Judge Mills
delivered the Opinion of the Court.
The heirs of Edward Thomas recovered a judgment in ejectment, against the- heirs of Benjamin South, on a patent issued to their ancestor, after proving its boundary, and that the tenants re-sided within it, and that their ancestor died in 1801, leaving all of them infants, some of whom had not arrived to the age of twenty-one years, at the commencement of the suit.
Qn a subsequent day of the term", the heirs of Motion for [60]*60South moved for a new trial, relying on the affidavit of one of their number, who was the active person in defending the suit. He deposed, that he had directed his counsel to summon John M’Intire as a witness, and that M’Intire died only two or three Weeks before the commencement of the term, by which his testimony was lost; that he, the defendant was detained in Frankfort by subpoena, and thus compelled to attend court there on a criminal prosecution, until the Saturday evening previous to the day the cause was |et for trial, which was the Monday following, at Bath courthouse, and the cause was tried on Tuesdays that he did not know of the death of M’Intire the witness, till the first of the term; that if he could have been at the trial, he coukl have discovered other witnesses, (as he has since found them,) who could have proved the same defence intended to be made out by M’Intire; that the defence which he could have made out by M’Intire’s testimony, was a possession of twenty years, and that Benjamin South, from whom the defendants derived title by descent, had settled on the land in the year, 1779, and that possession was continued ever since; that consequently the adverse possession relied on, would reach beyond the death of the aneesor of the lessors of the plaintiff, and the statute law commenced running in the lifetime of the ancestor, and therefore the right of entry would be tolled.
new trial on ruled and?appeal.
Whero a suit, iiumbeáaisSt managed by one, which is the better fidavitoffacts and of surprise, on a motion for a new trial, is sufficient ■without the others.
The court overruled the motion, and South’s heirs have appealed.
As .the tenants relied on one of their body to conduct the defence, and he had previously attended to ^ cannot wrong to admit his affidavit without ^ie resC as one would act with more efficiency than many, and his lack of attendance, owing to uncontrolable circumstances, would be sufficient without accounting for the absence of all. It is well known that suits, where they are prosecuted or defended by numbers, are better conducted by one, as the representative of the whole, because that relying on each other, and feeling less responsibility when divided into different hands, the suit managed by all may be often neglected.
Surprise by death of witness, absence conscience of being summoned as a o7hcr court”"
ítqulreíio^ travel on Sunday-
Affidavit fora new trial, becauso o{ tlie the party and his witness, roust state the would prove.
Limitation of 20 years,
Pn thecast^on minors1 of land in the adversary others^the° limitation of 20 years eeases running; against them, and they have the benefit of the exception
[61]*61We conceive that the death of the witness, and the prevention of the acting defendant from attendanee on the cause, by the process of another court, are circumstances which might well account for the unprepared state of the defence, and are such demand a new trial, if the defence can be of any .. ’ «iva.ll.
The acting defendant could not have been there, when the cause was set for trial on Monday, or when it was actuallv tried on Tuesday, unless he had travelled on Sunday, which cannot by law be required of him.
The question therefore, must turn upon the validity of the defence which he relied on. For however important his witnesses may be supposed by himself, yet if their testimony must be Unavailing if introduced, it would certainly be useless to give way for another trial, in which the same party must be equally unsuccessful. The affiant was bound, in an affidavit, like this, for a new trial, to disclose what the defence was which he intended to make out on the second trial, in order that the court might judge whether it would be of any avail.
This he has done, and in doing so he has shown that he does not expect to be able to disprove any of the facts relied on by the lessors of the plaintiff, but to show that their right of entry was tolled by adverse possession, commencing in the lifetime of the ancestor. He does not expect to show that they took as purchasers, but only as heirs, and he designs contending, that as the cause of action accrued in the intestate’s life, the bar must continue, his’ death and the descent to the infant children notwithstanding. In this point the law, as heretofore settled by this court, is against him.
We are all aware, that the courts of England gave the construction contended for by the appellants to their statute, and the Supreme court of the nation ■has given the same construction to ours, although differently expressed from the English statute. But ibis court, in the case of Machir vs. May &c. 4 Bibb, 43, and afterwards in the case of Sentney vs. Over-[62]*62ton, 4 Bibb, 446, has had occasion to notice the different expressions in our statute, and consider their effect, and has.been compelled to say, that on casting a descent to minors, the bar ceases, and that the expressions “or coining to them,” means the • hour when the.action accrues to them, who are within the savings of the act,
Cases adj udged by this court, have settled the law, whether right or wrong at first.
