#### JACOB HUBBARD *vs.*THOMAS L. MARSH, EX’R. &c.

If iu reply, to the plea of an executor of the Act of 1789, limiting the time within which actions shall be brought against executors, &e. the plaintiff wishes to avail hinisolf of the proviso in that Act, that ho was requested by the executor not to sue, be must state the fact in a special replication.

Whore it appeared that payments were indorsed on the bond declared upon, subsequently to the death of the testator, hut it did not appear by whom, this afforded no evidence that the executor had requested delay.

A surviving obligor cannot continue or revive the liability of the estate of a deceased obligor by partial payments, obtaining indulgence or other means, so aa to repel the operation of that Statute.

The cases of *McEntyre*v. *Oliver,*3 Hawks 209, and *Buie*v. *Buie,*2 Ired. 87, citod and approved.

Appeal from the Superior Court of Law of Union County, at the Fall Term, 1840, IiLs Honor Judge Dick presiding.

This action is debt against Joel Harrell, and Marsh, executor of Thomas Watts, on a bond given to the plaintiff by David Watts and the said Joel and Thomas. The defendant, Marsh, pleaded *non cst factum,*and the Act of 1789, limiting the time for bringing suits against executors; and the controversy, as between the plaintiff and that defendant, turned at the trial on the latter plea. In support of it the executor gave evidence, that he advertised according to the statute, and it appeared that the action was not brought within the limited period thereafter. The plaintiff then produced the bond, and on it there appeared credits for certain sums, entered as for payments made after the death of Thomas Watts ; and thereupon, and without offering any evidence to shew by whom or at what times, in fact, those entries were made, or that the defendant Marsh had any knowledge of the bond before he was sued in this action, the plaintiff moved the Court to instruct the jury, that a presumption in law arose, that the plaintiff delayed to bring his suit at the special request of the executor , and,'therefore, that, the aat-ion was not barred. Rut the *205Court refused to give that instruction; and, on the other hand, directed the jury, that, if they believed the defendant’s evidence, they ought to find for him on that issue, There was a verdict and judgment for Marsh, and the plaintiff appealed.

*Winston,*for the plaintiff

No counsel for the defendant.

Ruffin, C. J.

The Court is of opinion, that the judgment ought to be affirmed. In the first place, it was necessary that the plaintiff should have brought himself within the savings of the statute,'by putting the matter on the record by a special replication. But, if that objection did not exist, the Court would still concur with his Honor on the construction of the statute. The second proviso of the Act is, that, if a creditor shall delay to bring suit at the special request of the exceutor, the debt shall not be barred during the time of the indulgence. Now, there is nothing to connect the payments or the entries of payments with the executor, so as to make„ them his acts personally. They may have been the acts of the other obligors or, perhaps, of the obligee himself If so, they cannot affect the executor, nor deprive the personal estate of the testator of the protection of the Act. It is not like the case of *McEntyre*v. *Oliver, 2*Hawks 209, and others of that class, in which it was held, that the act or acknowledgement of one partner, which takes a case out of the statute *of*limitations as to him, will do so likewise as to the others. There the obligation of all the parties not only arose upon the same promise, but the matter of discharge extends equally to the whole. Here, however, the discharge is one of the debtors by a special provision for his benefit peculiarly. As it was held in *Buie*v, *Buie, 2*Ired. 87, that the discharge of an executor, under the Act of 178.9, did not enure to the benefit of another obligor, so it follows, on *206•the'other hand, that a surviving obligor cannot continue or revive the liability of the estate of a deceased obligor by partial payments, obtaining indulgence, or- other means, so as to repel the operation of that statute. The operation of the Act is restricted to the estate of the deceased obligor, and the executor alone can deprive himself or the estate of its protection.

Of course, this opinion is to be understood in reference to the case before the Court, and n.ot at all as embracing the case, where there are two executors and one of' them requests delay: which may be subject to a different rule,

Per Curiam, Judgment affirmed.