
    Marshall vs. Hudson, Adm'x. &c.
    
    The “cause of action” which a surety has against the principal, commences in point of time with and is founded upon the payment of the debt, by him,* or at the earliest,by a statutable provision of this State, upon the rendition of a judgment against him.
    Until payment by the surety or the rendition ofjudgment against him, he is not accreditor.* ofihe principal, within the meaning of the act of 17S9, c. 23, limiting the time for bringing suits against executors and administrators.
    A was jointly bound as surety of B; B died, and administration wasgranted upon his estate, and more than two years thereafter suit was brought against the administratrix of B, who pleaded the actof 1789, c 23, limiting suits against executors, and judgment thereon was rendered in her favor- A was af terwarcls sued and pleaded the above facts, but the defence was overruled and judgment recovered against him as surely of B. He thereupon moved for judgment against the administratrix of B, and it was held, that he was entitled to recover.
    Lewis Earthman, James Marshall and Zenas Tate, on the 19th day of November, 1819, made and executed their certain note or writing obligatory, sealed with their seals, to the Nashville Bank, for the sum of two hundred and eighty four dollars and sixty two and a half cents, due three years after date, bearing interest from the date. Lewis Earthman was • the principal debtor in said note, and James Marshall the plaintiff in this motion and Zenas Tate were securities to said note. Lewis Earthman died in 1828, and administration upon his estate was, in July, 1828, granted to his widow, Judith Earthman, now Judith Hudson, the defendant, and John S. Cox ; who at the July term, 1828, of the court of pleas and quarter sessions of Davidson county court, duly qualified according to law. The administrator and administratrix gave due notice of their appointment according to law. No claim, demand, or suit was exhibited or brought against the administrator and administratrix within two years after their qualification, nor was any request made to the Nashville Bank by the administrators to delay the bringing of suit on said note. The Nashville Bank instituted suit against said Judith, who pleaded the act of 1789, c. 23, limiting actions against executors and administrators, upon which plea judgment was rendeaed in her favor; whereupon the Nashville Bank instituted suit against said Marshall alone, upon said note, in the county court of Davidson county, in which suit Marshal relied jup-ón the statute of limitations of two years in- favor of the estate of deceasod persons, (1789, c. 23,) and the judgment in favor of defendant as discharging the estate of Lewis Earthman the principle; and that as security he was discharged. The county court decided that said Marshall was discharged, and upon appeal to the supreme court the judgment of the county court was reversed and judgment rendered against said Marshall for the full amount of said note and interest, amounting to ninety five dollars fourteen and one half cents, and interest thereon, and also the costs of suit.
    Tate was dead, and no suit was brought against his representatives within two years after his death. The Nashville Bank was incorporated by the Legislature of Tennessee, and Lewis Earthman, James Marshall and Zenas Tate were citizens of Tennessee, and defendant is a citizen of Tennessee, §md surviving administratrix of said Lewis Earthman deceased. Said defendant now relies upon the act of 1789, c. 23, as a bar to plaintiff’s right of recovery, believing that no cause of action exists against her, and insists that the payment of the money by, or a recovery of the judgment against plaintiff, raises no obligation or liability on behalf of the tiff against defendant. The parties agreed, if, upon these facts, the law is in favor of the plaintiff, judgment is to be rendered for the sum of ninety five dollars fourteen and one fourth cents, and interest, the amount of the judgment of the Nashville Bank against plaintiff, and the costs of that suit, and interest from the rendition of the judgment; if in favor of the defendant, judgment is to be rendered for defendant for costs.
    
      E. H. Ewing, for plaintiff.
    The plaintiff in this case insists upon a recovery upon the statute of 1807, c. 15, § 1, authorizing judgment against principals and their administrators in favor of sureties. The statute of limitations of 1789, c. 23, § 4, does not apply, because the debt was not due and did not accrue ijntil after the death, See Cooke’s Reports 437 : 3 Yerg. 218. The plaintiff was not a creditor until payment of the debt or ajudgment rendered against him.
    Is the debt extinguished as to Earthman’s estate ; the seven years statute has not run. Marshall is not and never was a creditor of Earlhman; he was only in a condition that he might be. Would the common statute of limitations bar Marshall ? Certainly not, because his action had not accrued. If the debt is extinguished against the principal it must be against the surety ; and yet a judgment was rendered by this court, after full argument against the plaintiff.
    Bankrupts are not discharged from money paid by sureties, covenants, &c. 5 B. & A. 852 : Theobald on surety, top page 140, do. 143, 147, p. 90, 146.
    
