(ALDERSON, B.: There are cases in which *the plaintiff could not have even known that the right of action had accrued-as of trespass under ground-yet the statute has been held to run against him. So where the breach of a contract has occurred more than six years before, although the special damage accrued within the six years, the statute has been held to be a bar: Battley v. Faulkner (1). There are some instances of peculiar hardship of that class. So in the case of negligence or misfeasance by an attorney, where it is not discovered within the six years (2).) Those are cases where there is only the want of knowledge of some fact, not where the party is precluded from suing by law: here the plaintiff knows the facts, and is desirous to proceed with his action, but the law prevents him. How, then, can he be said to have been guilty of laches—which is the test applied, in Jolliffe v. Pitt, to the construction of the statute? (ALDERSON, B.: Is there not laches for one year, between the time when the action first accrued, and the death of the testator?) No; the Legislature gives the creditor six years in which to sue, and he cannot be guilty of any laches during the progress of that time. In Wilcocks v. Huggins, the original testator died without having commenced any action, and the six years had all but expired when the executrix sued out the first writ. In Murray v. East India Company (3), where it was held that, in an action by an administrator on a bill of exchange payable to the intestate, but accepted after his death, the statute did not begin to run until administration granted, ABBOTT, Ch. J., says: "It cannot be said that a cause of action exists, unless there be also a person in existence capable of suing." That cannot mean a person who is capable of suing for a single day, but a person who is capable of suing during the period of limitation. In Skeffington v. Whitehurst (4), a similar opinion was expressed by ALDERSON, B. In Webster v. Webster (5), a plea of the statute was allowed, only because Lord ELDON held the fair construction of the allegations in the bill to be, that the defendant had possessed himself of the personal estate of the debtor (in whose (1) 22 R. R. 390 (3 B. & Ald. 288). (2) See Granger v. George, 29 R. R. 196 (5 B. & C. 149; 7 Dowl. & Ry. 729); Short v. M'Carthy, 22 R. R. 503 (3 B. & Ald. 626); Howell v. Young, 29 R. R. 237 (5 B. & C. 259; 8 Dowl. & (3) 24 R. R. 325 (5 B. & Ald. 204). lifetime the debt had accrued), and might therefore have been sued within six years of the death, as executor de son tort. There the plaintiff clearly might have sued the testator himself. In Perry v. Jenkins (1), where a suit for an account of rents had become abated by the plaintiff's death before decree, and his administrator more than six years afterwards filed a bill of revivor, to which the defendant pleaded the Statute of Limitations, but did not state in his plea that six years had elapsed since the representation taken out to the original plaintiff, the plea was overruled. That could only be on the ground that there is no cause of action continuing, unless there is some person in esse capable of taking advantage of it on the one side, or against whom it can be taken advantage of on the other. Douglas v. Forrest (2) is still more directly in point. There it was held, that where the testator resided and died abroad, his executor in England might be sued at any time within six years after his taking out probate. In that case the plaintiff might, had he chosen, have sued the testator while he was abroad. The decision can be supported only in this way, that the plaintiff was guilty of no laches or default in not suing while his debtor was beyond seas. (ALDERSON, B.: That was in truth a case not within the statute at all, because the debtor never returned from beyond seas; therefore the plaintiff might have sued him at any time during his life; and so might sue his executor at any time during six years *after he was appointed executor.) The cause of action mentioned in the statute of James, means the cause of action against the party originally liable: the action must therefore have been brought against the testator within the six years, unless there was something in the statute of Anne which gave a larger right. Then, if the original debtor never returns from beyond seas, what term has the creditor against his executor? It cannot be more than six years from his death. The statute of Anne only gives a new right of proceeding against the debtor if he returns, but gives no new cause of action against his representative. But if the cause of action be held to have accrued from the time of probate granted, it must be so held in every case: but the title by probate, again, refers back to the death. Douglas v. Forrest, therefore, can stand only on the ground that there was no laches until an executor was appointed. BEST, Ch. J., says, "Cause of (1) 1 My. & Cr. 114. (2) 29 R. R. 695 (4 Bing. 686; 1 Moore & Payne, 663). action is the right to prosecute an action with effect; no one has a complete cause of action until there is somebody that he can sue." The right construction, therefore, of the statute, and the effect of the cases, is this: that the right of suing is not barred unless there have been six years of laches or default on the part of the plaintiff. Here he has been guilty of none. Sir F. Pollock, for the defendant: The defendant is entitled to the judgment of the Court. The language and meaning of the statute of James are perfectly plain, and the clear construction of it is, that having once begun to run, it continues to run, and its operation is not saved by any such distinctions as have been relied upon on the other side. The argument for the plaintiff must go to this length-that there must be, during the whole six years, a continuing cause of action, a plaintiff capable of suing, and a defendant capable of being sued; and that if there be any interruption, in any one of these respects, *for however short a time, that time must be taken out of the calculation: whence it will follow, that in every case of a personal representative, whether suing or sued, there must be a special inquiry as to the state of the debt at the time of the death of the original debtor, and at the time of the grant of probate or administration. So to decide would be legislating, not expounding the existing law. If every interruption of the power to sue suspends the running of the statute, then