#### Edmund Martin, Adiministrator *de bonis non*of John Cheney, deceased vs. Hugh Archer.

Tried before his Honor Judge Butler, at Coosawhatchie, Fall Term, 1836.

*Report of the Presiding Judge.*— Assumpsit for money laid out and expended for defendant’n use. John Cheney, the intestate of plaintiff, was the surety of Hugh Archer in a promissory note to L. Petty, or order, for $3,589.31, dated 12th April, 1826. Petty indorsed the note to John D. Mongin, who brought suit, and recovered judgment on the note against the- makers, Cheney, and Archer, separately. Judgment for $4,052.52, signed 14th April, 1828. A payment of $270.29, on accounrof the debt, appears to have been made to Mongin by Cheney on the 4th June, 1827, be. fore judgment was recovered. Not long after judgment, and before any further payment, Cheney died. William *D.*Martin *196administered on bis estate, and, as administrator, made the following payments on the judgment:

On the 26th January, 1830, he paid, $1,806 50

28th “ 1830, “ “ 993 50

9th February, 1830, “ “ 200 00

10th “ 1831,“ “ 500 00

6th June, 1831,“ “ 350 00

William D. Martin, as administrator, commenced an action against Archer, for the recovery of the above sums of money, on the 26th March, 1832, and died on the 15th November, 1833. Edmund Martin administered *de bonis non*on Cheney’s estate in September, 1835, and commenced the present action on the 26th October, 1835.

T.he defendant pleaded *non assumpsit,*and the statute of limitations. He rested his defence on the last plea ; and contended there was nothing in the above statement of facts to prevent the operation of the statute in his favor. As it was entirely a question of law, I intimated my opinion in favor of the defendant’s plea ; and the plaintiff took a nonsuit, with leave to move the Court of Appeals to set it aside.

From the time when the first payment was made, (and when the right of action accrued,) until the commencement of this suit, 5 years, 8 months, and 22 days had elapsed ; and from the time of the last payment 4 years, 4 months, and 14 days had elapsed, which was more than sufficient to complete (he statutory bar : and the question is, was there any thing to obviate the operation of the statute ? It is said, that the spit by William D. Martin should prevent the running of the statute ; it having been commenced in about two years from the first payment, and only a few months after the last payment was made. This suit was pending 1 year, *7*months, and 11 days. From the time of its abatement until the administration by Edmund Martin I year and about 9 months, and until the commencement of this action, 1 year, 11 months, and 5 days, had elapsed. If this action can be regarded as a continuance of the action by William D. Martin, the statute cannot run ; but if this action cannot he connected with that, what is there to prevent the running of the statute ? At the time it commenced to run, William D. Martin represented the estate of Cheney. How far Can any intervening disability stop its current ? It was stopped for awhile, hut that impediment being removed, did it continue its course, notwithstanding there was no administrator to represent the estate until the plaintiff took out letters 1 I know that the statute will not commence to run until administration is taken out, if it has hot commenced to fun in the life time of the intestate : hut where the statute has cammenced to run in the life time of the intestate, it is pot stopped for want of administration on his estate. This is recognized in Geiger vs. Brown, 4 M’Cord, 423, 426.

I assume then that the statute had commenced to run against William D. Martin. But his suit suspended it for a while ; and if the present action had commenced within a -reasonable time after *197the abatement, of that action, the defendant cannot avail himself of the provisions of the statute. One year and eleven months had e apsed from the abatement until this action was commenced. Is this within a reasonable time ? I think not. Ordinarily every action is out of court, after a year and a day, if not proceeded in. I am disposed to regard that as the time therefore, within which an action should be commenced, to make it a continuation of the one that has been let fall, or has abated by the death of the plaintiff to the first action. If the time within which this action has been commenced should be held to be a reasonable time, why may not two years, or three years, be a reasonable time 1 I can see nothing in this case to have prevented the taking out letters of administration, immediately after the death of William D. Martin. Suppose that administration had not been taken out for two years ; could the statute have been arrested ? Certainly not.

At first I thought that the plaintiff should be allowed the actual term that William D. Martin’s action was pending : and if so, he would recover on the last two items, those made in 1831. I am not certain that this view may not bs correct; but that all the questions in the case may be decided, I sustained the plea of the statute to the whole demand. And to sustain the position I have taken, I quote the following authorities : Nicks vs. Martindale, Harper’s L. R. 135. Hunter vs. Glenn, 1 Bailey, 542. Adam-son vs. Smith, 2 Mill’s Con. Rep. 269. Kinsey vs. Heyward, 1 Ld. Raym. 434. Wilcocks vs. Huggins, 2 Strange, 907. Fitz-gibbon, 170. Gray vs. Mendez, l Strange, 556.

