Executors of J. M'Teer vs. J. L. Hunter, Executor of Ann Ferguson, 1 Ril. 159

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.