to see what could be done for him, would doubtless be sufficient to maintain an action, if the consideration were the defendant's own debt. But can any acknowledgment by an executor or administrator, preclude him from pleading the statute of limitations to a count on the original cause of action? In Jones v. Moore, 5 Bin. R. 573, and subsequently in Bailey v. Bailey, 14 Serg. & Rawle, R. 195, and Scull v. Wallace, 15 Serg. & Rawle, R. 231, it was doubtless taken for granted, that a recovery may be had against a plea of the statute, on proof of an acknowledgment by the personal representative. But it is to be remarked, that the point has not been adjudged, and that no recovery has in fact been had; and the inquiry is consequently not clogged by the authority of a precedent. In respect to the first of those cases, it is fair, too, to say it was the first step taken by this, or perhaps any other court, in returning to the spirit and letter of the statute. But when it was determined that a recognition of the old debt is no more than evidence of a new promise, which, when made to the representative of a decedent, can be sued by him but in a personal character, it was virtually determined that the same recognition by a personal representative, is but evidence of a new promise, on which he may not be sued, otherwise than in his personal character, without overturning some of the most firmly fixed principles of the law; for nothing is better settled than that an executor or administrator is answerable in his official character, for no cause of action, that was not created by the act of the decedent himself; and it is, therefore, singular, that the principle in its application to these convergent propositions, was not carried out. In actions against the personal representative, on his own contracts and engagements, though made for the benefit of the estate, the judgment is de bonis propriis; and he is, by every principle of legal analogy, to answer it with his person and property. The pleadings, it is true, have not hitherto been moulded to the new principle; nor could they be in the case of an acknowledgment by a personal representative, whose promise gives no action against him, unless it be sustained by some other consideration than the previous debt, which imposes no moral obligation to pay it out of his own pocket, especially, since he has been deprived of all color of title to the residue. Had the judges, when they determined that a promise to the representative of a decedent must be declared on as such, also determined that it must be declared on as such, when made by him, they would have restored the law to its primitive symmetry, and suggested a principle that would have entirely extinguished

the notion of revival, which, for want of it, seems to have lingered in its embers through the succeeding cases; for the forms of the law are the indices and conservatories of its principles. It would not only have indicated the necessity of a special consideration, to support the promise of a representative, but it would have disclosed a bar to an action against two or more, on a promise by one. And as he cannot charge himself personally without a new consideration, he cannot charge the estate, on the foundation of the old one, to the prejudice of the creditors, whose fund might be materially lessened by it. He is not bound to plead the statute, because he may know the debt to be a just one; and for that reason only, the matter is left to his discretion; but it follows not, that he may tie up his hands from using it, when the time come, by a mistaken concession, or an engagement which has no consideration to bind him personally or officially. Besides, it would be hazardous to expose the estate to the consequences of his inexperience or ignorance of the demands made upon him. We know how perilous a thing it is for the debtor himself, though armed with knowledge and vigilant to guard against surprise, to converse about a debt barred by the statute; but the peril would be overwhelming, if the estate were to be jeoparded by the mistakes of one, who is bound to parley, and has not only every thing to learn, but to learn it from those whose interest it is to mislead him. Why, then, should we not finish what was so well begun, in Jones v. Moore, by making the law of the subject consistent in all its parts, and giving to the statute entire effect, both in substance and in form. To do so, would involve no violation of that case as a precedent, for, as I have said, the point was not adjudged; and the step remaining to be taken in the progress of departure from the doctrine of revival, is no greater than was taken there. Indeed, there is no course open to us, but to follow the principle out, or abandon it altogether; for, to be consistent, we must either return to the doctrine of revival without qualification, or maintain that an action on his own promise, lies not against an executor or administrator in his official character. And for saying it does not, we have the authority of Thompson v. Peters, 12 Wheat. R. 565, and Peck v. Botsford, 7 Conn. R. 178; in both of which, the point was directly ruled.”1

1 [An express promise by an administrator will not revive the debt against the estate of his intestate. Sanders v. Robertson, 23 Miss. (1 Cush.), 389; Moore v. Hardison,

§ 267. In a subsequent case in Pennsylvania, wherein it was held, that an executor's promise to pay a debt of the testator, will not take it out of the statute, the court rely upon the above case in support of the ground, that, as the old promise was not revived, but superseded by the new one, the consideration of a moral obligation would be wanting to make the executor personally liable. An admission by one co-executor of a debt due from his testator is nowhere receivable as evidence in a suit for the debt, against another co-executor to establish the origin of the demand, as to make the other personally liable; though otherwise to take it out of the statute, if the original demand against the testator is aliunde established.2

§ 268. As the debtor may waive the statute by a sufficient acknowledgment, or by one which amounts to a new promise either express or implied, he may make it to the executor or administrator upon the estate of his deceased creditor, and will be bound by it. Thus in Martin v. Williams, executor of Williams, in error, it was held, in New York,3 that in an action by an executor, an acknowledgment of the debt to him within six years, by the debtor, is evidence to support a new promise; and in Dexter v. Penniman, in Massachusetts, the court say, that an admission to an executor or administrator, is sufficient to take a case out of the statute.5 And so, also, has it been held in Pennsylvania.6

§ 269. It is not necessary that the acknowledgment should be made to the creditor himself, or to his executor, for if made to a stranger in the absence of the creditor or his executor, it will defeat the operation of the statute, as raising an implied promise.