      J. S. Verger, for defendant.
    This was the debt of Lewis Earthman at the time of his death, and he was liable, and his administratrix for two years after qualifying, and if the plaintiff had paid it within that time or had been recovered against, he could have obtained a judgment over against the defendant. But he waited until two years had passed and discharged Earthman’s estate, without causma; suit to be brought; and by that delay Earthman’s ° . . °, . . , ... , , , was released as to the original creditor, and no demand existed against it. If no debt existed at the time of the recovery against the plaintiff which could be charged upon Earth-man’s estate, no promise to repay or save harmless can be implied. The payment of the debt after the expiration of the two years, was merely voluntary upon the part of the surety, and does not make the administratrix liable. If the principal were alive and the surety had paid money for him, or become liable on a judgment to do that, the surety could recover against him by motion or in assumpsit; but when he is dead, and two years have expired from administration taken out, by the very words of the act of 1789, c. 23, the debt is barred both in law and equity ; a complete extinguishment of the debt takes place ; and the payment of the money is not for the benefit of the decedant’s estate; and therefore no implied promise or agreement to repay can he inferred. The promise by the administratrix to pay the debt barred by the act of 1789: c. 23, will not revive it. It is extinguished absolutely; 2 Ten. Rep. 320 : Angel on Lim. 286 : Belote vs. Wynne, 7 Yerg.; 5 Pick. Rep. 141 : 15 Mass, Rep. 6 : 13 Mass. Rep. 201: 11 Mass. Rep. 404 : 5 Mason’s Rep. 95 : 111 et Sequiter.
    
    2. If then a promise by the administratrix will not revive the debt, no payment of the debt by a surety will raise an as-sumpsit to pay; when he pays it, it is no longer the debt of the dead man, nor of the administratrix. It is the debt of the security alone, he has made it his by not proceeding under the act of 1801, c. 18, to compel the holder to sue. He places himself by his negligence in the place of the creditor. He could have discharged the debt; have commenced suit, or compelled the holder to commence suit within the two years, nay, within thirty days, by the act of 1801. Not having availed- himself of the privilege placed in his hands by the law, to take himself without the operation of the act of 1789, c. 23, he is as much bound by it as the holder. He is in fact the man who waits. The law will presume from his delay that the surety hasbeen indemnified by the principal. 1 Law Libr. 90: Theobald on surety 153. The law of 1789, c. 23, is different from the ordinary acts of Limitation. It is for the J benefit of estates; it operates upon the contract, the ' J. a ^ operates upon the remedy. If the administrator fails to plead the act, the distributees may, or his securities for the administration may do it. Angel on Lim. 283 : 2 Yerg. Rep. 10: Mar. and Yerg. 353 : 15 Mass. Rep. 5 : Belote vs. Wynne, 7 Yerg. : 5 Mason Rep. Ill, et Sequiter.
    
    If the surety pay the debt after it is barred, he cannot recover against his principal. This applies particularly to the act of 1789, c. 23, that has discharged the debt, and there is no consideration to support a promise. The ordinary act only bars the remedy which did not exist in favor of the surety until he had paid the money. Angel on Lim. 186.
    By the act of 1801, c. 18, the surety could compel a suit against the executor within two years ; not having done this he is as much barred by the act of 1789, c. 23, as the creditor. 1 Law Libr. 90 : Theobald on surety 153: King vs. Baldwin, 3 John. Ch.-Rep.
    When a joint contract is severed by the death of one, nei-their party can do an act to charge the other, by taking the case out of the statute. 1 Law Libr. 66, 67 : 1 Bar. and Adol. 396 : Bar. & Cres. 23 : 3 Dowling and Ryland 200, 20 English Com. Law Rep. 407 : 7 Eng. Co. Law R. 12.
    In the supreme court of the United States it has been decided that under the general statute of limitations, the acknowment of the debt by the executor or administrator, will not take the case out of the statute as to the residuary legatee. 12 Wheaton 565. So in England, Putnam vs. Bate 3 Russel Ch. R. 188. Shew vs. Vdnderherst, 4 Con. Eng. Equity Reports : 3 Eng. Com. R. 353.
    The distributees may contest the existence of the original demand, and can rely upon the act of 1789, c. 23, as a bar to the debt, which would make the payment a devastavit. 2 Yerg. R. 10 : 5 Hay. R: 1 Yerg. 285 : Mar. and Yerg. Rep. 353.
    The liabilities of the surety to pay the debt to the creditor are not increased by the judgment, and his payment of the debt is merely voluntary. He must abide the consequences of his own negligence. He could have paid the money within the two years and saved the statute, and not having done this, he barred as well as the principal creditor. An assignment of the debt would not avail him. Hmokinsvs. Walker, 4 Yerg. Rep. 138. For these reasons no judgment can be given against the administratrix.
   Reese J.

delivered the opinion of the court.

