
    Gillespie, Administrator of Hall, et al. vs. Rebecca E. Creswell et al.
    
    December 1841.
    Upon a bill filed to sell real estate for the payment of debts, upon the ground of insufficiency of the personal estate of the deceased to satisfy them, th© acknowledgment of the heir at law and devisee of the debtor, that “it was a debt he would have, and intended to pay,” is sufficient to remove the bar of the statute,
    The statute of limitations runs against a claim or debt up to the time it is exhibited or filed in Chancery,
    Where a claim arises upon a bond of indemnity, it is not barred until after the principal debtor and creditor have been both dead twelve years, or the thing in action has been above twelve years standing.
    \A party who relies upon a mere contract of indemnity has no right of action until he has been made to pay money. It is by payment he is damnified, and then his cause of action arises.
    Promissory notes, dated 10th March, 1814, at sixty days, were discounted for the use and accomodation of the second endorser, the prior parties being only securities. Suits were brought upon them by the holder against the securities in 1815, and judgments obtained against them in September 1816. They were paid on the 20th August, 1818, more than three years after the maturity of the notes. The second endorser died in April 1814.
    
      Held—
    
    That as respects the accommodation endorser, the running of the statute was suspended by the suit brought against him, and the judgments obtained thereon, and that the payment made by him on the 20th August, 1818, by coercion of law and under Ji. fu., gave him a right to be re-imbursed out of the real estate of his principal, upon a bill filed by him in 1819 against his heirs, and to which the statute of limitations opposed no bar.
    It does not necessarily follow that one who advances money for a debtor to pay his creditor, and in fact pays the money to the creditor for the debtor, is cither a purchaser of the debt or a mere volunteer. Upon the fact appearing, that the debtor had agreed to execute a mortgage for his security, and that the judgments against him should be assigned by way of security to the party making the advance, lie would be considered as an agent in making the payment.
    A mere volunteer, without any authority, undertaking to discharge a debt, does not succeed to the rights of the party whose debt he so discharges.
    Where a security paid the debt of his principal under judgment, by money borrowed from a third party, to whom the creditor assigned the judgment against the security for his indemnity, a bill filed by the security against his principal (now deceased) to subject his real estate to sale for the pay. iqent of debts, will arrest the running of the statute of limitations both as respects the security and the third party, who only became a party to the cause in equity by amendment, some years after the filing of the original bjll.
    The right of set-off is reciprocal, and mutual claims, and such as are in the same right, can alone be set-off.
    A security who pays the debt of his principal at par in depreciated bank notes, can only recover the amount given for them, and in the absence of such proof, the payment will be estimated at the current market price at the time of the payment.
    Securities in a bond who pay off the debt, may recover separately the sums respectively paid by them, and the evidence which one of them may have to rebut the plea of limitations, does not necessarily enure to the benefit of the other surety.
    Appeal from Chancery,
    A bill was filed on the 16th February, 1819, by Samuel C. Hall and Robert Evans on behalf of themselves and such other creditors of John Creswell the elder, as might come in, against his executor, heirs and devisees, to subject his real estate for .sale, on the ground of the insufficiency of his personal estate to pay his debts. Hall claimed a debt due him arising from his endorsement of notes for CreswelPs accommodation; and Evans as his security on a sheriff’s bond entered into by Creswell. Various answers were filed, disclaiming knowledge of the complainant’s claims, when on the 9th June, 1823. 
      David Reynolds, as executor of William Byson, filed a claim dated 5th October, 1811, signed by John Creswell, admitting a balance due W. Byson of $62.38.
    The' complainant Hall, on the 9th June, 1823, filed certified copies of the docket entries of two fi.fa's. issued at September term, 1818, in the case of the President and Directors of the Elkton Bank of Maryland, endorsees of John Creswell, against Samuel C. Hall, for $4,000 and $2,760, with interest, ““returned levied, and satisfied plaintiff.” Judgment had been recovered as above for $4,000 and $2,760, on the 9th September, 1816, with interest until paid, the records of which were also filed.
    The death of the original complainants being'suggested by petition, their administrators were made parties by bill of revivor.
    On the 10th March, 1825, Philip Thomas filed his petition and claim. At April term, 1820, the President and Directors of the Elkton Bank sued out theirfieri facias against him, and sold his property for $464.25. -A short copy pf the judgment obtained against him at September term, 1816, was also filed by consent, and also the bond of indemnity of John Creswell the elder to Philip Thomas, dated 15th February, 1813, agreeing to indemnify him for any responsibility, or any debts or sums of money which he may be liable to pay on account of his being security for William Baxter, late cashier of the Elkton Bank of Maryland. Philip Thomas also filed his account against John Creswell, deceased, for $464.25, with interest from 1st April, 1820, until paid, and also the bond of William Baxter, with John Creswell and Philip Thomas as his sureties, to the bank aforesaid, dated 20th April, 1811, conditioned for the faithful discharge of Baxter's duty as cashier, which were admitted by consent.
    On the 6th May, 1829, an amended bill was filed by the representatives of S. C. Hall and Robert Evans, and also by Washington Hall and Philip Thomas, David Reynolds, executor of William Byson, and the administrator of Reuben Reynolds, against the original parties, for the same objects as those claimed in the original bill. This bill was answered and limitations relied en. A commission was issued and a great variety of proof taken. Upon the death of John Creswell the younger, his widow Rebecca E. Creswell, was made a party. The administrators of Reuben Reynolds, who had been a co-security with Robert Evans, first advanced their claim in 1829, upon the filing of the amended bill. The claim of Robert Evans and the evidence to remove the bar of limitations, are both stated in the opinion of this court, with so much of the proof as relate to the questions decided.
    On the 5th May, 1840, the Chancellor (Bland,) dismissed the bill, being of opinion that from the pleadings, petitions, exhibits and proofs in the cause, that all the claims against the real estate of John Creswell the elder, deceased, are barred by the statute of limitations.
    From this decree the complainants appealed to this court.
    The cause was argued before Buchanan, C, J., Stephen, Dorsey and Chambers, J.
    By O. Scott and A. C. Ma cruder for the appellants.
    The appellants, to avoid repetition, adopt the statement of appellee, except so far as it is contradicted or explained by the following:
    The notes were endorsed by Samuel C. Hall for the accommodation of Creswell. He was the mere security of Creswell in procuring the money from the Elkton Bank. The money had been borrowed a long time before, and the notes in question were renewals of former notes.
    There is no evidence that the notes were paid in the depreciated paper of the Elkton Bank. Samuel C. Hall paid the bank on the 20th of August, 1818, and received an assignment of the claim, and on the 24th of November, 1818, assigned the same to Washington Hall. Creswell entered upon the lot demised and occupied the same.
    Thai the claim of Evans, for money paid for Creswell as his surety, is clearly-proved, and seems to be admitted by the statement of appellee.
    
