6 Ohio 35 | Ohio | 1833
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,
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 ad
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.