
    *B. Tupper’s Executors v. E. W. Tupper’s Executors.
    Action of debt on simple contract not barred by statute of limitation before the act of 1824.
    Debt on simple contract lies against executors and administrators.
    This cause was adjourned here from the county of Washington. £t was an action of debt, and the declaration contained three counts. One for money had and received of the plaintiff’s testator in his lifetime; one upon an account stated with the plaintiff’s testator in his lifetime; and one for money had and received for the use of the plaintiffs as executors. The two first counts alleged the money to have been due May 1,1813; the third laid it to have been due December 1, 1820. The writ is dated October 31, 1826. The defendants pleaded sevei'al pleas, and amongst them, the statute of limitations, to which the plaintiffs demurred. The demurrers were sustained in the court of common pleas, and the case taken to the Supreme Court by appeal.
    The cause was elaborately argued by H. Stanbery and Vinton, for the plaintiffs, and by Ewing, for the defendants.
    But as these arguments relate almost wholly to the construction of a statute, now very nearly, if nob entirely obsolete, it has not been deemed necessary to publish them.
   By the Court:

The question presented by these demurrers has been long since considered as settled. The statute of limitations of 1804, and all subsequent statutes up to that of 1824, on the same subject, are silent as to the limitation of an action of debt founded on simple contract. And where the indebtedness was evidenced by any matter not properly a subject of book account, it has been considered as not within the statute. This construction has prevailed so Iona- that it ought not now to be disturbed; more especially as the act of 1824 Unust very soon operate so as to prevent all the mischiefs which it is supposed may result from the omission in the previous acts. The subjects of the present action do not appear to be matter of book account. The demurrers, therefore, are well taken, and must be sustained. Another objection was made in argument to the plaintiffs’ right of recovery. It is urged that an action of debt is not maintainable against executors and administrators on simple contract. The uniform practice of this state has been otherwise. It was not sustained in such cases, in England, for a technical reason; but that reason the wager of law never obtained with us.

Judgment that the demurrers be sustained and the pleas overruled. The cause remanded to be tried on the other pleas.  