June, 1830.

#### Elijah Rayner, Chairman, &c. on the relation of David Freeman, v. Joseph Watford et al. heirs of William Watford,

>From Bertie.

There being in the act of 1715 (.Key. c. 10) no saving of the rights of persons under any incapacity, that act is a bar to the claim of an infant creditor of the decedent, preferred more than seven years after his death.

The act of 1715 is a protection both to the executor and the heir, and the acts of 1784 and 1809 {Rev. c. 205 & 763) directing the surplus to be paid into the Treasury and to the University, do not affect the real assets, but apply only to the personal estate, and give a remedy to the creditors, &c. against the State and the University, without affecting the protection given to the executor by the act of 1715.

Where a cause of action accrues against the estate of a deceden' after his death, when does the limitation prescribed by the act of 1715 begin to run, Qu ?

The cases of M’Lellanv. Hill ( ConfqrenceRep. 479) and Jones v.Brodie, (3 Murph. 594,) held by Rvifxk J. to be contradictory, and the former approved.

Debt upon an administration bond, executed by the ancestor of the Defendants, as surety of Edward C. Outlaw, upon his taking out letters of administration on the estate of John Freeman, the father of the relator. The breach assigned was the non-payment of the distributive share of the intestate’s estate, to which the relator was entitled.

After oyer of the condition which was in the common form, the Defendants pleaded, among other pleas, the act of 1715 (Rero. c. 10, s. 7) whereby claims, not mad* against the estate of a deceased debtor within seven years after his death, are barred. On the trial it appeared, that the relator was an infant at the death of his father, and at the commencement of the present action j and that more than seven years had elapsed between the death of the ancestor of the Defendants and the issuing of the writ.

*339A verdict was returned for the Plaintiff, subject to the opinion of the presiding Judge upon the question of law arising upon these facts ; and his Honor Judge Mangum being of opinion, that the statute was a bar, set aside the verdiet, and directed a nonsuit to be entered. Where- ' upon the Plaintiff appealed.

No Counsel appeared for the Plaintiff.

Hogg, for the Defendant,

submitted the case without argument.

Ruffin, Judge.

The act of 1715, {Rev. c. 10, s. 7,) is in terms an unqualified bar, without saving or exception in favor of any incapacity or case whatsoever. It seems to have been designed to be, emphatically, a statute of repose in favor of dead men’s estates, without a single, exception. It is founded upon thé pblicy, that the few instances of private injustice arising under it had better be tolerated, than that heirs, who had improved their inheritances, should lose them, and executors and administrators be subjected to debts, after the lapse of so' long a period from the debtors death. If this did not appear from that part of the statute now remaining in force, and to be found in our Rcvisal, if is made manifest from the residue of the section, as it originally passed. For that enacts, that all such money as may remain in the hands of the administrator after the term of seven . years, and not recovered by any next of kin, or creditor of the deceased in that time, shall be paid to the churchwardens and vestry, io and for the use of the parish, where the said money shall remain, it is impossible to suppose, that the administrator could beheld liable therefore, under any circumstances, to any body but the parish, after the seven years. And if he was not, neither •was the heir ; for the act goes to the whole estate. It is true that by a subsequent law' {Act of 1784, Rev. c. 205,) the administrator is to pay the surplus into the Treasury ; and it is to be subject to creditors or representa-*340ftveSj without limitation of time. But this creates no liability on the part of the administrator, much less the heir. For the recovery from the Treasury is not to be through the administrator, and is therefore a mere public bounty, bestowed by legislative sanction in each case, under a sense of justice, and not by judicial sentence, since the State cannot be sued. It is likewise true, that by the act of 1809, {Rev. c. 763,) the University is substituted in the place of the Treasury, and a term of ten years more is given for claim by creditors, legatees and next of kin. But here again, the demand must be held to be one directly against the University, and not against the executor; for the thisfees are put in the place as well of legatees as creditors. But both of these acts are subject to the decisive observation, that they extend to the personal estate only. The case of the heir remains untouched since the act of 1715. I am aware of the conflicting decisions in McLellan v. Hill’s Executor, (Conference Rep. 479,) and Jones v, Brodie, (3 Murph. 594,) and must say, I am not satisfied with the latter, for the reasons I have just given, although I gave a similar decision on the circuit, anterior to that case. There is a difficulty I am now unable to get clear of. Unless the death of the debtor be the terminus, if I may use the expression, from which the time runs, there is no limitation whatever. For suppose a debt to fall due eight years after the debtor’s death, there is nothing in the act to restrain the creditor to seven years from that time. The only limitation in the statute is from the debtor’s death ; and if the period begin not then, it can have no beginning nor ending, within this act. These observations are however exclusi velyi my own. This case does not require, that we should decide between the two cases mentioned. For the Plaintiff, although an infant, ivas in existence, and the debtor also, during the whole term of the seven years ; and if there were no other breach of the bond, that of not returning an account was one, for' *341which the bond might have been put in suit, and ripened into a judgment. ’ ,

, .45 „ , . , , That is the point oí the present decision, and to that alone will the case be authority.

Per Curiam. — Let the judgment below be affirmed.