
    Lydia Dowell vs. Richard W. Webber, Administrator of Thomas Liggon.
    
    By the terms of the statute, it is plain that the bar of eighteen months, within which time claims against estates of decedents are required to be presented to the executor or administrator, does not attach, unless publication be made ascording to its directions.
    As a general rule, when the statute of limitations once commences, it runs on, notwithstanding any subsequent disability. Yet, when the disability grows out of some positive statutory provision, the time, during which such temporary disability continues, should be excluded from the computation.
    The act, allowing administrators nine months, after publication of the grant of letters of administration, before suit can be brought against them, has the eifect to suspend the general act of limitations during that period ; and thereby to leave the holder of a promissory note six years within which to sue, besides the nine months within which he is restrained from suing.
    Error from the circuit court of Franklin county.
    The pleadings and facts are stated in the opinion of the court.
    
      C. McLure, for the plaintiff in error.
    The statute of this state, limiting certain actions at law to be brought within six years, &c. ceases to run at the death of the maker of a promissory note ; because the act must necessarily mean six years computable time, during all which the creditor had a remedy at law, &c., and the remedy at law by the creditor, is restrained on the death of the debtor, for a term of nine months after letters of administration, &c. R. S. Miss, by H. & H. 416, sec. 105. And this nine months statute attaches in all cases of deceased debtors, whether the six years statute has commenced running or not. The operation of this statute, con-Aiding as it does, with the six years act, necessarily stops the operation of the six years limitation act; at least until the expiration of nine months after the date of letters of administration, &c. For, although the statute of limitation may have commenced running, yet, when a disability arises, by the mere operation of law, prohibiting a legal remedy, the running of the limitation act must necessarily be rendered inoperative until such disability shall be removed. Moses v. Jones, Executor, &c. 2 Nott & M’C. Rep. 259, extract. Ballantine on Limitations, 118, end of note (1). Hernandez, et al. v. Montgomery, 2 Mort. Rep. (N. S.) 422. Administrator of Quince v. Administrator of Ross, 2 Hayw. R. 180. Guild, et al. v. Hale, Executor, &c. 15 Mass. Rep. 455, 458. Ballantine on Limitations, 119, note (1), last case.
    In the case of Moses v. Jones, it was decided that the nine months, during which time the statute restrained the commencement of suit, sfcc. against an administrator, must be deducted from the whole period of time, when the cause of action accrued, to the commencement of the suit. Apply this principle of law to the present case; the note became due September 29, 1834; the suit was instituted November 5, 1840,, (after the death of Liggon, the maker of the note) a period of six years and one month, from the maturity of the note, to the commencement of the suit. Deduct the nine months, during which the statute restrained the commencement of 'a suit, and it leaves five years and four months; therefore the action is not barred by the six years limitation act.
    Suppose five years and six months had elapsed after the maturity of a promissory note, at which time the maker of the note should die. In such case, the operation of the statute above referred to, prohibiting the commencement of an action for the term of nine months after the date of letters of administration, at the expiration of which time, allowing the six years statute to have continued running"during the mean time, not only the remedy, but the right of action itself, would be destroyed, by the mere operation of law, the one act commanding a legal proceeding within a given time, and the other commanding a forbearance to begin such action within the time limited ; the one restraining and withholding the remedy, until the other destroys the right of action itself. Such a state of things ought not in conscience to exist; and certainly does not exist; because the operation of the one contemplates the exclusion of the other.
    In all cases in which the point has been discussed, the statute of limitations did not extinguish the right, but merely regulated the remedy; but to allow both the statutes above referred to, to operate at the same time, both the remedy and the right itself would be affected at one and the same time.
    The only defence set up by defendant in bar, &c. is, that the cause of action did not accrue, &c. at any time within six years, &c. The plaintiff replies that the intestate died within six years, &c. and that' administration was granted to defendant within six years, &c. The record shows that the cause of action accrued to plaintiff 29th September, 1834, and that the action Vas commenced 5th November, 1840, and also that within that time, the death of Liggon, and letters of administration to defendant; nine ifionfhs of Which time is excluded by the operation of law, leaving five years-and four months. This was the only point in issue to the'court;: arid the demurrer to replication of plaintiff should have been‘overruled. Besides, the demurrer to the special replication is general; ‘no causes of demurrer are set forth, no párticülkr' objection 'is' taken to the replication, therefore the demurrer is bad; for no defects in the pleadings shall be noticed by the court, unless specially set forth in the demurrer. H. & H. 615, sec. 6.
    2. Although it is in the discretion of the court below, to grant amendments to pleadings, yet, where the defendant has plead several pleas, upon some of which, issue of fact has been taken, and an issue at law upon another, it is contrary to the settled principles of law, to allow the'defendant to amend his pleadings generally, aftér demurrer to plaintiff’s special replication overruled; he could only obtain leave to amend his special plea, to which the replication was- an answer. But the defendant in'this case, under the general leave to amend, again plead the same facts, and the same pleas that he had before plead, and upon which the court had before acted, which the court erred in receiving the second time; and this reaches the third error assigned, and it is presumed that no authority is required in support of the position here taken.
    
