The record in this case exhibits a suit brought under the provisions of the act relating to bonds and penal sums in the name of the State, for the use of William Hazzard and Elexine, his wife, against Caleb S. Layton. The action is founded upon the bond given by the defendant as administrator, with the will annexed, of John Wilson, deceased.
The questions necessary to be decided, arise under the demurrer to the plaintiff's special replication to the plea of the act of limitations. That portion of the pleadings opened by the demurrer, consists of the declaration upon the bond, which contains no assignment of breaches; the oyer of the condition and the plea of the act of limitations, and the special replication. This replication states the testator's bequest of the residue of his estate; that the said Elexine intermarried with William Hazzard on the 9th day of January, 1834; that she arrived at the age of twenty-one years, on the 22d day of June, 1840, and that the suit was brought within three years after her arrival at the age of twenty-one, or maturity.
The administration bond is dated the 11th day of January, 1826. The 1st section of the act of limitations declares, that no suit shall be brought upon any administration bond after the expiration of six years from its date. By the 6th section it is provided, that if the person entitled to the action shall have been at the time of the accruing of the cause of action, under either of the disabilities mentioned, the act. "shall not be a bar to such action during the continuance of such disability, nor until the expiration of three years from *Page 34 the removal thereof." The great object of all statutes of limitation is to prevent the litigation of stale demands. Their provisions are founded in public policy, and their operation is upon the laches of the party entitled. They are upon the remedy alone. Such being their aim and scope it is indispensable, under the great principles of common right, that a perfect right of action should exist before a forfeiture arising from default can begin to attach.
A remedy for legal injury must be provided for by fundamental law. It is one of the first principles of every social compact, and is expressly secured by the constitution. Legislative power may limit and restrain, but cannot take it away without infringing upon those essential and inalienable rights, which are placed beyond its control. In accordance with these principles, it has been uniformly decided, that acts of limitation do not begin to act upon the remedy until theright, under the general rules of law, has been fully consummated. This can occur only where there is a competent jurisdiction, a person to sue and to be sued, and a complete cause of action.
In this case it is contended, that the plea of the act presents an absolute bar to the remedy of the husband, and that the action is exclusively his. It is admitted that had Elexine Hazzard remained sole, she would have had a subsisting right of action at and after the period when the present suit was instituted. The assumption that the title of the husband is affected is founded on the fact, that at the moment of the marriage there was a person competent to sue, although the wife was still an infant. By the marriage the husband acquired a conditional right to the choses in action of the wife, but still subject to all their original contingencies. Here the replication alleges, that by the will the wife's proportion of the residue was not payable until she arrived at maturity, or the age of twenty-one years. The husband then could not reduce this chose in action into possession until the happening of the event upon which it was made payable. Had he sued previous to the wife's arrival at maturity, the action would have been prematurely brought. A complete cause of action did not exist until the time of payment had elapsed. The replication, therefore, substantially alleges, that the cause of action did not accrue until the 22d day of June, 1840. The writ was issued on the 19th of March, 1841.
Marriage operates as a conditional gift to the husband of all the wife's choses in action. The cause of action here is the breach of the condition of the bond, which could not occur until the failure to pay over at the time appointed by the testator. The husband at *Page 35 some period acquired a right to sue for this default. His remedy uponthis cause of action cannot be abrogated. If then the act of limitations applies, the remedy is barred prospectively, before the cause of action is complete, and the husband has lost by necessityand without laches, a right secured to him by the general rules of law, and the provisions of the act under which this suit is instituted.
At the time of the intermarriage in 1834, the wife being an infant, the obligation of the administrator was still subsisting, and unaffected by the statute. The husband then acquired his marital rights, and became entitled to avail himself of the provisions of the act relating to bonds and penal sums, as soon as his right of action should be perfected. Had the legislature subsequently repealed that law, without substitution, and thus deprived him of redress, it could not have affected his rights, because as to him their action would have been void. But the positions assumed on behalf of the defendant, if sustained, do in effect operate as a repeal of the remedy existing at the time when the marital rights were acquired, and show that the husband never could have sued on this particular cause of action. Such a construction would lead inevitably to the conclusion, that the statute is unconstitutional in its application to the circumstances of the present case. But this difficulty is avoided by referring to the general rule, that the statute does not begin to run until there is a complete cause of action, as well as competent parties and jurisdiction.
Verbal or literal construction has very seldom prevailed in the interpretation of the acts of limitation. The courts almost invariably look only to their spirit and policy. The first section of our statute contemplates a limitation commencing with the date of the bond. The proviso regards only the accruing of the cause ofaction, and saves the right to sue in all cases where the specified disabilities exist at that time.