      The claim of Philip Thomas is proved by the affidavits of JYesbit and Patten, and the affidavits and extracts are in evidence by agreement.
    That John Creswell the younger acknowledged the debt of Evans, so as to avoid the plea of limitations. ' The weight of the evidence is against the acknowledgment being made when Creswell was a minor. The evidence is contradictory about CreswelVs age, but all agree that he was at latest of age in February 1823. The proof shews the acknowledgment to have been made when Creswell was getting money from Stiles to pay McGrundy, on the 21st June, 1823.
    The appellants will contend —
    1. That the personal assets of Creswell were insufficient to pay his debts.
    2. That the claims of Hall, Evans and Thomas, are established by the proof.
    3. That the said claims are not barred by limitations.
    4. That the claim of rent as a set-off against the demand of Hall, ought not to be allowed.
    5. That the claim to set off the' judgment against Samuel C. Hall as surety for Lightner, ought not to be allowed.
    6. That the claim to reduce the demand of Hall,- under the pretence that the money was paid in depreciated bank paper,, ought not to be allowed.
    J. Johnson arid Albert Constable for the appellees.
    In this case a bill was filed by Samuel C. Hall and Robert Evans on the 16th of February, 1819, against the devisees and exeeutor of John Creswell the elder, for the purpose of subjecting the real estate of the deceased, to the payment of his debts-.
    The bill alleged that the complainants had been compelled to pay, as CreswelVs sureties, about $5,000, and were liable to pay further sums; Hall, as endorser upon sundry accommodation notes to the amount of $4,000, and as surety in his bond as sheriff; and that Evans had paid about $1,000, as surety in his bond as sheriff — this- bond Was dated on the 9th of October, 1810.
    
