#### John H. Sargent *vs.*Robert Y. Hayne, Executor of David Ramsay.

Tried before ■ his Honor Judge Earle, Charleston, May Term, 1835.

, This was an action on the case, brought on the following section of the Executor’s Law : “ Executors and administrators shall annually, while the estate shall remain in their care or custody, at the first court to be held after the first day of January, render to the Ordinary, &c., a just and true account, on oath, of the receipts and expenditures of such estate, the preceding year : which, when examined and approved, shall be deposited with the inventory and appraisement, or other papers belonging to such estate, there to be kept for the inspection of such persons as may be interested in the said estate; and if any executor or administrator, shall neglect to render such aunual accounts, he shall not be entitled to any commissions for his trouble in the management of the said estate, *and shall moreover, he liable to he sued for*damages, *by any person interested in the said*estate.”

The declaration, after setting forth the character of the defendant, as executor of the last will and testament of Dr. David Ramsay, and his duty under the aforesaid act, proceeds to state that the plaintiff was possessed of a note of hand, for 200 dollars, made by Ephraim Ramsay, dated 12th March, 1798, payable at sixty days, to David Ramsay, or order, and indorsed ; on which judgment, had been obtained, in the name of Wm. ingiesby, against said David Ramsay, in his life time ; and avers that the defendant, as executor, *294has not made and rendered a true and perfect inventory, and has not made ana rende;ed annually, a just and true account of his administration, &c. Pleas not guilty, and the Statute of Limitations.

*Evidence.*— (Record.) “ Wm. Inglesby vs. Dr, David Ramsay. On a note of E. Ramsay, indorsed by defendant to plaintiff; note dated 12th March, 1798. (This note was assigned to Sargent, the plaintiff in this action, August 6, 1805.) Verdict, 28th January, 1807, and final judgment, 14th February, 1807.”

The date of Dr. Ramsay’s death, and the probate of the will, did not appear. Tnc defendant as executor filed an inventory of the goods and chattels 15th May, 1815.

Amount, #476 00

Of debts appearing to be due, 1407 00

With this remark, “ most of these accounts are against transient persons not now to be found, or against persons insolvent.”

Account of sales 24th May, 1815, after deducting expenses, #85 55

Return for 1815 and 1816, was filed June 10th, 1816, stating a balance in favor of the estate, after payment of debts, of) 60 58

The suit in this case was brought on the 25th May, 1829. This was the whole evidence. And it seems clear enough that the plaintiff could not recover. Waiving the objections to the declaration, that he has not shewn how he was interested in the estate, and entitled to the benefit of the provision, and that he has not set forth how he sustained any damage, it is obvious that the plaintiff lias not *proved*that he sustained any loss in consequence of the supposed default of the executor ; so far as the returns have been made, they shew a balance to which he was entitled. To enable him to maintain this form of action, he should have shewn, that assets had come to the executor’s hands, or might have been secured, which if returned would have been available in the discharge of his demand. I considered the statute of limitations, also, an effectual bar, supposing such proof to. have been made ; and supposing the default to have been established. If the executor was in default, he was so from 1817, when the annual returns ceased to be made. Twelve years elapsed from that time, before the action was brought; the plaintiff’s judgment, or that which he claims, being then, as he alleges unsatisfied, and in full fore®. His action on the case should have been brought within four years from the default, in consequence of which he was damified. But there is another view, in which the plaintiff’s judgment ought not to avail him. It was signed 14th February, 1807. This action was brought *in*1829 ; twenty-two years had, tiierefore, elapsed without any proceeding on tills judgment, or any circumstance to rebut the presumption of payment. *But*has any default been shewn ? I think not. The executor returned an inventory and an account of sales, which it was not attempted to shew were incorrect. He rendered *his accounts on*oath for 1815 and 1816, after the collection of as*295sets and the payment of debts, setting forth a final balance $60.58y in favor of the estate. The affairs of the estate were wound up, and the accounts closed. What more was the executor to return *%*On the whole, 1 could not perceive any grouud, on which, the action could be sustained. Whether the plaintiff took a nonsuit,, or the jury found a verdict for the defendant, under"the instructions of the court on the statute of limitations, I do not remember ; one or the other course was taken ; and the plaintiff appeals on the grounds annexed.

B. J. EARLE.

The plaintiff appeals on the ground that his honor the presiding judge, erred in sustaining the plea of the statute of limitations, and for many other reasons.

SARGENT, *in pro. per.*

Sargent, for motion.

Pehonneatj & Finest, contra.

Filed 14th February, 1837.

We concur in the view of our brother Eabm, on the plea of the statute of limitations.

The motion is dismissed.

JOHN B. O’NEALL,

.TOBIAH J. EVANS,

‘RICHARD GANTT,

A. P. BUTLER.

J. S. RICHARDSON,