CHAPTER VII. WANT OF PERSONS TO SUE AND BE SUED. 54. THE term "cause of action" implies not only a right of action, but also that there is some person in existence who is qualified to institute process. In accordance with the maxim of the civil law, "Contra non valentem agere non currit præscriptio," 1 there must be a person to sue. Where there is no person to sue, no laches can be imputed, and applying in such case the statute of limitations would be extreme injustice, and contrary also to the conclusions of reason, that they were in the mind of the legislature in enacting the statute.2 55. Upon this subject, the case of Murray v. The East India Company, seems to have been regarded as a leading case, and to have been relied on as a precedent, both in England and in the United States. In that case, the action was brought by an administrator, with a will annexed, of goods left unadministered by a former administrator (but might be considered as brought by the first administrator), on several bills of exchange accepted by the defendants, who pleaded that the cause of action did not accrue within six years before the commencement of the action; and the plaintiff replied generally to the contrary. The bills were made payable to Mr. H., and were accepted after his death, being presented through an unauthorized channel, and before any administration was granted. The acceptance of the bills and the day of payment were more than six years before the commencement of the suit, but the granting of the first administration was less than six years before. Thus, the general question of law was, Did the time of limitation prescribed by the statute of James begin to run from the date of the defendants' acceptance, or the day of payment, at which time there was no person in existence who could acquire a right of action 1 Pothier, Traité des Obligations, 645; Ibid., Traité de Prescrip.; Ayraud v. Babin, 19 Mart. (La.) 47; Morgan v. Robinson, 12 Id. 76. 2 See Richards v. Maryland Ins. Co., 8 Cranch (U. S.), 84. 3 Murray v. The East India Co., 5 Barn. & Ald. 204. by the acceptance and non-payment, or from the date of the first administration, whereby a person was brought into existence who might acquire a right of action by the non-payment? The court were of opinion that the time of limitation did not begin to run until the grant of the administration. Independently of authority, they considered that it could not be said that a cause of action existed, unless there be also a person in existence capable of suing; and that the object of the statute was manifest both to limit the time of entry upon land and a suit, to a person in esse capable of entering or suing. In a case in equity, a suit for an account of the rents and profits of real estate having become abated by the plaintiff's death, after answer, but before the decree, the plaintiff's personal representatives, more than six years afterwards, filed a bill of revivor, to which the personal representatives of the original defendant, who had also died, pleaded the statute of limitations, but did not state in his plea that six years had elasped since representation had been taken out to the original plaintiff: the plea was overruled. The Master of the Rolls cited as authority Murray v. East India Company, which he considered to decide that the statute does not begin to run until administration has been obtained; 1 The court referred to an old analogous case (Cary v. Stephenson, reported in Salkeld, 421), and to Sanford's case (cited in Cro. Jac. 61). The latter arose under the statute of fines, 4 Hen. VII. A term of years was granted in remainder, expectant on another existing term; before the expiration of the first term, the grantee died; at the expiration of the first term, the lessor entered, and levied a fine before administration granted; the five years passed, administration was granted, and resolved, that the administrator should have five years, for none had a right of entry before. Cary v. Stephenson was precisely the same as Murray v. East India Co. It was an action of assumpsit for money had and received, brought against one who had received money belonging to the estate of the intestate, after his death, and before administration granted, the receipt being more than six years before the action, but the grant of the administration within six years. The opinion of the court was, that the time of limitation did not begin to run until the grant of the administration. The suit appeared, however, to have gone off, or the plaintiff to have failed upon a supposed defect in his replication. The opinion of the court, in Murray v. East India Co. was, that statutes of limitation, being all in pari materia, ought to receive a uniform construction. [By