      The will of Creswell filed with the bill is dated on the 17th of February, 1814, and proved on the 18th of April of the same year. Answers were filed to this bill by the several defendants; that of the executor (Joseph Cowden,) claiming sundry credits, and some of the defendants pleading the act of limitations.
    On the 9th of June, 1823, David Reynolds, executor of William Byson, became a party to the bill by petition, and filed his claim, being a memorandum, dated 5th of October, 1811, purporting to be signed by Creswell, acknowledging an indebtedness to Byson of $62.38.
    On the 5th of November, 1823, the appellants, George Gillespie, administrator of Samuel C. Hall, and James Evans, executor of Robert Evans, became parties to the bill in place of the original complainants, whose deaths they suggested; and on the 10th of March, 1825, Philip Thomas, another of the appellants, became a party by petition, exhibiting therewith the evidence of his claim. This evidence consists of the bond of one William Baxter, with Creswell and Thomas as his sureties, dated 20th of April, 1811, conditioned for the faithful performance of Baxter’s duties as cashier of the Elkton Bank; and an engagement under seal, on the part of Creswell, to indemnify Thomas as such surety, dated the 15th of February, 1813; and proof that the property of Thomas had been sold upon a writ returnable to April term 1820, to the amount of $464.25, at the suit of the Bank, issued upon a judgment against him, recovered upon the aforesaid bond.
    The appellants, Gillespie, administrator of Samuel C. Hall, and James Evans, executor of Robert, on the 6th of May, 1829, asked and obtained leave to file an amended and supplemental bill, and accordingly on the same day a bill was filed in the name of the petitioners, and Washington Hall, Philip Thomas, David Reynolds, executor of William Byson, and John Briscoe and Henrietta M., his wife, as administrators of Reuben Reynolds. This bill alleges that Washington Hall has an interest in the claim of Samuel C. Hall, and that Briscoe and wife, as administrators of Reynolds, have unequal interest with Robert Evans in the claim filed by him; that the claim of Samuel C. Hall was founded upon two promissory notes, dated the 10th of March, 1814, amounting together to $6,760, of which one John Reynolds was the maker, and the said Samuel C. Hall and Creswell the endorsers, and discounted at the Elkton Bank for CreswelVs use, and upon which, after CreswelVs death, the said Samuel C. Hall was compelled to pay, on the 20th of August, 1818, the sum of $3,959.93, the executor of Creswell having paid the balance; and that the claim of Evans and Reynolds arose from their having, as his sureties in his bond as sheriff, paid to John Patridge and J. Cosden the sum of $806.59, of which they had received from CreswelVs executor $497.44.
    After some of the defendants had answered this bill, a bill of revivor was filed on the 9th of August, 1831, suggesting the death of Johm Creswell, junior, one of the defendants to the original bill, and making Rebecca E. Creswell, his executrix and devisee, a party. An answer was filed by the said Rebecca on the 3rd of December, 1831, in which she puts the complainants to the proof of their claims, sets up large demands due from Samuel C. Hall to the elder Creswell, and pleads limitations, and insists upon the lapse of time as a bar to all the claims set up in the bill.
    A great deal of evidence was taken under the several commissions which issued in the cause, by which it appeared, that two notes drawn by John Reynolds, payable to, and endorsed by Samuel C. Hall and John Creswell, and dated the 10th of March, 1814, payable sixty days after date, one for $4,000 and the other for $2,760, were discounted at theBank of Elkton, and the proceeds received by Creswell. These notes, became due on the 9th and 12th May, 1814. And it will appear from the evidence of James Sewell, that Washington Hall, on the 21st August, 1818, paid the balance due upon them, being $3,960.01; a variety of payments having been previously made by Cowden, the executor of Creswell the elder.
    
