Mr. Justice Lipscomb
delivered the opinion of the court,
Judge 'Wheeler
dissenting.
[94]*94This suit was instituted to recover a balance of an account alleged to be due tbe estate of "Walker by McKinney & Williams, and to enjoin Swenson from proceeding to collect an account assigned to bim by McKinney & Williams, which account had been approved by the probate judge of Fort Bend county, and an order of sale procured from the court for the sale of enough of the property of the said estate to pay the same. There were several amendments to the petition, from time to time, and the cause was continued from the spring term of the court, 1845, until the fall term, 1848, when there was a verdict of the jury and a decree of the court in favor of the petitioner for a balance against McKinney & Williams, and against Swenson for upwards of $200 collected by him on the account, and a perpetual injunction against the account of McKinney & Williams, which had been assigned to Swenson, from which the defendants all appealed.
It is not necessary, at this time, to make a further statement of the case, as we shall have frequent occasion to refer to' different portions of the record. The defendants demurred and answered, and the demurrer was overruled. The record shows that, after the jury had been impaneled, the defendants’ demurrer was argued and overruled, from which we infer that the demurrer was considered as being offered to the amended petition as well as to the original. The time when taken up was-an irregularity in practice. It ought to have been disposed of by the court before impaneling the jury. But this irregularity could not affect the judgment that ought to have been rendered' on it. The correctness of the judgment of the court below, in the judgment on demurrer, will first be examined.
The first ground of demurrer to be discussed is, that the claim against McKinney & Williams is barred by the statute of limitations, as the record shows that the cause of action, if any, accrued prior to the grant of letters of administration on the estate of Walker, which is alleged to have been on the 9th day of May, 1845, and this suit was commenced on the 3d day of April, 1845. The claim set up is for cotton not accounted or paid for by the defendants before that time received.
[95]*95The 1st section of the act of limitation, passed on the 5th of February, 1841 [Laws 5th Sess. p. 163], among other canses of action therein enumerated, provides, “and all actions upon open accounts, other than such accounts as concern the trade of merchandise between merchant and merchant, their factors and servants, shall be commenced and sued within two years next after the cause of action or suit, and not after.” There could be no room for controversy, as to the statute interposing a complete bar in this case, if it had been pleaded. We believe, however, that the demurrer embraces the defense, and that it was not incumbent on the defendants to plead it. The application of the law of limitation to the plaintiff’s cause of action, as set out in the petition, shows that she has no cause of action. In the case of Coles vs. Kelsey, at the last term of this court, the subject was fully discussed, and, by reference to chancery authorities, it was clearly shown that a demurrer would present such a defense, and there was no necessity to plead it. We then showed that the first decisions under the English statute held that it need not be pleaded; that afterwards it was ruled that it ought to be pleaded, for the reason that perhaps it might be within some of the exceptions to the statute, which exceptions-could be proven under the indebitatus count. We showed that as we had no such count in our practice, and that as everything material to the plaintiff’s right of action must be specially set forth in his petition, it was incumbent on him, if the exception gave him a right, to amer that exception. We are now well satisfied with the soundness of the views expressed in that case, and that whenever the application of the law to the facts stated in the opinion will show that there is no cause of action, as in this case, a demurrer is the appropriate mode of testing its sufficiency. The fact that this would be a case in chancery, where a distinct system of equity jurisprudence, independent of the common law, exists, would perhaps give additional weight to the correctness of our conclusion; but we are unwilling to rest our opinion on that circumstance in any, the slightest, degree, because we believe that, without such adventitious aid, it is well sustained by the well established practice in our [96]*96courts, and in strict conformity with the rules of our own forum; and we are, therefore, unwilling to intimate any want of confidence in the system of practice established, as we conceive, by the constitution and law of the land. In the case referred to, we only traced the analogy between our own practice and the rules of the equity jurisprudence of other courts (see Coles vs. Kelsey and the authorities in that case cited), for the purpose of showing that on questions of practice we could derive more advantage from precedents under that system than from the common law courts. But it is believed that, even if the right of action had not been barred by the act of limitation, the demurrer was well taken.
