
    Thomas Sumter, adm’r. of Thomas Sumter, Sen., v. Josiah B. Morse, Cyrus Morse, and A. T. Morse.
    If there be mutual running accounts between the parties and any of the items have accrued within the, time of the statute of limitations, this amounts to an acknowledgment of the previous account and a promise to pay. [*92]
    The plaintiff, (an administrator,) claimed demands in his bill against the defendants extending down to a period within the statute: and set forth that he as the agent of his intestate had frequently called on the defendants and requested them to come to a settlement of their accounts, and pay what upon balancing the accounts should appear to be due: — Reid, that this statement of the bill is such an admission of the previous accounts of the defendants as will prevent the operation of the statute of limitations; and being made by his agent is obligatory on the estate of the intestate. [*93]
    Before answer filed, it was agreed between the parties that neither should plea'd the statute of limitations to the demands of the other, and the defendants did not in their answer, or on the reference, urge that plea; the plaintiff will not after-wards be permitted to plead the statute. [*93]
    Generally an executor or administrator may or may not plead the statute of limitations: the only exception is when the demand is in whole or in part due to himself, in which case the legatees or distributees have been permitted to plead it when he had not: but when the administrator is the sole distributee, his agreement not to plead the statute has every possible legal and equitable sanction. [*94]
    Sumter. — February, 1834.
    The bill stated that the defendants, J. B. & C. Morse, were indebted to the plaintiff’s intestate, General Sumter, for house rent, negro hire, moneys paid by him as their security, for goods delivered from his store, and supplies from his plantation ; which debts were contracted at different times, from 181T until 1830. These demands áre detailed at length in the bill. That the plaintiff, as the agent of General Sumter, in his lifetime, frequently applied to the said J. B. and C. Morse, and desired them to come to a settlement of their accounts with General Sumter, and to pay what, upon the balance of their accounts, should appear to be due ; ’■’which they neglected and refused to do. That through the assist- r-*QS anee thiis afforded by General Sumter, they purchased considerable ° real and personal property, which, With the view of defrauding their creditors, they caused to be conveyed to the defendant, A. T. Morse, who holds the same for their use and benefit, they being insolvent. The bill prays that this property, and certain other property in the possession of Cyrus Morse, may be decreed liable for their debts; and as defendants are about to remove, for a ne exeat and general relief.
    The defendants in their answers deny fraud in the conveyance of the property to A. T. Morse, or any intention on their part to evade the payment of just debts. J. B. and C. Morse insist that they have claims against General Sumter, and that on a fair and full settlement, it will be found that they are not only not indebted to him, but that he is indebted to them.
    The cause was referred to the Commissioner to make up the accounts, who reported, that on stating the accounts, there appeared a balance of fifty-eight dollars and twenty-three cents, in favor of J. B. and C. Morse.
    The report states that the plaintiff claimed to have admitted by the defendants, J. B. and C. Morse, certain items of charges for money and other things made in the hand-writing of General Sumter against them, which they objected to as not being evidence of the demands therein stated, which objection the Commissioner sustained. It further states, that since the day of reference the plaintiff insisted upon the statute of limitations against the demands of J. B. and C. Morse, but that the defendants objected thereto, upon the ground that there had been an understanding between the plaintiff and the defendants that the statute should not be pleaded ; which objection the Commissioner sustained, and refused to allow to the plaintiff the benefit of the statute.
    The plaintiff excepted to the report of the Commissioner on the ground:—
    That the Commissioner refused to allow the plea of the statute of limitations on the part of the plaintiff, upon an alleged agreement that plaintiff would not plead the statute; the evidence of which agreement he has not been allowed time to contradict, except by his own affidavit, which, after understanding that testimony of such agreement had been '“’given by defendants’ counsel, he tendered to the Commissioner, who rejected it.
    oq:!í-i ^Chancellor DeSaussure. It appears by the statement of the -■ defendants’ counsel, that he called upon the plaintiff before the answers were filed, and inquired if he intended to use the statute against the demands of the defendants; and stated that if he did not mean to rely upon the statute, the defendants would also waive it. — That the plaintiff assented to this course, and the statute, in consequence, was not insisted upon by the answers.
    Unquestionably if the defendants have been induced to waive the statute in consequence of this understanding, the Court will not permit them to be prejudiced by it, and inasmuch as the plaintiff now urges that plea against the defendants’ demands, it will be considered as pleaded by them against the demands of the plaintiff. Indeed it appears by the affidavit of Mr. Potts, the plaintiff’s counsel, that after the first reference, but before the final reference of the accounts between J. B. and C. Morse and the plaintiff, and before any report made thereon, he expressly insisted in writing upon the plea of the statute, on behalf of the plaintiff, and at the same time gave notice that the defendants were at liberty to urge it on their side if they thought proper to do so. The counsel for the plaintiff, alleged in argument, that the plaintiff consented to this arrangement upon the supposition that, as the books of account kept by the defendants were to be evidence, so, on the other hand, the accounts kept by his intestate, Gen. Sumter, in his own handwriting, would be received as evidence against the defendants; and that he only insisted upon the statutory protection, when these memoranda of his intestate were objected to by the defendants, and rejected by the Commissioner. Independent then of the objection that an administrator cannot by his promise revive a debt barred by the statute of limitations in the lifetime of the intestate, I think the plaintiff ought not to have been deprived of the protection of the statute. But it is objected on the part of the defendants, that the statute cannot be pleaded in this case: first, because both parties were merchants; and secondly, because there were mutual unsettled demands between the parties, an account current with items on both sides running through the whole period of the respective demands; and this is the important question in the case.