If, where no disability exists, the act is to be held a bar in cases where the cause of action does not accrue until after the period of limitation has elapsed, then it forestalls the remedy, and impairs the very obligation of the contract. Besides this, such a construction would be directly adverse to the acknowledged policy of preventing delay in the prosecution of suits, and would not only impose the penalty of default upon an innocent party, but also introduce a most absurd conflict of principles. From these considerations I draw the conclusion, that notwithstanding the words of the 1st section, the act is not a bar to the present suit. This view of the case is entirely *Page 36 independent of the fact of disability, and the several questions of construction arising under the proviso.
The writ was issued within a few months after the cause of action was complete, and the replication specially alleges that the suit was brought within three years. The several questions of the right of the husband to avail himself of the wife's disability, and whether such right continues during the whole period of coverture do not inevitably arise. I sit as a judge in and for the present controversy alone. The tenor of my commission is to try and decide this particular case. I am unwilling, therefore, to express my views upon any questions beyond those which must be decided. Such opinions would be particularly extra-judicial and without authority.
There remains, however, another point to be disposed of. It is contended, that the plaintiffs have shown no right to sue, inasmuch as they have stated in their replication, that the residue of the estate was to be equally divided between the testator's three children, when they arrived at maturity; and there is no allegation that they had all arrived at such age at the time of bringing the action. Were this a question of construction arising upon the will of John Wilson, with that will before the court, it is very probable that there would be little difficulty in its settlement. But it is insisted upon as a defect in pleading, and the omission of a most material allegation.
The replication is unquestionably argumentative, and the right of the children of the testator to sue as they severally arrived at maturity, must be a mere matter of inference from the words of the will as stated. Considering it as a question of construction, we would be at liberty to look through the record to ascertain in what aspect the pleader has elsewhere placed it. The rule which forbids resort to other branches of the pleadings to help out the allegations, where there are no words of reference or connexion, does not apply to the question of construction. If the matter stated be capable of different meanings, it certainly does not clash with any principle to interpret it in that sense in which the party framing the allegation must be understood to have used it, if he intended that his statement should be consistent. This is the established rule even in criminal proceedings. By reference, then, to the other replications it will be found that in the 1st, 2d, and 3d breaches, the mode of statement is such as to render the inference no longer doubtful. It is expressly alleged, that the division was to be made when all the children had arrived at maturity; and that fact is nowhere stated, nor is it in any *Page 37 portion of the pleadings set forth that the money was payable as theyseverally arrived at age.
But this matter cannot properly be considered as a thing of inference, or a question of construction. It is an allegation of a fact material to the present right of action. The pleader could not, except in violation of well known principles, set forth by way of argument or inference. As an allegation of fact, if the meaning of the words be equivocal, the rule requires that they be construed most strongly against the party pleading.
But is the statement equivocal? What is the fact alleged? That the residue of the testator's property was to be "equallydivided between his sons David, James, and daughter, Elexine Wilson, when they arrived to the age of maturity." Were this a question of inference, from these words alone it would be difficult to construe the meaning of the testator to be payment to the children as they respectively arrived at age. To divide is toseparate and bestow in shares, to part an entire thing, to makepartition of among a number. It contemplates a single act; a disunion of the several parts at the same moment; and that moment is here alleged to be when the parties arrived at maturity. But as an allegation of fact is the statement equivocal, or capable of different meanings? It sets forth the time of payment, the period when the cause of action is complete. It is not intended to show the mode of distribution, but as an answer to the plea, indicates that the money was not payable until a particular event; and that therefore, inasmuch as there was not a complete cause of action until that period or event, that the statute is not a bar, although I have considered the replication, notwithstanding its defects of form, as sufficient for that purpose; yet in its present aspect I am reluctantly brought to the conclusion, that in the absence of the allegation that all the children had arrived at maturity, the plaintiffs' have not exhibited a sufficient title to sue at the time the action was instituted.a Had it been alleged that the money Was payable to them as they severally arrived at maturity, or that all had arrived at that age, or that the daughter was the youngest child, it might have been held sufficient. As the matter stands, however, I have no doubt that it is a fatal defect under the demurrer, as it would *Page 38 have been on a motion for a nonsuit had such question been presented to the court below.
Judgment reversed.
a The plea of the act of limitations admits the cause or consideration of the action still existing, but it cannot cure the omission of matter necessary to exhibit a perfect title to sue.