It may seem surprising that this term of the court at Charleston should afford so few cases. But the arrangement of the sittings of the court had just been altered by the legislature, and the court sat but a few days in Charleston and then adjourned to Columbia. The Reporter has also found great difficulty in determining to which term many of the cases belong, as the MSS. from Charleston often afford no means of ascertaining the fact.

LAW CASES

ARGUED AND DETERMINED IN

THE COURT OF APPEALS,

OF

SOUTH CAROLINA,

IN

JUNE TERM, COLUMBIA, 1827.

JUDGES PRESENT.

HON. ABRAHAM NOTT, Presiding Judge.

HON. C. J. COLCOCK,

HON. DAVID JOHNSON.

The Administrator of LEE vs. the Executors of POLK.

Where a defendant admits an account, but says that there is a discount to a greater amount, it is not such an acknowledgment as takes a case out of the statute of limitations.

This action was brought on an open account. It appeared that the defendant's testator had been indebted to plaintiffs testator the amount of the account. A witness was produced who had presented the account to the defendant in September 1824, who admitted the account, but said there was a discount to a greater amount.

The defendant relied on the statute of limitations, and the question was, whether these words amounted to an acknowledgment.

HUGER, J. who heard the cause, thought they did, and a verdict was found for the Plaintiff.

Mayrant and Richardson, for the defendant appealed. Miller, contra.

CURIA, per JOHNSON, J. The rule on this subject is well settled. A promise to pay, or a bare acknowledgment of a subsisting debt, will revive a demand barred by the statute of limitations, and very slight circumstances are laid hold of to give effect to such promise or acknowledgment. The cases have gone already very far towards a repeal of the statute, and I am not disposed to carry the doctrine any farther. But there is no case which has yet gone the whole length to construe a direct and positive negative into a promise to pay, or as the acknowledgment of a subsisting debt; and such I think, is the effect of the facts proved in this case. The language of the defendant, and which is relied on to take this case out of the statute intestate is inis, the account may be correct, but your debted to my testator in a much greater amount, and I will not therefore pay it." Now this declaration must be taken together. It contains not only an express refusal to pay, but also an averment that nothing was due. The language of it is, I owe you nothing, because you owe me a sum to which this account ought to have been credited.

The case of Lee administrator of Lee vs. Perry, 3 M'Cord 552, is perhaps the strongest case opposed to this view. There the defendant admitted the note had not been paid, but declared that he would not pay it unless compelled by law, as it was out of date, and he had received no consideration. But in that case there was an explicit acknowledgment of the debt, and the allega

tion that he had received no consideration, is repelled by the consideration expressed in the note, and in this respect the two cases differ.

New trial granted.

Executors of CROSLAND VS. MURDOCK.

The executor derives his authority over the goods of the testator from the grant of the ordinary, but not so with regard to lands devised, or a power to sell lands; these the devisee takes directly under the will, from the testator.

The decree of the Ordinary against a will is not conclusive against the rights of a devisee of lands, or of one who takes a power to sell lands, or their privies; nor is the finding of the jury on appeal from the ordinary.

The power of the court of common pleas in cases of appeals from the ordinary on questions in relation to the validity of wills, is entirely appellate, though the matter is examined over de novo, and the verdict of the jury is not more conclusive against a devisee, than the decree of the ordinary. It is but the judgment of the ordinary corrected or affirmed by an appellate tribunal. An estopel must be reciprocal and equally binding on both par

ties.

Devise to an executor to sell lands. He sells to A. In the mean time the ordinary gives judgment against the will, and the jury confirms his judgment. To a suit against the purchaser for the purchase money, the judgment of the ordinary thus affirmed, is no estoppel against the suit by the executor.

This was an action of debt on bond. Edward Crosland, the testator, by his last will and testament, dated in the year 1818, directed that certain lands therein mentioned should be sold by his executors. After the death of the testator the executor sold the land. The defendant Murdock, was the purchaser, and the bond now the subject of suit was given for the purchase money. Subsequent to the sale of the land proceedings were instituted in the court of ordinary to have the will proved in solemn form. The ordinary decided against the will. The executor appealed, and the appeal was tried in the court of common pleas for Marlborough district, and the jury found against the will, on the ground of the insanity of the testator at