
    
      Ex parte Hanks, in the matter of J. McDonald and wife vs. T. Williams and E. Durant, adm'rs of Joseph Durant.
    
    A claim preferred against administrators, for large sums alledged to have been advanced to their intestate, was rejected by the Court, on the ground of the claimant’s probable inability to advance such amounts, the staleness of the demand, and other strong circumstances of suspicion, although sustained by absolute and unimpeached vouchers.
    Where a sheriff’s deputy or clerk has paid out money, on executions, it will be presumed, without proof, to have been from funds officially received by him for that purpose, and not to have been advanced from his private funds.
    Where a party, less than four years after his demand had accrued, preferred it in the form of an answer to complainant’s bill, and complainants afterwards dismissed their bill, and defendant, then, immediately prosecuted his claim, but in the mean time the statutory limit had expired; Held that it was barred by the Statute of Limitations.
    Heard, at Sumterville, first, before Ch. Johnston, in January 1839; afterwards, in January 1840,'before Dunkin, Ch., who delivered the following decree:
    This case was presented to the Court on exceptions to the commissioner’s report, but in order to understand either the exceptions or the decision of the Court, a brief statement of facts is necessary.
    Joseph Durant became Sheriff of Sumter District, in February 1824. John Hanks, the petitioner, was appointed his deputy on 9th February. He was to assist in the transaction of the office business, and receive an annual salary of $300, and his board. According to the statement of his witness, James Watson, the petitioner attended to making settlements with persons, received and paid money and kept the books, and the witness did the out door business, directed by Durant and Hanks. Hanks kept a set of books; Durant had access to them and made settlements in them. In this manner business was conducted until Joseph Durant went out ol office in February 1828 ; after that time, the petitioner was employed by Joseph Durant, at a salary, as the petitioner alleges, of $300, and his board, for the first year, and $200, and .his board, for every year thereafter. His'duty appears to have been to attend to the business of Durant, as Sheriff, while he was in office, and afterwards, in the language of one of the witnesses, •“ to wind up the business of his office,” He sometimes attended to some private affairs of Durant, but it appeared to the Court to be rather accidental, and not by virtue of any general agency. Joseph Durant died intestate, on 31st January 1831, and on 21st February 1831, letters of administration were granted to Thomas Williams and Elias Durant, ■>yho are defendants in the principal suit instituted by the dis-tributees of Joseph Durant, for a settlement of his estate. On 11th November 1834, a bill was filed by the administrators of .Joseph Durant, against the petitioner, John Hanks, lor an account of the money received by him, as agent for the Sheriff, both before and after the expiration of his term of office. On 20th January 1835, the bill was taken pro eonfesso. On 14th •September 1835, the answer was filed by consent. Among ■other things, it is there insisted, that the complainants have no right to require an account of his transactions, during the continuance of Joseph Durant’s term of office, and prays that ■in this respect, the bill may be dismissed. For his subsequent •transactions, the defendant avowed his readiness to account, ■as the Court might direct. The answer further alleges “ that .there is a large amount due him, by the representatives of the ,said Joseph, on account of the said Joseph, for his salary or •wages, before reférred to, and he prays that in adjusting his ■accounts the same may be allowed him, and that if, on a settlement, in this Honorable Court, the said Joseph is found indebted to him, he may have a decree for the same against the •estate of the said Joseph, in the hands of the complainants.” No account was filed with the answer. Two references were he,Idbut, in March 1836, the office of Mr> Garden, the So.-licitor of the administrators, was consumed by fire, and with it were burnt the books of Dnrani, which had been deposited with him. Several references were subsequently held, but, before a report had been made, the complainants, on 20th September 1837, dismissed their bill. Prior to February term, 1836, the bill of the distributees of Joseph Durant, against the administrators, had been filed for a settlement and division of this estate. At that time an order was made for the creditors of Durant to establish their claims before the commissioner, and restraining their proceedings at law. On 5th January 1838, John Danks filed a petition, stating the previous suit of the administrators against him, and craving the benefit of this order, and on 11th January, an order was entered, granting leave to the petitioner to present and prove his claim. On 7th August 1838, he filed his claim, on oath, before the commissioner, in which he alleges that the estate of Joseph Durant was then indebted to him, in a balance of three thousand six hundred and and eighty-seven dollars and sixty-seven cents, exclusive of interest.
    So far as the Court can understand from the papers, the claim, or rather claims, of the petitioner, may be classed under three distinct heads, viz: 1, payments made to individuals, on account of Durant, as Sheriff. 2d, payment of debts due by him, in his .individual capacity. 3d, annual wages, from February 1824, to February 1831. The administrators interposed the plea of the Statute of Limitations. At January term, 1839, the commissioner reported a balance due to the petitioner of $3,584 60. To this report several exceptions were filed. The report was not offered in evidence. The decree of the Chancellor overruled the plea of the Statute •of Limitations — declared that Hanks must be presumed to have retained funds to pay his wages, during Durant’s term of office, and that the commissioner erred, in rejecting “testimony tending to shew that Hanks’..circumstances wére such that he could not, probably, advance large sums of money on Durant’s account.” On these, and other points, the report was re-committed. On the appeal from so much of this decree as related to Hanks’ wages, during the official term of Durant, the cause was remanded to the Circuit Court, and an issue at law directed, which is yet pending.
    At this time, (January 1840,) the commissioner reported a balance due to the petitioner, of #3,466 62, with interest from 6th January 1838. He also reported, that from the testimony “it was not improbable-for Hanks to have advanced such an amount for Durant, without having Durant’s funds in his possession.”
    Several exceptions were filed by the administrators of Durant. It is proposed, in the first place, to notice the fourth exception, in connection with the report of the commissioner and the testimony. This exception takes issue with the conclusion of the commissioner as to the probability of the advancements of Hanks, on account of Durant.
    
