Doe ex dem. Caldwell and Wife, et al. v. Thorp, et al. the time when the right first accrued to those under whom they derive their right. [Machin v. May, et al. 4 Bibb's Rep. 44; Sentney, et al. v. Overton, 4 Bibb's Rep. 446; McIntire's Heirs v. Funk's Heirs, 5 Litt. Rep. 33; South's Heirs v. Thomas' Heirs, 7 Monroe's Rep. 61.] In Beauchamp v. Mudd, 2 Bibb's Rep. 538, the Court adopted the English construction of the 21 Jac. 1, in regard to personal actions, because, as it was said, "the saving, or proviso" in such cases, was expressed in language different from that used where suits for the realty are limited as to time. The only case that has come under our notice, which seems to maintain, that a succession of disabilities can be united, so as to prevent the bar of the statute, is, Eaton v. Sandford, 2 Day's Rep. 523. That case was greatly weakened as an authority, by what was said in Bush and wife, et al. v. Bradley, 4 Day's Rep. 298, and was overruled in Bunce v. Wolcott, 2 Conn. Rep. 27. True, the saving in the Connecticut statute confines the disability to the person entitled" at the time of the said right or title, first descended, accrued," &c. in the very terms of the 21 Jac. 1, but no particular stress seems to have been laid upon the word “first.” In the last case cited, the proviso of the statute, it was said, "regards solely and exclusively the disabilities existing at the time of the right, or title, first accrued ;" and thus to construe it, was in accordance with its terms, with private justice and public convenience. It allows sufficient scope for the operation of the act, while "it avoids the intolerable inconvenience of accumulated successive disabilities, which, for an interminable period, might subvert titles apparently well established, and produce the most ruinous instability. And what is of no small importance, is in harmony with the decisions of other States." In Walden v. The Heirs of Gratz, 1 Wheat. Rep. 292, 297, it was contended that the statute of limitations of Kentucky, to which we have referred, will stop, although it had begun to run, if the title passes to a person under any legal disability, and recommences after such disability shall be removed. This construction, say the 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." Doe ex dem. Caldwell and Wife, et al. v. Thorp, et al. We have been thus particular in noticing the act of limitations of Kentucky, and the decisions in respect to it, as it was insisted, at the argument, that it was materially variant from the statute of 21 James, 1. With all deference, we must say, that in contrasting these enactments, the Court of Appeals of Kentucky have given to unessential variation in language, a potency which it cannot claim, upon any just rules of interpretation; and that what was said in the case cited from the first of Wheaton, is entirely consonant to our view of the statutes, if it were necessary to express an opinion. The case at bar does not come within the act of 1843; for if it be competent for the Legislature to prescribe a limitation, to bar pending suits, they have expressly disavowed any such intention by providing, "that no suit shall be barred by the operation of this act within five years from its passage." Here the action was commenced previous to 1843, and the case must be considered in reference to the statute of 1802. The saving within which it is attempted to bring the plaintiff, is expressed in terms somewhat different from that contained in the English statute-it is not so verbose; yet it is apprehended, that in respect to the question before us, it must receive the same construction. True it docs not in totidem verbis, limit the disability to the person who hath the "right or title of entry, or shall be, at the time of the said right or title first descended, accrued, come or fallen, within the age of twenty-one years," &c.; but it declares, “that the time during which the person, who hath, or shall have, such right or title of entry, shall have been under the age of twenty-one," &c. "shall not be taken or computed," &c. It is clear that the person here referred to, is him against whom the statute begins to run; as to persons coming in subsequently, there is no exception in their favor. The saving expends itself upon the person first entitled to an action, if he is in the predicament to require the benefit of it; and if the "disability be once removed, the time must continue to run, notwithstanding any subsequent disability, either voluntary or involuntary." Ashurst, J. in Doe ex dem. Count Duroure v. Jones, 4 T. Rep. 300. This conclusion is in perfect harmony with the decisions in England, and the several States, with the solitary exception that has been noted; besides it is promotive of the policy of the statute, and makes it what all statutes of limitation are intended to be, statutes of repose." Its tendency is 6. Jones v. Jones. to quiet titles, by prescribing a limit to litigation, instead of deferring it to an uncertain, or unreasonable time in the future. No objection was taken at the argument, or in the assignment of errors, to the refusal of the Circuit Judge, to charge the jury as prayed by the plaintiff's counsel; we will not therefore consider the question of law arising upon it. From what has been said upon the first point, it follows that the judgment must be affirmed. JONES v. JONES. 