It is not so importantthe law should bo .rightly settled as that it should remain stable ^^ritisset'
[62]*62The same construction has been admitted in the cases of Kendall vs. Slaughter, 1 Marsh. 376; May vs. Slaughter, 3 Marsh, 511; Floyd’s heirs vs. Johnson’s heirs, 2 Litt. 109; M’Intire’s heirs vs. Funk’s heirs, 5 Litt. 34; Haddox’s heirs vs. Davidson, 3 Monroe, 42; so that whatever might he the opinion of the court, was the question new, this court cannot depart from the former adjudications, and conceives the matter ought to be at rest.
According to the rule as thus settled, the proof which the appellants intended to make by M’Intire, or by the witnesses recently discovered, would have been of no avail, and it would have been nugatory to have granted a new trial, for the purpose of letting in a void defence; and void it must be, unless the court should now overrule the decisions of a series of years, given while controversies of this nature were numerous, and were settled accordingly. This would be hazardous to the community, and would jeopardize settled rights; lands must again change their, owners and pass into other hands. The decisions on which the principle now recognized was founded, has grown into a rule of property, and estates have slept under it quietly. If it is now reversed, as the appellants require, the settled law of thirteen years must be shaken, and in that length of time we should have made no progress, but have retrograded in stilling the controversies relative to land, and again opened up those sluices of litigation, which have so long afflicted this country.
It has been often said, that it is not so important that the law should be rightly settled, as that it should remain stable after it is settled. This is true, for attempts.to change the course of judicial decision, under the pretext of correcting error, are like ¡experiments, by the quack on the human body. [63]*63They constantly harrass and often jeopardize it. But notwithstanding, the point is so well settled by former adjudications, as to present danger if it is again opened, and the numerous adjudications affords an estoppel to enquiry and argument, yet we do hesitate to give our reasons for an adhesion to it, as the court did when It was first adopted.
an([ the legislature in thejasfruetíonofa siatute, evidence of the correctness of
Where there than one, and part only are abilitíes^the" statute of 20 years runs agamstand hnrs nil.
Where the statute commence runingit continues to run against the devisees or other alienees under any of the disabilities.
The acquiesence of the community in the decision, may also be used as an argument. There has been a succession of judges on the bench, except as te one member of the court. Yet there bas been no conflicting decision, and the legislature, who has the statute of limitations in their power, have never attempted so to reform it, as to get clear of the construction given to it by the court below, twelve or thirteen years since.
But we do not rest the case on this ground, but profess ourselves prepared to maintain that the decision is right.
The act of limitations adopted the general provision, that twenty years should bar all actions therein named. This was enforced by the court, and when there was no existence of any disabilities on the part of the plaintiff or demandant against such a defence, he was declared to be barred.
But there were different classes of claimants or plaintiffs,- one class was, where there were more plaintiffs than one, and a part, but not the whole, were under the disabilities of coverture, infancy, &o and 'the question arose, what was to be done with them? The court answered in divers cases, and especially in the case of M’lntire’s heirs vs. Funk’s heirs, that all such were barred. '
Another class was a set of infants or married women, who took not the land by descent, but by devise, anti the question was made whether such accruing or coming of title to fhern was within the -meaning of the act? The court responded, in the case of May’s heirs vs. Slaughter and subsequent cases, to the question, in the negative, and pronounced them barred.
One disability cannot bo added to another, in any case.
Where an adverse possession is taken of lands in thelifotimeof the owner, and on his death the title descends on his heirs all within disabilities, the limitation ceases to run against them.
In such cases, the infants shall have the time allowed by the statute after they all .attain full age.
A still further class presented themselves. They were infants when their ancestor’s death let the land pass to them by law. It was adversely settled by strangers, and the infants had neglected to pursue their rights, being still infants, or otherwise disabled until another descent was cast on persons still infants or disabled, and they claimed to add disability to disability, and to recover. The court determined that it could not be done, in the case of Floyd’s heirs vs. Johnson’s heirs, and that such a principle, as avoiding the bar by supervening or successive disabilities, was wholly inadmissible, and hence all the absurdity or horror of a latent right being preserved through successive generations for centuries, turned out to be a mere chimera, however it may have been magnified by the ancient sages of the law.
These stern and inflexible decisions on the statute, were calculated to increase the repose of the country, and went far to lay the controversies asleep relative to lands, and did leave but very few who could escape the imperious provisions of the statute.