    Under a commission which issued on the 11th of October, 1834, the record of a judgment recovered by Cowden, administrator of Creswell, against Samuel C. Hall, was returned; and under a subsequent commission, the defendants filed a lease from the elder Creswell to Samuel C. Hall, James Magraw and John Frey, of three lots of ground, dated 26th March, 1814, for ninety-nine years, at $70 per annum, and offered evidence of the enjoyment of the premises by the lessees, and proved by the record of Frey's discharge, that he had taken the benefit of the insolvent laws.
    It was in proof on the part of the defendants, that the credit of the jElkton Bank was greatly impaired in the year 1818, when the money was paid by Hall; that its paper was at a depreciation at least equal to fifty per cent.; and James Sewell, the president of the Bank at the time, says his impression is, that Hall made the payment in the depreciated paper of the Bank, and that the Bank always received its own paper at par.
    The claim of Samuel C. Hall, it has been stated, was founded on notes which became due on the 12th of May, 1814, and on which he, or Washington Hall, paid to the Bank $3,960.01 on the 21st August, 1818.
    The claim of Robert Evans, the other original complainant, and of Reuben Reynolds, whose administrators became parties by the supplemental bill filed on the 6th of May, 1829, rests upon the fact of their having been sureties in the bond of Creswell the elder, as sheriff of Cecil county, dated 9th of October, 1810, upon which judgments were recovered for the use of John Patridge and Jeremiah Cosden in 1814, and upon which they (Evans and Reynolds,) paid certain sums in the years 1815 and 1816.
    The claim of David Reynolds, as executor of Byson, who became a party in June, 1823, rests upon an alleged acknowledgment of Creswell's without seal, dated 5th October, 1811.
    The claim of Philip Thomas, who became a party on the 10th of March, 1825, is founded upon a bond of indemnity, dated the 15th February, 1813, the condition of which was, that Creswell would indemnify Thomas, as surety with him Creswell, for one Baxter, in his bond as cashier of the Elkton Bank, dated the "20th April, 1811, upon which Thomas was sued, and to pay the claim his property was sold to the amount of $464.25, upon a fi.fa. to April term, 1820.
    Under a commission which was returned in June 1834, there were returned short copies of the judgments of the Elkton Bank, against the executor of Creswell, recovered upon the before mentioned notes, and an assignment of the judgments and of the whole claim of the Bank founded thereupon, to Samuel C. Rail, dated 20th August, 1818. And also an assignment by the said Samuel C. Hall to Washington Hall, in consideration of the sum of $3,959.93, paid by the latter to the former, of all the assignor’s claim and demand to the said judgments, and the monies secured thereby. This latter assignment is dated on the 24th November, 1818, and it follows therefore, that at the time the bill was filed, which was on the 16th February, 1819, Samuel C. Hall, one of the only two parties, {Robert Evans being the other,) in whose names it was filed, had parted with his claim against CreswelPs estate, and had of course no interest in it.
    A great deal of evidence was taken under a commission which was returned in March 1839, in reference to the age of John Creswell the younger, according to which, as the appellees insist, it clearly appears that he attained the age of twenty-one years on the 19th February, 1823, and consequently if the appellants have succeeded in showing, that he made any acknowledgment which would take the claim of Robert Evans out of the operation of limitations, such acknowledgment was made when he was a minor.
    By agreement of parties the auditor stated an account subject to exceptions. In this account the claim founded upon the notes is marked No. 1, and stated as a claim due Gillespie, administrator of Samuel C. Hall, and Washington Hall. It is stated, first, as if the $3,960.01 paid by Hall on the 21st of August, 1818, had been paid in cash worth par, and credited only with the judgment in favor of CreswelPs executor against Hall, and one-third of the money due upon the lease to Hall, Magraw and Frey.
    
    The same .claim is then stated upon the presumption that the payment was made in the paper of the Bank, purchased at a discount of fifty percent., and the defendants are credited with the amount of the aforesaid judgment and the whole sum due upon the lease. The other claims are stated as preferred by the parties.
    Exceptions were filed by the parties, the defendants insisting in their exceptions, 1st, that all the claims were barred by limitations. 2nd, that they were not proved. 3rd, that HalVs name being before CreswelVs upon the notes, the latter could not be liable to the former in respect thereof. 4th, that in no event could CreswelVs estate be made responsible beyond the actual amount paid by Hall for the paper in which he made the payment to the Bank. 5th, that there was no evidence to show that the notes were made for the accommodation of Creswell. 6th and 7th, that defendants were entitled to be credited with the whole amount due upon the lease.
    The complainants in their exceptions only object to a credit being given for the judgment and money due upon the lease, and insist upon the allowance of the claim filed by Tho'mas.
    
