Clary vs. Grimes et al.-1841. to amend, as allowed by the order of the 20th November, 1833, and also to amend so as to make James Thomas a party. On the 17th April, 1838, the complainant filed his amended bill, praying subpoena against C. Grimes, James Thomas, Sarah Howard and others, representatives of H. Howard of John. The alleged matters of the original bill, and the pretended claim of Grimes through James Thomas, the assignee of Welch, who was not made a party to this amended bill, were stated in the bill as amended. James Thomas answered the bill, and alleged that though he purchased from Welch, yet being unable to comply with his contract, he cancelled it, returned his contract to Welch, who gave him up his bond. He denied a sale to Grimes of any interest in, or any portion of that contract. On the 24th January, 1840, it was agreed that the several answers filed should be taken as answers to the amended bill, as well as to the original bill. The complainants excepted to the evidence of the declarations of James Thomas, as sought to be given in evidence by the defendants. The defendant, Cornelius Grimes, also excepted: 1. To the competency of James Thomas and Philemon Welch as witnesses against him. 2. To the admissibility of the evidence of those two witnesses, and each of them. 3. To the admissibility of the depositions taken by com plainant under the ex parte commission issued under the interlocutory order, because said defendant was not then a party to this cause. 4. To the admissibility of all hearsay evidence. At December term, 1840, the Chancellor (BLAND,) dismissed the bill, being of opinion that putting aside the depositions of the parties to this suit as coming from incompetent witnesses, and the mere hearsay detailed by other witnesses, the complainant has failed to sustain his claim to relief, by any legal and satisfactory evidence. The complainants appealed to this court. Clary vs. Grimes et al.-1841. The cause was argued before BUCHANAN, C. J., ARCHER, CHAMBERS and SPENCE, J. By W. F. GILES for the complainants. J. J. LLOYD for the defendants. ARCHER, J., delivered the opinion of this court. As the commission ex parte under the interlocutory decree was ordered and issued before Grimes was made a party to the proceedings, we think the objection was well taken to the admissibility of the evidence against Grimes. But we have, notwithstanding, examined the merits of the case upon the testimony taken under the commission, and we have arrived at the conclusion, that the complainant is not entitled to the relief he seeks. In this examination we have considered the declarations of Thomas, to whom the bond of conveyance from Howard was assigned, made before the erasure, and before assignment of the bond, by Welch, to the complainant, as evidence. The complainant derives his title to the bond of conveyance through Thomas, and any declaration made by Thomas, while he was holder of the bond, we consider as evidence against the complainant. We are satisfied that Welch entered into the contract which is now sought to be specifically enforced with Howard, for the benefit of Thomas, and that he accordingly assigned the agreement to Thomas. While Thomas was thus in possession of the agreement by assignment, he executed a deed to Grimes, large enough by its terms to transfer any interest he had in the land affected by the agreement; and then to defeat Grimes, and with the fraudulent design to deprive the conveyance of its intended operation, he re-delivered to Welch the agreement to convey, when the assignment to Thomas was erased, and an assignment by Welch to Clary was made in its stead. Under such circumstances, it is not perceived that Thomas could have (had he not assigned to Cleary,) any claim to a specific execution of the contract; nor do we see how Cleary, the complainant, could stand in any better situation. The estab Hall's Adm'r. vs. Creswell et al.-1841. lished rules which govern courts of equity in enforcing contrac's, would forbid our interference in his behalf. The complainant must stand or fall by the pretensions of Thomas, from whom he has in reality derived his pretended title, and has therefore in our judgment no claim to our interposition. It has been objected that the conduct of Grimes has been harsh and oppressive. This This may be so, but Grimes is not demanding the aid of Chancery to enforce a conveyance, but is resisting the claim of the complainant; and he is entitled to see that the court keep within its established rules in determining the rights of the complainant. DECREE AFFIRMED. GILLESPIE, ADMINISTRATOR OF HALL, et al. vs. REBECCA E. CRESWELL et al.-December 1841. Upon a bill filed to sell real estate for the payment of debts, upon the ground of insufficiency of the personal estate of the deceased to satisfy them, the acknowledgment of the heir at law and devisee of the debtor, that “it was a debt he would have, and intended to pay," is sufficient to remove the bar of the statute. The statute of limitations runs against a claim or debt up to the time it is exhibited or filed in Chancery, Where a claim arises upon a bond of indemnity, it is not barred until after the principal debtor and creditor have been both dead twelve years, or the thing in action has been above twelve years standing. A party who relies upon a mere contract of indemnity has no right of action until he has been made to pay money. It is by payment he is damnified, and then his cause of action arises. Promissory notes, dated 10th March, 1814, at sixty days, were discounted for the use and accomodation of the second endorser, the prior parties being only securities. Suits were brought upon them by the holder against the securities in 1815, and judgments obtained against them in September 1816. They were paid on the 20th August, 1818, more than three years after the maturity of the notes. The second endorser died in April 1814. Held That as respects the accommodation endorser, the running of the statute was suspended by the suit brought against him, and the judgments obtained Hall's Adm'r. vs. Creswell et al.