come into esse after the accruer are not regarded (a). For, except in the case of the Crown (b), when the law once begins to operate, the operation is not in general suspended because of there being no person against whom it can operate (c). The 3 & 4 Will. 4, c. 27, however, has an exception Administrator in one case, namely, where an administrator claiming when affected. the estate or interest of an intestate is appointed after the right accrues (d), and, as will be shown in the next chapter, when the right is in chattels real. In all cases of claim to chattels personal or otherwise, not in the nature of chattels real, the law will affect an administrator from the time only when he obtains the administration (e), for, ex necessitate, his title cannot commence instanter (f). He derives it from the administration (g), and only from the time of the grant the property of the intestate vests in him (h). Sometimes, indeed, the grant in support of right, but not of wrong, has relation to the death of the intestate (i), and as well in the case of chattels real as chattels personal, although in the case of chattels real entry thereon is first necessary (j). Where a person is sole next of kin of an intestate, and has, therefore, the power, at any moment after becoming so, to clothe himself exclusively with the legal character and rights of an administrator, he may, for Ves. 93; Douglas v. Forrest, 4 (a) 15 Ir. Law Rep. 270. (c) Cotterell v. Dutton, 4 Taunt. 826; Penny v. Brice, 18 C. B., N. S. 393; Freake v. Cranefeldt, 3 Myl. & C. 499; Rhodes v. Smethurst, 4 Mee. & W. 63. Executor who accrues has not some purposes at least, become the owner of a chattel real of the intestate before obtaining the actual grant of administration (k). The enactment just noticed will be observed to when the right embrace an administrator only, and not the case of taken probate. an executor who, when the right accrues, has not proved the will of his testator. In this latter case, as before the statute, when the right accrues after the death of the testator, the law does not operate against the executor until he has proved the will (7). For although his title is derived from the will, and not from the probate (m), and the property of the testator vests from his death in the executor (n), yet his title depends on his taking upon himself the administration of the will, and therefore does not commence instanter, but by his subsequent act(o), that is, proving the will; and the probate (p), or other proof tantamount thereto of the admission of the will in the spiritual court (q), is the only evidence of his title, and has relation to the death of his testator (r). Representative of person against whom right may be enforced nonexisting. But when the right has accrued, the law, notwithstanding the non-existence afterwards of a representative of the person against whom the right may be enforced, continues to operate against the person to whom it has accrued (s); and the executor of the former person will have, without having obtained probate of the will, the benefit of the time which has elapsed (t). If, however, the person to whom the right accrues (k) See Rex v. Inhab. of Horsley, 8 East, 405. (1) Webster v. Webster, 10 (m) Graysbrook v. Fox, Plowd. & Ald. 744. (0) 1 Sch. & Lef. 289. (p) Rex v. Netherseal, 4 T. R. 260; Pinny v. Pinny, 8 B. & C. 335. (1) Williams' Executors, part i. book iv. c. i. s. i. (r) Graysbrook v. Fox, Plowd. 281; Allen v. Dundas, 3 T. R. 125. (s) Rhodes v. Smethurst, 4 Mee. & W. 42; Freake v. Cranefeldt, 3 Myl. & C. 499. (t) Rhodes v. Smethurst, 4 Mee. & W. 42. proceeds to enforce it, and before the action or suit is determined the defendant dies and no representative of the defendant is in existence for more than twenty years after his death, the right will not be affected, but the operation of the time of limitation will be suspended until the existence of such a representative; for there would be great hardship and unreasonableness in holding that time runs against a person who can do nothing to prevent it, and saying, that though there is no person in existence who can be sued, yet because the statute has run for a day or a month, during which there was a person who was sued, it still continues to run (u). In 1818 a bill was filed for an account. In 1819 the plaintiff died intestate, and, subsequently to 1830, administration to his effects was obtained. In 1827 the defendant died intestate, and