#### Cobham, assignee of Creedon vs. Administrators.

r-iASE upon a note of hand, and the act of limitation pleaded amongst oilier pleas. The note was executed and made payable before the war, and suit had not been commenced till long after three years of computable time had elapsed from the day of payment. Evidence was offered by the plaintiff’s counsel of an admission of the debt within three years next before the action commenced, which was objected to by the defendant’s counsel, on the ground that any exception to take the case out of the act should have been replied and notice thereby given of the particular fact relied upon to take the case out of the act, and be was about to produce authorities to that point. Per curiam. You need not produce cases to that effect, the law is so, and if you insist upon it, on that ground the court will reject the evidence ; but the practice of the bar has been not to draw out the pleadings at length, nor to reply but when the act of limitation is pleaded ; to proceed to give evidence of facts that will avoid the act, as if such facts had been replied ; it is for you tíi consider whether incisting upon the strict rule of law at this *7iime be for the advancement of justice or consistent with the implied agreement amongst the practitioners, is not to take advantage for want of a replication. . The plaintiff’s counsel then said, if the practice had been as stated he would not infringe it, wherefore the evidence was given, which proved that the intestate in his lifetime had admitted the debt, and that after his death the note was presented to one of his administrators, who said it is the signature of the deceased and ail his just debts shall be paid when the Holly Shelter lands are sold.

Counsel for the defendant

-Here is not any admission of the existence of this debt $ ad mission of the signature does not amount, to that, for the debt may have been discharged after the signal ure, and three years elapsing without ant'' demand, is presumtive evidence of pay ment, according to the doctrine contended for. I f a bond has remained dormant twenty years, and the executor admits the hand writing, the presumption is destroyed ; and supposing the debt to be admitted, it is only evidence of a new ptcmi.se and far that raison only it is deemed to be out of the act of limitrfi-ons; and if in fact a new piomise is made by an executor, the acts on must be against himself in jure propria and not against, him as executor to charge the assets of the testator, H. P»L Rep. 108, 114. This action is not against the executor injure propria, but, upon the old foundation of the contract made by the testator and therefore the admission of the executor if it amounts to a new promise can not be applied to it; lastly the admission of one ex-ecutor or administrator where there are two or more, should not be obligatory upon the others, but he may notwithstanding make any defence he thinks proper for the benefit of the estate of his testator; the rule being that where there are many executors and they sever in pleading, the best plea pleaded by any of them for the estate, shall be taken and relied upon ; the other administrator may still say this is not the signature of his testator, or if k ■is that he has paid the debt, or is barred by the act of limitation.

Per Curiam.

Williams and Haywood

Admission of the signature is not an absolute admission of the debt; but the admission of the signature with the addition that all his just debts shall be paid, is equivalent to saying that this debt if a just one ah ail be paid, which in ordinary cases would certainly avoid the act of limitations ; also in ordinary cases the admission of one of several defendants would avoid the act as to all, Douglass, 652, 653 ; and we can see no reason why the admission of one of several executors should not have the same effect; any one of the executors may pay a just debt though barred by the act of limi - tations if he will, for he is not bound to take advantage of the: act of limitations; such payment would be a good one and he would be allowed it on a plea of plens administravit as to creditors or in a settlement with legatees or next of kin; then why not also bind the assets by his promise to pav it if one ef two executors should admit the debt and be sued iirsi and plead, the gene*8ral issue, that in the case of unsealed instruments would he good evidence of the debt and supersede the necessity of proving the instrument on trial; then why not take it out of the act of limitations also. As to a new promise being the ground for an action against the executor only injure preprio, he may possibly be sued that way and be charged perhaps de bouts proprici-; for it Las been sometimes held that a new promise is net only evidence of the old debt, but also of assets to pay it, at least it is so laid down in many of tile old books, but that does not prove that the old cause of action is extinguished, and that no action will lie against the executor as executor, after such new promise.— '"With'respect to the act of limitations, the bar dots not proceed upon the idea that the old debt is extinguished for an admission of the debt afti r the action commenced will avoid the bar, 2 Bur, 1099; the act was intended to operate where a presumption of payment could fairly be raised from acquiescence for a considerable length of time that the debt was paid, which presumption remains not after a tecent acknowledgment of the debt; an acknowledgment or new promise, gives not a new cause of action only to be used as a substitute for the old, but removes the ¡Resumption of payment which is an obstacle opposed by the act to the r/lanriifPs recovery on the old cause of action.

There was a verdict for the plaintiff and a motion for a new trial, and a rule made in order that the above points might he again argued and maturely considered ; and on the day appointed to shew cause the above points were again argued on both sides, & the court gave the same opinion as before — upon the latter argument a new point was made ; it was argued that if here was a promise to pay, it was conditional, and to take effect when the Holly Shelter lauds were sold and cannot be obligatory before that event takes place which as yet it has not, the Holly Shelter lands being not yet sold.

Per Curiam — In this conversation there are two branches ; the one admits the debt if it be a just one, the other relates to payment to be made out of a paiticular fund. All that is material as to the act ol limitations, is the admission of the debt; for upon that the law says it shall be paid out of the personal estate, and it is to no purpose for the executor to say he will pay out of the real, over which he has no contreul. Here is no evidence to impeach the justness of the debt; his signature may well stand as e- idence of that originally till the contrary be shewn, though the signature alone may not be evidence that it is a subsisting debt.

The rule discharged.