    Hanks came to Sumterville, without any visible property, in 1819. He was first a deputy of Mr. Bradford, afterwards a clerk to Mr. John Haynesworth, and then a deputy of Mr. Capers. In February, 1824, he was employed, as has been said, by Joseph Durant, at a stated salary of #300 per annum, and his board. It may be fairly inferred, that, until that time, he could have laid up little or nothing. If he then had property it appears to the Court that it would not have been difficult for him to have proved it, and that after the decree of the Court, in January, 1839, it was incumbent on him to have made the proof. From February, 1824, till February, 1828, he was in the exclusive employment of Joseph Durant. From the latter period, till the death of Joseph Durant, in January 1831, he was employed by Joseph and David Durant, at $400 for the first year and $300 afterwards.
    It did not appear to the Court, from any testimony adduced, that during the time, from February, 1824 to January, 1831, Hanks had any mode of making money — any source of revenue, except his salary. It was not shewn, that he either trafficked, or speculated. His time and attention were exclusively and sedulously devoted to the business of his employer.His allegation is, that the whole amount of his wages from Joseph Durant, from February, 1824 to February, 1831, with annual interest thereon, is still due to him; and that, in addition thereto, he advanced, during that interval, for the payment of his employer’s debts, official and individual, the sum of fifteen hundred and fifty-six dollars, 62j cents; and, by the report, the claim has been allowed to him. But the administrators of Durant did not content themselves with creating a negative presumption. They attempted to shew, from circumstances, that the funds of the petitioner had been applied to other purposes. Until he went into the employment of Durant, it was sufficiently proved that he had no visible property. During Durant’s term of office, he purchased a negro woman and one or two children. In the month after he went out of office he purchased two negroes for $301, and paid the cash. He returns for the same year, a lot in the village of Sumterville, assessed at $200 ; and, in January 1831, he purchased, for cash, another negro for $485. In the following year, he returns to the tax collector, seven slaves. If these negroes and the lot of land were set down at an ordinary valuation, it would seem to be a sufficient representation of all that the petitioner could have saved, with very frugal habits, according to the witnesses. But the petitioner may have borrowed money to pay the debts of Joseph Durant — he may have purchased some of the slaves and the town lot on a credit, and is still indebted for these sums of money, and this leads to the enquiry whether-' hard measure ofjustice is dealt to the petitioner, when, under the circumstances, he is required to make proof in this respect.
    It is true, as stated by the commissioner, that the account of the petitioner was sustained by “ absolute vouchers and proof;”' and against these, slight circumstances ought not to weigh. In general, it would be an invidious task, which a court of justice would neither be inclined, nor justified, in undertaking, to institute an inquiry into the pecuniary ability of an individual, who relies on .such positive testimony in support of his demand. But it is not to be denied, that as late as January, 1831, Hanks was in moderate, if not needy circumstances. According to the claim now presented, Durant then owed him nearly four thousand dollars. While he was in the employment of Durant, it is possible, (barely possible,) that he would permit such a sum to remain in his hands, without requiring a settlement. But, in January 1831, Durant died, leaving, as was admitted, an ample estate. An administration was immediately taken out. Whether Durant knew the state of the account between the petitioner and himself, is not certain. But, it cannot be doubted, that Hanks knew them accurately and intimately. It does not appear that, from the death of Durant, in January, 1831, until the filing of his answer, on 14th September, 1835, he ever presented a claim against the estate, or in any manner intimated