#### MALCOLM BUIE, EXECUTOR OF DUNCAN BUIE, *vs*MARGARET BUIE.

Where an action is brought against an obligor and the representative of a deceased obligor, and as to the latter the action is barred by the Act i barring claims against deceased persons’ estates, (Rev. Stat. c. 65, s. 11,) a judgment may still be recovered against the former, for the Act does not extinguish the debt, but only bars the remedy against theper-son to whom it applies.

A party cannot except for error to an instruction which he hath himself prayed.

The want of a person against whom to bring suit, rebuts the presumption of payment arising from forbearance to sue.

It is a question of law for the Court, what facts will repel the presumption of payment under the Act of Assembly, (Rev. Stat. c. 65, s. 13.)

Where a person is sued in the same action as executor of A, and also as administrator of B, it is irregular to enter a nonsuit, so far as he is sued in the one capacity, and a judgment against him in his other capacity.

A *nolle prosequi*is the proper course.

This case was brought up by appeal from the judgment of the Superior Court of Law of Moore County, at Fall Term, 1841, his Honor Judge Peauson presiding. It was an action of debt upon two notes under seal, purporting to be executed by Alexander and Neil Buie, the one for $128, the other $68, bearing date 17th March, 1818, and written on the same piece of paper, one payable one day after date, and one twelve months after date-. Both were payable to Duncan Buie, the plaintiff’s intestate. Alexander Buie died in May, 1818, and in August, 1818, the defendant qualified as his executrix. Neil Buie died in the fall of 1823, and the defendant was appointed his administratrix in 1837. Duncan Buie died in 1822, and in August, 1822, the plaintiff qualified as his executor. The writ in this case issued in February, 1838.

The defendant, as the executrix of Alexander and the ad-*88ministratrix of Neil, relied upon the general issue, payment release, and the Act of 1715.

Some proof was given of a deed having been executed for a tract of land by Duncan Buie to Alexander on the day of the date oí these notes. There was also evidence by a witness, whose character was impeached, of an acknowledgment of the debt by the defendant, but within what period was not distinctly stated. It was proved that Daniel Buie and Alexander Buie were cousins. It was also proved that at the death of Alexander he owned a negro boy, stock, &c. but was a good deal in debt; that after his death, the defendant, his widow, qualified as executrix, and, being a very industrious managing woman, had made out to get along and pay such debts as pressed, without making a sale, as executors and administrators usually do ; that for the last six or eight years the defendant, with the assistance of her sons and the Degro boy, made fine crops for sale, and was evidently above the world and making money. Until that time, although she held property, she was hard run — for, besides paying debts, she was encumbered with three blind children, who were helpless and had to be supported. The facts relative to the plea of release and the Act of 1715 not being controverted, it was consented to consider these questions as reserved, and if the Jury should find the other issues in favor of the plaintiff, and the Court, upon the questions reserved, should be with the defendant as executrix of Alexander or as administratrix of Neil, the verdict was to be set aside, and a nonsuit entered as to one or both according to the opinion of the Court. .

, The Court then left the questions, as to the execution of the notes and the plea of payment, to the Jury. Upon the plea of payment the Court charged that under the Act of 1826, (Rev. Stat. c, 65, s. 13,) a note, situated as this was, was presumed to have been paid after thirteen years, unless that presumption was rebutted ; that here as to Neil Buie’s estate it was admitted the thirteen years had run, but there was no administration upon his estate until the year before the suit was brought, and this was sufficient to repel the presumption, for during all that lime there was no person to pay. *89So as to Alexander’s estate, it was admitted the thirteen years had run and the presumption was raised by law, unless that presumption was repelled, that whether the presumption was repelled or not was not to be left as an open question of fact for the Jury; for, if so, and the lapse of time had no more than its natural weight, as a circumstance bearing upon the question of payment, the Act of Assembly would amount to nothing ; whereas the law intended to give to' the lapse ot time an artificial and technical weight, so as to require a Jury to presume a payment, unless the presumption was repelled;. and it was á question of law for the Court, what circumstances, if true, were sufficient to repel it. In this case the Court charged that the fact of Alexander Ruie’s estate being hard pressed, although there was pioperty sufficient, the fact of the plaintiff being a near relative, and the other matters insisted on by the plaintiff’s counsel, were not sufficient in law, with the exception - of one, and that was the acknowledgment by the defendant of the existence of the debt. If the evidence satisfied the Jury that such an acknowledgment had been made by the defendant within thirteen years next before the issuing of the writ, that would repel the presumption ; but unless the acknowledgment was made within that time, there was nothing to repel the presumption, and they would find for the defendant on the issue of payment; for if the presumption held as to the estate of Alexander, a payment by him- or by his estate would also discharge the estate of Neil. The Jury found both issues in favor of the plaintiff.

