Field C. J. and Cope, J. concurring.
Plaintiff had judgment against Cook, December 27th, 1850; Cook died February 15th, 1852. Letters of administration issued on his estate December 5th, 1856. Plaintiff presented claim February 24th, 1859; claim rejected, and suit March 24th, 1859. On demurrer, which was overruled, the question arose whether this claim upon these facts is barred by the Statute of Limitations. Judgment below for plaintiff, and appeal.
This case differs from the case of Smith v. Hall, just decided, in this: That in that case the statute did not begin to run until after the death of the intestate. In this case it is contended the statute applicable to judgments began to run from the date of it— *100which, of course, was in the lifetime of Cook. The period of limitation in such cases is five years. At common law, the rule is unquestionable, that when the statute begins to run, a subsequent disability, as death of the party bound, etc., does not stop it. (13 Wend. 267, and cases cited in appellant’s brief.)
But we think this doctrine has no application here. Judgment was obtained in the lifetime of Cook, but was not levied. Section 141 of the Probate Act (Wood’s Dig. 405) provides: “ When any judgment has been rendered against the testator or intestate in his lifetime, no execution shall issue thereon after his death; but it shall be presented to the executor or administrator as any other claim, but need not be supported by the affidavit of the claimant; and if justly due and unsatisfied, shall be paid in due course of administration; provided, however, that if the execution shall have been actually levied upon any property of the deceased, the same may be sold for the satisfaction thereof, and the officer making the sale shall account to the executor or administrator for any surplus in his hands.”
The theory of the Statute of Limitations supposes that the claimant may sue or prosecute his action, and that it is by his own default that suit is not brought by him. But upon or after the death of the judgment debtor, the plaintiff’s right of action ceased. The statute substituted the presentation of the claim for suit, allowing the administrator to acknowledge it and place it on the list of recognized debts of the estate. But the right to sue does not come from the existence of the claim and the nonpayment; but comes from the refusal of the executor to acknowledge it as a just claim against the estate. This right, therefore, does not accrue until the presentation of the claim, and the party is not bound to present it until after publication of the notice required by the statute; and we think it would be unjust to hold that the claim was barred by the statute when the claimant was in no legal default.
The judgment is erroneous in compounding the interest. The plaintiff was only entitled to interest on the principal sums in the judgment sued on—that is to say, on $2,056 at the rate of ten per cent, per annum from December 27th, 1850, until January 16th, 1851, then adding principal and interest on this sum together, de*101duct from the aggregate the credit of $1,700, and then interest on the balance of this sum at the same rate until payment; and on $1,467, from December 27th, 1857, until payment, at the rate of ten per cent, per month.
We think, as the only effect of the judgment is a recognition of the claim, that the same rule should hold in computing interest; that is, that the claim is merely adjudged a good claim on the estate, and this adjudication is equivalent to no more than a recognition and allowance by the administrator and the Probate Judge, in which event the interest would not be compounded. The sums in the judgment sued on will bear interest according to the conventional and legal rates respectively applicable from the dates given already until payment.
The judgment will be reformed by the Court below accordingly, and the cause is remanded for that purpose. The respondent to pay the costs of this appeal.