#### Executors of J. M’Teer vs. J. L. Hunter, Executor of *Ann*Ferguson.

Tried before his Honor Judge Rxohakdsoht, at Walterborough, November, 1835.

Thin was an action on account, for -divers articles, dated 1822. The aocou it *net*f Tih several credits, raanirg up to 1832, when Mro. Ferguson died. J, ¡I. FJeapv ¡roved that he made out the account, from several old papers. Saw the account presented to J. L. Finn., ter, the executor of Mrs. Ferguson, in 1838, who, -after looking at it, observed. “ we will settle <t.” it. was not this very paper, but a copy of it. He siso staled, that Mrs. Ferguson war a married woman in 1822, and so continued to 1823, when Mr. Ferguson died.

The defendant’s counsel .moved for a non-suit, on the grounds sot forth in the notice of appeal, which were all overruled. The defend» ant then introduced some counter evidence, .Especially, a receipt for two b;;gs of cotton, given to B. Ferguson.

I charged the jury with the case ; especially, charging them te> decide — -I. Whether the account was properly chargeable to Mrs, Ferguson, seeing she was a married woman, at its inception. (I thought it ought not to have been charged to her.) But the implied promise of the executor, and the credits, indicated that she might be liable. — 2. Whether the account was not barred by the statute' of limitations, under all circumstances.. — 8. To weigh well the force of the promise to settle, &c., of J. L. Hunter, in 1833 ; upon which the case depended. — 4. To decide, whether the payment of the cotton, was not additional to the credits before allowed.

The jury found for plaintiff $JI2 ; and the defendant appeals on the grounds of evidence only.

J. S. RICHARDSON.

*Grounds of Appeal**

For non-suit — 1st. Because Mrs. Ferguson was a *feme covert*at the time the debt was contracted, and not liable for the same.

2d. Because the case was bound by the statute of limitations.

3d. Because the original causa of action was not produced at the trial.

4th. Because, the bill oí particulars filed, exhibited a debt due by Mr. and Mrs. Ferguson, while the declaration was against the executor of Mrs. Ferguson alone,

5th, Because credits, made by the plaintiffs, were used as evidence, to take the case out of the statute.

For a new trial — 8th. Because the verdict was against all law and facy.

ELMORE & EDWARDS, Defendant's Attorney

*160Filed 3d May, 1836.

jVIejiminger, for motion. A. L. Edwakds, contra.

Mr. Justice Butler

delivered the opinion of the court.

The account on which this action is brought, was contracted in the lifetime of Berkley Ferguson, husband of Ann Ferguson, the testatrix of defendant. The account was contracted in February and April, 1822, and B. Ferguson died some time in the year 1827 ; during this time, more than four years, Ferguson, and not his wife, was liable for the account. After his death, his administrator or executor may have, been held liable, if the operation of the statute of limitations could have been avoided by any acknowledgment of Ferguson in his lifetime. Mrs. Ferguson is not charged in the account, as the representative of her husband — she is individually charged ; and it is attempted to make her executor answer as though she were originally liable. It is not alleged that the testatrix was liablh for a debt contracted by her husbaud, but for her own ddbts. There is certainly no evidence or reason to conclude that she had. any agency in originally contracting the account; and her estate could only be made liable by some valid promise in writing, to answer for the debt of another. She never did assume, in writing, to pay the debt. Credits are entered on the account of money paid by her since her husband’s death. These credits were made by the plaintiff, whose interest it was to make them, with a view to obviate the statute of limitations. There is no evidence that the credits were made, by Mrs. Ferguson’s consent in acknowledgment of the debt; and if they were, they would not make her liable for any balance on the account; for no part of which she was ever legally liable. It must follow that the declaration of Hunter, that *“*we will settle the account,” cannot make his testatrix’s estate liable for a debt, for which she was not liable in her life-time ; and from which she could have been discharged, if originally liable, by the statute of limitations.

It is ordered that a motion for a nonsuit be granted.

A. P. BUTLER.

We concur,

■HENRY W. DESAUSSURE,

WM. HARPER,

J. JOHNSTON,

JOHN B. O’NEALL,

JOSIAH J. EVANS,

B. J. EARLE.