    Much of the proof, to which reference has been already made, was taken after the auditor’s accounts were filed, and the case coming on to be heard, the Chancellor, by his decree of the 5th of May, 1840, dismissed the bill, being of opinion that all the claims against the real estate of John Creswell the elder, were barred by limitations.
    An appeal was taken by the complainants from this decree.
    In the argument it will be contended by the appellees—
    1. That if the appellants, Gillespie, administrator of Samuel C. Hall, and Washington Hall, have any claim, it is only for one-half the nominal sum paid to the Bank, subject to be reduced by the amount of the judgment in favor of CreswelVs executor, and all the arrearages due upon the lease.
    2. That the said claim is barred by limitations, and was so barred at the time the payment is said to have been made by Hall to the Bank; such payment therefore does not revive the claim as against Creswell's estate, and especially as Creswell had died before the payment was made.
    
      3. That if, as the proof of Sewell shows, Washington Hall, who was not a party to these notes, paid the money, then there can be no recovery against the estate of Creswell, he having no right in that way to make himself a creditor, by paying claims to which he was a stranger, and which, as against Creswell’s estate, were barred at the time of such payment.
    4. That with reference to this claim of Hall’s, the bill should be dismissed — 1st, because there is nothing to show that Samuel C. Hall, in whose name it was filed, ever paid one dollar — and 2nd, because if he ever had a claim, he had assigned it to Washington Hall for value, in November, 1818, before this bill was filed, and consequently he could institute no such proceeding.
    5. That Washington Hall became a party to the cause for the first time, by the amended bill filed in May 1829; and if he could thus associate himself with a party who had no interest when the proceedings were commenced in his name, still with regard to Washington Hall, limitations ran until the amended bill was filed, which was eleven years after the payment of the money to the Bank.
    6. That the claims of James Evans, executor of Robert Evans, and Briscoe and wife, administrators of Reuben Reynolds, are barred by limitations, whether those claims are founded upon the sheriff’s bond, dated 9th of October, 1810, or upon the payment of the money in 1815.
    7. That the claim of David Reynolds, executor of William Byson, is not proved; but if proved is barred by limitations.
    8. That the claim of Philip Thomas is barred by limitations, nor is it sufficiently proved.
    If however these objections are overruled, then the appellees will insist, that as the claims of the creditors who filed the bill are barred, and the bill as to them must be dismissed; that the whole proceedings, and all the petitions founded upon it, must share the same fate.
   Buchanan, C. J.,

delivered the opinion of this court.

The original bill was filed by Samuel C. Hall and Robert Evans on the 16th of February, 1819, in behalf of themselves and other creditors who might become parties, to subject the real estate of which John Creswell the elder died seized to sale, for the payment of their respective claims against his estate, the personal property being insufficient.

It has been urged in argument by the counsel for the appellees, that at the time of filing the bill the claims of the appellants were barred by the act of limitations, which is pleaded and set up in the answers; and on that ground the bill was dismissed by the Chancellor. It has therefore, on this appeal, become necessary to examine that, among other questions presented by the record.

Evans had been surety for Creswell in a bond executed by him as the sheriff of Cecil county, dated the 9th of October, 1810. On that bond suits were brought against him and Reuben Reynolds, a co-security, and judgments rendered, which were discharged by them, one on the 8th August, 1815, by Evans, and the other by Reynolds and Evans on the 5th April, 1816. The amount of the payments by Evans of his proportion, being one-half of the whole amount paid, constitutes his claim, which, as the bill was filed on the 16th of February, 1819, more than three years after the payments, except what was paid on the 5th of April, 1816, would have been barred by the act of limitations. But it appears from the proof in the cause, that John Creswell the younger, the son and devisee of Creswell, the principal in the bond, acknowledged the existence of the claim of Evans after he had attained the age of twenty-one, saying it was one that he would have to pay, and intended to pay; which acknowledgment took the case out of the statute of limitations,

