NARR. in assumpsit on an account stated with the intestate, andalso with the administrator. Pleas non assumpsit; payment; discount, and the act of limitation.
The suit was commenced May 10th, 1845, and was sustained by proof of the following settlement under hand. "Jan. 6, 1840. This day James Chambers and Thomas Fennemore, administrators of John Fennemore, deceased, settled, and there was a balance due from the estate of John Fennemore to James Chambers, of $249 10."
Mr. Wales, made the point that this written acknowledgment under the hand of the administrator, of a sum due the plaintiff, was not sufficient to entitle the plaintiff to recover without an actual promise of payment.
The Court charged the jury that the plaintiff was entitled to recover; and told the defendant's counsel if he wished to argue this question more fully, whether this evidence of a settlement was sufficient to prevent the bar of the statute of limitation, he might move for a new trial for misdirection.
Verdict for the plaintiff, and rule to show cause why a new trial shall not be granted.
Mr. Wales. — It is not competent for an administrator by acknowledging a debt, to take it out of the act of limitation. The protection *Page 369 and security of decedent's estates, require that a mere acknowledgment shall not have this effect. Such an acknowledgment, without an express promise to pay, will not take a case out of the act of limitation. An acknowledgment by both executors, and a promise by one to pay, is not sufficient. There must be an express promise by all the executors, (2 Wms. Ex'rs. 1197; 21 Eng. C. L. Rep. 478; 12 Wheat. Rep. 565; Cox Digest 465; Toller Ex'r. 343, 429; 1 Eq. Ca. Ab. 309; 15 Ves. jr. 498.)
Rogers. — This question depends on our own statutes. The English decisions, as well as their statutes on this subject, have been conflicting; but in this State, at least since the case of Newlin and Duncan, the law is settled. Under the act of 1782, § 5, the executor was not authorized to pay any debt barred by limitation. That act was varied by the act of 1793, which provided, that the former act should not apply where there was an acknowledgment of a subsisting demand under the hand of the party. Such an acknowledgment is equal to a promissory note. In Newlin vs. Duncan, the Court of Appeals decided, that the mere acknowledgment of a debt was evidence of a promise to pay it. (1 Harr. Rep 204.) The same principle is recognized in Black's executors vs. Reybold, 3 Harr. Rep. 528.
In the present case there is no evidence that the claim was ever barred by limitation. It does not appear hut that the demand was of a character to which the statute did not apply.
The writing is not a mere recognition, but a promise to pay the debt. It is an instrument upon which an action might be brought, without resorting to any thing else. (1 Harr. Rep. 214; Dig. 397.)
Wales. — The case of Newlin and Duncan refers to an acknowledgment by the original debtor; and I do not question it as to this. But it is different as to the acknowledgment of one acting in a representative character. The exception in the act of 1829, (Dig. 397,) has reference to settlements made by the original parties, and not persons acting in a representative character. No case has been shown, or can be shown, from any court of authority, deciding that the mere acknowledgment by an administrator of a debt due, without a promise to pay it, will revive a debt barred by limitation.
Curia advisare vult. This was an action of assumpsit, commenced on the 10th of May, 1845, and tried at the May term, 1846. The declaration contains two counts. The first count is upon the *Page 370 promise of the intestate, for goods sold and delivered, money lent, and, money paid by the plaintiff; money had and received by the intestate for plaintiff's use; and for money found to be due from the intestate to the plaintiff, on an account stated between them. The second count is upon the promise of the defendant as administrator, to pay the plaintiff the sum of $249 10, found to be due to him from the defendant, as administrator, on an account stated between them.
The pleas are: 1. Non assumpsit. 2. Payment. 3. Discount. 4. The act of limitation.
Upon the trial of the cause, the plaintiff offered no evidence under the first count, but relied on the second count; the only evidence in support of which, was a written acknowledgment under the hands of the parties in these words: "January 6th, 1840. This clay James Chambers, and Thomas Fennemore, administrator of John Fennemore, deceased, settled; and there was a balance due from the estate of John Fennemore, deceased, to James Chambers, of two hundred and forty-nine dollars and ten cents."
