The Court is of opinion that the judgment ought to be affirmed. In the first place, it was necessary that the plaintiff should have brought himself within the savings of the statute by putting the matter on the record by a special replication. But if that objection did not exist, the Court would still concur with his Honor on the construction of the statute. The second proviso of the act is that if a creditor shall delay to bring suit at the special request of the executor, the debt shall not be barred during the time of he indulgence. Now, there is nothing to connect the payments or the entries of payments with the executor so as to make them his acts personally. They may have been the acts of the other obligors or, perhaps, of the obligee himself. If so, they cannot affect the executor, nor deprive the personal estate of the testator of the protection of the act. It is not like McIntire v. Oliver,9 N.C. 209, and others of that class, in which it was held that the act or acknowledgment of one partner which takes a case out of the statute of limitations as to him will do so likewise as to the others. There the obligation of all the parties not only arose upon the same promise, but the matter of discharge extends equally to the whole. Here, however, the discharge is one of the debtors by a special provision for his benefit peculiarly. As it was held in Buie v. Buie, 24 N.C. 87, that the discharge of an executor under the act of 1789 did not inure to the benefit of another obligor, so it follows, on the other hand, that a (206) surviving obligor cannot continue or revive the liability of the estate of a deceased obligor by partial payments, obtaining indulgence, or other means, so as to repel the operation of that statute. The operation of the act is restricted to the estate of the deceased obligor, and the executor alone can deprive himself or the estate of its protection.
Of course, this opinion is to be understood in reference to the case before the Court, and not at all as embracing the case where there are two executors and one of them requests delay, which may be subject to a different rule.
PER CURIAM. No error. *Page 150