Philip Thomas, another of the creditors, was, together with Creswell the elder, a surety for Baxter in a bond given by him to the President and Directors of the Elkton Bank, on the 20th of April, 1811, as the cashier of that institution; and took from Creswell, on the 15th of February, 1813, a bond of indemnity. The President and Directors of the Elkton Bank instituted a suit against him, and obtained a judgment on the 11th of September, 1816, upon which a fi. fa. was sued out, and his property sold to satisfy the judgment, on the 1st of April, 1820. On the 10th of March, 1825, he exhibited his claim, and filed a petition to be let in as a creditor under the bill then depending; and as his claim commenced on the 1st of April, 1820, and was only exhibited on the 10th of March, 1825, more than three years afterwards, it would, by the established rule and practice in the Chancery Court of this State, adopted by this court, “that the statute of limitations runs against a claim or debt up to the time it is exhibited,” have been barred, but for the bond of indemnity executed to him by Creswell, which saves it. By that act it is provided, that no bond, &c., shall be good and pleadable, &c., after the principal debtor and creditor have been both dead twelve years, or the debt or thing in action above twelve years standing. Here the debt or claim, the thing in action, had been standing only from the 1st of April, 1820, when Thomas, as surety for Baxter, was made to pay the money, until the 10th of March, 1825, when the claim was exhibited — less than five years. Before he had been made to pay the money he had no right of action, no claim for which he could have sued upon the bond of indemnity. It was by his having been made to pay as surety for Baxter, that he was damnified. It was then that the “debt or thing in action” first arose, against which the act of limitations only began to run from that time, and from that time he had twelve years allowed him for bringing suit on the bond of indemnity.

It appears that on the 10th of March, 1814, two notes, negotiable at the Elkton Bank and payable sixty days after date, were drawn by John Reynolds and endorsed by Samuel C. Hall and John Creswell. Those notes it is in proof were discounted for the benefit and accommodation of Creswell, the second endorser, who received the proceeds and paid -the discounts, and that Hall, the first endorser, was only his security. On these notes suits were brought in the court of Cecil county, by the President and Directors of the Elkton Bank, on the 8th of August, 1815, against Hall, and judgments rendered on the 2nd of September, 1816. Judgments were also rendered in suits upon the same notes against Joseph Cowden, executor of Creswell, one at the September term, 1816, and the other at the September term, 1818. Two writs oí fi.fa. were sued out on the judgments against Samuel C. Hall, who was thus coerced to discharge the amounts then due, on the 20th or 21st of August 1818, with the aid, as it appears to us, of Washington Hall. The judgments were on the 20th of August, 1818, assigned by the President and Directors of the Elkton Bank, to Samuel C. Hall, in consideration, as stated in the assignments, of the payment being made by him, and afterwards by him to Washington Hall, in consideration of the same amount with a covenant in the assignment, that as a further security, a mortgage before made to Washington Hall, should stand charged with that amount, in addition to the sum recited in the mortgage. By which it sufficiently appears that the assignment to Washington Hall was made to him, not as a purchaser of the judgments, but as collateral security for the re-payment of the amount advanced or lent by him, for the purpose of satisfying the judgments, whereby Samuel C. Hall became his debtor to that amount, otherwise the covenant for securing the repayment of it, by tacking it to a pre-existing mortgage, would not have been made. For if, as has been urged by counsel, he was a mere purchaser of the judgments for the consideration stated in the assignment, which is just the amount paid in satisfaction of the judgments, he could not by such purchase of Samuel C. Hall, have become his creditor for that amount, entitled to security for the re-payment of it.

The payment by Samuel C. Hall, with the aid of Washington Hall, on the 20th of August, 1818, was made, it is true, more than three years after the notes became due and payable. But in any view of the subject, the running of the act of limitations was arrested by suits against him on the 8th of August, 1815, and the judgments on the 2nd of September, 1816; and the payment on the 20th of August, 1818, made under the coercion of the writs of fi.fa. issued upon the judgments, gave him a right to be reimbursed out of the real estate, the personal estate being insufficient, to which the act of limitations opposed no bar; the original bill being filed on the 16th of February, 1819, less than one year after the payment from which his claim as surety of Creswell and right to sue, arose.

