
    Joseph D. Nicks, administrator of Richard Fair, vs. James C. Martindale.
    
      The statute of limitations, which had begun to run against an intestate, is not, after his death, suspended until administration granted.
    This was añ action on an open account, the last item of which is dated the 7th October, 1815. ■ The defendant filed his pleas of the general issue and the statute of limitations. To the former plea the plaintiff joined issue, and to the latter replied, that although it was more than four years between the date of the last item of the account and the day of the commencement of the suit, yet that the said Richard Fair departed this life on the 17th day of October, 1817, and no administration was granted on his estate until the 7th day of November following, during which period of tw'enty-three days, np suit could be commenced against the defendant; and that the defendant, during a part of the period between the date of the last item in the account and the commencement of the action, to wit, from December 24th, 1818, to 29th February, 1820, was himself administrator of all and singular the goods and chattels, rights and credits which were of the said Richard at the time of his death, and which had been left unadministered by Elizabeth Fair, administratrix thereof; within which said interval, no suit could be commenced by the said defendant, as administrator, against himself, upon his said promises and assumptions to the jaicl Richard, and that he, th<? said Joseph, adnñjnistratQr as aforesaid, commenced his-suit thereupon against the said James-C. Mariindalc, within four years next after the said promises and-assumptions of the said James C. (the said period of twenty-three days, and the further period of the said James C’s administration being excepted out of the four years, within which a suit might have and ought to have been commenced against the said James C.) To this replication, defendant demurred and plaintiff joined in demurrer, and the same were filed oa 29th March, 1822. Upon the argument, the presiding judge decided in favor of the demurrer, and a motion to reverse tliat-dccibion was now made on the following grounds:
    .1st, Because by law, the representative of a deceased creditor is allowed a reasonable time to commence suits for the recovery of debts due the estate, and that this time, therefore, is-to be deducted from the four years limited by the statute.
    2d. Because it is the settled law, that no action can be commenced till administration, and as the law prohibits the bringing of .the action during this period, it must be excepted out of the calculation of the said four years limited by statute.
    3d. That it is immaterial at what time within the four years the creditor dies, whether at the beginning, the middle or the close of the same.
    Grimke., for the motion.
    The representative of a deceased-creditor, is always allowed a reasonable time to bring suits Tidd’s Prac. 26, 27; Bull, Jfi. Pri. 150; 5 Co. Rep. 10, Spen-eer’sease; Cowp. 738, 740; 2 'Vern, 695. if there is no executor nor administrator, the statute will not run against the creditor of an estate; and what makes the distinction between an estate plaintiff or defendant? 3 Caines 206; 1 Wash 302; 2 Sir. 907; 2 Hawn, 147.
    The rule is, if there is a disability to sue, the statute shall be suspended. Now certainly the defendant during his administration could not sue himself, though it was his duty to have paid the debt. ('Dunlcin. We concede that the period of defendant’s administration shall be left out of the calculation; the statute will still have run, unless'you can show that the twenty three days, during which there was no administration, should also Be excepted.) There is a difference between the case of an dk'ecutor and an administrator. If there be an .executor, he may sue, though he have not qualified or proved the will. If no executor, there is no one qualified to sue, until administration granted.
    This court has decided that the act of ’89, exempting executors and administrators from suit for nine months, suspends the act of limitations as to creditors of estates. Yet that act does not expressly repeal or modify the statute of limitations, such modification is inferred from the disability imposed on creditors. And even that disability is not absolute: the creditor may sue if he will, and the suit will be sustained, unless the executor or administrator avail himself of his exemption by a particular plea. And in some cases he is permitted to sue indirectly, and recover his demand by way of discount, in a suit brought by the executor or administrator. So war suspends the statute as to alien enemies: yet these are not absolutely disabled; the defendant may avail himself of their hostile gelation if he will. 2 JYott JI‘ Cord, 498-.
    In all these cases, the court has held the statute to be suspended, by construction, from the inability to sue. But where there is no executor nor administration granted, the estate is not represented at all; the inability to sue is absolute and total.
    
      Dun\in, contra.
    Many of the cases cited shew that an .gxecutor or administrator may, within a reasonable period, renew a suit which has been commenced by the testator or intestate, and that the statute shall not run in the mean time. But that is considered a continuation of the same, suit, and has no relation to the question before the court. The case of Adamson vs. Smith, 2 Con. Rep. 269, has settled, that when the statute once begins to run, it shall not be suspended by any supervening incapacity. The court has, in some eases, construed the statute to be suspended, where there was a disability to sue on the part of the plaintiff: but here there was no disability; for administration might have been taken out and a suit commenced jn proper time; and it was the fault of those interested in the estate if they neglected to do so. The objects of the statute would be in a good measure defeated, if demands might be kept alive an indefinite number of years, by neglecting'to take .out administration
   The opinion of the Court was .delivered by

Mr. Justice ColcocTc.

The general rule on this subject is, that when the statute begins to run, it shall not be impeded in its operation by any disabilities. But to this, rule there are exceptions, some of Which are enumerated in the statute, and one or two which arise from a construction of the statute. There is certainly nothing in .the act itself which will authorize the court in sayr ing that its operation shall be suspended until administration granted; nor can this be brought within any reasonable or just construction of the act. Where, by positive enactment, one is prevented from suing or being sued, it is reasonable to say the operation of the statute shall be suspended; but where the fault lies with the party himself whose rights are affected, this reason does not operate. This court has decided that th'ii clause in the executor’s act which says, an action shall not be brought against the estate of a deceased person for nine months, is a suspension for that time of the statute; and so where, by the common law, an alien enemy is prevented from suing, the statute is suspended 'during the war; and so upon an equitable construction :of the statute of James, it has been held, that an oxecutor or administrator -may be permitted to renew a suit within a-year after the death of testator or intestate who had sued in his life time, even if the six years expire during that time; in all of which cases, it is clear the law only suspends the operation of the statute, where the party has been prevented from, or delayed in the prosecution of a suit. It was contended for the plaintiff, that there is an analogy between the case of the plaintiff and those cases which arise under the statute of 4 Anne, c. 1G., where a reasonable time is allowed to the plaintiff after the return of his debtor; but the analog}' furnishes an argument against the plaintiff; for in such cases he is required to sue as soon as he learns that the debtor is returned; and here it is clear that the plaintiff might have proceeded earlier than he did. He might have administered sooner, and he failed to sue for nine months and more after administration granted to him. But to what consequences might this lead? Administration might not be taken out for years, and thus claims kept alive contrary -fio the very policy of the statute, until all evidence of payment b’e lost. I am not inclined to multiply the exceptions to the, statute; [ think'it has been very properly called a statute of repose, and that it is a good shield against.dishonest-claims. It occasionally a just debt is lost by its operation, it can only be by the inattention of those to whom it is due.

Hayne and Grimice, for motion.

Dunhin, contra.

•The motion is dismissed.

JYott, Gantt, Johnson, Richardson, Huger, Justices, concurred.  