(Signed) JAMES CHAMBERS.
THOMAS FENNEMORE, Adm'r.
The defendant's counsel insisted that the original demand against the intestate was barred by the act of limitation, and that the plaintiff was not entitled to recover, because there was no express promise by the administrator, to pay the balance ascertained to be due on the settlement made between them.
The court charged the jury, that the written acknowledgment was sufficient evidence to support the second count in the declaration, and to entitle the plaintiff to recover. Under this instruction, the jury found a verdict for the plaintiff for $344 24; being the amount of the principal sum of $240 10, and its interest.
The defendant's counsel obtained a rule to show cause why the verdict should not be set aside, and a new trial granted; and filed the following reasons: 1st. Because the verdict is against the law and the evidence in the cause. 2d. Because of the misdirection of the court in their charge to the jury, in declaring to the jury, that the evidence produced by the plaintiff was sufficient to sustain this action.
At the hearing of the rule, the defendant's counsel assumed in his argument, that the original demand against the intestate was barred by the act of limitation; and then contended, that no acknowledgment of an executor or administrator, whether by parol or in writing, of a debt clue from him in his representative character, prevented *Page 371 the operation of the act, unless such acknowledgment was accompanied by an express promise to pay: that the written acknowledgment under the hands of the plaintiff, and the defendant as administrator, contained no express promise on the part of the latter to pay the balance found to be due upon their settlement; and, therefore, that such written acknowledgment did not prevent the bar of the act of limitation.
To this argument it may be answered: 1st. That it does not apply to the case. 2d. That it is not sustained by the decisions of the courts in this State, or by the case cited in its support. As the plaintiff offered no evidence in support of the first count, it could not appear that the original demand against the intestate was barred by the act of limitation, either before or after his death. The plaintiff proceeded entirely upon the second count, and relied on the promise and undertaking of the defendant, in his character as administrator, to pay the balance found to be due to the plaintiff, on the account stated between them. This constituted a good cause of action against the defendant in his representative capacity; distinct from, and independent of, the original demand against the intestate. (Smith'sAdm'r. vs. Forty, 4 Carr Payne 126; 19 Com. LawRep. 306.)
An account stated is an agreement, by both parties, that all the items are true. It changes the character of the original debt, and is a new contract or undertaking. The stating of the account is the consideration of the promise to pay the sum found to be due; and therefore the items need not be proved. (Trueman vs.Hurst, 1 Term. Rep. 42; Foster vs. Allanson, 2Term. Rep. 482.)
In the present case, the written acknowledgment under the hands of the parties, was the only evidence offered under the second count. It was admitted without objection, and was amply sufficient to sustain it. It showed that an account was stated and settled between the parties, in relation to claims and demands existing between the plaintiff and the intestate in his life time; that upon such settlement, a balance of $249 10, was found to be due from the intestate, and that the defendant, as administrator, promised to pay it; thus proving a new cause of action against the defendant, for which the plaintiff was entitled to recover, without reference to his original demand against the intestate. The written acknowledgment is equivalent to a promissory note, or any other unsealed instrument, containing an admission of a debt, and a promise to pay it. The only question that could arise in this cause respecting the act of limitation, was, whether *Page 372 the cause of action under the second count was barred: and clearly it was not; because by the 5th section of our act, (Dig. 397,) "when the cause of action arises from a promissory note, bill of exchange, or an acknowledgment under the hand of the party of a subsisting demand, the action may be commenced at any time within six years from the accruing of such cause of action." Here then, is an acknowledgment under the hand of the defendant, as administrator, of a subsisting demand, signed the 6th of January, 1840, upon which a suit is instituted on the 10th of May, 1845; and, therefore, is not within the operation of the act of limitation.