But it has been contended, that at the time of instituting the proceedings in Chancery, neither he nor Washington Hall, who came in as a party under the amended bill, had any claim or right to the relief prayed, on the supposed ground, that as by an entry in one of the books of the bank, the payment appears to have been made not by him, but by Washington Hall, which could vest in Samuel C. Hall no right or claim; and that the payment by Washington Hall, as a mere volunteer, and therefore without authority, could clothe hipa with no right to subject the real estate of which Creswell died seized, to sale, for the amount of the unauthorised payment so made by him. It is true, that from the evidence in the cause, such an entry does appear to have been made. But it is equally true, that in the assignment by the President and Directors of the Ellcton Bank to Samuel C. Hall, the payment is stated to have been made by him; and from the whole of the proof, and character of the transaction as disclosed in the record, it is sufficiently clear, that whether the payment was made in part by the hands of Samuel C. or Washington Hall, (which is not material,) it was made for and on account of Samuel C. Hall, with money lent or advanced by Washington Hall. Hence the recital in the assignment of the judgments by the President and Directors of the Ellcton Bank, where the whole of the transaction was known, and understood, that the money was paid by Samuel C. Hall, and known too, the covenant in the assignment by Samuel C. to Washington, that a pre-existing mortgage should, as a further security, stand charged with the amount paid.

If, indeed, Washington Hall did, as a mere volunteer, without any authority and on his own account, discharge the judg.^ ments, that would have given him no claim, which could be enforced against the real estate of Creswell. But that does not appear to have been the case. It has also been urged, that supposing the payment have been made by Samuel C. Hall, and that he thereby acquired a right to proceed in Chancery against the real estate of Creswell, he by his assignment of the judgments to Washington Hall, divested himself of that right and transferred it to Washington Hall, who could alone enforce it; and that he having only come in as a party claimant under the amended and supplemental bill, which was filed on the 6th of May, 1829, his right was barred by the act of limitations. But not so as it seems to us. Samuel C. Hall having paid the money, the legal right was in him, subject to the equitable interest of Washington Hall, in respect of which only, he was brought in by the amended and supplemental bill. The claim was in before, and in time to protect it against the running of the act of limitations, having been exhibited with the original bill, the object of which was to enforce the payment of it.

The claims exhibited by other creditors, and not already commented upon, are clearly barred by the act of limitations, not being filed in time. The claim of the defendant for the amount of rent reserved in a lease from Creswell the elder to Samuel C. Hall and others, pleaded by way of set-off against his claim, cannot we think be allowed. The right of set-off is reciprocal, and mutual claims, and such as are in the same right, can alone be set off

Here Creswell the elder devised the whole of his estate, after certain other dispositions in his will, to his wife Elizabeth, during the minority of his son John.

The whole of the rent claimed accrued (if at all,) during the minority of John Creswell the younger; the right to which was in Elizabeth Creswell, and if not paid, is in her representatives, she being dead. John Creswell, junior, (the devisee of his lather John Creswell the elder,) who is also dead, devised the whole of the real and personal estate derived from his father, to his wife Rebecca E. Creswell, one of the defendants, who claims to set off the rents so accruing to Elizabeth Creswell. If Elizabeth Creswell, before her death, or her executor or administrator since, had brought suits against Hall to recover the rents to which she was thus entitled, it is very clear that he could not have set off against that demand, his claim growirig out of his responsibility for John Creswell the elder, for which she was in no way answerable, and for which she could not have sustained a suit against her or her representatives, nor would she in this proceeding have been permitted, had she lived, to avail herself of her award for rent accruing in a different right, and upon covenant by way of set-off against Hall’s claim, and much less can Rebecca E. Creswell, who has no right to, or interest in the rent claimed to be due, for which Hall is responsible (if at all,) to the representatives of Elizabeth Creswell. The amount, however, due on the judgment obtained by Creswell the elder, against him as security of Lightner, should be deducted from his claim. And it appearing to us that the judgments by the President and Directors of the Elkton Bank against Samuel C. Hall, were discharged in the notes of that Bank at their par value, when they were at a depreciation of twenty cents, at least, in the dollar; and that the amount given for them is all that can b.e properly claimed on account of the payment to the Bank, that being all that was paid, and as a reimbursement only of the amount that Hall was compelled to pay as the security for Creswell, is all that can be rightfully insisted upon, we are of opinion that twenty cents in the dollar should be deducted from the nominal amount paid to the Bank, that being the amount of the depreciation at the time on the paper in which it was paid, according to the evidence in the record most to be relied upon.

In this view of the case the claims of four of the creditors being established, and not barred by the act of limitations, the bill should not have been dismissed.

DECREE REVERSED AND CAUSE REMANDED.  