On the second ground, that plaintiff had not shown any sufficient reason why she had not appealed from the approval of the account, and the order of sale by the probate judge, for the purpose of paying it. She alleges that she could not, within ,the proper time, avail herself of the remedy by appeal, from the fact that Briscoe, the co-administrator, would not join in any efforts to defeat the claim, and, on the contrary, was disposed to pay the same. Had there been any difference between the two, on the subject of the administration, the probate court was the appropriate tribunal for adjusting, and seeing that it was correctly administered- And again, if by his conduct he was betraying his trust, it was in her power to have restrained him, either by applying to the probate court or by resorting to the district court. This she did not do, and her assertion that .she was not able, because he would not join her, is not true in point of fact, because the remedy was ample. The appeal, or ■some other remedy, should have been resorted to. Hot having used any such means, nor given any sufficient reason for not ■doing so, I do not believe that she should afterwai’ds be permitted to disturb the action of the probate court, which I ■conceive to be a judgment on the subject matter, and the petition, therefore, showed no cause of action. • Had the probate judge refused her contestation of the claim, or to allow an appeal, there can be no question that the district court could and would have, in the exercise of its jurisdiction, controlled [97]*97the probate court. She however made no such efforts, and after having, by her silence, when she must have know it, because she does not allege ignorance, given sanction to the action of the probate court, she cannot now be relieved.
On this ground, therefore, I believe the demurrer ought also to have been sustained.
We will next inquire into the correctness of the decision of the court in refusing to give to the jury the second charge prayed by the counsel of Swenson.
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Mr. Justice Lipscomb
delivered the opinion of the court,
Judge 'Wheeler
dissenting.
[94]*94This suit was instituted to recover a balance of an account alleged to be due tbe estate of "Walker by McKinney & Williams, and to enjoin Swenson from proceeding to collect an account assigned to bim by McKinney & Williams, which account had been approved by the probate judge of Fort Bend county, and an order of sale procured from the court for the sale of enough of the property of the said estate to pay the same. There were several amendments to the petition, from time to time, and the cause was continued from the spring term of the court, 1845, until the fall term, 1848, when there was a verdict of the jury and a decree of the court in favor of the petitioner for a balance against McKinney & Williams, and against Swenson for upwards of $200 collected by him on the account, and a perpetual injunction against the account of McKinney & Williams, which had been assigned to Swenson, from which the defendants all appealed.
It is not necessary, at this time, to make a further statement of the case, as we shall have frequent occasion to refer to' different portions of the record. The defendants demurred and answered, and the demurrer was overruled. The record shows that, after the jury had been impaneled, the defendants’ demurrer was argued and overruled, from which we infer that the demurrer was considered as being offered to the amended petition as well as to the original. The time when taken up was-an irregularity in practice. It ought to have been disposed of by the court before impaneling the jury. But this irregularity could not affect the judgment that ought to have been rendered' on it. The correctness of the judgment of the court below, in the judgment on demurrer, will first be examined.
The first ground of demurrer to be discussed is, that the claim against McKinney & Williams is barred by the statute of limitations, as the record shows that the cause of action, if any, accrued prior to the grant of letters of administration on the estate of Walker, which is alleged to have been on the 9th day of May, 1845, and this suit was commenced on the 3d day of April, 1845. The claim set up is for cotton not accounted or paid for by the defendants before that time received.
