Executors of Burnet v. Administrators of Bryan

Kinsey, 0. J., delivered the opinion of the court. The plaintiffs, as executors of William Burnet, have brought this action to recover the amount of charges in the books of their testator,' against the defendants intestate, for medicine and attendance as a physician. The defendants have pleaded three pleas, one of which, the statutes of limitations, will alone come under consideration. On an inspection of the account, it appears that it consists of a number of items, charged in a regular manner, from the year 1760 to the year 1770, the period of the intestate’s death. Some items appear in every year -of this period, excepting the year 1765, and. some of them are for medicines and attendance during the last illness of the intestate. It further appears, that one of Bryan’s sons, shortly after 'the decease of his father, acted as executor, so far, at least, as to call, upon several of the creditors, with two of whom he actually settled. He called upon Mr. Burnet, who, in a liberal and honorable manner, declared that he would not •distress the family. Ho letters of administration were taken out until the year 1794, and within a year afterwards this action was commenced. These appear to be t¡he principal circumstances of the -case, and we are to determine whether the court below were correct in declaring that under them the claim of the plaintiffs was barred by the statute of limitations. ■ We are of opinion, on the authority of the case cited from 2 Vernon, recognized and confirmed as it has been, that the [463] whole period, from the death of the intestate till the time when the letters of administration were taken out, is fully accounted for. During this interval the statute of limitations did not run, because there was no person against whom the plaintiffs were bound to bring their action.* This reduces the cause to a single question, whether Bur-net himself was bound by the statute in 1770, at the time of the death of the intestate ? and upon this we are of opinion that he was not, and for the following reasons: The account appears to be open and unsettled, continued from year to year, and never deserted. According to Lord Hardwicke, in Welford v. Liddel, 2 Ves. 400, the exception in the statute, with regard to accounts, was to prevent dividing the account where it was a running account, when perhaps part might have begun long before, and the account never settled. It wms determined in Cranch v. Kirkman, Peake’s N. P. 121, that though the statute excludes running accounts between merchants only, yet when there is a mutual account of any sort between plaintiff and defendant, an item for which credit has been given within six years, is evidence of a promise to pay the balance, and will take the case out of the statute. This doctrine appears to be sanctioned by Watson, Law of Partnership, 208.† Upon the whole, the defence in this case is an unrighteous one. The testator declined bringing forward his claim from the most liberal and praiseworthy motives; he was fearful of distressing the family, and did the circumstances of the case render it necessary, we should consider the son as an authorized agent, and his proceedings as an acknowledgment binding on the defendants. Judgment reversed. Footnotes [*] See the case of Webster v. Webster, 10 Vesey 93, where It was held, that this was an insufficient answer to a plea of the statute, when the testator died in 1780, and probate was not taken till 1M)2, because the defendant had possessed himself of the personal estate, and might have been sued as an executor cle son tort previous to 1792. [†] See Catling v. Skoulding. 6 Term Rep. 189; Nichols v. Leavenworth, 1 Day, 245; Cogswell v. Dolliver, 2 Mass. Term Rep. 217, where the same doctrine is laid down. But see Miller v. Colwell, 2 South. 577; though one item of the account is within six years it does not take the whole out of the statute. ’