the law of France the statute begins to run on the death of the intes tate, without reference to the appointment of an administrator; and it is said that parties having claims against the estate must see to it that an administrator is ap pointed, so that they may sue if need be. So, if the estate holds claims against third persons, it is no less the duty of creditors to see to the appointment of an administrator, who may sue; and if anybody is to suffer by negligence or delay in this respect, it shall be the creditor and not the third person, who has no power to procure the appointment of an administrator. Code Civil. Art. 2258, 2259. Dalloz. Dict. de Jur. Tit. Prescription Civile, 622, 623.] and, in the case before him, the plea did not allege that there were personal representatives of the original plaintiff at any time after his death, until the filing of the bill of revivor.1 56. In these cases, however, if the statute has once begun to run in the lifetime of the testator or intestate, it does not cease running during the period which may elapse between his death and the time at which a personal representative is constituted and duly qualified. It was so expressly held at law, in England, in Rhodes v. Smethurst,2 and in equity, in Freake v. Cranefeldt; in which latter case, the Chancellor said, it would be absurd to hold, that, if the debtor died only one day before the six years were out, the creditor was to have another period of six years within which to enforce his demand. A like decision has been made in South Carolina.+ 1 Perry v. Jenkins, 1 Mylne & Craig, Ch. 118. The precise point decided in Murray v. East India Co., and with reference to that case, decided in Sturges v. Sherwood, 15 Conn. 149. Other American decisions, that there must be an administrator or executor appointed; Hansford v. Elliott, 9 Leigh (Virg.), 79; Ruff's Adm'r v. Bull, 7 H. & Johns. (Md.) 14; Fishwick v. Sewell, 4 Id. 393; Grubb's Adm'r v. Clayton's Ex'r, 2 Hayw. (N. C.) 378; Wanham v. Mohawk Ins. Co., 13 Wend. (N. Y.) 267; Geiger v. Brown, 4 M'Cord (S. C.), 423; Witt v. Elmore, 2 Bail. (S. C.) 595. If a surety pays the debt of his principal, after the death of the latter, and when no letters of administration have been taken out upon his estate, the statute does not begin to run until letters of administration are taken out. Levering v. Rittinhouse, 4 Whart. (Penn) 130; [King v. Aughtry, 3 Strob. (S. C.) Eq. 149; Conyers v. Keenan, 1 Kelley (Ga.), 379; Buclin'v. Ford, 5 Barb. (N. Y.) S. C. 393; Lewis v. Broadwell, 3 McLean (U. S.), 568; Polk v. Allen, 19 Miss. 467; Wood v. Ford, 29 Miss. 57; Briggs v. Thomas, 32 Vt. (3 Shaw), 176. So adverse possession of personal property dates only from the appointment of an administrator. Wood v. Ford, 29 Miss. (7 Cush.) 57. An action brought by one who is appointed, in Massachusetts, administrator of the estate of an inhabitant of another State, within twenty years from the time of the death of such inhabitant, is not barred by the statute of limitations, if the action be commenced within two years after the appointment of such administrator, although a previous administrator had been appointed in the State of which the deceased was an inhabitant, the previously appointed administrator having no right to sue in Massachusetts. Gallup v. Gallup, 11 Met. (Mass.) 445. And Hobart v. Conn. Turnpike Co., 15 Conn. 145; and Lee v. Gauze, 2 Ired. (N. C.) 44, are to the same effect. If a claim be sold by an order of court, invalid for want of jurisdiction, by an administrator in chief, the statute as against the purchaser does not begin to run until the appointment of a succeeding administrator. Wyatt v. Rambo, 29 Ala. 510]. 2 Rhodes v. Smethurst, 4 Mees. & Welsb. 42. Freake v. Cranefeldt, 3 Mylne & Craig, Ch. 455. 4 M'Cullough e. Speed, 3 M'Cord (S. C.), 455; [Frost v. Frost, 4 Edw. (N. Y.) Ch. 733; Abbott v. McElroy, 10 S. & M. (Miss.) 100; McKinzie v. Hill, 51 Mo. 303. In Missouri, under the statute requiring actions against administrators to be brought 57. Murray v. The East India Company was cited and relied upon by the counsel in the case of Ferguson v. Fyffe, in the House of Lords, in which it was determined that, where a creditor of a firm in India died there before his right of action was barred by lapse of time, and his personal representative in Scotland brought an action there against a partner of the firm twenty-three years after the creditor's death, the English statute of limitations did not take effect, the action having been brought within six years after English probate or letters of administration were taken out to the deceased creditor. The decision partakes of lex fori.2 58. In the Superior Court of Georgia, the court held, referring to Murray