One defence set up is that the administrator obtained from the orphans court the usual series of rules to bar creditors; and that the complainant filed her sworn claim against the estate in due time; that the administrator served the usual notice upon her; that a portion of the same was contested; and that she must bring her suit within three months, and that this suit was not brought within that time.

The notice to bring suit was dated on the 25th of July, 1901. The precise time when it was served, I think, does not appear by the proof, but the complainant produces a stipulation, signed by the solicitor of the administrator and by the solicitor of Mrs. Bolger, which states that the notice was served on the 2d of August, 1901, and that the time for the commencement of the suit might be extended to the 22d of November, 1901. The original bill was filed November 2d, 1901. An amended bill was filed on the 16th of January, 1902, which, by the written consent of the several solicitors of the defendants, was to stand in the place of the original bill.

I am unable to perceive under this state of facts how the plea of the bar of the decree of the orphans court can apply.

Besides, it abundantly appeared in the course of the production of the evidence in the case of Collins v. Toppin, 65 N. J. Eq. (20 Dick.) 439, which was heard and submitted before the hearing in the present case, but decided afterward, that the complainant was during the latter part of the month of August and the whole of the months of September and October, 1901, and from then to date, so far mentally diseased as to be incapable of attending to her business. No proof of this was made in this cause; but, as I recollect it, it was assumed by counsel on all sides to be within the knowledge of the court, and if necessary for the purposes of this case I would open the proofs for the purpose of permitting it to be formally proven herein.

Moreover, there has been no settlement of the accounts of the administrator. The bar of the statute is not set up by the administrator but by the next of kin, and the suit is substantially against the next of kin, and even if the bar were effectual in favor of the administrator, it is by no means certain

(although I wish at this moment to express no definite opinion on the subject) that it could under the circumstances be availed of by the next of kin. I am therefore of the opinion that this defence fails.

The question, however, whether it does not apply to a certain portion of the complainant's claim for money lent, hereafter to be mentioned, still remains.

It is well settled (Wood v. Chetwood, 44 N. J. Eq. (17 Stew.) 64) that this claim could not be enforced by a suit at law. It is based upon a contract, express or implied, between husband and wife and must be brought in equity. Hence the filing of the bill is the commencement of a suit within the equity of the statute and is sufficient.

One part of the whole claim, as I have said, consists of money loaned by the wife to the husband. The facts are these:

It appears that on the 17th of April, 1888, complainant drew from an account which she had in the Provident Institution for Savings of Jersey City the sum of $1,000; and that on the 18th of April, 1888, she drew from an account which she had in the Emigrant Industrial Savings Bank, $1,100; and it appears that on the 20th of April, 1888, the defendant deposited to his account in the First National Bank of Jersey City the sum of $5,000 in currency, and the argument therefrom is that the wife loaned to the husband at that time $2,100, and that is the basis of that part of the claim for money loaned originally presented to the administrator and stated in this wise: "April 17, 1888, $1,000 loaned and advanced to Martin Collins by Mary Collins, his widow; April 18, 1888, $1,100 loaned and advanced-total $2,100." These drafts and the deposit of moneys are the only evidence, except admissions made by the deceased husband, offered in support of that claim. Whether any entries thereof were made in the books of account of Martin Collins, who was engaged in business in Jersey City, does not appear, for all his books of account prior to about 1893 were accidentally burned at that time.

At the hearing the complainant was permitted to amend her claim by adding thereto $1,000 for money loaned and advanced

by her to her husband in or about the year 1892, and in support of that she relies upon an entry, or series of entries, in the books of account of Martin Collins to her credit of $1,000, moneys loaned at that time, and that entry was carried forward from year to year in his books of account by his directions down to the time of his death, October 11th, 1900.

The excuse given by counsel for not putting that $1,000 in the original claim was that the wife was unaware of its entry in the books. The sworn claim to the administrator was made by the wife on the 29th of April, 1901, and it is a fair matter of argument that if, as claimed at the hearing, her husband owed her $3,000 instead of $2,000, as claimed by her, she ought to have known it and so instructed her counsel. I think the ex

cuse made by counsel for this omission is wholly insufficient. It satisfactorily appeared that one, if not the main, object of the assignment to Mr. Davis was to enable the present complainant to be a witness in the suit to be brought by him, and in that case her evidence could as well include the $1,000 loaned in 1892 as the $2,100 loaned in 1888.