The Nashville Bank at the last term of this court, recovered a judgment against the plaintiff, who was indebted to it as. the security of the defendant’s intestate ; although the plaintiff then urged that he was not liable, because the adminis-tratrixhad by the judgmentof the court, been previously exonerated on the ground of the operation of the statute of limitations against executors and administrators. The question in .this case is, whether, having since paid the money to the bank, he can now recover it from the defendant ? And the courtis of opinion, that he can. To maintain tire «orrectness of this opinion, it is proper to enquire, first into the origin of the plaintiff’s cause of action, for the purpose of ascertaining, whether at the time defendant became administratrix he was a creditor within the meaning of the act referred to, and secondly, into the effect upon his rights, produced by the fact, that lapse of time had barred the claim of the bank against his pricipal.

As to the first point, it has been settled that the cause of action, although growing out of the relation of principal and surety created by the original contract, commences in point ol time with, and is founded upon the payment of the debt by the surety, or at the earliest, by a statute of our own, upon the rendition of a judgment against him. It is then, he becomes a creditor of his principal. It is true, that previously to this, and arising from the relation between them, he is not without some protective and preventive remedies against his principal. He may file a bill against his principal and the creditor. He may give the creditor notice to bring suit. But it seems to us that these remedies, are not founded upon, nor does their existence create the relation of creditor and debtor, within the meaning of the act of 1789, c. 23.

Secondly, what effect is produced by the fact, that time had barred the claim of the bank against the defendant ? It is . ° . urged that the operation of the statute for the limitation of tions against executors and administrators, differs from the general statute of limitations, in-this, that the latter takes away the remedy only, while the former entirely extinguishes the debt. This difference is supposed to be established by the cases referred to, which determine, that though an acknowledgement, or new promise by an administrator or other person will take a case out of the general statute ; yet, such acknowledgement or new promise will not. in the case of the special statute, remove the bar or revive the obligation. It is infered from this distinction, by the counsel of defendant, that in the latter case the debt is extinguished absolutely and to the same extent as if satisfied by payment or terminated by a release. But in the cases themselves no such inference is announced. These cases assert that the distinction arises from the fact, that ■ the special statute is created, not for the protection or benefit mainly of the executor or administrator, but for the protection and benefit of heirs, devisees, or distributees. These special statutes intend that there shall be a determinate period, at which the executor, who is the trustee, both of the creditors and distributees, and a sort of stakeholder between them, shall pass the funds, before that time in his possession for the purpose of paying debts, into thehandsmf the distributees, whose property they become. It is true, that Justice S'tory, in the case cited from.5 Mason 111, in referring to a case reported in 15 Mass. Rep. 6, uses the words “extinguishment” and “extinction,” in reference to claims barred by these special statutes; but, from an examination of the cases in 5 Mason and 15 Mass. Rep. 6, it is believed it will be clear, that that learned Judge means total extinction of the remedy only. It seems to us, upon principle and authority, that perhaps in every instance, where the law creates a bar, or suspends an obligation, it acts upon the remedy; the party himself extinguishes the debt. If, instead of bringing this suit, the plaintiff had sued some administrator of the intestate in Kentucky or Alabama, who had qualified within the last year; will it be contended that he could not have recovered; although in each of those states there had been a statute, identical in terms, with the act of 1789, c. 23? In some of the states no such special . , . , - , , , , may exist; what m such state but the general statute, would prevent the plaintiff at any time from recovering against an administrator of the intestate. This shows that the debt is not extinguished by the bar of the statute, and indeed, this point was determined at the last term of the court, in the case of the Nashville Bank against the plaintiff, Marshall, and also in the case of the Nashville Bank against Campbell, reported in 7 Yerg. If more than the remedy had been taken away; if the debt had been extinguished, no judgment could have been rendered against the plaintiff, in favor of the bank, at the last term. We are therefore of opinion, that the plaintiff take his motion.

Judgment for plaintiff.  