to the administrators, that he had a debt for which it was necessary to make provision. It is true, that ten months after the administrators had filed a bill against him, and nearly five years after Durant had been in his grave, he puts in an answer, in which he states, rather vaguely, that the estate is largely indebted to'him for wages, and if) on a settlement, the said Joseph should be found indebted, prays that he may have a decree for the same. This is neither the conduct, nor language of a man in limited circumstances, in reply to the unfounded demand of a solvent debtor, against whom' he has had a plain) legal remedy, which he had for years forborne, not only to press, but to make known. If Durant, at his death, in 1831, owed' to the petitioner this sum, or any thing like it, it is impossible that Hanks should not have been aware of it. He had, then, all the means of establishing his demands; the same ab* solute vouchers which he now produces. Why did he remain' silent until the administrators preferred their bill, in November, 18341 Why did he not, then, advance the claims which he now sets forth? The Court has, in vain, attempted to resist the iriipression, that this demand was not conceived until the unfortunate result of the proceedings by the administrators' revealed their defenceless condition and invited attack. It may be, however, that this inference is not warranted. It becomes proper then, to inquire into the character of those' claims, which are now alone open to investigation, and which are submitted by the exceptions.
    On looking into the account filed, the alleged advances’ seem to be (with inconsiderable exceptions.) for sums paid to' suitors, on account of executions in the Sheriff’s office. The business of Durant, and of Hanks, his deputy and agent, was: to receive money from the defendants and pay it to the plaintiffs. During the year, after the expiration of his official term,» the receipts and disbursements^ in various cases 'and on various accounts, amount to about fourteen- thousand dollars. It is said the deputy or agent paid large sums, more than ever received by him. Is it meant that tlie ex-sheriff received the money of suitors, which he misapplied, or that the deputy, by his authority, paid money to plaintiffs, which had notyet been received or collected from the defendants? This is not in the usual course of business, nor would it readily be supposed to' exist. But these executions were lodged with Durant, while Sheriff. Within one month after his office expired, about four thousand dollars were paid by the petitioner,-as his agent,-' in winding np the business. The greater part of these suras were, almost necessarily, received by the officer, prior to the expiration of his term; yet, the petitioner, in his answer, resists, and, on the references, has hitherto successfully resisted any attempt, on the part of the administrators, to require an account of money received by him during the continuance of Durant's term of office.
    But it appears to the Court, that the deputy or clerk of the Sheriff has no general authority to make advances for the Sheriff; and that, unless under special circumstances, this rule is the only practical check which the Sheriff possesses. When the deputy or clerk pays money, it must be presumed that he has received it, and that he pays, to the parties entitled, what has been received, or placed under his control for that purpose,. It should not be required of the Sheriff, much less of his representatives, to prove that it has been paid to the deputy or agent. The fruitlessness of such an attempt cannot be better illustrated, than by reference to the general and indefinite character of some of the entries made in the account of the petitioner.
    The sums alledged to have been paid for Joseph Durant, in his individual capacity, were comparatively trifling. Many of the general observations, in regard to the probability of advances by Hanks, are equally applicable to those items.
    The report is recommitted.
    The petitioner appealed from this decree on the ground taken in his exceptions. The executors of Durant, also, appealed from so much of the decree of 1839, as overruled their plea of the Statute of Limitations.
    