Admis

10 Texas, 467; Moore v. Hillebrunt, 14 id. 312; Riser v. Snoddy, 7 Ind. 442. Nor will a part payment. Miller v. Dorsey, 9 Md. 317. And see, also, Henderson v. Ilsley, 11 S. & M. (Miss.), 9; Hazzleton v. Whitesides, 2 Strobh. (S. C.), 353; Forney v. Benedict, 5 Barr (Penn.), 225.]

1 Reynolds v. Hamilton, 7 Watts (Penn.), R.

2 Hammon v. Hunt, 4 Cow. (N. Y.), R. 493; Deyo's Ex'rs v. Jones's Ex'rs, 20 Wend. (N. Y.), R. 491.

3 Martin v. Williams, 17 Johns. (N. Y.), R. 330.

4 Dexter v. Penniman, 8 Mass. R. 134.

5 Recognized in Emerson v. Thompson, 16 Mass. R. 429, and in Peck v. Botsford, 7 Conn. (N. Y.), R. 179.

6 Jones v. Moore, 5 Binn. (Penn.), R. 573.

7 Porter v. Hill, Greenl. (Me.), R. 41; Whitney v. Bigelow, 4 Pick. (Mass.), R. 110 ;

sion of indebtedness to and promise to pay the payee of a note, have been deemed sufficient to enable the indorsee to avoid the statute.1

Soulden v. Van Rensellaer, 9 Wend. (N. Y.), R. 293; St. John v. Garrow, 4 Port. (Ala.), R. 223; [Bloodgood v. Bruen, 4 Sandf. (N. Y.), Sup. Ct. 427; Carshore v. Huyck, 6 Barb. (N. Y.), Sup. Ct. 583; Watkins v. Stevens, 4 id. 168; Phillips v. Peters, 21 Barb. (N. Y.), 351; ante, § 246. But it seems otherwise in England since the Stat. of Geo. IV. c. 14; Grenfell v. Girdleston, 2 Y. & C. 662; Goate v. Goate, 37 Eng. L. & Eq. 486. And the admission must be made with intent to influence the action of the creditor. Wakeman v. Sherman, 8 Selden (N. Y.), 85]. 1 Frye v. Barker, 4 Pick. (Mass.), R. 382; Little v. Blunt, 9 id. 488; Dean v. Hewett, 5 Wend. (N. Y.), R. 257; Howe v. Thompson, 2 Fairf. (Me.), R. 152; [Bird v. Adams, 7 Geo. 505. But held otherwise in Thompson v. Gilreath, 3 Jones (N. C.), Law, 493]. And the indorser is a competent witness to prove the time when the payment was made, provided he has shielded himself from all liability, by ordering the contents of the note to be paid "without recourse," or words equivalent. Rice v. Stearns, 3 Mass. R. 225; Howe v. Thompson, supra; Buskins v. Wilson, 6 Cow. (N. Y.), R. 471; Barretto v. Snowden, 5 Wend. (N. Y.), R. 181; and see Dowling v. Ford, 1 Mees. & Welsb. (Ex.), R. 325. [When notes, secured by mortgage, have become barred by the statute, the creditors of the mortgagor may claim the benefit; nor can any rights acquired by the creditors, by the running of the statute, be affected by a subsequent acknowledgment of the debt by the debtor. Larthet v. Hogan, 1 La. Ann. 330.]

CHAPTER XXV.

ACKNOWLEDGMENTS IN WRITING.

§ 270. MR. BROUGHAM,1 in his speech, delivered in the British House of Commons, on the 7th of February, 1828, on legal reform, in giving a detail of the defects and anomalies of English law, which, in his judgment, required legislative correction, proposed "to prop up the statute of limitations by the statute of frauds," and say that nothing should take the case out of the former but a new promise in writing, and thus put an end to absurd and contradictory decisions. In the following May, the Act of 9 Geo. IV. c. 14, was passed, which was to that effect, and which was entitled, "An Act for rendering a written memorandum necessary to the validity of certain promises and engagements;" and was to commence and take effect on the first of January, 1829.2 It has been called "Lord Tenterden's Act," from its author, the late learned Lord Chief Justice Tenterden, of the Court of King's Bench. As declared by Mr. Justice Thompson, in giving the opinion of the Supreme Court of the United States, in Moore v. Bank of Columbia, "it shows, in a very striking point of view, the sense of the English legislature, of the very great mischief which has resulted from vague and loose declarations, in a great manner to set aside and make void the statute of limitations." "Although," says Chief Justice Shaw, "it does not attempt to define what species or form of acknowledgment shall be sufficient to found a new promise, yet, when parties are compelled to rely upon written acknowledgments, framed for the express purpose of renewing and continuing a promise which has expired, or is about expiring, such acknowledgment may reasonably be expected to be definite in its reference to the debt, security, or promise, intended to be continued in

1 Since Lord Chancellor Brougham.

2 See the Act in the Appendix, p. cxlv.

8 Moore v. Bank of Columbia, 6 Peters (U. S.), R. 86.