
    Executor of O. Bigelow v. Administrators of E. Bigelow.
    Declaration avers indebtedness in .1818. Plea of the statute of limitations. Replication, demand in 1827. Demurrer to replication. Held, that cause must be decided on the pleadings, and that the statute operates.
    Pact that plaintiff, as executor, was trustee, can not, at law, take the case out of the statute.
    ■Causes of action accruing under laws repealed, if barred by those laws while in force, continue barred by them; if not barred during their continuance, shall nevertheless be limited by them..
    This was an action of assumpsit, adjourned for decision here from the county of Licking. The writ bore test, March 28, 1831, and the declaration contained two counts. The first for money had and received, as follows: That on November 25, 1818, the said Elihu Bigelow, as the administrator of the said O. Bigelow, was indebted to said plaintiff in the sum oí one thousand dollars, for so much money by the said Elihu Bigelow, as administrator as aforesaid, before that time had, received to and for the use of said plaintiff, as executor as aforesaid ; and being so indebted, he, the .said Elihu, as administrator as aforesaid, afterward, to wit: on the day and year last aforesaid, promised to pay said plaintiff, etc.
    Second count, for money lent; similar to the above.
    *Breach. That the said Elihu in his lifetime, and the said defendants since his death, have refused to pay to plaintiff, etc.
    Pleas: 1. General issue.
    2. Statute of limitations, as follows: And for further plea in this .behalf, the said defendants, by leave, etc., say, that the plaintiff, as ■executor as aforesaid, ought not to have or maintain, etc., because, they say, that the said Elihu, deceased, did not at any time, within .six years next before the commencement of this suit, undertake And promise in manner and form, etc.
    The replication to third plea is as follows: That the said plaintiff, as to the said plea thirdly, etc., saith, precludi non; because, he saith, that within six years next after the said several causes of action in the said declaration mentioned, accrued to him, the said plaintiff, to wit: on May 28, 1827, he, the said plaintiff, demanded the said several sums of money, in the said declaration .mentioned, of and from the said defendants, then being administrators as aforesaid; and then and there requested them to pay the same unto him, the said plaintiff; but the said' defendants did' not nor would then pay the same, or any part thereof, to the said plaintiff, but then and there neglected and refused so to do;' whereupon, the said plaintiff, afterward, and within six years next after the demand aforesaid, to wit: on March 28,1831, at the county of Licking aforesaid, sued out his writ of summons aforesaid, to recover the moneys above demanded, last aforesaid; and* this he, the said plaintiff, is ready to verify; wherefore, etc.
    General demurrer to this replication!
    Goddard and Dille, for plaintiff.
    H. Stanbert, for defendants.
   Judge Lane

delivered the opinion of the court:

We have not deemed it necessary to notice minutely the form-of the pleadings in this case, but have directed our attention to the facts appearing on the record. The plaintiff’s caséis contained in his declaration and replication. He avers that the indebtedness accrued in 1818, and alleges the demand to have been made in 1827.' The plaintiff was not bound to rely and repose upon the dates set forth in his pleadings. He might, by *a different [98 course of.pleading, have set forth facts to show that there was no interval of six years without some act intervening to interrupt the operation of the statute. In the absence of any such allegation, the court must take the case as the existing pleadings present it, and inquire, if upon the facts stated, the statute of limitations cut off his right to recover.

The statute of limitations of 1810 was in force at the time this' action accrued. In express terms, it binds the right of the plaintiff, unless the suit was commenced within six years. ■ We must-find something in the case which prevents the statute operating,, or the defense prevails.

It is claimed that this is a trust against which the statute of limitations does not run. We understand this to be the doctrine in a court of equity; but no effect can be given to it in a court of law, where the statute binds by its direct application. In a court of equity, the statute has no binding force by its own effective force, but is only adopted and applied by analogy to cases within-what is considered its reason. Chancery has held it not to apply to direct trusts, as beyond the analogy and reason of the statute. Bat no operative effect can be given to this principle in a court of law, because it can take no cognizance of the trust. If relief were asked in equity we might then apply the principle; but at law the statute is inoperative.

It may, however, be insisted that the statute of 1810 is repealed, .and that its operation on causes already barred, is not saved by the reservations of the saving clause of the subsequent and existing statute, and, consequently, that the statute of 1831, not that •of 1810, must govern the case. The proviso in the repealing clause of the statute of 1831 is somewhat obscurely worded. We believe its interpretation to be, that all causes of action accruing under former acts, not barred at that time, shall be limited by those acts; and all causes of action that have been barred by those acts shall continue barred. If, then, this cause of action accrued in 1818, it was barred in 1824, and was not revived by a demand in 1827.

Judgment for the plaintiff on the demurrer.  