administration to his effects was obtained, but when does not appear. No proceedings in the original suit, after the death of the plaintiff, until 1835, were taken, but it was not dismissed, and in March, 1835, the record of the cause was removed from the Court of Great Sessions in Wales into the Court of Chancery, and in April following a bill of revivor and supplement was filed by the representative of the original plaintiff against the real and personal representatives of the defendant, who pleaded the Statute of Limitations (x). The bill was merely a continuation of the original suit, and not a new suit, and Sir John Leach, M. R., said the case depended on Murray v. The East India Company, and disallowed the plea (y). There must also be at least two persons in every case Must be at within the law, each claiming an interest adverse to the least two other (z), and not the same interest or estate, as in the claiming ad (u) Sturgis v. Darell, 4 Ex., N. S. 622, affirmed on error, 6 Ib. 120. (x) 21 Jac. 1, c. 16. (y) Perry v. Jenkins, 1 Myl. & C. 118. (z) M'Donnell v. M'Kinty, 10 Ir. L. R. 514; Smith v. Lloyd, 9 Ex. 562; Tottenham v. Byrne, 12 Ir. L. R. 376; 15 Mee. & W. 622; 15 Ir. L. R. 284; 6 H. L. C. 963; Burrell v. The Earl of Egremont, persons each versely to the other. Persons under disability have an extension, -or an exclusion of the time of it. cases of guardian and ward (a), trustee and cestui que trust (b), in cases of landlord and tenant (c), and in cases of mortgagor and mortgagee (d), whilst these several relations are subsisting. It may be observed that where the person to whom a right to any land or rent has accrued is at the time when the right accrues under disability, the operation of the law is not suspended on account of the disability, but commences from that time, and not from the time when the disability determines, and the disability entitles the person under it to an extended period of time within which to assert the right (e). But where the rights of the nature of those which are the subjects of the 2 & 3 Will. 4, cc. 71 and 100, are claimed in, to, over or against lands of persons under disability, and which, after the periods fixed by those acts, are not made absolute and indefeasible, the time during which the disability existed is excluded from the computation of the different periods of time during which the right, as against those persons, is claimed (ƒ). Persons in special relations. SECTION III. Persons between whom exists a special Relation which excludes or modifies, as between them, the Operation of the Law. The persons between whom the question of ownership arises may stand to each other in some special relation, which may either altogether exclude or only qualify the 7 Beav. 205; Lord Carberry v. (a) Morgan v. Morgan, 1 Atk. (b) Garrard v. Tuck, 8 C. B. 231; Knight v. Bowyer, 23 Beav. 635. (c) Supra, p. 104 et seq. (d) Raffety v. King, 1 Keen, 604; Hyde v. Dallaway, 2 Hare, 528; Wynne v. Styan, 2 Phill. 303. (e) See 3 & 4 Will. 4, c. 27, ss. 16-19; Thomas v. Thomas, 2 Kay & J. 79. (ƒ) C. 71, s. 7; c. 100, s. 6. operation of the law as applied to persons between whom no such relation exists. The first special relation we notice is that of persons Joint owners. having a joint ownership, as joint tenants, parceners, Joint tenants and parceners and tenants in common. These joint ownerships arise either by contract or by Origin. & 4 Will. 4, of and taking all profits, c. 27, of claim Before the 3 & 4 Will. 4, c. 27, the mere claim and Effect, before the receipt of the whole of the profits, by one of these 3 joint owners before entry, did not affect the possession of the others of the same class (m). For primâ facie the receipt by one was for all and according to the right, and he must show that the receipt was for himself only (n). Inasmuch, also, as an entry upon land generally is and of entry always taken according to right (o), an entry by any by some only. one person of any of these classes of joint owners was, in the absence of evidence to the contrary, an entry for (f) Co. Litt. 169 a, 189 a; Cru. Dig. tit. xviii., xix., xx. (g) Plowd. 233; Salk. 423. (h) Reading v. Royston, 2 Salk. 423. (i) Burt. Comp. 397. See Doe d. Blight v. Pitt, 11 Ad. & E. 842. (k) 1 Salk. 216; 2 Ib. 423; Hob. 322; 2 Ex. 821. (1) Reading v. Royston, 2 Salk. 423. (m) Co. Litt. 243 b, 273 b, 374 a. (n) 1 East, 577, 578. (0) Smales v. Dale, Hob. 120; Plowd. 233. |