    It is true, that both the intestate and the defendants, J. C. and C. Morse, owned stores, and each had a store account against the other. But it appears that the store account of General Sumter against the defendants, commenced on the 16th October, 1817, and terminated in March, 1818 ; while the store accounts of th'e defendants against L a him commenced on the 4th June, 1817, and terminated on the 27th December, 1821. The exception in the Statute of Limitations is in the following words: “ Other than such accounts as concern the trade of merchandize between merchant and merchant,” &c. The plaintiff’s intestate died on the 1st June, 1832, and this bill was filed on the 9th of January 1833 ; and the answer of the defendants, settingup these claims, on the 21st of January, 1838. Thus, more than ten years had elapsed between the date of the last item in the accounts and the institution of this suit. The question, whether the statute will operate as a bar where the account is between merchants and concerning merchandize but more than four years have elapsed since the last item, has been much discussed, and the decisions are contradictory, but the better opinion seems to be, that the statute may be pleaded. In Coster v. Murray, 5 Johnson’s Ch. Rep. 522, Chancellor Kent reviews the cases and comes to that conclusion. And in the case of Yan Rhyne v. Yincent, 1 M’Cord’s Ch. 316, Judge Nott, after referring to the authorities, says, “ I do not at present see any good reason why merchants and factors, after all dealings between them had ceased, should not be as well entitled to the protection of the statute as other persons.” He observes, however, that he does not mean to give an opinion upon the point because the case did not require it. I have come to the conclusion, that the object of the statute was to prevent dividing of the account where it was between merchants; and if there are any items within the period of limitation, these will save the whole account. Here there are no such items, and the statute is a bar : Nor will it help the defendants, that there were subsequent dealings between them and the plaintiff’s intestate ; there were clearly no such dealings between them as merchants, and the subsequent transactions are, moreover, none of them within four years before this suit, as will be shown hereafter.
    But it was argued, that although the parties be not merchants, nor the account concern merchandize, yet the statute does not apply where there have been mutual unsettled current accounts between the parties; and such is the law, provided there be some item within the period of limitation. Fitch v. Hillary, 1 Hill’s Rep. 292. Is there any such item in this case ? The latest dealing between the parties was in 1824, when the intestate indorsed *a note to be discounted in the Bank of the State, for the accommodation of J. B. and C. Morse. More than four L years elapsed between that transaction and the filing of the bill, and the objection thus urged by the defendants against the operation of the statute cannot prevail. But it is urged by the defendants, that the filing of the bill seeking an account and admitting that there are unsettled demands between the parties, shuts out the plaintiffs from the benefit of the statute. Upon examining the bill, I do not feel the force of this argument; but give the defendants the benefit of it as a general principle, how can it operate in this cause ? The plaintiff is an administrator — the defendants’ demands were barred iú the lifetime of the intestate. Can he revive these demands against the estate by any acknowledgment on his part ? I consider it as settled law that he cannot. — Executors of Eisher v. Executors of Tucker, 1 M’Cord’s Ch. 175.
    It is argued for the defendants that plaintiff’s demand for the bank debt, reported by the Commissioner as now amounting-to two thousand one hundred and forty-one dollars and sixty-three cents, is barred by the Statute of Limitations — that the plaintiff has alleged in his bill that he paid the debt to the bank, and that the statute therefore began to run from the period of such payment. The statement in the bill is, that in 1824 the intestate indorsed a note in bank for the accommodation of J. B. and C. Morse, whom the bank sued, and the intestate being also threatened with suit, paid the bank and took an assignment of the suit, which he prosecuted to judgment in the name of the President and Directors. The plaintiff now relies on that judgment, but the defendants allege that the debt was paid when the judgment was obtained. The defendants then mean to ask this Court to set aside that judgment — upon what equity ? That the debt had been already paid. By whom had it been paid ? By the party now setting up the judgment. The suit was assigned to the intestate, who paid, for the privilege of carrying it on, the amount of the note ; and this was the proper mode of protecting himself. This is, therefore, a judgment debt, and is not subject to the operation of the Statute of Limitations.
    The decretal order directs the case to be referred back to the Commissioner, with leave to both parties to plead the Statute of Limitations ; from this decree the defendants appealed, and move for a reversal thereof, on the ground that the chancellor erred in his decision on the Statute of Limitations.
    
