By the Court.
delivering the opinion.
All the questions in the case, are included in the motion for';a new trial. We may, therefore, confine ourselves to that motion.
ThejCourt overruled that motion; was the Court right in doing so?
The grounds of the motion were three; of which it is not necessary to consider the first.
The second was, the rejection “ of the testimony of M'artih'and Green, counsel for complainant.”
We think it clear, that the facts sought to be proved by these'gentlemen, came to their knowledge, during the existence jof the relationship of client and attorney, between them and the complainants in the ne exeat suit, and, by reason of that relationship. And the statute says, that “ it shall not be lawful for any attorney at law, or in equity,” “to give testimony” of such facts. Cobb Dig. 280.
The Court, then, was, we think, right in excluding these two gentlemen as witnesses.
*293The third ground of the motion, was the charge of the Court.
A part only of the charge was objected to, in this Court; the part which says, “that if the heirs of Winifred Barfield? had notice of the facts of the fraud, the statute of limitations commenced running against them, from the time of such notice.
It is probable, that the impression, which this part of the charge made on the jury, and which it was the Court’s intention, that it should make on them, was, that notice of the fraud, to the heirs, was notice of it, to the administrator, and therefore, that, if there had been four years notice of the fraud to them, the suit, althought not a suit by them, but by the administrator, was barred.
Was this a proper impression tobe made on the jury ? We think net. It may be that there were debts to pay. If there were, the administrator was entitled to have the assets, to pay the debts, even although he might not be entitled to them, to distribute to the next of kin. The negligence of the next of kin, might affect their own rights, but it could not affect the rights of the creditors. Indeed, if there were creditors, would mere inaction in the next of kin, be at all prejudicial to them — they having the right to no part of the assets, except such as might remain, after the payment of the debts ? If, then, there were debts, notice of the fraud to the next of kin, was not sufficient to bar the right of the administrator. And it is not alleged, or proved, that there were no debts.
For this reason, then, this part of the charge, was, wo think, erroneous.
It was amiss, we think, for another reason. It does not appear, who the heirs were; it is not alleged-in the answer, or proved by the evidence, who they were. It may be, therefore, that they, or some of them, were persons laboring under some of the disabilities to sue, mentioned in the statute of limitations. If they were, those statutes would not begin to run *294against them, even though they had notice of the fraud, until the removal of such disabilities. Yet the charge is absolute and general, and therefore, is a charge as much covering the case of heirs laboring under disabilities, as, the case of heirs not laboring under disabilities.
For these reasons, then we think, that this, the third ground of the motion, was good.
Judgment reversed.