
    *E. Granger’s Administrator v. H. Granger.
    
      Non est factum, in covenant, is a general issue for the purpose of appending a notice of offset under our statute.
    In. a suit by an administrator upon a claim of the intestate, the defendant may set off any demand of his against the intestate.
    "When the statute of limitations begins to run against the intestate in his lifetime, it will run to its completion without interruption by the death.
    A defendant in such suit can not set off a demand of his against the intestate for money paid after his death by the defendant, upon an obligation entered into in his lifetime as security for him. Such claims look to the-general assets for satisfaction.
    From Muskingum. Covenant upon a sealed agreement between the intestate and the defendant, dated September 1, 1819, for five thousand dollars. E. Granger died in September, 1822, insolvent.. Administration was granted upon his estate in August, 1829.
    The defendant pleaded not est factum, to which he affixed a notice of set-off under the statute. At the trial the plaintiff, having read the contract to the jury, rested. The defendant then offered evidence, under his notice, to prove the intestate indebted to him in his lifetime, upon a book account, for goods sold, work and labor, and money lent. Also, that before the intestate’s death, the-defendant had become bound, as security for him, to pay certain debts, which he had been compelled to pay since the death. This evidence was objected to by the plaintiff and ruled out.
    A verdict was taken for the plaintiff, and the defendant now moves for a new trial.
    R. Stillwell and W. Adams, for the defendant,
    contended that, under the motion; three questions arise for the determination of the court:
    1. Can a set-off be given in evidence under the notice attached to this plea?
    2. Are the debts due by the intestate barred by the statute of limitations ?
    3. Can the defendant setoff payments which he has been compelled to make since the death of the intestate, on account of liabilities incurred by him as security for the intestate prior to his death ?
    
