
    Barnes’s Administrator v. Lloyd.
    Plea of payment and set-off cannot be opposed to an action of covenant for specific articles.
    Where coyenant was brought in a court of law for specific articles, and the liability had in part been discharged by payment, it was held that a court of equity might interpose to enforce the credits.
    The plea of payment as regulated by statute, Rev. Code, 118, is confined to actions of debt on single or penal bills, and to debt or scire facias upon judgments.
    To constitute record and satisfaction a good bar, it must be executed and accepted as such.
    It is said a deed cannot be revoked or discharged by parol. The time of performance may be enlarged, or acts which amount to performance may be shown by parol.
    Where the remedy is more full and complete in equity than at law, a court of equity will entertain jurisdiction.
    The statute of limitations will apply to offsets, but not to payments of a demand.
    APPEAL from chancery.
    Lloyd filed his bill in equity to enjoin a judgment obtained against him by appellant, as the administrator of George Barnes, in the Copiah circuit court, at the September term, 1832, for 1765 dollars 77 cents.
    It appeared by the bill, answer and proofs, that the note, which was the foundation of the judgment at law, was for the delivery of 59S1 pounds of cotton, being the consideration of 500 acres of land, which was alleged to be deficient in quantity.
    The cotton note was changed, by a subsequent agreement, into a money demand for 945 dollars. It Avas also charged that Lloyd, at the request of Barnes, the intestate, paid several debts, then owing by said Barnes, and that the sums thus paid, amounting to 1423 dollars 38 cents, were to go in discharge of said claim of 945 dollars. That from the mutual confidence between complainant and said Barnes, no settlement had taken place at the time of his death; and considering said payments as a discharge of said claim of 945 dollars, and not as a demand on his estate, Lloyd had not probated, and presented to Barnes’s administrator the demands paid for the intestate.
    The bill farther charged that the administrator brought suit on covenants on said cotton note, without giving any credits; that the complainant was without remedy at law, prayed an injunction, and that he might be allowed credit and set-off for said payments.
    There was a demurrer to the bill, which was overruled, and the defendant below answered.'
    The answer of the administrator denied any knowledge of offsets, except a small amount for lumber, and insisted on the statute of limitations. He averred that he repeatedly called on Lloyd, before suit brought on the cotton note, to authenticate his claim, if he had any, and that Lloyd neglected to comply; that said demands accrued more than six years before the commencement of the suit at law, and were not authorised and allowed by the orphans’ court within the eighteen months prescribed by statute.
    Harris and Learned, for appellant,
    insisted:
    1. That the claims of Lloyd, were absolutelyharred by the statute of limitations. The six years’ statute, and the-eighteen months’ statute, and that the objection was well taken by demurrer to the bill. Mitford’s PL 273; 3 P. Williams, 237; Rev. Code, 63, s. 115.
    That to have allowed and paid said claims after the eighteen months, prescribed by statute, would have rendered the administrator liable in an action for a devastavit. Scoll v. Hancock, 13 Mass. Rep. 162, and 201; 15 Mass. Rep. 58.
    That the administrator was not bound to plead specially the statute. Rev. Code. 63.
    2. That Lloyd had a full and complete defence at law, and neglecting to avail himself of it there, cannot come into a court of equity after verdict and judgment against him at law. Walker’s Rep. 329; 1 Johns. Cases, 436.
    
      A release by parol of a contract, under seal for personal services, is binding and valid at law. 14 Johns. Rep. 380.
    When certain acts are done by the obligor in a bond amounting do a substantia], although not to the literal performance of the condition, parol evidence of the agreement of the obligor, to waive any further performance, is admissible at law. 3 Johns. Rep. 528.
    If the facts set up in the bill be true, there was a full accord and satisfaction of the cause of action below, which should have been so pleaded.
    Lloyd did avail himself of the plea oí payment on the first trial before the jury, and failed to sustain it, and then had the judgment reversed and voluntarily assented in open court to have the action changed in form from debt to covenant.
    Barnes brought his suit six months before the time had expired, limited for the proof and presentation of claims by his intestate, and Lloyd’s negligence, in not proving and presenting his claims in time, is so great, that a court of equity will not relieve.
    Thrasher, contra.
    