the long vacation-the Sundays and close holidaysduring which a plaintiff cannot effectually commence an action, ought to be taken out of the computation. Or suppose a plaintiff were a close prisoner abroad during part of the time, so that he could not send over a power of attorney to commence the action, would the operation of the statute be suspended till his liberation ? The disability in this case, moreover, is altogether of the plaintiff's own causing; he created the delay by putting forward his unfounded claim to probate. In Doe d. Duroure v. Jones (1), it was held, that when once the five years allowed to an infant to make an entry for the purpose of avoiding a fine, have begun, the time continues to run notwithstanding any subsequent disability; and ASHHURST, J., there says: "If the disability be once removed, the time must continue to run notwithstanding any subsequent disability either voluntary or involuntary; and even if there were any distinction between the two kinds of disability, the present is against the plaintiff, for (1) 2 R. R. 390 (4 T. R. 300). RHODES v. SMETHURST. [ *54] [*55] the imprisonment for debt was in consequence of his own voluntary act." Lord KENYON, Ch. J., in the same case says: “I never heard it doubted, till the discussion of this case, whether, when any of the Statutes of Limitation had begun to run, a subsequent disability would stop their running." His Lordship states that to be the uniform construction of the statutes, and the generally received *opinion of the profession. There are indeed cases where the Courts have refined for the purpose of holding that the statute has not begun to run, but none which break in on the principle thus stated by Lord KENYON. The statute of the 21 Jac. I. c. 16, itself, says nothing whatever about defendants, excepting in the clause giving a year after the reversal of an outlawry. The first case in which the construction of it came in question was Prideaux v. Webber (1), where it was held that a plea of the statute was a bar, notwithstanding a replication that when the cause of action accrued, rebels had usurped the government, and none of the King's Courts were open for there was no exception in the Act of such a case. If the argument on the other side be well founded, it might equally have been said in that case, that a period when no Courts were sitting, was ex necessitate excepted out of the statute. At the time of the Revolution, again, there was an interval during which the Courts were not sitting; and an Act of Parliament, the 1 W. & M. c. 4, was passed expressly to provide for the case; enacting that the time between the 10th of December, 1688, and the 12th of March following (a period of ninety-two days), should not be reckoned in quare impedit or the Statute of Limitations. If this time would have been left out of the computation on the true construction of the statute of James, no legislative provision of the kind would have been necessary. The next statute which passed relating to the subject was that of the 4 Anne, c. 16, prior to which there had been decisions on the statute of James, holding the exception in section 7 to apply only to the case of plaintiffs absent beyond seas (2). Now it is conceded on the other side, that the right to sue the debtor on his return from beyond seas, includes the right to sue his executors; but they are not mentioned in the statute of Anne. Murray v. East India Company, and Cary v. Stephenson, only prove that no cause of action, within the meaning of the statute, accrues, until there is somebody capable of suing, and somebody capable of being sued: but if the argument on the other side be correct, the distinction. (1) 1 Lev. 31. * (2) Hall v. Wybourn, Carth. 136; Chevely v. Bond, id. 226. v. taken in those cases, that the instruments were not suable on RHODES at all till after the death, was unnecessary, and the fact on which SMETHURSt. the Court decided was altogether immaterial. In both those cases the original cause of action was against the executor. Jolliffe v. Pitt, if properly examined, contains nothing to show that the operation of the statute can be stopped when it has once begun to run. There all the parties were abroad; the plaintiff till 1702, the debtor until his death; and the statute of Anne passed in 1705, before the plaintiff was barred by lapse of time and being in the present tense, ("if any person, &c., be or shall be beyond the seas, &c.") it had the same operation on the case as if it had passed before the cause of action accrued. And the LORD CHANCELLOR merely said that "he inclined to think that the statute should not take place (1)." Again, it is said that Perry v. Jenkins has carried the doctrine in Murray v. East India Company to a further extent. It is to be observed, that it would be dangerous to take the decisions in equity on this subject as certain guides in a court of law. The courts of equity are not bound by the statute, although they decide in analogy to it; but they look only to the equitable part of the statute, and refuse to enforce it in cases of fraud, or even of mistake. In Perry v. Jenkins, it did not appear on the plea that there was any representative who could have sued earlier, and the case therefore fell within the authority of Murray v. East India Company: but the judgment of the Court may also be rested on the ground that a bill of revivor is not a new suit. Webster v. Webster is no authority whatever for the plaintiff; the plea of the statute was there held good. The case of Wilcocks v. Huggins has been questioned in later cases; but there also the judgment was in favour of the defendant. No decision is to be found in which the running of the statute has been held to be stopped, by reason of a disability in the defendant. Douglas v. Forrest is in principle precisely the same case as Jolliffe v. Pitt: the decision proceeded on this principle, that personal representatives are liable, not under the words of the statute, but under some construction of law put upon it by the Courts. If, therefore, a plaintiff is desirous to take his case out of the operation of the statute, he either must show that it has not begun to run, or must bring himself within some of the exceptions contained in the statute itself, or established by judicial construction. Here he does none of these, and therefore falls within (1) The exact words in 2 Vern. 694 are The Lord Chancellor inclined to be of opinion that the Statute of Limita- [ *56] |