There was still however one small class, (and a small one it is,) still to be decided, and that was the case of an ancestor holding lands on which an adverse claimant entered, and the ancestor had never ousted him during his life, and perhaps had not time to do so, until removed by death, leaving his title to his children, who were all infants. The question in their case was, did the statute, which commenced runing in the lifetime of the father, continue to run on, or was it suspended on account of their infancy, after the death of the ancestor? This was the question made in the case of May’s heirs vs. Machir, and Sentney vs. Overton, and the court answered it in the affirmative, and that is the point which we are required by this appeal to reconsider. The question was to he answered by the statute, and the lights cast thereon by former adjudications were then, no doubt, appealed to, with every disposition to follow them, as it would bring over this class of claimants within the statute. But this was found impossible, if the words of the statute were regarded.
—y---— Bl'llisll .stattationof five years, m relation t0 oer- - tain fines of lRRd.
Decided on this statute of ^Tdescent of the title on' an infant tí/runing of the statute,
When the British authorities were examined, the first leading case was the case of Stowell vs. Youch, Plowden, 353. That decision did not take place on a statute limiting all real or mixed actions., but fixing the time, after which certain fines levied as therein described, should not be disturbed; The generai limit was nve years. But certain-persons were excepted from its operation on account of disabilities.
The exception, or saving in the statute, was thus expressed! after fixing the bar of five years, to commence from tlie time when the estate, or cause of action “shall first grow, remain or descend, or come to them after the said fine engrossed, and proclamation made,” the exception reads—
“And if the same persons, at the time such action, right and title descended, remained or come Unto them, be covert de baron, or within age, in prison, Or out of this land, or not of the wliole mind, then it is ordained by the said authority, that their action, right and title, to-be reserved and saved to them, and to tlieir heirs, unto the time they come and be at tlieir full age of twenty-one years, out of prison^ within this land, uncovert and of whole mind. So that they and their heirs take their said action, or their lawful entry, according to their right and title within five years, next after that they come and be at full age &c.” <
The question which arose under this proviso, was at what period the counting of the bar must coinmenee, in the case of a person disabled, whether at the moment the original cause of action accrued, or at the time when it descended on the person disabled, Or, in other words, did the expressions “descended, remained, or come unto them,” refer to the same descending, remaining or coming, mentioned in the enacting section, within five years after which the action must be commenced, or to a subsequent “descending, remaining or coming” to the person disabled? The first was held the true construction. For it is evident that the persons in the exception, are at least part of the same persons named in the bar, for it is said, that “if the same persons at the time [66]*66such action, right and title descended &c,” evidentjy alluding to the same persons mentioned in the bar, and the same descending, remaining &o. -Hence it was held that but one accruing of title was com-in the bar and'exception. But it will be seen in the sequel, that the words, as well as the true interpretation of our statute are different.
s*a‘ ■ James i Ch. 16, of twenty years limita•oiiland"tn6S
aít*thatthlS when once the statute com-to™ not with standing” " descent of the title on an tinued to run" ’
tVutr!ofatwenty years, not adjudicated uP°n as to this question,.
[66]*66The next statute to which the British decisions apply, is the 21 Jac. 1, c. 18, and that limits posifively the same causes of action or right of entry, which our own does, to twenty years, - “next after the title and cause of action first descended or fall-’ an^ at 110 t^me a^ter sa'd twenty years.”
The proviso then is, “that if any person or persons, that is, or shall be entitled to such writ or writs, or shall have such right or title of entry, be, or shall be, at the time said right or title first descended, accrued, come or fallen, within the age of twenty-one years, feme covert, non compos mentis, imprisoned or beyond the seas, that then such person and persons, and his, and their heir or heirs, shall or may, notwithstanding the said -twenty years be ■expired, bring his action, or make his entry, as he •might have done before this act.”
The British courts decided that this proviso only savec^ Pers°ns, who, at the first commencement of ^le cause of action, were disabled, and that the “descended, accrued, come or fallen,” in the proviso, 1Tiean^ ^ie same “descending, accruing, coming or falling”named in the bar, and well they might, for it is difficult to give the act any other construction, The words “to them” are left out, and in order that ^ie doubt whether the provision intended the original cause of action named in the bar, or the time that such cause passed to the disabled person might be removed, the word “first” is inserted, so as to show clearly, that no other “accruing or coming” but the first, or original cause of action was intended.
When Virginia, as a colony come to legislate on ' ^le subject,in the year 1705. (See Bod. Laws, 147,) she adopted different language from the statute of James, and continued it in her code till the separa[67]*67iion. It is substantially the same with our own statute now under consideration." How Virginia construed it on this point before the revolution, we have not the means of ascertaining, and since then, we do not recollect that any of her reported cases settled, or even touched the question.