    In this case, two errors are assigned by the appellantto reverse the judgment and decree of the court of chancery; first, that the court erred in overruling the demurrer to the bill, which assignment necessarily involves a consideration of the causes of demurrer; and secondly, that the court erred in directing an account to be taken in violation of the statute of limitations, to wit, the six years’ statute, and the eighteen months’ statute, prescribing the time within which claims must be presented to the administrator of a deceased person.
    The first cause of demurrer assigned is, that the bill sets up a verbal contract to do away a contract under seal, prior in date and time; The principle of law is well settled, that parol evidence at or before the time of executing a written agreement is inadmissible to vary the terms of it, for all the contract is merged in the written agreement itself; 5 Wendell, 187; but it is thought to be the first time that it was ever contended, that a written agreement could not be wholly discharged by parol, or that a written agree-' ment, after its execution, (unless it was such as was required by law to be in writing,) could not be altered by an addition of new terms subsequent by parol agreement, which in fact constitutes a new agreement, incorporating itself in the former. 3 Starlde on Ev. 1002-4-5 and 8, also 1 Cowen, 249. To deny this principle, would be to deny to an obligor the right to prove by parol the payment of a bond after a breach)
    The second cause of a demurrer is, that the demands of Lloyd were barred by the statute of limitations. The principle here contended for is still more novel in its character than the former. The claims or defence set up by Lloyd to the judgment as charged in the bill, and as proved by the evidence, were actual payments made by Lloyd on an existing debt against him, and the statute of limitations cannot be pleaded to a payment; there is no known case, either in law or equity of a plea of the statute of limitations, to a set-oif, or payment, either to a demand due to a living or dead person. The statute does not run against a set-off or payment, which is an extinguishment of so much of an existing debt, and it would be a curiosity in law to know how to plead the statute of limitations to a payment, so as to make the party pay it over again. The defence set up by Lloyd cannot be viewed in the light of claims against the estate of Barnes, on which a recovery was sought to be had according to the provisions of the 115th section of the Code, p. 63, but as a payment of so much of the debt to Barnes in his lifetime. Barnes shows by his answer, that suit was commenced in one year after the administration, and eighteen months are allowed to present claims, and if it even were a demand against which the statute of limitations could operate, there was no statute of six years in force, at the time that had run six years. See Acts of 1827, chap. 85; Acts of 1828, chap. 87, and Walker’s Rep. 542. And if there had been such a statute of limitations in force, and it could have operated on such a demand, yet the acknowledgment and promises of the defendant, as administrator of George Barnes, would have taken the case out of the statute. “ An executor is not bound to plead the statute of limitations to a debt that he believes to be just, and his knowledge will prevent the statute from running.” 2 Dessaus. 577; American Ch. Digest, 330. An admission of mutual unliquidated accounts, takes the case out of the statute. 3 Mason, 457; Cox’s Digest, 466, or. a promise to pay on condition of proof. 2 Wash. C. C. Rep. 514; Cox’s Digest, 467.
    The third and fourth causes of demurrer were, that a full de-fence ought to. have been made at law, and that the discovery ought to have been sought before trial, neither of which amounts to error. In the first place, a full defence could not be made at law, in consequence of the peculiar nature of the set-off and payments, when attempted in such a form of action. The debts paid by Lloyd, were due to other persons by Barnes, not debts bought by Lloyd, or assigned to Lloyd, but paid by Lloyd for Barnes, which could not be pleaded at law, to the action of covenant broken on a note for so much cotton. The Revised Code, 113, only allows set-off and payment to money, bonds or notes, and even if they could have been pleaded, they constitute a proper subject of equity jurisdiction, for it is laid down, that payments and set-offs against a judgment at law, are subjects of- equitable jurisdiction, and that where the defence was not made at law, equity will always relieve. See 3 Bibb’s Rep. 254, and American Chancery Digest, 298. The bill was not for discovery, and discovery, if sought, would not have availed the defendant Lloyd, at law.
    These points embrace the whole assignment of errors, including the decree, as to which, the assignment of errors was the directing an account to be taken in violation of the statute of limitations, and are thought to be conclusive why the judgment and decree of the court of chancery should be affirmed.
   Mr. Chief Justice Shahkev

delivered the opinion of the court.