[95]*95The 1st section of the act of limitation, passed on the 5th of February, 1841 [Laws 5th Sess. p. 163], among other canses of action therein enumerated, provides, “and all actions upon open accounts, other than such accounts as concern the trade of merchandise between merchant and merchant, their factors and servants, shall be commenced and sued within two years next after the cause of action or suit, and not after.” There could be no room for controversy, as to the statute interposing a complete bar in this case, if it had been pleaded. We believe, however, that the demurrer embraces the defense, and that it was not incumbent on the defendants to plead it. The application of the law of limitation to the plaintiff’s cause of action, as set out in the petition, shows that she has no cause of action. In the case of Coles vs. Kelsey, at the last term of this court, the subject was fully discussed, and, by reference to chancery authorities, it was clearly shown that a demurrer would present such a defense, and there was no necessity to plead it. We then showed that the first decisions under the English statute held that it need not be pleaded; that afterwards it was ruled that it ought to be pleaded, for the reason that perhaps it might be within some of the exceptions to the statute, which exceptions-could be proven under the indebitatus count. We showed that as we had no such count in our practice, and that as everything material to the plaintiff’s right of action must be specially set forth in his petition, it was incumbent on him, if the exception gave him a right, to amer that exception. We are now well satisfied with the soundness of the views expressed in that case, and that whenever the application of the law to the facts stated in the opinion will show that there is no cause of action, as in this case, a demurrer is the appropriate mode of testing its sufficiency. The fact that this would be a case in chancery, where a distinct system of equity jurisprudence, independent of the common law, exists, would perhaps give additional weight to the correctness of our conclusion; but we are unwilling to rest our opinion on that circumstance in any, the slightest, degree, because we believe that, without such adventitious aid, it is well sustained by the well established practice in our [96]*96courts, and in strict conformity with the rules of our own forum; and we are, therefore, unwilling to intimate any want of confidence in the system of practice established, as we conceive, by the constitution and law of the land. In the case referred to, we only traced the analogy between our own practice and the rules of the equity jurisprudence of other courts (see Coles vs. Kelsey and the authorities in that case cited), for the purpose of showing that on questions of practice we could derive more advantage from precedents under that system than from the common law courts. But it is believed that, even if the right of action had not been barred by the act of limitation, the demurrer was well taken.
On the second ground, that plaintiff had not shown any sufficient reason why she had not appealed from the approval of the account, and the order of sale by the probate judge, for the purpose of paying it. She alleges that she could not, within ,the proper time, avail herself of the remedy by appeal, from the fact that Briscoe, the co-administrator, would not join in any efforts to defeat the claim, and, on the contrary, was disposed to pay the same. Had there been any difference between the two, on the subject of the administration, the probate court was the appropriate tribunal for adjusting, and seeing that it was correctly administered- And again, if by his conduct he was betraying his trust, it was in her power to have restrained him, either by applying to the probate court or by resorting to the district court. This she did not do, and her assertion that .she was not able, because he would not join her, is not true in point of fact, because the remedy was ample. The appeal, or ■some other remedy, should have been resorted to. Hot having used any such means, nor given any sufficient reason for not ■doing so, I do not believe that she should afterwai’ds be permitted to disturb the action of the probate court, which I ■conceive to be a judgment on the subject matter, and the petition, therefore, showed no cause of action. • Had the probate judge refused her contestation of the claim, or to allow an appeal, there can be no question that the district court could and would have, in the exercise of its jurisdiction, controlled [97]*97the probate court. She however made no such efforts, and after having, by her silence, when she must have know it, because she does not allege ignorance, given sanction to the action of the probate court, she cannot now be relieved.
On this ground, therefore, I believe the demurrer ought also to have been sustained.
We will next inquire into the correctness of the decision of the court in refusing to give to the jury the second charge prayed by the counsel of Swenson. It is in the words following: “That if the defendant, Swengon, received the account in consequence of the representations of the then administrators that they would pay it, and that it was good, it would be a fraud on the said defendant were those objections now allowed to affect the claim in his hands.” To understand this charge, asked and refused, correctly, it will be necessary to have reference to a part of the evidence on the trial before the jury. The account of McKinney & "Williams against the estate of Walker had on it the following indorsements:
“Fort Bend.— We, the administrators of William Walker, deceased, know no reason why the within account of six hundred and sixty-two dollars, against said estate, should not be paid. MaRY Walker, Administratrix.
“ May 15, 1841. James M. Beiscoe, Administrator ”
“Admitted and allowed May 31, 1841.
“ Wiley Martin, Judge of Probate.”
The account was assigned to Swenson by McKinney & Williams, August 14, 1843.