But here again the state of her mind comes in. It was known to the court that she had previous to that time been on two separate occasions incarcerated as a lunatic in the Morris Plains hospital; and that she was released therefrom against the protest of the physicians as fit to be at large on the 27th of January, 1901, just three months previous to the time of her making her sworn claim; and that the assignment to Mr. Davis was dated a day or two after her release. And if it was not understood by the counsel for Mrs. Bolger that these facts were in the mind of the court at the hearing of this cause, I should feel disposed to open the proofs to enable the complainant by her next friend to prove them as an explanation of the failure to include the whole claim now made in the written claim made on the 29th of April, 1901.

Reliance for proof of the whole of this claim for money loaned is had upon several admissions made by Martin Collins in the early part of the year 1900 to his wife and others that he owed her $3,000. The proofs of these admissions, though some

what suspicious under the circumstances, are so clear and abundant that I do not see my way to refuse them probative force, and I must accept as a proven fact in the case that he did admit on two or three occasions in 1900 to his wife and to another person in her absence that he owed her $3,000, and it is fairly to be inferred from the language used that it was for money lent. And one witness swears that he specified the origin of the debt as $2,100 borrowed when he commenced business, in 1888, and $1,000 when he was in financial distress, in 1892, or thereabouts. A payment of $100 on account of the indebtedness on or about February 13th, 1901, is relied upon to take the case out of the operation of the statute of limitations. Proof of this payment is given by a female friend of the husband and wife, Miss Lottie Toppin, a sister of the defendant in Collins v. Toppin and a witness in that suit.

Her testimony satisfies me that the deceased did, on the occasion testified about, hand to his wife the sum of $100, but it fails to satisfy me that it was made on account of any indebtedness from the husband to the wife. The proper inference, as I think, to be drawn from the evidence of this witness is that it was handed to his wife by her husband precisely as any husband would hand money to his wife for her use as spending money. But one witness, perhaps two, do swear that subsequently the deceased admitted that he had owed his wife $3,100, and that he had recently paid her $100 on account thereof, and I am unable to say that I do not believe the truthfulness and accuracy of these witnesses, although, as before remarked, the evidence is given under very suspicious circumstances, especially in view of the fact that the original claim, made up on the 30th of April, shortly after these admissions were made, was confined to the claim for the money advanced in the year 1888.

I come, then, to this conclusion upon the facts, viz., that the complainant did loan or hand to her husband the sum of $2,100 on the 17th and 18th of April, 1888; that she did loan to him the further sum of $1,000 in the year 1892, and that he admitted in the early part of the year 1900, on two or three occasions, that he owed his wife the sum of $3,000, and to one

person he admitted that that indebtedness was founded on the items just stated.

I find, as a further fact, that he did hand to his wife, on or about the 12th or 13th of February, 1901, the sum of $100, but that the proof does not show that at the time it was treated by either party as a payment on account of an existing indebtedness, but that he subsequently admitted in connection with an admission that he had owed his wife $3,100 that he had paid her $100 on account thereof. The proof, then, is an admission of an indebtedness in præsenti, based on money loaned and advanced more than six years previously and an admission of a payment made on account thereof within one year, and the question is whether the claim is barred by the statute of limitations, and, if so, whether an exception exists as to the $1,000 loaned in 1892, which was carried forward from year to year on the books of the deceased to the credit of his wife.

The case has been in substance twice argued. At the first argument counsel for complainant put his case upon the vitalizing effect of the payment of $100, above mentioned.

I examined this question carefully and came to the conclusion that as the proofs showed satisfactorily that such payment was not in fact a payment on account of an indebtedness, the subsequent admissions of the deceased that it was so paid was not sufficient to avoid the effect of the statute of limitations.

On a reargument counsel for complainant put his case upon the ground (1) that the suit being in effect by wife against husband was of necessity brought in equity; (2) that the statute of limitations did not by its terms apply to a suit in equity; (3) that it was to be applied here by analogy, and in such a manner as to advance and work equity; (4) that the transaction, in point of fact or in substance, was a mere deposit by the wife with the husband of moneys to enable him to start and prosper in his business, and was not by either party expected to be withdrawn suddenly, and hence that no action would lie for it until after a positive demand made and a reasonable time afforded for payment; and (5) that the considerations of the relations existing between husband and wife had led to the