This appeal is taken from the decree of the chancellor overruling the demurrer to the bill of complainants; our inquiries will therefore be directed to that point alone. There are two grounds taken for the appellant, in support of the demurrer. First, that Lloyd had a full and complete defence to the action at law, to enjoin the proceedings in which this bill is brought. Secondly, that the claim of the appellee against George Barnes, the appellant’s intestate, was barred by the statute of limitations.

It is certainly an undeniable position, that when the defence is complete and available at law, equity will not interfere; but was it so in this instance? The several sums claimed in the bill, are as payments to the particular demand on which the suit was instituted. They did not originate in a course of trade, and constitute offsets, but were actual payments made by agreement of the parties, and as such, could Lloyd have introduced them in his defence at law? Nothing, of course, could exclude them as offsets but the particular form of action adopted by the plaintiff. If the action had been debt or assumpsit, the question would be clear, but it was covenant, founded on the original agreement to deliver so much ginned cotton. The plea of payment, as regulated by our statute, is confined to actions of debt, on single or penal bills, and to debt or scire facias upon judgments. Revised Code, 118. It cannot extend to covenant to deliver specific articles, and even if it be considered in the nature of a plea of set-off, it could not be interposed to covenants sounding in damages merely. Tidd’s Practice, 603. It was insisted, however, in argument, that even if the defence was not available under the plea of payment, it might have been pleaded as an accord and satisfaction. The plea of accord and satisfaction, it is true, might be appropriate in this form of action, if justified by the 'facts. The averments in the bill do not, however, show a state, of facts which would support such a plea. To constitute an accord and satisfaction a good bar, it must be executed and accepted as such. 1 Jacob, 24; 3 East, 251; 5 Johns. Rep. 141. The second contract, as stated in the bill, was a mere agreement to pay a sum of money in lieu of the cotton. The sum agreed on was 945 dollars. Out of this sum, George Barnes requested Lloyd to pay debts which he owed to different individuals, in part discharge, and on account of the amount of money so agreed on. This is the language of the bill, and it is manifest that it was an executory contract, and that the payments to be made by Lloyd were only in part discharge of his liability. , ’ :

The essential qualities of an accord and satisfaction were wanting, and if Lloyd had attempted a defence in that shape, he must have failed of success. That the form of the action at law was changed by consent, from debt to covenant, cannot alter the condition of the complainant. If he had refused his consent to the change, the object could readily have.been attained by dismissing the action of debt, and instituting covenant; so that the effect of the agreement was only to save the time and trouble of commencing a new suit.

It was also insisted that the original agreement was discharged by the subsequent parol contract, and that the only remedy was on the subsequent contract, against which Lloyd could have successfully made his defence.

If he had placed his defence upon this ground, it would, to say the least of it, have been doubtful in a court of law. It is said as from high authority, that a deed cannot be revoked or discharged by parol; Phillips’s Evidence, 444, and authorities there cited. The time of performance may be enlarged by parol, or acts which substantially amount to performance may be shown by parol. It is a question involving much less doubt, that Lloyd can insist upon the parol contract to defeat the covenant in a court of equity. Phillips’s Evidence, 445. And his remedy being more full and complete in equity, affords a good ground for retaining the bill.

The only remaining question is, whether the claims of Lloyd were barred by the statute of limitations. If they had been presented as offsets merely, the statute would apply to them, but they are insisted on in the bill as actual payments, made by express agreement of the parties, in part discharge of the parol contract, and so far as these payments were made, the contract was performed and Lloyd’s liability extinguished. Considered in this light, the statute of limitations cannot operate on them.

These are the only questions raised by the appeal from the decision on the demurrer to the bill, and no other question is properly before us.

The decree of the chancellor overruling the demurrer must be affirmed, and the cause remanded for further proceedings.  