Upon the question reserved as to the release, the Court was of opinion with the plaintiff; for supposing the estoppel to be well pleaded, and supposing it to be competent to go into the consideration of the notes, and to show by parol that’ they were given in payment for the land, yet it being admito ted that the deed and the notes were executed at the same time, the deed acknowledged the purchase money to be paid in full, the notes acknowledged the purchase money not to be paid, and covenanted to pay at a future day; and so there was estoppel against estoppel, which “ left the matter at large.”

*90Upon the question raised as to the Act of 1715, the Court was of opinion that the defendant, as executrix of Alexander, was discharged, and as to her, as such executrix, the verdict was set aside and a nonsuit entered. But as *to the*defendant, as administratrix of Neil, the Court was of opinion that she was not discharged from the action by the Act of 1715, there having been no administration, until the year before action brought. The Court was also of opinion that the discharge of Alexander’s estate by the Act of 1715 did not operate to discharge the estate of Neil, his co-obligor; for a distinction was to be taken between an act of the creditor, by which, if one obligor is discharged, his co-obligors are also discharged, and an act of law operating upon the mere inaction of the creditor. The Act of 1715 was intended as a protection against actions after seven years, and neither the words of the Act nor the reasons for passing it could be made to extend to the protection of coobligors.

The counsel for the defendant then moved for a new trial, because the Court, in regard to the presumption of payment, instructed the Jury, that they should find for the defendant, unless they were satisfied that the defendant had acknowledged the existence of the debt within thirteen years next before the action was brought; insisting that the Court should have said ten years, instead of thirteen. The motion was refused, 1st, because, supposing it to be erroneous, the instruction was given in the words requested by the defendant’s counsel, the counsel on both sides having inadvertently fallen into' the error, if it be one, and the attention of the Court not having been called to it, until after the verdict; 2d, because the evidence would as well have justified the finding of the Jury, if the Court had used the words ten years instead of thirteen, and the Court believed the correction would have been immaterial, so far as the finding of the Jury was concerned. The Court, therefore, gave judgment for the plaintiff, from which the defendant appealed to the Supreme Court.

*Badger*and *Winston*for the defendant,

insisted that the judgment was erroneous, and should be reversed, because *91there could not be judgment of nonsuit as to one defendant and judgment in favor of the plaintiff against another defen. dant. The judgment in nonsuit is that the plaintiff take nothing by his writ.

*Strange*for the plaintiff,

in support of the Judge’s opinion as to the operation of the Act of 1715, cited *Jones*v *Brodie,*3 Mur. 594. *Godley*v *Taylor,*3 Dev. 178. *Brown*v *Carr, 20*Eng. 0. Law Rep. 221. *Shaw*v *McFarlane,*1 Ired. Law Rep. 216. *Sherwood*v *Woodard,*4 Dev. 363.

As to the alleged error in the judgment, if the Court thought there was error, he prayed that he might be allowed to amend the record by striking out the nonsuit and entering a *nolle prosequi*as to the defendant as executrix of Alexander Buie.

Gaston, J.

All the points, made in this case in the Court below, appear to us to have been properly decided. There was no evidence to support the plea of release. The deed of conveyance from Duncan to Alexander Buie contained an acknowledgment of the receipt of the purchase money, and if an action of debt or assumpsit had been brought for the price of the land, this acknowledgment might have availed to bar a recovery. But this is not such an action. It is brought, not for the price of the land, but to recover a sum of money due by bond from Alexander and Neil Buie, and there is no pretence that the obligee ever released this debt.— There was neither estoppel nor counter estoppel in the case.

It is clear that the operation of the Act, barring actions against the estate of a deceased person, unless brought within seven years after his death, does not affect to extinguish the debt, but only to bar the remedy. Its operation is necessarily restricted to the estate so protected.

If there was inaccuracy in the terms used by his Honor in the instruction, that an acknowledgment of the debt within thirteen years before the institution of the action removed the presumption of payment, it furnishes no sufficient cause for reversing the judgment; and this for both the reasons assigned in rejecting the motion for a new trial. A party cannot except for error to an instruction which he hath himself *92prayed; and the *substance*of the instruction was correct, as the acknowledgment, if made at all, was made within ten years.

It cannot be doubted, we think, that the want of a,person • , * - against whom to bring suit, rebuts the presumption of payment arising from forbearance to sue.

There is, however, an irregularity in the rendition of the judgment below, as pointed out by the¡,counsel for the appellant. It is irregular to enter a judgment of nonsuit against the plaintiff, so far as he is suing the defendant as executrix of Alexander Buie, and a judgment that he recover against her as administratrix of Neil Buie. *As*this irregularity was occasioned by the agreement of the counsel on both sides'in the Court below, we readily assent to the motion here made in behalf of the plaintiff. Let the record be amended by substituting, instead of judgment of nonsuit, that the plaintiff enters a *nolle pt'osequi*against the executrix of Alexander Buie, and let his judgment against the appellant, as administratrix of Neil Buie, be affirmed yrith costs.

Per Curiam.

Judgment accordingly.