Tarver v. Cowart

5 Ga. 66 | Ga. | 1848

By the Court.

"Warner, J.

delivering the opinion.

[1.] By the Act of 1809, it is declared, “That all actions founded on notes, and other acknowledgments, under the hand of the party, shall be commenced within six years from the time such note or acknowledgment shall become due, and not after.” Prince’s .Dig. 577.

By the 12th section of the Judiciary Act of 1799, it is enacted, that “ No suit or action shall be issued against any executor, or administrator, for any matter or cause, against the testator or intestate of such executor or administrator, in any of the said Courts, until the expiration of twelve months after probate of the will of such testator, or letters of administration granted on the estate of such intestate. Prince, 422.

The Act of 1799, it will be seen, inhibits any suit or action from being brought against an executor, or administrator, until the expiration of twelve months after probate of the will, or granting the letters of administration.

It was suggested on the argument, that the Act of 1809, being subsequent to the Act of 1799, necessarily repealed the latter Act; but there is a still later declaration by the Legislature on this subject, in the proviso to the Act of 1818, which declares, “nothing in this Act shall be so construed, as to authorize the bringing any action of any kind whatever, against the representative or representatives of any estate or estates, until twelve months after the probate of the will, or the granting of letters of administration on such estate or estates.” Prince, 443. There is no doubt as to the general rule, that when the Statute of limitations once attaches, and commences running, it will continue to run ; but here the same authority which declares the holder of the note must sue within six years, and not after, also declares, no suit or action shall be brought against an executor or administrator, until the expiration of twelve months after probate of the will, or grant of administration. It is our duty to give such a construction to these Statutes, as that both may stand, and take effect according to the intention of the Legislature. Did the Legislature intend, that the Statute oí limitations should continue to run, during the time the plaintiff is expressly inhibited from sueing, by their command % We think not, and the general rale must yield to this express enactment of the sovereign authority, and the time during which the plaintiff is inhibited from sueing, ought not to be computed against him. This same construction was given to these Statutes, by the Judges in convention, and has been, so far as we know, the uniform rule of decision in our Courts. Jordan vs. the adm’r of Jordan, Dudley’s Rp. 182.

Let the judgment of the Court below be reversed.