LEE vs. LEACHMAN, Adm'r, 22 Ala. 452

PHELAN, J. We have repeatedly held, that when an administrator reported an estate insolvent, and his report was received by the Orphans’ Court, this, without more, previous to the act of 1843, gave that court jurisdiction over the estate as an insolvent estate. Clarke v. West, 5 Ala. 117; Steele v. Weaver, 20 Ala. 540, and cases there cited.

This took away from all the creditors of the intestate, who did not have suits pending at the time, the right to sue in the ordinary way for the recovery of their demands, and merely allowed those who had suits pending, to proceed with them to have their demands settled and ascertained by a judgment, on which no execution was allowed to issue. Clay’s Digest 192, § 2.

From the time that an estate is reported insolvent, it has been held, that the administrator becomes an actor in all the subsequent proceedings connected with orders for settlement,’ and to all settlements and decrees of distribution among the creditors, and is bound to take notice of what is done by the court or its order in this behalf. Clarke v. West, 5 Ala. 117.

When an estate was reported insolvent previous to 1843, it was the duty of the Orphans’ Court to give notice to all the creditors to file their claims within some certain time, not less than six nor over eighteen months from the time of making the order, and the creditors were allowed to file their claims against the insolvent estate in the clerk’s office. Aikin’s Dig. 154, § 7.

Previous to the act of 1843, the mode provided for trying the validity of claims, where objections were offered, was not either very specific or satisfactory; but since tbe act of 1843, it can be done in a mode quite as satisfactory, as by suit at common law! Clay’s Dig. 194, § 11.

When tbe time bad expired for filing claims against an insolvent estate, it was tbe duty of tbe Orphans’ Court to proceed to settle tbe estate of its own motion; or it could be moved, and, if occasion demanded it, compelled, doubtless, to proceed to a settlement with tbe administrator and distribution among the creditors who had filed their claims. Aikin’s Dig. 152, § 2; ib. 154, § 7; Edwards v. Gibbs, 11 Ala. 292.

Tbe foregoing statements are made with a view to show,that when tbe statute took away from a creditor tbe right to proceed by suit in tbe ordinary way, against an administrator who had reported an estate insolvent, it provided for him another remedy. It allowed him to file bis claim, and thereby acquire a right, as a creditor who bad filed a claim, to compel the administrator, in due time, to make settlement, upon which tbe court would decree distribution of tbe assets of the insolvent estate, and award to him such a share thereof as bis claim might be entitled to.

It seems that tbe estate in this case was duly reported insolvent, and that Lee filed his claim against it in due time in tbe clerk’s office. We cannot learn from the record that anything further was done in the matter by the Orphans’ Court towards tbe settlement and distribution of this estate.

But it appears that, after the lapse of several years from 1841, the time when the estate was declared insolvent, namely, on the 11th March, 1845, the administrator resigns, and Leach-man is appointed administrator de bonis non; and in July, 1847, Lee sues Leachman, the administrator de bonis non, on this note, in the ordinary way, in the Circuit Court of Greene. Leachman defends, by pleading the statute of limitations, and Lee replies, that the statute ought not to run against him, on account of tbe proceedings in tbe Orphans’ Court, by which he had been prevented from suing in the ordinary way.

It is a doctrine which the courts are inclined to adhere to with some strictness, on account of its supposed excellence, having respect to general consequences, that when the statute of limitations once begins to run, it will not cease to do so because of intervening disabilities. Neither an injunction, nor bankruptcy, nor the death of a party, will stay its progress. Angell on Lim. 57; 16 Wend. 572; 17 Ala. 373.

The only exception yet allowed, that I am aware of, beside the express exceptions, is that made in favor of those who are prohibited by positive law from bringing suits against executors and administrators for a certain time after grant of letters.

And in respect to this exception, it is thought, that, as one positive law forbids a suit for a certain time, and another law declares that all suits shall be barred unless brought within a given period after action accrues, the bar of the statute of limitations should not be made complete, until it embraced this full period, throwing out the time of such positive prohibition. The two statutes, interpreted side by side, seemed plainly to require this. Angell on Lim. 205, et seq.; Hutcheson v. Tolls, 2 Por. 44; Houpt v. Shields, 3 Por. 247 ; 2 Smedes & Mar. 452 ; Howell v. Hair, 15 Ala. Rep. 419.

But in this case, although there is a prohibition to bring suit in the ordinary way, the law in lieu of that provides another, and what is supposed, under the circumstances, to be a better way of bringing suit against the administrator of an insolvent estate. The party has only to file his claim, and pursue his rights with ordinary diligence, and he cannot fail to obtain a judgment and such satisfaction of the same as the circumstances will afford. If he loses this right, he does so by his own laches.

We cannot agree, that such a case will authorize us to establish a new exception against the continuous operation of the statute of limitations after it has once begun to run. For all that is shown by this record, the way may yet be entirely open for the holder of this note to pursue his rights upon it in the Probate Court, by bringing the administrator de bonis non to settlement. The demurrer to the replication of the plaintiff was properly sustained, and there is no error in the same. Let the judgment be affirmed.