McLin v. McNamara

22 N.C. 82 | N.C. | 1838

The defendant in his answer admitted that there had been many business transactions between the plaintiff and his intestate, but denied any knowledge of their particulars. He relied upon the act of 1789, for the protection of the executors and administrators, and the act of limitations.

The bill was filed on 26 September, 1832, and it appeared from the record that process had issued returnable to the ensuing October term of the court of equity for the county of Craven. Upon the act of 1789, the proof was that the defendant had made the advertisement required by that act in two newspapers published in the town of Salisbury. No proof was offered of any advertisement at the court house or at any other public place in the county of Rowan. Defendant's counsel contend, first, that the accounts are not mutual, but are all on the side of the plaintiff, and that he should have proceeded at law. We think this objection is not tenable. We admit that to entertain a bill in equity for an account there must be mutual demands — a series of accounts on one hand, and a series of payments on the other, and not merely one payment and one receipt. Dinwiddie v. Bailey, 6 Ves., 136; 9 Ves., 473; 1 Mad. C. P., 86. But here the bill expressly charges and the answer admits that there were a series of accounts by the plaintiff, and sundry payments by (84) Ferrand.

Secondly, the defendant relies on the act of limitation. We are of opinion that this act does not bar the plaintiff. On the plaintiff's demanding a settlement of accounts, Ferrand (on 5 October, 1829) answered by letter and said: "I should like to have a settlement with you to know if I am in due to you; and for the purpose of doing so I shall visit New Bern in the winter."

The bill was filed on 26 September, 1832, and thereupon, as appears from the record, process issued returnable to October Term, 1832.

The promise to take the case out of the statute of limitations must be either an express one or amount to a clear admission of a still subsisting liability. Ballinger v. Barnes, 14 N.C. 460. But a promise to the creditor by the debtor to account or settle, "to know what I am due to you," is, we think, a promise to pay the balance, of on settlement there shall be a balance due from the promisor. Why settle, if the balance is not to be paid? The letter of Ferrand was dated within three years of the time of filing the bill, and within three years before "process issued" to October Term, 1832. The statute declares that all actions which shall be sued or brought shall be commenced or brought within the time and limitation in this act expressed, and not after. In equity, is the commencement of the action the filing of the bill, or is the action commenced only from the issuing of the process? Our act declares that no writ shall be served by the sheriff unless he has a copy of the bill ready to deliver to the defendant. Rev. Stat., ch. 32, sec. 4. In England, by the Stat. 4th and 6th of Anne, no subpoena shall issue till after the bill is filed. It is, however, there a frequent but irregular practice to sue out a subpoena before the bill is filed and file the bill before the return, day. 2 Mad. C. P., 197.

The filing of the bill, it seems to us, is the commencement of the action, without the meaning of the statute. The subpoena and copy are but as process emanating or issuing from an original, and not the commencement. But however that may be is immaterial in this case, as not only the filing of the bill, but the issuing of the process thereon, was within three years after the date of the letter. We therefore are of the opinion that act of limitations is not a bar to the plaintiff's claim. The act of 1789 imposes as a condition on an executors or (85) administrator an advertisement at the courthouse and at other public places in the county. It has been held that advertisements published in a newspaper printed and circulated in the county is a substantial compliance with that part of the law requiring advertisement at other public places. Blount v. Porterfield, 3 N.C. 161. But it is not a substitute for the positive requirement of advertisement at the courthouse.

The plaintiff is entitled to have an account.

PER CURIAM. Direct an account.

Cited: Lee v. Patrick, 31 N.C. 138; Aston v. Galloway, 38 N.C. 129; Gilliam v. Willey, 54 N.C. 130; Haywood v. Hutchins, 65 N.C. 576.