Starke v. Keenan's ex'rs

ORMOND, J. The objection urged to the testimony rejected by the court is, that as it was the merc]admission of the existence of a fact, by one, who not being a party to the record might have been examined as a witness, it was mere hearsay, and was therefore properly excluded. The general rule, certainly is, that admissions by persons who are not parties to the suit, though made against their interest, can [591] not be given in evidence, but the rule does not apply to this case. The executor who made the written admission of the presentment of the claim here sought to be enforced, although not a party to the suit, having resigned his appointment sin.ce the presentment was made; at the time it was made, represented the deceased, and had full power and authority to act upon the subject. Where there are more executors than one, there may be acts to be done, which require the concurrent .action of all; but in relation to the point here presented, one has authority to act for all. [Acre v. Ross, 3 Stewart 288.] The person appointed by law to receive the presentment must have authority to acknowledge that such presentment was made, and this acknowledgment cannot be deprived of its efficacy, as evidence by his subsequent act. So each of several executors has authority to receive payment of debts due the deceased, and it would scarcely be contended in such a case, that the resignation of the executor, to whom the payment was made, would prevent his receipt from being evidence of the fact of payment, and make it necessary that the executor should be called as a witness, and yet there is no difference in principle between the two cases. If there be any difference between these, the case supposed is not so strong as the one at bar, as the claim must be presented or it is barred. The statute does not, it is true, require the executor to acknowledge the fact of presentment, but it would be absurd to suppose that he had not the power to do so. The object of evidence is to establish the existence of facts, but when the fact is admitted, there is no necessity for further proofs. It results from what has been stated, that the court erred in the rejection of the written acknowledgment of one of the executors, that the claim had been presented, and its judgment is therefore reversed, and the cause remanded.