      The statute on the subject of set-off was clearly Intended to give ithe party the right to make the defense of set-off. It has specified, “ that it shall be lawful for the defendant to plead the general .36] issue, and give notice,” etc. If there is any such plea *in the action of covenant, it is the one pleaded non est factum; and unless a party can give the notice under this plea he can not avail him.self of this defense at all against a party who chooses to substitute the action of covenant for debt.
    In Oldershaw’s Ex’r v. Thompson, 1 Stark. 311, Lord Ellen-borough says, “The meaning of the words, ‘general issue,’ in the statute, is a plea that puts the whole declaration in issue.” It has never been doubted that under this plea, in an action of debt, the defendant could give his evidence of set-off under a notice, yet this plea puts the same matters in issue in both actions; it does not “ put the whole matter in issue in debt any more than it does in covenant.” 1 Chit. Pl. 482. If set-off can not be given in evidence, under a notice in covenant, the defendant is driven to his action, and perhaps to bill in chancery, for injunction. By admitting the evidence the court prevent circuity of action, delay, and the accumulation of costs. The English authorities on this subject are contradictory. The case in Starkie decides that the proof can not be received for the reasons above; but in Gower et ux. v. Hunt, cited in Bull. N. P. 181, the court held otherwise. But in England a set-off can be pleaded, so that the defendant is not wholly precluded from making this defense, as he will be in Ohio if he can not give it in evidence under a notice. By establishing the doctrine for which we contend, no possible injustice can be done; the statute will be made to operate in all actions; and the equitable purpose intended to be answered by the legislature can not be defeated by a party who chooses to prevent the defense by bringing covenant instead of debt. In Courcier v. Graham, 1 Ohio, 155, the court seem to admit that in covenant special matter may be given in evidence under a notice attached to the plea of non est factum. That was an action of covenant, and non ¿st factum was pleaded, with notice of special matter. The case was strongly contested, and the inference is very strong that the law was then understood by the court to be as we now contend, or the question would certainly have been then made and determined.
    2. It is a good reply to the statute of limitations, that there was no person in being who could be sued. If an administrator had been appointed in 1822, or before the time limited in the statute had expired, the defendant could have brought his action, and the statute could not have been interposed to the claim.
    It is true that the defendant could have prevented the operation *of the statute by administering himself within the time; but [37 this provision in the law must be construed to confer this privilege on the defendant rather than a right which he is bound to exercise under the penalty of losing his debt. If such were the law, it would give an opportunity for those interested in embarrassed estates to cheat a. host of creditors to small amounts; for they; would not administer when the receipt of their debts would not compensate them for the trouble and risk of administering. An insolvent estate may hold a specialty against an individual for a large amount; that individual may have credited the deceased to a great amount by book account, on the faith of the debt due by him, which debt is not barred by the statute till fifteen years, whereas the debt due by him is barred in six years. He can be compelled to pay, and could not interpose the statute; but the statute will prevent his offsetting his claim; and this is the very case now before the court. This palpable injustice is not the effect of any default of the defendant.
    Besides, in many cases, a creditor may not be able to ascertain whether the balance is against him or not. This may prevent his administering himself. It is true that it is a general rule that when the statute begins to run it continues till the period has expired ; but this general rule must have exceptions, and one of the exceptions must be when, in consequence of circumstances wholly beyond the control of the party, there was no person in existence whom he could sue.
    It is presumed that if the defendant had been compelled to pay money as security for the intestate during his life, there would have been no doubt of the right of set-off in this action. Does the death of the intestate after defendant had become his security, and before payment of money as security, and the insolvency of the estate, prevent the set-off? By -the provisions of the statute of set-off it certainly does not; for although the payment was not made until after the death of the intestate, yet after it was made it became as much a debt due by the plaintiff, in his representative character, and in that by which he prosecutes this action, as though made in the intestate’s lifetime. It will, however, be contended for the plaintiff that the policy of our law requires that the creditors of an insolvent estate should receive payment io ratable proportion. Such, we admit, is the policy of the law, when all the creditors at the time of the death stand in the same situation. But this policy does not extend to produce injustice. It would no 38] doubt prevent the debtor *from setting off a note of the intestate after his death. To authorize a set-off, under those circumstances, would enable a debtor of an insolvent estate, after the death of his creditor and after the insolvency was discovered, to pay his debt by purchasing claims on the estate at a rate proportioned to the rate of insolvency. But when the defendant, in the lifetime of the intestate (and perhaps relying on the debt due by him as an indemnity), becomes security for, and, after the death of the intestate, pays the amount of the debt for which he became security, these reasons do not exist — no injustice is produced. The policy of the law is protracted as far as justice requires, and the statute of set-off would have the operation which the provisions require.
    The English law of distribution requires that debts of a higher shall be fully paid, to the entire exclusion of those of a lower degree. By the argument that the policy of our laws for the equal distribution among all the creditors would prevent a set-off of the kind under consideration, the policy of the English law would prevent a simple contract creditor of an insolvent estate from any set-off, even that which existed at the time of the death of intestate ; for a set-off in that case would go to lessen the fund for the payment of the specialty creditors, and is so far entirely opposed to the policy of their law. I have not been able to find any case of the kind, or such a principle asserted in any elementary book. If the general principle of set-off for which we contend existed, we would not expect to find such a case; but if the exception to the general rule existed, as claimed by plaintiff, it would certainly be recognized in the elementary treatises, and supported by cases in the reports. We infer, therefore, that the general law of set-off has not been disturbed, and that in a suit by an administrator in England the defendant is permitted to set off, without reference to the degree of his claim. Bankruptcy and the cases under it are strictly analogous to this case. The declared object of the bankrupt laws is to make an equal distribution of the property. If the argument of the plaintiff is correct, this policy would extend to all debts which were not due at the time of the bankruptcy. Yet it has been denied that a demand arising upon an instrument, payable after the bankruptcy, may, if made before, be set off. Ex parte Prescott, 1 Atkins, 231; Smith v. Hadson, 4 Term, 211; Atkinson v. Elliot, 7 Term, 371.
    *C. B. Goddard, for the plaintiff, in reply, argued as follows:
    The first question made by defendant’s counsel is one of practice purely, and I will not trouble the court with any remarks upon it. The authorities we rely upon are 1 Stark. 311; 2 Chit. 388.
    2. The statute of limitations. As the counsel for defendant do> not attempt to withdraw from the operation of the statute any cause 'of action which subsisted during the lifetime of Ebenezer Granger, little need be said respecting those. There was a person esse, who could be sued — to wit: Ebenezer Granger himself.. The statute began to run ; and the authorities are uniform, that once begun to run, nothing stops it.
    The counsel have an ingenious mode of disposing of an objection where all the authorities are against them. They reason, thus : these authorities establish a general rule; there is no general rule without exceptions ; and we find no exception hereto— ergo, the present case is an exception.
    Upon the trial in the county, an idea was suggested, that as Eb.enezer was more largely Henry’s creditor than debtor, Henry had no inducement to sue, and that, therefore, the statute ought not to-run against him. There was a period in the judicial history of the act of limitations, when the shallowest circumstances were seized hold of to take a case out of its operation. Yet even then, was the circumstance now relied on supposed to possess any weight? It was never urged, for it is without foundation. The statute of limitation proceeds not merely upon a presumption of payment, but. upon the loss of eviden ce. If I hold a b ond against a man for a. large sum, and become indebted to him for work, goods, etc., it is his duty to present his account, and either receive payment or have it indorsed upon the bond; and if, without taking any such, steps or suing, or obtaining an acknowledgment, he wait six years, from the time his right of action accrued, the statute will protect me from the demand; and I need not ask the court to presume either that the debt is paid or that 1 have lost my receipt. The-
      