      
       Since the opinion was delivered in this case, two others have been decided, to wit: “ Ann 3. Singleton, Administratrix v. William Beatty,” and “ William Raney v. T. T. Land, Executor,” involving the same point determined in this. Very short opinions were delivered in those cases, referring to this as settling the question. And neither of those cases will therefore be published.
    
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of assumpsit' upon a promissory note, executed by the decedent, on the 6th of June, 1834, and payable on tfae 26th of September, 1834. The suit was brought on the 5th of November, 1840, six years and thirty-nine days after the note fell due.

The defendant pleaded that he became the administrator of Liggon, in June, 1835, that the plaintiff was living and resident within this state, and that the claim had not been presented within eighteen months. To this there was a replication, that the defendant had not made publication, as the statute directs, and this was demurred to.

The defendant also pleaded the statute of limitations, of six years, to which the plaintiff replied ; to which replication there was also a demurrer. The point intended to be presented is, whether the nine months allowed to.an administrator, by the statute, to look into the affairs of the estate, before suit can be brought against him, has the effect to suspend the general act of limitations during that period, and thereby to leave to the plaintiff six years within which to sue, besides the nine months within which he is restrained from suing. The court below gave judgment for the defendant, from which the cause comes, by writ of error, to this court.

By the terms of the statute, it is plain that the bar of eighteen mouths does not attach, unless publication be made, according to its directions. H. & H. 413, sec. 92. This construction has been already adopted by this court, in a cause decided at the present term.

The other point is not free from difficulty. Here the intestate died after the maturity of the-note, and the general rule is, that when the statute once commences, it- runs on, notwithstanding any subsequent disabilities. Yet when the disability grows out of some positive statutory provision, it seems but right to exclude the time, during which such temporary disability continues, from the computation. To authorize the application of the statute, there must be an existing cause of action, a party tó sue, and one liable to suit. Bradford v. McLemore, 3 Yerger. The statute does not apply when there is no executor or administrator. L Iredell, 66. It has been expressly decided, in the case of the Planters Bank v. Bank of Alexandria, 10 Gill & Johns. 346, that if a defendant cease to be subject to suit by the provisions of an act of assembly, the statute of limitations would be no bar to the claims of creditors. In the case of Moses v. Jones, Administrator, 2 Nott & McCord, 259, under a statute precisely similar to ours, it was holden, that the. nine months during which suit was prohibited to be brought against the administrator, was excluded from the computation.

The whole of several acts upon the same subject, must be construed together. Allowing the administrator nine months before suit can be brought against him, does not necessarily repeal by implication the statute of six years, and virtually reduce it to five years and three months. They must be construed so that they may all stand, and have their several effects, and perform their several offices, if practicable.

There is another view of the statute which warrants the same conclusion. One of the sections of the act provides, -that if any defendant be out of the state, during the time when a suit might be sustained, the time of his absence shall not be computed. H. & H. 571, sec. 99.

This shows the intention of the legislature, that the statute should not run during a period when there was no one subject to'suit. It is not a forced construction to apply this provision to the case before us, by analogy to the case of persons held in slavery, who are deemed to be imprisoned, so as to prevent the bar of the statute. Matilda v. Crenshaw, 4 Yer. 299.

The pleadings, although by no means formal, are still believed to be sufficient. Howell v. Babcock’s Executor, 24 Wend. 489.

Judgment reversed, and a new trial granted.  