The opinion of the Court was delivered by
The first error is a bill of exceptions, taken to the opinion of the court, rejecting the report of the auditors of Mahoning township, appointed for the year 1831, of their having, at the request of the plaintiff, examined orders drawn in his favour for balances due to him as supervisor of the said township in the years 1819 and 1821, and of their having thereupon found certain balances to be still due thereon to him. The court, in our opinion, decided correctly in refusing to admit this evidence. The auditors of 1831 had no authority, under the acts of assembly passed in this behalf, to examine and pass upon the plaintiff’s claims. Their business was to examine and settle the accounts of the supervisors for the year which had just expired. The plaintiff’s claims had been examined and adjusted by the auditors duly appointed for that purpose, in the years in which they accrued; and no board of auditors appointed for any subsequent year could take cognizance of them for any purpose, either for renewing or avoiding them. The two remaining errors are exceptions to the charge, delivered by the court to the jury, instructing them that the plaintiff’s claim was barred by the statute of limitations. In this we think the court erred, because the claim of the plaintiff is not embraced by that statute. It does not, and it never was intended that it should, apply fo claims, for the recovery of which the party entitled thereto could hot maintain an action. The statute does not extinguish the debt or claim, it only forms a bar to the remedy of the party to recover it by action: but it is perfectly clear that if the right;’ to maintain an action for it were never vested in him, the statute can be no bar to it, because it would be contrary to reason to hold that the statute operated upon and took that away which never existed; or in other words, deprived the party of a right which he never had, until the act of 1836 was passed for the special purpose of investing with such right. Since he has thus been enabled to bring and maintain his action, no time appears to have been lost on his part, nor room left for the statute to intervene.
Judgment reversed, and a venire de novo awarded.