v. The East India Company, that when, during the existence of a partnership, one of the partners dies, the statute does not commence running in favor of the surviving partner until there is an administrator on the estate of the deceased partner. The court, in this case, admitted the proposition of the counsel, that, when the statute once begins to run, no subsequent disability will stop it, but denied the fact that any cause or right of action accrued in the lifetime of the intestate against his copartner, there being no pretence of any misunderstanding between them.3 59. By the Supreme Court of Missouri, in a case where it appeared that there could have been no final settlement of the estate and interest of an intestate until after the death of his widow, when certain reversionary interests (three slaves) for the first time became available to his administrator, it was determined, within three years from the time of granting letters, where the cause of action accrues after the granting letters, the action may be brought any time within three years after the cause of action accrues. Finney v. State, 9 Mis. 227. And the statute does not apply where the administrator has not given notice that letters of administration have been granted. Wiggins v. Lovering, 9 Mo. 262. And a plea of the statute by an administrator should aver that notice has been given. Ibid; Bosworth v. Smith, 9 R. I. 67. But in Cawthorne v. Weisinger, 6 Ala. 714, it was held, that the statute begins to run from the date of the letters testamentary, and not from the · date of publication of notice. And the statute continues to run, notwithstanding the death of the administrator. Popkin v. Hewlett, 17 Ala. 291; Mills v. Glover, 22 Geo. 319. Or his removal from the State. Lowe v. Jones, 15 Ala. 545. Where one declines to accept a trusteeship under a will, the statute does not begin to run until the appointment of a trustee by the proper authority. Dunning v. Ocean Nat. Bk. 6 Lan. (N. Y.) 296.] 18 Clark & Finn. 121. 2 See post, as to lex fori, Chap. VIII. 3 Gardner, Adm'r v. Cummings, &c., Ex'rs, Decisions of Supreme Court of Georgia, Part I., containing reports of cases of 1842. [Spann v. Fox, 1 Geo. Decis. 1.] that the statute had not run so as to bar the right of the administrator to sue.1 60. Where money is lent by a feme covert, having a separate estate, to her husband, the statute does not begin to run against the debt until the death of the husband; for, on account of the unity of husband and wife, the latter cannot sue the former.2 61. In Leasure v. Mahoning Township, in the Supreme Court of Pennsylvania,3 the plaintiff having been the supervisor of the said township for the years 1819 and 1821, his accounts were settled by the auditors each year, and a balance was found to be due to the plaintiff, for which the suit was brought, by authority of a special act of assembly, passed the 16th of June, 1836. On the trial, the plaintiff gave in evidence the settlements of his accounts, and then offered in evidence a settlement of them again by the auditors for the year 1831. This was objected to in the court below, on the ground that the auditors of 1831 had no authority to examine or allow the accounts for the years 1819 and 1821, and the court below rejected the offer, and instructed the jury that the statute of limitations was a bar to the plaintiff's recovery. The judgment was reversed, Kennedy, J., who delivered. the opinion of the court, observing: "In this" (the instruction that the plaintiff's claim was barred by the statute) "we think the court erred, because the claim of the plaintiff is not embraced by that statute. It does not, and it never was intended that it should, apply to claims for the recovery of which the party entitled thereto could not maintain an action. The statute does not extinguish the debt or claim; it only forms a bar to the remedy of the party to recover it by action; but it is perfectly clear that, if the right to maintain an action for it were never vested in him, the statute can be no bar to it, because it would be contrary to reason to hold that the statute operated upon and took that away which never existed, or, in other words, deprived the party of a right which he never had, until the act of 1836 was passed for the. special purpose of investing him with such right. Since he has I M'Nair v. Dodge, 7 Mo. 404. * Towers v. Hugner, 3 Whart. (Penn.) 48. [And where an administrator had returned his account, and divided the estate in good faith, it was held that the statute of limitations began to run, from the time of the division, against all the distributees except one, who was a feme covert. Payne v. Harris, 3 Strob. (S. C.) Eq. 39.] * Leasure v. Mahoning Township, 8 Watts (Penn.), 55. |