      *Blanding, for the appellant
    cited 6 T. B>. 192; Pitch v. Hillary, 1 Hill, 292; 1 M’C. Ch. 175.
    
      Be Saussure, contra,
    cited 5 John. Ch. Rep. 522; Ang. on Lim. 207, chap. 10, 197; 1 M’C. Ch. 310; 5 Cranch. 15.
   O’Nealu, J.

I agree with the defendants, that the Statute of Limitations cannot avail the plaintiffs upon two grounds, to wit: first, the statement in the bill of a running account on the part of General Sumter against the defendants J. B. and C. Morse, from 1817 to 1830, and the allegation in the bill having reference to this account, and the counter account of the said defendants, “that the plaintiff, as the agent of General Sumter, in his lifetime, frequently applied to the said J. B. and C. Morse, and desired them to come to a settlement of their accounts with the said General Sumter, and to pay what upon the balance of their accounts should appear to be due Secondly, the agreement between the plaintiff and the counsel of the said J. B. and C. Morse, that neither of the said parties should plead the Statute of Limitations, and the actual execution of this agreement by the plaintiff, is not pleading the Statute of Limitations until the account had been taken of all the charges on the 'part of the defendants against General Sumter.

First. It is well settled that if there be mutual running accounts between-parties, and any of the items have accrued within the time óf the statute, this amounts to an acknowledgment of the previous account and a promise to pay. Fitch v. Hillary, 1 Hill, 292. I am disposed, however to think, that the reason the statute does not run, in such a case, is because the plaintiff’s cause of action does not accrue to him until the mutual dealing has ceased. It is only at and after the last item, that a balance can be struck; until then it is uncertain who may have the right to sue. I am not speaking now in reference to the exception, in the Statute of Limitations, of accounts which “concern the trade of merchandize between merchant and merchant, their factors and servants,” and as to which it will be unnecessary to give any opinion in this case, but of mutual running accounts existing between the plaintiff and defendants, of any character or kind.