2d. Admitting that the plaintiff offered evidence in support of the first count, and it clearly appeared, that the original demand against the intestate was barred by the act of limitation; still the plaintiff was entitled to recover upon the second count founded on the account stated. The position that no acknowledgment by an executor or administrator, either by parol, or in writing, of a debt due from him, in his representative character, prevents the operation of the act of limitation, unless accompanied by an express promise to pay the debt, is not sustained by the decisions of our own courts, or by the case cited in support of the position. An unqualified and unconditional acknowledgment of a present, subsisting debt, and that the party is liable and willing to pay it, has always been held in this State, to take a case out of the act of limitation; and since the act of 1829, such an acknowledgment by an executor or administrator is sufficient for that purpose, in an action against him, for a debt due from the deceased. An express promise to pay, is not necessary, either by the original party, or by his personal representative. Our courts have always held, as between the original parties, (and since the act of 1829, the principle applies to executors and administrators,) that the acknowledgment revives the old debt, and is a waiver of the statute. Hence, an acknowledgment made after action brought, has always been received in this State, to prevent the bar of the statute; although in England, it has been lately decided otherwise. (Batemanet al. vs. Pinder, 43 Com. Law. 873.) But in an action against an executor or administrator, for a demand against the deceased debtor, if it be material for the plaintiff to avail himself of a promise or acknowledgment by the personal representative, to avoid the act of limitation, it is necessary, besides the usual counts upon the original demand against the testator or intestate, to add one or more counts' on promises by the executor or administrator in that character. Without such counts, the promise or acknowledgment cannot be *Page 373 given in evidence, because it does not support the counts upon the original contract of the deceased with the plaintiff.
By the statute 9 Geo. 4, chap. 14, sec. 1, no acknowledgment or promise by words, is sufficient to take any case out of the operation of the statutes of limitation. For such purpose, the acknowledgment, or promise, must be made or contained by or in some writing, to be signed by the party chargeable thereby. It is remarked by Tindal, C. J., in Haydon, assignee of Sutton vs. Williams, 7Bing. 163; 20 Com. Law Rep. 87, that the statute did not intend to make any alteration in the construction to be put upon acknowledgments or promises made by defendants, but merely to require a different mode of proof; substituting the certain evidence of a writing signed by the party chargeable, instead of the insecure and precarious testimony to be derived from the memory of witnesses. To inquire, therefore, since the statute 9 Geo. 4, chap. 14, whether, in a given case, the written document amounts to an acknowledgment or promise sufficient to take the case out of the statute of limitation, is no other inquiry, than whether the same words, if proved before the 9 Geo. 4, chap. 14, to have been spoken by the defendant, would have had a similar operation and effect. As an express promise, either by the original party liable, or by his executor or administrator, to pay the debt, was at no time necessary to take the case out of the statute of limitation before; neither is it necessary since the 9 Geo. 4. An acknowledgment by the party, which contains a direct admission of a present, subsisting debt, and raises an implied promise to pay, is equally sufficient since, as it was before the statute. The case of Tulloch vs. Dunn et al. executors of Hanley, cited for the defendant, was decided by Abbott, C. J., afterwards Lord Tenterden, at Trinity term, 1826, in the 7 Geo. 4, Com. Law Rep. 478, Ryan and Moody 416. This case is relied upon by the defendant's counsel, as establishing the position that in an action against an executor, an express promise by him is necessary to prevent the operation of the statute of limitation. An attentive examination of the case will not lead to such an inference. The declaration contained the usual money counts, stating promises both by the testator, and the executors. The defendant pleaded the general issue, and the statute of limitation. The testator died upwards of six years before the action was brought; and both the executors had, within six years, acknowledged the plaintiff's demand was due. One expressly promised it should be paid; but the other did not, because it was doubtful whether the payment would be sanctioned by the family. The Chief Justice *Page 374 nonsuited the plaintiff; because neither an express promise by one of two executors to pay, nor the mere acknowledgment by both, that