Page:Federal Reporter, 1st Series, Volume 10.djvu/45

PULLIAM V. PULLIAM. 83 �demanded and paid on suit brought for them within two years and six months from the date of the qualification of the executer. Tenn. Code. § 2279. But there were payments made to Joel L. Pulliam after January 1, 1869, which, owing to a suspension of the statute during the war, is the date of the expiration of the time allowed for pay- ment {Boothe v. Allen, 4 Heisk. 268; Wehh v. Bronner, 11 Heisk. 305) of about $9,000. This must be disallowed, unless the following paper operates to take the case out of the rule of this statute. �By the Code, "if any creditor, after making demand of his debt or claim, delay to bring suit for a definite time, at the special request of the executer or administrator, the time of such delay shall not be counted in said period of limitation." Code of Tenn. § 2280, and notes. The payments made after the bar attached are sought to be justified by a special request under this statute, and which is as fol- Iowb: �"To /. X. Pulliam, Somenille, Tennessee: In the matter of your claims of all descriptions against the estate of our father, John N. Pulliam, in settle- ment of which estate I am acting as executor, I request that you do not enforce same by suit or legal proceedings, as the assets of the estate are not yet collected by me suflacient to pay the debts due and owing by John N. Pul- liam. By your delayiug to sue it shall not prejudice your claims, as I will not avail myself of the statute of limitations applicable to executors, adminstra- tors, etc. �"May, 27, 1868. J. J. Pulliam." �This request for delay is special, but the question is whether or not the time to be deducted is fixed and definitely ascertained. It ia said by the plaintiff there is no demand shown ; but the request im- plies a previens demand. Puckett v. James, 2 Humph. 565, 567; Bank V. Leath, 11 Humph. 515. The executor is not bound to plead the general statute of limitations, and, if the bar had not attached in the life-time of the decedent, he might waive it. Batson v. Mur- rell, 10 Humph. 301. But there is no such discretion to waive the dead man's statute, and it enures to the beneut of legatees, who may always set it up. Brown v. Porter, 7 Humph. 373, 383; Batson v. Murrell, supra; Byrn v. Fleming, 3 Head, 658, 663; Wharton v. Marberry, 3 Sneed, 603; Wooldridge v. Paige, 1 Memph. L. J. 212; Woodfin V. Anderson, 2 Tenn. Ch. 331. In the last case the words were these: "I request that no suit shall be brought on this note, and agree that the statute shall not run against it." Held, not good. These are almost the very words of the last clause of the paper be- T.10,no.l— 3 ��� �