      
       The rest of the exceptions had reference to minor points disconnected with the principal subject of the consideration of the Court.
    
   Curia, per

Dunkin, Ch.

The Court are satisfied with the decree pronounced in January, 1840, and, in that respect, it might only be necessary to dismiss the appeal.

But the defendant has also appealed from so much of the decree of January, 1839, as overruled the plea of the Statute of Limitations. This plea was interposed, in bar, to the entire demand of the petitioner. Without enquiring whether the relation between the petitioner, (Hanks,) and the intestate, was of a fiduciary character, or whether it was a case of mutual accounts, within the statute, it may safely be assumed that, on the death of Durant, the fiduciary relation was determined, and the mutual accounts ceased. Durant died on 31st January, 1831. On 31st October, 1835, four years and nine months would have elapsed, and the statutory bar would be complete.

But, it is said that, on the 15th September, L835, six weeks before the statute had run out, the petitioner, Hanks, filed his answer to a bill preferred in this Court by the administrators of Durant, and, on the reference, set up the account which is now demanded. The bill was subsequently dismissed, by the complainants, and this petition then filed. It is insisted that the answer suspended the operation of the statute.

Perhaps it might be sufficient to say that a party, insisting on an exception to the statute, ought to maintain his position by the terms of the law, by authority, or on some principle clearly analogous to the decided cases. No authority was adduced to the Court; nor would any such be probably found in the English books. According to the practice of the English Chancery, a complainant is not at liberty to dismiss his bill, but by leave of the Court; and that would not be granted where it would operate a manifest injustice to the defendant. Since the case of Bethea vs. McKay, decided at the late sittings in Charleston, (Supra, p. 93,) such would be probably the rule here. But it is a settled principle in England that “if the subject matter of the suit be of legal jurisdiction, the bringing of a suit in Equity will not bar the operation of the sta-r tute.” Lord Loughborough, in Pinche vs. Thornycrofte, (1 Bro. Ch. R. 291,) says, “ it was their own judgment that decided upon it. A legal' bar has taken place in consequence of a legal provision; — whether that provision be wise or not, it must bar.” The same principle had been recognized in Pierce vs. Bellamy, cited in Eilbert vs. Emerson, (2 Vern. 503,) where the Lord Keeper refused to direct that the Statute of Limitations should not be given in evidence. It does not appear that, in the case under consideration, any opposition was •made to the dismissal of the complainant’s bill; but, if it had been ineffectually made, the petitioner would be in no worse situation than a defendant at law, who has filed a discount, and whose demand may be barred by the statute, if the plain-¡tiff discontinue his suit. In some cases, it may work great Jiardship; but this may always be prevented by a cross suit, As is said in the case cited, the party acts on his own judgment, and ought not to complain, if the Court declines to en-graft a new exception on the Statute of Limitations. In the judgment of the Court, the plea should have been allowed; and for myself, I would add, in the language of Judge Nott, in Vincent vs. Van Rhyn, “ I have seen but few cases where it appeared to me that the party was better entitled to such a 'shield.”

Moses, for the petitioner.

DeSaussure Garden? contra.

It is ordered and decreed that the petition be dismissed.

Harper, Johnst.qn, and Johnson, Ch., concurred.

0?3 This case was decided at May Term, 1839, but was accidentally omitted in the publication of the cases of that term.  