From the statement of the accounts in this case, made by the Commissioner, it appears that from 1811 to the close of 1821, there were mutual running accounts between General Sumter and *J. B. and C. Morse. The statute would (if this was all to prevent) run from [*93 the 1st of January, 1822, and thus entirely exclude this account. But it appears from the bill that the plaintiff’s claims extended down to 1830; and that, in reference to them, as the agent of General Sumter, he frequently called on the defendants J. B. and C. Morse, and requested them to come to a settlement of their accounts with the said General Sumter and pay what upon'the balance of their accounts should appear to be due. This statement on the part of the plaintiff is an admission by General Sumter of the accounts of the defendants as a previous and subsisting debt, which he is willing and liable to pay. For it is in substance saying “here are my accounts extending to 1830, produce yours, deduct the amount and pay the balance. ” After such an acknowledgment made, as we must presume in 1830, for the plaintiff’s account against one of the defendants then ceases, it would be strange indeed if the plaintiff could set up the Statute of Limitations, which his intestate had thus waived. I speak of the acknowledgment, as made by General Sumter himself; for although it was made by the plaintiff, yet it was made by him as the agent of General Sumter, and by his authority,¿and is his acknowledgment, upon the plain legal maxim, “qui faoit per alium, facit per se. ”

Second. That the plaintiff could not, in this case, plead the Statute of Limitations, after his agreement not to plead it, and his actual execution of it, by not attempting to plead it, until the defendant’s accounts had been proved, is, I think, perfectly demonstrable. It is true, that the defendant’s agreement not to plead the statute, would not, as an executory contract, bind him; but in pursuance and in execution of it, he did not plead it; and the question now is not, was he bound by his contract not to plead the statute; but, can he have leave to plead it after he has in pursuance of his agreement declined at the proper time to plead it.

An executor or administrator generally may or may not plead the Statute of Limitations. This privilege is conceded to him as well on account of his legal identity with his testator or intestate, as also on account of his supposed knowledge of the legal liability of his testator or intestate to pay the debt claimed. The only exception to this rule, which has been recognized in this State, is when the debt or demand is .¡.q due in whole or in part to the executor or administrators In such a -1 case the legatees or distributees *have been permitted to plead the Statute of Limitations, notwithstanding the executor and administrator declined to plead it. - In the case before us, the plaintiff is not only the administrator, but also the only distributee, and under such circumstances, his act must have the sanction of every possible legal or equitable interest to sustain it.

He did, in pursuance and in execution of his agreement, decline to plead the Statute of Limitations. For, to the accounts set up by him, the defendants did not by their answer, or on the reference, plead the Statute of Limitations; this was a performance on their part, of that part of Colonel Blanding’s agreement which they were to perform. They could not after this have pleaded it. On the part of the plaintiff, no written replication to the defendant’s answer is required. His objections to the accounts set up by the defendants lay altogether in parol, and ought to have been urged, either before the order of reference was made, so as to have excluded from the account which it directed all the defendants’ accounts; or, at least at the time when the accounts were presented to the Commissioner, and were about to be proved. If the plaintiff had intended to rely on the Statute of Limitations, he should at one or the other of these times have urged it. Not having done so, he ■must be taken in good faith, to have declined to plead it, and be placed in the same situation of the defendants, who after their agreement and answer could not have pleaded it. Would the Court under these circumstances give to either or both of these parties on the application of one of them leave to plead the Statute of Limitations ? Where a party has failed to plead the statute at the proper time, the Court is slow to give him that leave; but after a case is on trial, and the proof is heard on one side, it is then too late to ask leave to file the plea. That was exactly the case here: the Commissioner had heard the defendant’s proofs ; they had legally established their demand, which the plaintiff’s silence as to the Statute of Limitations admitted to be subsisting, and that he was willing and liable to pay. After this, the Commissioner was ■right in refusing to allow him the benefit of the Statute of Limitations ; and the Chancellor erred in allowing to both parties, on the application of the plaintiff alone, the liberty to plead it.

Decree modified.

Johnson, J., and Harper, J., concurred.  