Conceding that the exception was taken to the charge of the court in reference to the bar of the statute of limitations, and not to the form of the judgment simply (and this is the just and proper *Page 55 construction to place upon the statement of case on appeal), we think his Honor erred when he instructed the jury that they (31) must respond to the third issue, No.
The defendant offered in support of the plea of the statute of limitations, the receipts of J. T. Coppersmith and W. G. Coppersmith, bearing date respectively in 1870 and 1872, and signed after they were twenty-one years of age. Supposing that the testimony established the fact that there were mistakes made in both settlements, or, at any rate, that both of them gave receipts in full, when Benoni Cartwright, in fact, paid to each a sum less than the full amount due upon an accurate statement of accounts between him and his cestui que trust, it would follow that an action would lie for the unpaid balance, the settlement having been made prior to the passage of the act of 1874-'5 (Code, sec. 574; Koonce v.Russell, 103 N.C. 179); but the statute of limitations began to run against each when the receipt was given to the administrator. Benoni Cartwright administered in 1866 and died in 1882. Elisha Coppersmith qualified as administrator de bonis non in 1886, and the action was brought on 20 February, 1886. When John T. Coppersmith gave a receipt in full in consideration of the payment of seventy dollars, in February, 1870, he was twenty-one years old, as was William G. Coppersmith when he settled with Benoni Cartwright and gave a similar receipt in consideration of the payment of $92.17, in 1872. The statute began to run against each one of them from the date of their respective settlements, and the right of action on the part of each was barred after the lapse of three years.
It does not appear, from the face of the receipt of Elizabeth Delow, when it was given. We do not, therefore, discuss the question whether she is affected by the statute or not. She was under coverture before she was twenty-one years old, and had been up to the bringing of this action.
The settlement with the two infant defendants Henry and Susan, seems to have been made with receivers appointed, or acting, for each of them. It does not appear by what authority the receivers acted in this transaction. We do not declare that the action is, or is (32) not, barred as to the feme covert Delow, or the plaintiffs Henry and Susan. We cannot anticipate the developments of a future trial. In the present status of the case, we can see how it might prove best on a future trial to submit a separate issue as to whether each of the distributees is barred by the statute of limitations, with such instruction as may be applicable to the facts developed on the trial.
The action was brought by the administrator de bonis non, to recover the value of some corn and cotton that, it is alleged, the former *Page 56 administrator did not account for; and, also, a further sum not accounted for by reason of a mistake in addition made in a statement of annual account filed by Benoni Cartwright, and carried into the settlements with the distributees. The administrator de bonis non is a necessary party, and the former settlements, with the consequences flowing from them, require the presence of the distributees. Grant v. Bell, 87 N.C. 34; Branch v.Branch, 5 N.C. 132.
If some of the distributees are barred by the statute, and some are not, the determination of the extent of the liability of the defendants may present some complicated questions for an accountant. While we decide nothing in relation to that matter, we suggest for the consideration of the parties and the court below, that it might prove more satisfactory to try the issue or issues arising out of the plea of the statute by jury, and reserve the questions of the value of corn and cotton unaccounted for, if any, and what sum was, by mistake, not accounted for on settlements with the distributees, if any, and how the unadministered fund should be distributed, for the consideration of a referee.
Error.
Cited: Holden v. Warren, 118 N.C. 327.
(33)