the debt was due, but from which acknowledgment no implied promise to pay could be inferred, was sufficient to take the case out of the statute. To have entitled the plaintiff to a recovery, it was necessary either that both the executors should have expressly promised to pay, of that both should have made such an acknowledgment of the debt, as under the circumstances of the case, would have raised an implied promise to pay it. The reason why an express promise, or such an acknowledgment by only one of several executors or administrators, where he is not authorized by the others to act for them, is not sufficient to take a case out of the statute of limitation as to all, is because it does not maintain the issue. The allegation is, that both promised; and the proof is, but one promised. It is wholly unlike the case of an acknowledgment or promise by one of several partners, joint debtors, or makers of a promissory note, which is received as evidence against all; because, as there is a joint-interest among them, an admission by one, is an admission by all. And if several executors or administrators authorize one to transact the business of the deceased's estate, they would be bound by his express or implied promise. That Lord Tenterden never meant to lay down such a rule as the defendant's counsel contends for, is manifest from his opinion, and that of the other judges of the King's Bench, in the case of M'Culloch vs. Dawes and another, executors, reported in 22 Com. LawRep. 385; 2 Dowling Ryland 40. The case was decided at Michaelmas term, 1826, 7 Geo. 4; five months after the case of Tulloch vs. Dunn et al. executors of Hanley. The case of M'Culloch vs. Dawes and another, was assumpsit upon the money counts; laying the promises, first, by the testator in his life time; and secondly, by the defendants as his executors, since his death. The pleas were the general issue and the statute of limitation. At the trial of the cause it was admitted that as to the testator, the debt was barred. The question was, whether an acknowledgment made within six years by Dawes, one of the executors, who had taken upon himself the most active part in the management of the testator's affairs, was such as would take the case out of the statute of limitation. Shortly before the action was brought, the plaintiff called on Dawes, one of the defendants; stated his claim upon the testator's estate; and expressed a hope that the executors would see it settled. Dawes admitted the debt was just, and had never been paid; but that he could do nothing without the *Page 375 consent of the testator's family. Lord Tenterden, before whom the case was tried, was of the opinion, that this was not such a personal acknowledgment of the debt, or promise to pay it, as would take the case out of the statute, and therefore nonsuited the plaintiff.
Upon a motion to set aside the nonsuit, and for a new trial, the chief justice, and the other judges, never gave the slightest intimation that an express promise was necessary. They were of the opinion, that there was no such acknowledgment of the existence of the debt as amounted to an admission that the executor thought himself liable to pay it; or from which the law would imply a promise to pay on behalf of himself and his co-executor; but that it was a mere reference of the plaintiff to the family of the testator to say, whether the debt should be paid or not. The court admitted the well settled principle, that a mere acknowledgment of the existence of a debt, unaccompanied by a promise, express or implied, to pay it; is not sufficient to take a case out of the statute of limitation: from which it is to be inferred, that had the acknowledgment been accompanied by an implied promise to pay, it would have been sufficient for that purpose; and, therefore, that an express promise is not necessary.
An executor or administrator in this State, is not bound to plead the act of limitation against an unquestionably just and honest debt. In such case he may, consistently with the faithful exercise of his* trust, remove the operation of the act by an express promise, or by an acknowledgment accompanied by an implied promise to pay the debt. But if the demand is of doubtful or suspicious character from lapse of time, the death of witnesses, loss of papers, or other circumstances, he is bound to protect the estate by resisting the claim; and has no right to waive any legal defence to an action brought to enforce it. If he does, or if he pays it voluntarily, he acts at his peril; and renders himself liable to those who are interested in the personal property of the deceased.
In the present case, the opinion expressed by me at the trial, remains unchanged. The direction of the court to the jury was right; and the verdict being in conformity with it, ought not to be disturbed. The rule therefore, ought to be discharged, and judgment given for the plaintiff.
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