      •statute stands in the place of presumptions; and it is equally effectual whether, without it, the presumptions would or would not exist.
    But, in point of fact, Henry Granger’s claims against Ebenezer, as now set up, were not, at the death of Ebenezer, greater than Ebenezer’s against him.
    Again, the fact should not be lost sight of, that Henry Granger was appointed executor, and declined. “Where the executor 40] ^became possessed of his testator’s goods in 1792, but did not ■obtain probate of the will till 1802, it was held that the statute run against a creditor of the testator from the year 1792, because the executor might have been sued as executor de son tort.’’ Webster v. Webster, 10 Ves. 93. It is said to be hard to apply the statute in this case. Certainly no harder than to make it run in an action for a tort from the time the wrong was done, and not from the time the damage is ascertained, a principle universally acknowledged. He cited also 6 Bac. Ab. 136; Bull. N. P. 180; 1 Yeates, 391; 3 Marsh. 236 ; 3 Bibb, 49.
    3. Set-off. The defendant’s argument upon this point is limited to those debts which arose after the death of E. Granger, and I will so limit mine.
    It is claimed that, because the sums which Henry paid after Ebenezer’s death were paid in consequence of a contingent liability in his lifetime, they may be properly set off in this action without disturbing the course of administration. Analogies are attempted to be drawn from the English law respecting the dignity of debts and the English statutes of bankruptcy. As to the first, I am ignorant of the principle asserted by the counsel. As to tüe second, it is well known that bankruptcy cases are sui generis, governed by their own peculiar law, and not often used to illustrate other branches of the science. I am not clear that the defendant has a right to join (in this his cross action against the plaintiff) debts due from the intestate with debts due from the administrator, even though due as administrator. But if unobjectionable on this score, where is the authority to be found to show that such a set-off can be admitted? Can any case be shown, where a note falling due after the testator’s or intestate’s death, the holder can use it as a set-off, and thereby obtain full payment, while other creditors receive but their proportion ? But the present case is not so strong as that. H. Granger’s liabilities were merely ■contingent and collateral. In the natural order of such debts, the creditor would present it to the administrator and receive his distributive share, and would call upon the surety for the residue: H. Granger’s loss will be no greater, if this set-off be rejected.
    It was agreed by counsel, that there was no evidence to be offered in case of a new trial, except that offered at the trial and rejected, and if the evidence was inadmissible, no good would result to the defendant from a new trial.
   *Wright, J.,

delivered the opinion of the court:

1. Is non est factum a plea of the general issue in covenant, to which a notice of set-off can be appended ? The act allowing mutual debts and demands to be set off, 29 Ohio L. 121, authorizes ■defendants to plead the “ general issue,” and at the same time to .give notice of offset. It is admitted that in strict legal contemplation, there is no general issue in covenant. According to the common rule, the general issue must put the whole declaration in issue. Non est factum in this case only puts in issue the execution of the covenant. The decisions upon the precise questions are contradictory. 1 Chit. Pl. 561; 1 Stark. 311; S. C., 2 Chit. 388; 1 Chit. Pl. 482; Bull. N. P. 181; 1 Ohio, 155. The practice which has generally obtained in our courts, ever since the passage of the law allowing notices of set-off to be affixed to a plea of the general issue, has regarded non est factum in covenant as a plea of this general issue within the meaning of the legislature. This construction given to the law, from its enactment, by those called to construe it at the bar and upon the bench, is evidence ot its meaning, not to be overlooked. Courcier & Ravesier v. Graham, 1 Ohio, 348, was covenant, in which was a plea of non est factum, with a notice of set-off. Several counsel of high standing in the profession, and of long and extensive practice, were engaged in that case, yet no objection was made on that account; and the late distinguished chief judge (Hitchcock), in pronouncing the decision in the case, says, “the principal object of pleading non est factum, seems to have been to lay the foundation for giving notice.” These evidences of the meaning oí the legislature, in using the terms “ general issue,” united with our belief, that the construction which admits the notice under the plea accords with the spirit and intention of the act and our liberal practice, bring us to the conclusion that the notice may be affixed to the plea, and proof adduced under it.

2. The next proposition we are called to decide in the ease is, whether, in a suit by an administrator, upon the claim of his intestate, it is competent to set off a demand due from the intestate to-the defendant? The statute, 29 Ohio L. 121, authorizes a set-off “of any debt, contract, book account, or other liquidated demand against the plaintiff.” The term plaintiff, as used here, is understood to describe the party whose rights are sought to be enforced by the suit. The act is designed to allow mutual debts to be set 42] off, one against the other, to avoid circuity *of action. For the purposes of justice, it regards one of the demands, to the extent it goes, as extinguishing the other, and provides a judgment for the balance really due. As, therefore, the administrator is pursuing the rights of his intestate, the claim to set off a demand due from the intestate to the defendant is, between the same parties, mutual, and, in our opinion, founded in the law. The coming in of an administrator, by operation of law, to enforce the claim of the intestate, does not change its nature, nor violate the settled-rule, that the claim to be set off must be between the same parties. See also 6 Taunt. 448, 453.

3. Are the claims offered to be set off barred by the statute of limitations? It is agreed by the counsel that E. Granger died in-September, 1819. This suit was commenced in 1832, a period of thirteen years after the cause of action accrued. The right to sue for such claims is limited by our act to six years. The same limitation is supposed to apply to set-offs as to actions. But it is urged that the statute, not having run to its completion in the lifetime of the intestate, was suspended by the death, and only commenced running again when administration was granted; since which, six years have not elapsed. We think it well settled, in ordinary cases, that where the statute of limitations once begins to run upon any subject, it continues to run to its completion, unless interrupted by some act of the party setting up the statute, which places the claim within some of the exceptions pi-ovided in the act. The death of the debtor is not such an act, and does not interrupt the running of the statute; nor does the delay in taking out administration. If a creditor would save his debt from the statute, bar, he should take out administration himself. We do not feel called upon to consider the effect of the fact urged, that the defendant was appointed executor in the will of the decedent, but declined to prove the will, or qualify as executor.

4. The next question propounded to us is: In a suit by an administrator, upon his intestate’s claim, can the defendant set off a demand for money paid after the death of the intestate upon a liability entered into by the defendant, as surety for the intestate? Our judgment resolves the question in the negative. No cause of action or demand against the intestate existed against the intestate at his death. A liability only was incurred, upon which/ on the contingency of the security being compelled to pay for the intestate, he would • have a right of action for his indemnity. A *bare possibility, that in a certain [43 future contingent event, he would have a demand, is not a debt due from the intestate, and. such claim has not the mutuality required for a set-off. Such a demand, though good against the estate, can only look to the general assets for satisfaction. To allow it to be offset, would change the course of distribution of intestate estates. The hardships expected to result from the rejection of this set-off can have no weight with us, unless the law opens the door for their redress.

The result of our opinion would be to award a new trial, be-cause the evidence was ruled out under the notice, but as the parties agree there is no evidence to offer, which is admissible under the points decided, the motion is overruled, and judgment entered on the verdict.  