
intention in the legislature to work a change."
And see Yates' Case,
4 Johns. 359; Theriat v.
2 Hill 380; Parmelee v. Thompson,
7 Hill 77;
Goodell v. Jackson,
20 Johns. 693; Croswell v.
7 Barb. 191. "The construction will not be changed by
such alterations as are merely designed to render the provisions
more precise." Mooers v. Bunker,
29 N.H. 421.
So the Supreme Court of Alabama has held that the legislature of
that state, in adopting the Code, must be presumed to have known
the judicial construction which had been placed on the former
statutes, and therefore the reenactment in the Code of provisions
substantially the same as those contained in a former statute is a
legislative adoption of their known judicial construction.
Duramus v. Harrison,
26 Ala. 326.
"A change of phraseology in a revision will not be regarded as
altering the law where it had been well settled by plain language
in the statutes, or by judicial construction thereof, unless it is
clear that such was the intent. "
Sedgwick on Construction, 2d ed., 229, note. *
Of course, a change of phraseology which necessitates a change
of construction will be deemed as intended to make a change in the
law. Young v. Dake,
5 N.Y. 463.
In view of these authorities and of the principles involved
Page 110 U. S. 630
them, and from a careful consideration of the language of the
law itself, we are satisfied that it was not the intention of
Congress either in the twenty-second section of the act of 1789, or
in the second section of the act of 1872, or in the 1008th section
of the Revised Statutes, to change the rule which had always, from
the time of Henry Seventh, been applied to statutes of limitation,
namely, the rule that no disability will postpone the operation of
the statute unless it exists when the cause of action accrues, and
that when the statute begins to run no subsequent disability will
This conclusion disposes of the case. As the appellant was free
from any disability for several months after the entry of the
decree appealed from, the statute commenced to run at that time,
and therefore the time for taking the appeal expired several years
before it was actually taken.
The appeal is therefore dismissed.
* Referring to Hughes v. Farrar,
45 Me. 72; Burnham
33 N.H. 247; Overfield v. Sutton,
(Ky.) 621; McNamara v. Minnesota Central Railway Company,
12 Minn. 388; Conger v. Barker,
, 11 Ohio St. 1.