#### Robert H. Jones, administrator of Angustine Bayners, deceased, v. John Brodie, administrator, with the will annexed, of Alexander Brodie, dec’d.

>From Warren.

Under the act of 1715, ch. 48, requiring’ “ the creditors of any person “ deceased to make their claim within seven years after the death of “ such debtor, otherwise such creditor shall be forever barred,” two circumstances must concur to put the bar in operation, to wit: the death of the debtor, and the simultaneous existence of a creditor.

If, therefore, the creditor die before the debtor, and no administration be taken out on his estate in the life-time of the debtor, but is taken out afterwards, and suit is brought within due time, although it be more than seven years after the death of the debtor, the act of 1715 does not bar the claim.

When the statute of limitations begins to run, nothing will stop its operation ; and, therefore, if a debtor die in the life-time of his creditor, whose cause of action has accrued, the act of 1715 will attach upon the claim of the creditor, although no administration be taken out on the debtor’s estate for more than seven years.

In the report of the case of M’Clellan v. Hill’s executor, in Conference Reports, 479, the fact of Hill’s death before that of M’Clellan is omitted.

This was an action of debt, to which the Defendant, among other pleas, pleaded the act of 17 i 5, ch. 48. To this plea the Plaintiff replied, “ that Augustine Bayners, “ his intestate, died before the death of Alexander Brodie, “ the Defendant’s testator, and that this suit was brought “ within less than seven years after letters of administra-1i tion were granted on the estate of said Bayners.” The *595Defendant rejoined, “ that more than seven years had “ elapsed from the granting of letters of administration, iS with the will annexed, on the estate of Alexander Bro- “ die, before the bringing of this suit; that John Brodie, “ the administrator, had delivered over to one of the lega- “ tecs and distributees, his legacy and distributive portion s< of the said Alexander Brodie’s estate; that he, the said “ John, was entitled to a legacy and another distributive “ share of said estate, as legatee and one of the next of “ kin; and that the other legatees and distributees had i{ commenced suit, which was then pending, against him “ the said John, for the residue of the estate, which suit Si was brought before the commencement of this suit by i! the Plaintiff.” The case was sent to this Court, and

Taxxoe, Chief-Justice,

delivered the opinion of the Court:

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 brougj.it. 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 limitations, 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, bo 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 *596before administration is taken out to the creditor, the administrator will be allowed three years from the time he ^ administers; because, when the cause of action did accrue, fljCl,e was no person who could bring1 suit.

These principles, after much uncertainty and confusion in the cases, and particularly in abridging them for the elementary books, were at length ably expounded and finally settled, in Hickman v. Walker, and Smith v. Hill.* By the very 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 ail statutes of limitation, the principle has been hitherto applied, that when they begin to run, nothing will stop their operation :† 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’Clellan’s executors v. Hill’s executors,‡ although this Circumstance does not appear in the report. But I have examined the record, and ascertained the fact to be, that Hill died more than a year before. M’Ciellan. That case is, therefore, reconcileahle with this; for the act began to run against M’Clellan, then “ a creditor at es the time of the death of the debtor.” In this case, there was no creditor when the Defendant’s testator died, nor was any person authorised to make claim, until the Plaintiff administered ; and he having made claim within the time limited by the act, is not affected by the bar. The opinion of the Court is, that the plea of the act of 1715, should be overruled.

*

Hickman v. Walker, Willes 29. Smith v. Hill, 1 Wills. 134.

†

4 Term Rep. 300. Plowd. 355.

‡

Conference Rep. 479.