A. P.. BUTLER, *Presiding Judge.*

The plaintiff appeals, and moves to set aside the nonsuit, and for a new trial, on the following grounds ;

1. That the statute was arrested by the commencement of the former action, and could not begin to run again until the new administration was granted.

2. That if the statute was merely suspended by the former action, yet the time during which that action was pending should be struck out of the computation, and the plaintiff be allowed four full years, independently of the period during which the statute was suspended.

3. That the plaintiff had obtained an order for judgment in the •former suit before his death, as appears by the record ; and the action therefore did not abate, nor was the cause out of court for a year and a day after his death ; and that the operation of the statute remained suspended until the expiration of that period.

4. That the time allowed for bringiag a new action, when the eld has failed by abatement, &c. is not limited by any precise or fixed measure, but must be *reasonable ;*and that the new action in this case was brought within a *reasonable*time after the termination of the former suit.

5. That the- several payments made for the benefit of the defendant being partial payments of one entire debt, he is not entitled tt> the benefit of the statute but from the last payment.

*1986. That the nonsuit was in other respects contrary to.law, and should therefore be set aside, and a new trial awarded.

BAILEY & HUTSON, *Plaintiff’s Attorneys,*

Mr. Justice Q’Neall,

delivered the opinion of the court.

To prevent the operation of the statute of limitations, by a writ issued, it is in general necessary.that it should be regularly continued, (Ball, cm Lim. 147,) so as to make it in law the commencement of the suit before the court. Hence it is, that when the plaintiff discontinues or is nonsuited, that he cannot reply the former suit to the plea of the statute of limitations. The only exception to this rule is in the case of the abatement of the plaintiff’s suit by the death of either of the parties ; in that case it has been held that if the suit is recommenced within a reasonable time, that the statute will not run. Hunter vs. Glenn, 1st Bailey. What is *that reasonable time, is*the question propounded by the case before us *1*I conceive in the answer given by the judge below, that one year is as much as can be allowed. That was suggested in Hunter vs. Glenn, but not being necessary to its decision, did not receive the consideration of the court in that case.

It is said by Ballantine that no precise time has been fixed, but that the institution of the second suit must be in the nature of journeys accounts, which must be a recent prosecution. If we were' left merely to conclude from these premises, it would seem to follow that that could not be a recent prosecution, which would leave the party out of court according to its usual practice: But the case from 2 Strange, 907, considered by Ballantine in his Treatise on the Statute of Limitations, 169, is the very case before us. In that case, which was a suit by the executor of an executor; to the plea of the statute of limitations, the plaintiff replied the commencement of a suit by the executor before the.statute had run, its abatement by his death, and the institution of this suit four years after the executor’s death; it was held that the replication would not prevent the bar of the plea, on *the*ground that there was four years between the “ death of the executor- and the proceeding by the new plaintiff, and that the most that had ever been allowed was a year, and that within the equity of the provision in the statute, which gives the plaintiff a year to commence a new action when the judgment is arrested or reversed but the judges said? “they would not go a moment farther, for it would let ip all the. *199inconveniences which the statute was made to avoid.” In this State the same remark may be made ; in no case has more than a year been allowed. In Hunter vs. Glenn, the case was com-meneed within that time. In this case nearly two years intervened between the death of the first administrator and the institution of this suit; and I am satisfied that this was not a new suit within a reasonable time, or a fresh prosecution ; and that, therefore, there is nothing in this behalf to prevent the operation of the statute.

Filed 15th Feb., 1837.

Bailey & Hutson, for motion.

Bellingek, contra.

A former suit is not a suspension of the statute during the time it is pending. When it prevents the statute, it does it upon the footing that the plaintiff has pursued his remedy within the time limited by the statute ; and in such a case the second suit is connected with the first, which is regarded as the commencement of the action to be tried. The time therefore that the former suit may have been pending is not deducted from the whole time. For if this was the case, it would in many cases prevent the operation of the statute when the suit was not regularly continued ; such a consequence is so forbiden by authority that its allowance cannot be thought of, and hence the construction which leads to it must be also rejected. The motion to set aside the nonsuit is dismissed.

JOHN B. O’NEALL.

We concur,

RICHARD GANTT,

JOSIAH J. EVANS,

J. S. RICHARDSON,

A. P. BUTLER.