
    Brooke’s Administrators v. Shelly.
    Friday, October 27th, 1809.
    Action against Executor -Open Account — Debts Barred as to Testator — Statute—Construction.—Construction of the act of 1792, which makes it the duty of the Court "in an action upon an open account against an executor or administrator, to cause to be expunged from such account all items appearing to have been due five years before the death of the testator or intestate.” (Rev. Code, vol. 1, p. 167. sect. 66.)
    «. Same-Same — Same—Same—Same.—The above act applies to open accounts existing before the 1st day of October, 1798, when it took effect. (See Rey. Code, vol. 1, c. 150, p. 293.
    2. Same — Same—Same—Same — New Promise. — But the act relates only to open accounts and does not extend to settlem ents or assumptions; therefore the plaintiff, to take his case out of the act, may give in evidence an assumpsitof the testator orin-testate, within five years, to pay a stated balance.
    3. Appellate Practice-New Trials. — If a superior Court of common law, in reversing a judgment and awarding a new trial, assign the reason to be that certain evidence should have been received on the former trial, but fail to direct that, upon the new trial, such evidence shall be received, the Court of Appeals, in affirming its judgment, will add the proper direction concerning the evidence.
    This was ail action of assumpsit brought, on the 28th of January, 1799, by John Shelly against Walter Brooke’s administrators in the County Court of Fairfax, for sundry articles of household furniture sold and delivered, and work done by the plaintiff for the intestate. Pleas “non assumpsit by the intestate,” and “non assumpsit by the same within live years next before the day -of issuing the original writ;” on which pleas, issues were joined. At the trial, the plaintiff, in support of his cause, offered to the Jury an account stated, the items in which bore date in the years 1787, 1791, and 1792, “and offered to prove, that the said account was justly due from the said Walter Brooke, deceased, and that the said Brooke, about twelve months before his death, that is to say, some time in the year 1797, (about two years before the commencement of the suit,) acknowledged that the bal-anee now claimed was just, *and that the said Walker Brooke departed this life in 1798; but the Court, upon the motion of the counsel for the defendants, directed the items of the said account to be stricken out, and refused to hear the evidence offered by the plaintiff;” to which opinion of the Court the plaintiff excepted. Verdict and judgment for the defendants.
    On an appeal to the District Court, holden at Haymarket, (the parties by their attorneys having agreed that the items of the account, expunged therefrom by the County Court of Fairfax, appeared to have been due more than five years before the death of the intestate,) this judgment was reversed, the verdict set aside and a new trial directed; the District Court, “being of opinion that the plaintiff ought to have been permitted to prove the assumpsit of the intestate within five years before his death:” but the judgment of the District Court did not go on to direct, as it ought, that upon the new trial, the evidence objected to should be received. From this judgment the defendants appealed to this Court.
    Williams, for the appellants,
    admitted, that under the general act of limitations, a promise within five years will revive a debt barred; but relied on the 56th section of the act concerning wills, Rev. Code, vol. 1, p. 167, (which section was, for the first time, enacted at the session of 1792,) as imperative that the items shall be stricken out. The legislature meant to impose upon creditors the necessity of closing their accounts within five years. Though the replication states that there was an assumpsit within five years, yet that will not vary the words of the account. The Court are only to look into the account, and see that the items are within five years; and, if not, to expunge them. It would be a nugatorj-thing in the Court to strike out the items of the account, and then permit the Jury to hear evidence to establish it.
    No counsel appeared for the appellee.
    ^Monday, October30. The Judges, TUCKER and ROANE, (FLEMING having been prevented by indisposition from sitting in the cause,) pronounced their opinions.
    
      
      Action against Executor — Statute of Limitations— New Promise by Testator. — See, citing the principal case, footnote to Fisher v. Duncan, 1 Hen. & M. 563; Aylett v. Robinson. 9 Leigh 54. And in Radford v. Fowlkes, 85 Va. 852, 8 S. E. Rep. 817, to the point that the limitation upon every express promise (not under seal) is five years. See also, Beall v. Edmondson, 3 Call 514.
      See monographic note on “Limitation of Actions” appended to Herrington v. Harkins, 1 Rob. 591.
    
   JUDGE TUCKER.

The only question upon this record, is, whether the County Court ought to have admitted the evidence offered by the plaintiff to prove that Mr. Brooke, the defendants’ intestate, within twelve months before his death assumed to pay to the plaintifl a balance of 631. 15s. appearing to be due upon an account stated, and in which there were credits for sundry payments to the amount of 931. 18s. made by the intestate in his life-time, or whether that evidence was properly rejected by the Court, by whom all the items of the account I which appear to have been due five years before the death of the intestate were expunged therefrom, according to the act concerning wills, &c. Rev. Code, vol. 1, p. 167, c. 92, sect. 56.

The same question occurred in the case of Fisher’s Executor v. Duncan & Turnbull, and Judge Fleming and myself then concurred in the opinion, that such evidence as that offered by the plaintiff ought not to have been rejected.

The opinion of this Court in Beale v. Edmundson, I think strongly corroborates the other. I am therefore of opinion, that the County Court erred in rejecting the testimony and expunging the account, without hearing it, and that there is no error in the judgment of the District Court reversing that judgment. It may, however, be advisable to add to it a direction, that the County Court shall, on the new trial, admit the evidence formerly offered to be given, if the same shall be again offered to them.

JUDGE ROANE.

The principal item in the account bears date in 1787, and the act under which all the items of the account were expunged was not passed until the 13th of December, 1792. In the case of Fisher’s Executor v. Duncan & Turnbull, I expressed it as my then opinion, *that that act did not apply to previously existing accounts, inasmuch as it would affect the rights of the parties by making it the imperious duty of the Court to bar the plaintiff by a defence which before only rested in the discretion of the defendant. I still rather hold this opinion : but, as this ground of objection had been before disregarded by the Court in the case of Hoskins v. Wright, and was again apparently disregarded by the two other Judges in Fisher’s Executor v. Duncan & Turnbull, I can readily yield my impressions on this point, to these decisions; and I will, therefore, consider this case as if every item in the account had arisen posterior to the passage of the act in question.

As to the question upon the merits, I entirely concur with the opinions of the two Judges as reported in Fisher’s Executor v. Duncan & Turnbull, that the act of 1792 relates only to open accounts, and does not extend to exclude evidence of settlements or assumptions by testators within the time limited by the act. The reason and policy of this provision of the act does not require such a construction. In addition to these authorities, I beg leave to refer to the decision in the case of Beale v. Edmundson, in an analogous case. The grounds of that decision seem fully to apply to this case, and to narrow the application of the act to cases depending upon the account, as exhibited, only, and do not interdict proof of settlements or assumptions of the debt within the time prescribed by the act.

As, therefore, the appellant offered to prove in the Court below, not only that the account exhibited “was justly due,” but also that the intestate, about twelve months before his death, “acknowledged that the balance claimed now by the plaintiff of his administrators was just,” the County Court erred in refusing to admit such testimony to be adduced; and the judgments. ( of the District Court, reversing the judgment of the County Court on that ground, is correct. 
      
       1 Hen. & Munf. 574, 577.
     
      
       3 Call, 514.
     
      
       1 Rev. Code, vol. 1. p. 167, sect. 56.
     
      
       1 Hen. & Munf. 575.
     
      
       1 Hen. & Munf. 377.
     
      
       1 Hen. & Munf. 574.
     
      
       3 Call, 514.
     