James M. Briscoe, on his examination, proved that, just before the assignment (about two -weeks), the deféndant, Swen-son, called upon Mrs. Walker with witness, and stated to- them that McKinney & Williams offered to assign the account for a debt that they owed him, and he wished to know, before taking the assignment, whether it was just and would be paid. “ That they assured Swenson the account would be paid, and probably five hundred dollars of the amount out of the then growing crop of cotton; that he stated to them if they had [98]*98any objection to his buying it he would not take it; that they said they would as soon pay him as any one.”
This was more than two years after the account had been admitted and allowed by the probate judge. Swenson used more than ordinary precaution in ascertaining if there was ar.y objection to the account. The names of both of the administrators were subscribed to its allowance, and from the lapse of time when Swenson presented himself for the purpose of inquiring if they had any objection to its payment, they surely could have determined whether payment would be resisted or not. There is not a word then said about the account being unjust; not a syllable uttered by Mrs. Walker about her wish to resist payment, but that her co-administrator would not join her in its contestation. They both tell Swenson that “ it will be paid, and probably five hundred dollars out of the then growing crop.” This amounts to what Chief Justice Nelso.:', in the Wayland Canal Co. vs. Hathaway, 8 Wend. 483, calls an estoppel in pais. Although not technically an estoppel by release or by deed, yet the .party is concluded from denying it.
If permitted to contradict statements so made, on which the party to whom they were made had acted, such permission might operate to the serious injury of the party who was misled by them. It is clear, if there is anything in the proof, that in the case under consideration Swenson was induced to take the assignment on the statements made by the administrators. There are numerous cases in the books where a party has been concluded by his admissions, and not permitted to set up even an illegal consideration against such admissions. So, where the defendant had given a bond and warrant of attorney to secure a gaming debt, the bond was offered for sale to S., whose attorney applied to the defendant, who said the debt was good and would be paid when due; S. thereupon paid and took an assignment; after this, defendant moved to set aside the judgment, but was held concluded by his representations, on which S. had acted. [Davidson vs. Franklin, 1 Barnw. & Adolph, 142; Hill & Cowan’s notes on 2 Phil. 204; [99]*99see, also, Flower vs. Herbert, 2 Vesey; Clark vs. Clark, 6 Esp. Hep. 61.] So, where the assignee of a chose in action purchases it after a promise to him by the debtor to pay, or his acknowledgment to him, or in his hearing, of the debt made before or at the time of assignment; or, where the debtor stands by and silently sees the debt assigned, he shall be estopped to set up any defense as against the assignee. Thus, the debtor shall not be' permitted to prove payment before the assignment. [Hill & Cowan’s notes on 2 Phillips, 204; Morrison’s Adm’r vs. Beckwith, 4 Monroe, 73.]
It is clear, we believe, that the administrator, after having induced Swenson, in this case, to purchase the assignment of the account by her own statements, is estopped or concluded from interposing any defense against the payment of the same.
"Ye are not aware that her suing in a representative capacity can confer on her any right to commit a fraud on an innocent person, and then shelter herself from the consequences of such fraud under the pretext of acting in a fiduciary capacity. As an administratrix, she represented the debt as a good and valid debt, and that it would be paid, and she cannot now be permitted, on any principles of law or equity jurisprudence, to deny it. Tl;e court cannot lend its aid to the perpetration of so much injustice, but Avill leaA^e her to account for her administration, as best she may, with creditors or distributees.
She has placed herself in a position, in relation to Swenson, that, however fraudulent the account may be of McKinney & Williams (of Avhich, however, we have seen no evidence), she cannot be relieved.
There are several other interesting questions arising on the construction of the probate law of 1840, that were discussed Avith much ability in this case, and Ave should have felt bound to have given to them an adjudication but from the fact that those points will be presented in other cases, and we shall have the benefit of again hearing them argued, and a decision on them could not affect the result, in any way, of this case; they will not now be decided.
[100]*100We believe the court erred in refusing to give the charge prayed in behalf of Swenson, and we believe the court erred, also, in rendering a judgment for the plaintiff below on the defendants’ demurrer; for which the judgment and decree must be reversed, and this court should render such judgment as the court below ought to have rendered.
The judgment is reversed, and the cause dismissed.