This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Since the rule, that no action can be brought upon certain specified causes of action after specified times is a statutory rule, it follows that any exceptions thereto on account of the disability of either party, or of special hardships arising out of particular cases, must be made by statute.1 The court has no right to create an exception to such a statutory rule, to conform to its own ideas of justice.2 Such considerations should be addressed to the legislature, and not to the courts.
2 Leather Manufacturers' Bank v. Bank, 128 U. S. 26.
3 Loewenthal v. Coonan, 135 Cal. 381; 87 Am. St. Rep. 115; 67 Pac. 324.
4 Strauss v. Denny, 95 Md. 690; 53 Atl. 571.
5 Bunker v. Osborn, 132 Cal. 480; 64 Pae. 853; Camp v. Bostwick, 20 O. S. 337; 5 Am. Rep. 669.
6 Miller v. Miller. 7 Pick. (Mass.) 133; 19 Am. Dec. 264.
1 "The exemptions from the operation of statutes of limitation usually accorded to infants and married women do not rest upon any general doctrine of the law that they cannot be subjected to their action, but in every instance upon language in those statutes giving them time after majority or after cessation of coverture to assert their rights." Vance v. Vance, 108 U. S. 514, 521.
2 Davis v. Hart, 123 Cal. 384; 55 Pac. 1060; Hibernian Banking Association v. Bank. 157 111. 524: 41 N. E. 01!); 41 N. E. 918; Miller v.
Accordingly, in the absence of a statute specifically providing therefor, the fact that the plaintiff does not know of the existence of the cause of action in his favor,3 or does not know that it is possible to serve the defendant with process,4 or the fact that the plaintiff is so poor as to be practically unable to institute litigation ;5 or that he is unable to obtain evidence sufficient to establish his case,6 or is unable to file his claim against the United States in the Court of Claims because of the aid which he gave to the rebellion,7 or that the defendant was imprisoned,8 none of them prevent the statute of limitations from running in favor of the defendant against the plaintiff. So in the absence of statutory provision therefor, the fact that the defendant makes it practically impossible to commence the atcion, as by concealing himself so that process cannot be served upon him,9 or otherwise evading the service of process, does not prevent limitations from running in favor of the defendant. In many states, however, the statutes cover at least the more extreme and objectionable kinds of conduct of the defendant delaying or preventing litigation. A demand by the creditor upon the debtor,10 or upon the executor of the debtor,11 does not of itself stop the running of the statute. A denial by a bank of liability on a lost certificate of deposit does not prevent limitations from running though the bank knows that it is liable.12 So the creditor's attempt to avoid the transaction whereby the debt is incurred, does not prevent limitations from running against such debt. Thus an attorney compromised a suit for his client, collected money as a result of such compromise, and kept it. The client refused to ratify the compromise and brought suit to have it set aside; but failed to do so. Such conduct on the part of the client was held not to prevent limitations from running in favor of the attorney.13 These statutory exceptions, furthermore, are exceptions to the statute; but they are not exceptions to contractual provisions limiting the time within which either party may sue the other upon such contract, if such provisions do not refer to such exceptions.14
Lesser, 71 la. 147; 32 N. W. 250; Collins v. Pease, 146 Mo. 135; 47 S. W. 925; Parker v. Kelly, 61 Wis. 552; 21 N. W. 539.
3 Lattin v. Gillette, 95 Cal. 317; 29 Am. St. Rep. 115; 30 Pae. 545; Russell v. Abstract Co., 87 la. 233; 43 Am. St. Rep. 381; 54 N. W. 212; State v. Standard Oil Co., 49 O. S. 137; 34 Am. St. Rep. 541; 30 N. E. 279; Ramsey v. Quillen, 5 Lea (Tenn.) 184.
4 Home Life Ins. Co. v. Elwell, 111 Mich. 689; 70 N. VV. 334.
5 Voight v. Raby, 90 Va. 799; 20 S. E. 824.
6 Melver v. Ragan, 2 Wheat. (Q. S.) 25.
7 Kendall v. United States, 107 U. S. 123.
8 In re Griffith, 35 Kan. 377; 11 Pae. 174.
9 Amy v. Watertown, 130 U. S. 320; Engel v. Fischer, 102 N. Y. 400; 55 Am. Rep. 818; 7 N. E. 300.
10 Mereness v. Bank, 112 la. 11; 84 Am .St. Rep. 318; 51 L. R. A. 410; 83 N. W. 711.
11 Keyser's Appeal, 124 Pa. St. 80; 2 L. R. A. 159.
12 Mereness v. Bank, 112 la. 11; 84 Am. St. Rep. 318; 51 L. R. A. 410; 83 N. W. 711.