1. Proof of a contract by which the plaintiff was to erect a dwelling house, &c., on lands of the defendant's intestate, and occupy the same free of charge, during pleasure, or remove from it, the defendant's intestate to pay for the carpenter's work and materials furnished by the plaintiff, upon his removal, will warrant a recovery on the common counts, although the promise and liability is therein stated as arising in the lifetime of the intestate. Writ of error to the County Court of Butler. ASSUMPSIT, on the common counts, by Joseph Jones against Frances Jones, as the administratrix of James Jones, for a debt due from the intestate. The promise to pay is alledged to have been made by the intestate in his life time, and by the administratrix since his death. At the trial, the plaintiff showed, that in the year 1839 or '40, an agreement was made between him and the intestate, by which the plaintiff was to put up a dwelling house, and out houses, on lands of the intestate, with hands furnished by both; that the plaintiff was to furnish such lumber and other materials, (that is, sawed lumber, nails, locks, &c.) as could not be procured from the forest, by laborers. The plaintiff was to pay for such work done on the house, and other buildings, as was required to be done by a carpenter. He was to live in the house, free from charge, Jones v. Jones. during his pleasure, or remove from it. The intestate was to pay back to the plaintiff, the amount he should expend for carpenter's work, and the amount paid for materials furnished by him. The amount so paid was shown in evidence. It was also proved, that the intestate died in the year 1842 or '3, and that the plaintiff, after the intestate died, removed from the house, before the commencement of the suit. On this state of proof, the Court charged the jury, that the demand sued for in this case, did not become due until after the intestate's death, and that the plaintiff could recover nothing in this action, because the declaration is, that the demand was due before the death of the intestate. The plaintiff excepted to this charge, and it is now assigned as error. WATTS, for the plaintiff in error. erroneous. GOLDTHWAITE, J.-The charge given the jury is clearly The declaration is in the usual form, on the common counts, showing a liability arising out of a contract in the lifetime of the intestate, and a consequent promise to pay. The evidence, it is true, disclosed, that the money paid out by the plaintiff was not to be repaid him by the defendant's intestate, until a certain event happened; and before this event transpired, the intestate died. This state of facts does not differ, in legal effect, from a promise to pay at a future day; and it might as well be insisted, that the death of the promissor before the maturity of his promise, would impose the necessity of declaring in a special manner. The promise is deduced from the liability to pay, and in this case, that existed before the death of the intestate. Let the judgment be reversed, and the cause remanded. Doe ex dem. Hallett and Walker, Ex'rs, v. Forest, et als. DOE EX DEM HALLETT AND WALKER, EX'RS. v. FOREST, ET ALS. 1. The action of ejectment is barred by an adverse possession of twenty years, unless the plaintiff can bring himself within some of the savings of the proviso, of the act forbidding an entry into lands after twenty years. 2. A possession acquired under color of title, and acquiesced in for twenty years, will bar a recovery in ejectment, although during a portion of the time, the plaintiff in ejectment was prosecuting an application to Congress for the confirmation of an imperfect title, derived from the crown of Spain, to a tract of land, within which the land sued for was situate, and to which his title was finally confirmed he having been in possession anterior to the alledged intrusion. Error to the Circuit Court of Mobile. EJECTMENT, by the plaintiffs in error, executors of Joshua Kennedy, against the defendants in error, for a tract of land in the city of Mobile. The plaintiffs, to sustain their cause, introduced a translation of the application of Thomas Price, to the Spanish authorities, for a parcel of land in Mobile, with the orders and grants of the Spanish authorities thereon. Also, a deed from Price to Wm. E. Kennedy, and a deed from him to Joshua Kennedy; also, the proceedings before the Register and Receiver at St. Stephens, 5th vol. Am. State Papers, 126-8-9, 130, and in the 3d vol. same work; also, the patent certificate, and the patent from the United States. The plaintiff further proved, that Wm. E. Kennedy was in possession of a portion of the Price grant in 1824, and at the time of his death. That Joshua Kennedy died in 1838, in possession of parcels of the land in the patent claiming under it, and that Joshua Kennedy devised his lands to his executors, the lessors of the plaintiffs. The defendant, to prove his case, produced a deed from Robert Carr Love, to Charles Jimelat, dated in February, 1822, for the lot in dispute; a deed from Jimelat to another person, and a deed from him to the defendant. It was also proved that the |