#### JOHN LUNN, ADMINISTRATOR OF A. GRIFFIN, vs. JAMES F JOHNSON, ADMINISTRATOR OF B. JOHNSON.

Silence in an answer as to any matter charged in the bill does not amount to an admission of the fact.

When an answer is believed to be designedly defective, for the purpose of imposing on the plaintiff the burthen ofprovingwhat thedefendant is, in conscience, bound to admit, the proper course is to except to the answer and compel the defendant to put in a complete one.

When in justification of conduct, not equitable, charged in the plaintiff’s bill, the defendant alleges that the plaintiff had improperly pleaded at law the statute of limitations to some of his claims, it is incumbent on him to show that it was uneonscicntious in the plaintiff to avail himself of such plea-

This cause was removed by consent from the Court of Equity of Davie County at Spring Term 1843, to the Supreme Court.

The plaintiff’s bill was filed in January 1840, and therein he alleged, that he was the administrator of Anderson Griffin, who departed this life in the year 1834 intestate — that the said intestate and one Baker Johnson had carried on various dealings with each other — that the said Griffin held various notes of said Johnson payable to different persons, which, at the request of the said Johnson and upon an understanding that the amount thereof should be credited to the said Griffin upon a settlement, he had purchased, without taking an assignment thereof — that Griffin had also paid off a bond, in which he had been the surety of Johnson, executed to one Josiah Cox, in February 1833 — that, since the death of Griffin, the plaintiff, with the funds and for .the benefit of the estate of his intestate, had purchased two notes executed by Johnson to Foster Turner<fc Co., but hadtaken no assignment thereof — that, in a conversation between the plaintiff and the said Johnson, the latter admitted all the above claims to be good and agreed that they should be allowed in the settlement of the dealings between himself and the plaintiff’s intestate, and on the 18th of April, 1839, confessed judgments for.all of them, except the claim for money *71paid as his surety on the note to Josiah Cox and that tor two notes purchased from Turner & Co. The plaintiff further alleged, that, a suit having been instituted against him as the administrator of Andrew Griffin by the said Baker Johnson, on account of certain demands of the said Johnson. against the said Griffin, arising out of their dealings aforesaid, the cause came on to be tried at the Fall Term 1839, of Davie Superior Court, and on the trial the plaintiff claimed a credit for the respective items herein before mentioned, but the said Johnson utterly refused to allow them, and they were rejected — that the said Johnson obtained a judgment, excluding these credits, for the sum of $271 and costs, and issued an execution to compel the payment thereof, and that shortly thereafter the said Johnson died intestate and insolvent to a large amount. The prayer of the bill was for an injunction and for general relief.

The defendant, the administrator of the said Johnson, answered the bill, and admitted that there had been many dealings between the said Johnson and the plaintiff’s intestate— that a suit had been brought to ascertain the balance due upon such dealings, and judgment obtained at the time and for the sum set forth in the plaintiff’s bill. By the answer it was further admitted, that the plaintiff claimed on the trial, as set offs or credits against the demands of the defendant’s intestate, the same credits as are claimed in his bill, and that they were all rejected; but the answer insisted that thereby no injustice was done to the plaintiff or to the estate which he represents, because just demands of the defendant’s intestate to an amount exceeding that of alllhese offered set offs or credits, especially one for $300 with nine years’ interest and one for $L70 with six years’ interest, and which demands were sought to be recovered in that action, were held to be barred by the statute of limitations, whereof the plaintiff unconscientiously availed himself. The answer was entirely silent as to the agreement, charged in the bill, to allow as credits the claims now brought forward by the plaintiff, and, in regard to the insolvency of the estate of the defendant’s testator, distinctly charged in the bill, uses this *72language, “the defendant admits that His intestate had very little property at the time of his death, except the judgment against the plaintiff’s intestate.”

Upon the coming in of the answer, a motion was made to dissolve the injunction, which had issued upon the filing of the bill. This motion was refused and the injunction held over until the hearing, and the plaintiff replied generally to the answer. The parties having taken their proofs, the cause was set down for hearing and removed to this court.

No counsel appeared for the plaintiff.'

Boy den for the defendant.

Gaston, J.

The ground, on which the plaintiff rests his title to relief here, is the breach of good faith on the part of the defendant’s intestate, in refusing to allow the credits claimed, as he was bound to do by his agreement. The silence in the answer as to that agreement is a suspi-' cious circumstance; but, according to the rules of a court of equity, it does not amount to an admission of the matter charged. When an answer is believed to be designedly defective, for the purpose of imposing on the plaintiff the bur-then of proving what the defendant is in conscience bound to admit, the proper course is to except to the answer and compel the defendant to put in a complete one. The agreement being neither admitted nor denied, the plaintiff is put to proof of it, and the only evidence tending to establish it is that of Tonnison Cheshire. This witness deposes, that on the 18th of April, 1839, the defendant’s intestate confessed before him as a magistrate, and upon that confession the witness rendered, nine judgments, which he particularizes by their respective amounts — that the said intestate requested the plaintiff not to press their collection, and assured him that they should all be allowed in the settlement of whatev-; er recovery the said intestate might make in the suit then pending. No proof is offered of an agreement extending to the other claims of the plaintiff, nor does he prove at all the liability of or a payment by his intestate, because of the *73note alleged to have been executed by him as surety for the defendant’s intestate. To the extent of the agreement thus proved, we think the plaintiff is entitled to relief., He could not setup these claims as set offs at law, for the judgments were rendered since the death of his intestate, and therefore were not due in the same right as the demands sought to be enforced by the plaintiff in the suit at law — and besides, the judgments were not rendered until after the suit at law had been brought and the cause put to issue.

The breach of the agreement to allow these judgments as credits is sought to be excused, because the plaintiff unconscientiously availed himself of the statute of limitations to bar some of the demands against his intestate, sought to be recovered in that action. The alleged fact, is not shewn by any proof, and, if it were shewn, there is no matter in equity alleged or established, rendering it unconscientious to plead that statute.

The court directs a reference to ascertain what will be the true balance due to the defendant as administrator of Baker Johnson upon the judgment rendered in favor of his intestate, after deducting the amount of the several judgments confessed by the said intestate before the magistrate, and reserves the case for further directions upon the coming in of the answer.

Per Curiam, Reference ordered accqrdingly.