Kentackvof the 20 years. limitation,
—Proviso to tlie statut0‘
Diversity beand21 James l, and ^96,limUino-the right of j3nt*T !,}to of^iescent^n infant heirs.-
Our act adopts twenty years in the bar, directing them to be counted, commencing “next after such title or cause of action accrued, and not afterwards..” Had the statute stopped at this point, it would have included every person, and we never should have been perplexed with the present question. But a. proviso adopting a different rule for some persons,, followsin these words:
“Provided, nevertheless, that if any person or persons entitled to such writ or writs, or to such right or title of entry as aforesaid, shall be, or were under the age of twenty-one years, feme covert, non compos mentis, imprisoned, or not within this Commonwealth, at the time such right or title accrued or coming to them, every such person, and his or her heirs shall, and may, notwithstanding the said twenty years are, or shall be expired, bring and maintain his action, or make his entries within ten years after such disabilities removed, or the death of the person so disabled, and not afterwards.”
The difference between this act and the British statute of fines, as well as that of James, is at once perceived. Both the words and the order of pression js different. The statute of fines, shows that the persons in the proviso, and those in the bar are the same, and the same accruing of title is designed in both. The identity of the persons and ■accruing of the cause of action in the bar, and the proviso in ours, is not asserted; but it "is asserted by construction, and" that construction is negatived by the words, and grammatical construction of the proviso. The statute of James is still more explicit, and the accruing of the action there named in the proviso, is expressly declared to be the “first.” In ours the “first” is left out, and we are left' to fix the accruing of the cause of action to the person disabled, as to the moment from which we must begin to count the bar. In the two British, [68]*68statutes, the proviso makes a part of the enacting paragraph, and is incorporated with it by relative words, showing that one “accruing or coming” of the cause of action is designed in both, and the office of the proviso, is intended merely to show the different consequences, which must flow from its accruing to the person disabled, and him not disabled, at the time of one, and the first accruing of the cause of action, instead of this, the proviso of ours is ap original and independant rule, and the identity of the “accruing and coming” or of persons named in the bar as well as the proviso, could not have been found out, or thought of, from the letter of the act, if the question had not been prejudiced by former adjudications qn oilier statutes somewhat, but not precisely similar. The fair construction of our statute is this, the proviso adopts, with regard to disabled persons, its own and a different provision, and a different or additional moment of count, from that provided for in the bar. It does not shy “if the same persons,” or “any of the persons” named in the bar, as the statute of fines did. Rut if any person or persons entitled and disabled, shall have such cause of action, he or they shall look to their own situation, and begin their count at some point for the commencement, when his or their interest first accrued, or his or their cause of complaint first began. The index to this point is given to him, and that is not the moment the cause of action accrued at first in the life and during the interest'of another, when he or they had no interest, but it is the instant that the cause of action came to him “or them,” whether that cause had’its commencement before, and descended, or originated, during his own interest and disability united. Here the impor- ■ tant difference between this act and the statute of James is apparent. Tfie latter expressly puts in the “first” accruing by putting in the' word “first,” and leaves out the words “to The former admits the word “first,” and adds in another place-“to them,” in order to show that a different, or additional point of time was in the eye of the legislators. For what noun is the pronoun “them” used in this proviso? Can it be referred by any gram[69]*69matieal rules, to the persons under the general pro-provision named in the bar, or is it substituted exclusively for the “person or persons” mentioned in the proviso? The answer to this question does not admit of a doubt. The latter was intended. Couple this to the omission of the word “first,” and we immediately rest on the situation of the disabled person, when he gets the cause of action, or title, whether that be the moment of the descent cast uppn him, or afterwards, during his disability.
If the ancestor, against whom the adversary possession was taken, dies within age, tlic disability of his heirsfof all of them) on whom the right descends, avail? them nothing: otherwise where the ancestor was of full age.
