85 Miss. 702 | Miss. | 1904
delivered the opinion of the court.
• If there was in the creditors the right and power to sue, not exercised for seven, or certainly for ten, years, it is clear they are barred. By ch. 30, p. 72, Laws 1821, sec. 103, (Hutchinson’s Code, p. 668), actions against executors and administrators of insolvent estates, after declaration of insolvency, are expressly forbidden, except for debts for expenses of the last sickness and funeral. By Laws 1822, p. 85, sec. 1 (Hutchinson’s Code, p. 673, art. 2), the law was so changed as to permit suits pending at the date of the representation of insolvency to the court to proceed to trial and judgment. But by Parker v. Whiting’s Adm’r, 6 How. (Miss.), 352, 359, it was held that, even then, execution could not be issued, because the court said the spirit of the law forbade plaintiff from making his judgment effectual over other claims, and the judgment was in such casé merely the judicial ascertainment of the correctness of the claim to be registered, as others, for equal distribution. The law stood in this condition for thirty-five years, and until the code of 1857. This code, or any law up to 1880, has no clause forbidding suits or actions against the representatives of insolvent estates, and in the record before us the estate was declared insolvent in 1867, under the code of 1857. The omission in this code of 1857 to forbid suits was not considered in Hendricks v. Pugh, 57 Miss., 162, 163, and this led to the erroneous paragraph on top of page 163. The case was decided really on the idea that in that case the heir was estopped, for reasons given, from setting up the statute of limitations. This error was inadvertently followed in Pool v. Ellis, 64 Miss., 555 (1 South. Rep., 725), when, also, it was unnecessary to the decision of the case. We cannot follow these unnecessary expressions, and so we hold the claims long since barred, and that appellant may make distribution.
Affirmed.