-1841. thereon, and that the payment made by him on the 20th August, 1818, by coercion of law and under fi. fa., gave him a right to be re-imbursed out of the real estate of his principal, upon a bill filed by him in 1819 against his heirs, and to which the statute of limitations opposed no bar. It does not necessarily follow that one who advances money for a debtor to pay his creditor, and in fact pays the money to the creditor for the debtor, is either a purchaser of the debt or a mere volunteer. Upon the fact ap. pearing, that the debtor had agreed to execute a mortgage for his security, and that the judgments against him should be assigned by way of security to the party making the advance, he would be considered as an agent in making the payment. A mere volunteer, without any authority, undertaking to discharge a debt, does not succeed to the rights of the party whose debt he so discharges. Where a security paid the debt of his principal under judgment, by money borrowed from a third party, to whom the creditor assigned the judgment against the security for his indemnity, a bill filed by the security against his principal (now deceased) to subject his real estate to sale for the pay. ment of debts, will arrest the running of the statute of limitations both as respects the security and the third party, who only became a party to the cause in equity by amendment, some years after the filing of the original bill. The right of set-off is reciprocal, and mutual claims, and such as are in the same right, can alone be set-off. A security who pays the debt of his principal at par in depreciated bank notes, can only recover the amount given for them, and in the absence of such proof, the payment will be estimated at the current market price at the time of the payment. Securities in a bond who pay off the debt, may recover separately the sums respectively paid by them, and the evidence which one of them may have to rebut the plea of limitations, does not necessarily enure to the benefit of the other surety. APPEAL from Chancery. A bill was filed on the 16th February, 1819, by Samuel C. Hall and Robert Evans on behalf of themselves and such other creditors of John Creswell the elder, as might come in, against his executor, heirs and devisees, to subject his real estate for sale, on the ground of the insufficiency of his personal estate to pay his debts. Hall claimed a debt due him arising from his endorsement of notes for Creswell's accommodation; and Evans as his security on a sheriff's bond entered into by Creswell. Various answers were filed, disclaiming knowledge of the complainant's claims, when on the 9th June, 1823, Hall's Adm'r. vs. Creswell et al.-1841. David Reynolds, as executor of William Byson, filed a claim dated 5th October, 1811, signed by John Creswell, admitting a balance due W. Byson of $62.38. The complainant Hall, on the 9th June, 1823, filed certified copies of the docket entries of two fi. fa's. issued at September term, 1818, in the case of the President and Directors of the Elkton Bank of Maryland, endorsees of John Creswell, against Samuel C. Hall, for $4,000 and $2,760, with interest, "returned levied, and satisfied plaintiff." Judgment had been recovered as above for $4,000 and $2,760, on the 9th September, 1816, with interest until paid, the records of which were also filed. The death of the original complainants being suggested by petition, their administrators were made parties by bill of re vivor. On the 10th March, 1825, Philip Thomas filed his petition and claim. At April term, 1820, the President and Directors of the Elkton Bank sued out their fieri facias against him, and sold his property for $464.25. A short copy of the judgment obtained against him at September term, 1816, was also filed by consent, and also the bond of indemnity of John Creswell the elder to Philip Thomas, dated 15th February, 1813, agreeing to indemnify him for any responsibility, or any debts or sums of money which he may be liable to pay on account of his being security for William Baxter, late cashier of the Elkton Bank of Maryland. Philip Thomas also filed his account against John Creswell, deceased, for $464.25, with interest from 1st April, 1820, until paid, and also the bond of William Baxter, with John Creswell and Philip Thomas as his sureties, to the bank aforesaid, dated 20th April, 1811, conditioned for the faithful discharge of Baxter's duty as cashier, which were admitted by consent. On the 6th May, 1829, an amended bill was filed by the representatives of S. C. Hall and Robert Evans, and also by Washington Hall and Philip Thomas, David Reynolds, executor of William Byson, and the administrator of Reuben Reynolds, against the original parties, for the same objects as those |