7 N.C. 594 | N.C. | 1819
The only fact agreed by the pleadings, out of which the question of law now to be decided, arises, is that the Plaintiff's intestate died before the testator of the Defendant, and that within seven years after administration was granted to the Plaintiff, this suit was brought. The Defendant pleads in bar to the recovery, the act of 1715, ch. 48, the words of which are, "That creditors of any person deceased shall make their claim within seven years after the death of such debtor, otherwise such creditor shall be forever barred."
By the common act of limitation, the bar begins when the cause of action accrues; and if the creditor be then living, the statute continues to run, although he should afterwards, die intestate, and no administration be taken out upon his effects until more than three years thereafter. In other words, the administrator will not, in such case, be allowed three years from the time administration is granted, but the bar will be computed from the cause of action commencing. On the other hand, if money belonging to an intestate's estate be received by the Defendant before administration is taken out to the creditor, the administrator will be (596) allowed three years from the time he administers; because, when the cause of action did accrue, there was no person who could bring suit.
These principles, after much uncertainty and confusion in the case, and particularly in abridging them for the elementary books, were at length ably expounded and finally settled, in Hickman v. Walker, Willes, 29; Smithv. Hill, 1 Wills, 134. By the words of the act relied upon in this case, two circumstances must concur to put the bar in operation, to-wit, the death of the debtor and the simultaneous existence of a creditor. When creditors are required to make claim within seven years, the existence of creditors is presupposed at the moment from which the bar begins; and the construction is necessarily excluded, which shall take away the claims of those who shall become creditors after that period. To all statutes of limitation, the principle has been hitherto applied, that when they begin to run, nothing will stop their *375
operation, 4 Term, 300; Plowd., 355; and accordingly, if the intestate of the Plaintiff had been alive, when the Defendant's testator died, the act of 1715 would have attached upon his claim, although no administration had been taken out by the plaintiff, for more than seven years afterwards. That was the case of M'Lellan v. Hill,
Cited: Rayner v. Watford,
(597)