But it may be urged that the case of Floyd’s heirs vs. Johnson’s heirs, is inconsistent with this construction, and that a cause of action cast upon an infant from an infant ancestor, is not different from one descended from an ancestor laboring under no disability, and consequently, a succession of disabilities may ensue. For if a title or cause of action once descended, during its existence to an infant, loses the effect of the bar, on account of the infancy at the first descent, of course the person to whom it descends in the second or third instance, are equally within the terms of the proviso, and entitled to an equal protection. The force of this argument is perceived, and its conclusion is plausible, and it would be unanswerable, if the statute provided for any, but one descent or accruing of action or title, and excused any but one. But this it doés not do. If a person disabled, for instance an infant, once holds a claim or right of entry, or cause of action, whether that cause of action commenced during the time of his ancester or his own time, the saving applies to him. once, and but once. If he has had occasion to apply the saving once, it cannot be applied again by another, according to the words of the statute. Hence the question which arises, when an existing cause of action descends to an infant, is, has his ancestor had the use and benefit of the saving. If he had, then it is exhausted in once using. If his ancestor had not the benefit of the saving, then he can apply and use it for once. This results from the last clause of the proviso, and does not rest on the words “descend or coming to them.” The last words of the proviso, say, he may “bring ancl maintain his action, or malic his entry within ten [70]*70[now three,] years next after such disabilities removed, or death of the person so disabled and not offertoarás. These expressions expressly limit the saving to one disability, and exclude plurality and succession. It terminates the saving after the death of one disabled person, although the descent may be cast upon an infant or person disabled, and precludes all new actions, or saving power “afterwards.” The apparent inconsistency between the two cases of a cause of action descending from one adult to an infant, and from an infant to an infant, is not produced by any words of the proviso, and is provided against in another clause and member of the proviso. It was foreseen by the makers of the law, and settled by them in the concluding words of the proviso.
Statute of Kentucky paramount to to the British and other judicial decisions on these acts.
iiiiversity between the judicial decision of Kentucky and England on the statute of frauds and perjuries, and limitation of actions on contracts,
Wé have been thus particular in vindicating the previous decisions of the court, because we are aware of the multitude of decisions which may be quoted from the British books, and some of American character, on statutes similar, but not the same, and in which a slight change in words make an important difference in the sense. These are so numerous that we have supposed it would be an ostentatious parade of authority to cite them all, and too great and unnecessary labor to review them. They are all opposed by one authority too strong for a greater host, and that is, the act of the legislature itself, which, when passed on a subject within the legitimate power’s of the legislature, always has had, and we trust will still have, more weight with this court, than all the adjudged cases from Bracton to 3 Monroe.
But all judicial authority is not against us, for the Supreme court of South Carolina, in adjudicating on their statute, which is like ours, has given a similar decision, 2 Stark. Evi. 901, in note. We therefore subscribe still to the doctrine of the former cases on this point, not admitting that the British decisions, if their statute was even more similar to ours than what it is, would be conclusive and absolutely binding on this court. For in other cases we have had to depart widely from tliem, to give [71]*71effect to statutes, which they, by construction, had virtually repealed. Witness the act to prevent frauds and perjuries, and this same statute of limitalions on other points, baring contracts after a specified period. Then the British authorities rejected in mass, and the plain unsophisticated sense of the statute was allowed to operate. It is true, that in all personal actions, we have adopted the British construction on their statute uniformly, because the saving or proviso in these cases, is expressed differently from the section or proviso now tinder consideration, and this is what the court has settled and admitted in the case of Beauchamp vs. Mudd, 2 Bibb, 538, and with that agrees all decisions in personal' actions. It may still be said that the ■train of the decisions now re-considered; contain a doctrine not expedient or politic, and that to allow the helpless infant, on whom a disputed title of land is cast by descent, a day after he comes of full age, to recover it, is what the good of the community forbids. If this be granted, we answer that questions of policy and expediency belong to another department of government. It is ours to declare what the law is — theirs to mould it in conformity to the policy of the State, and with that department we leave this duty.
Precedents in this court ofSref*®r . the British decisions,
But if we are mistaken in the true meaning of the statute, and it be conceded, that the train of de•cisions in question, several of 'which have not been reported, were based m error, still we repeat the danger of correcting it. The consequences may be more fatal, than a total disregard of British authorities for centuries. If it be said that these authorities, as well as those of the American courts are far the most numerous, and cover up a space of time exceeding two hundred years, still we are well aware, that one decision of this court, persevered in, as these have been, for thirteen years, is more regarded in this State, soon ripens itself into a rule of property, and enters more deeply into the inter;est of society, than all the British authorities for a hundred generations that are passed away; and reversing them and retracing our steps for a few years-back, may not only be away of removing [72]*72land-marks, as a sage of the law has expressed if,J>ut of removing from land the owners themselves.
Casos of Machir <fec.vs May &c. and Sentney vs. Overton, deciding that the casting a descent of a right of entry on infant heirs, stops the running of the statutes dissented from.
Opinion that “the altering settled rules concerning property, is the most dangerous way of removing land marks,” Concurred in.
Principles the Statutes of limitation.
The judgment of the court, (the Chief Justice dissenting,) is therefore affirmed with costs.