#### Wilkings vs. Murphy, administrator, &c.

"¡OLEA, the act of limitations; replication, that the intestate as-uumed j and the evidence offered was, that the administrator promised within three years. It was objected that such evidence was not that which the replication offered, and therefore should not be received. To this it was answered that an admission of the debt by the administrator, takes the case out of the act; and there is no other way of giving the evidence to the jury, but under a replication |such as this. If the replication should state a promise of the administrator, that would be a departure from the declaration, which states a promise of the intestate : And you cannot in the declaration join a count founded on the promise of the administrator with that against tfee intestate. Such counts .cannot be joined, the judgments upon them being different: the plaintiff’s counsel cited 4 T. 347. H. BL He. IQS, l 'O, E conifi was cited H. El. He. 104.

*283 Marshall, Chief Justice,

I doubt whether an admission oS She debt by the administrator will take the case out of the act of fim nations; for the admission presupposes a promise made with» 2a three years, and how can tais be when the intestate has bees dead ten yearn? If it were true that an admission of the debt did take the case out of the act, and it could not he given in evidence at all unless allowed of upon such a replication, 1 should think that a strong argument for admitting the evidence. But the premises are not correct 5 it is not true that a count upon the “intestates promise, and upon that of the administrator to pay the debt of the intestate snay not be joined; the contrary is directly proved by the case cised from II. Eh líe. 104; where the administrator upon an imbnul compulassei and promise thereon, was held liable de bonis tesiaioris. ' The other cases cited, which state that he is bound ds bonis propriis, are where the consideration for the promise arose after the death of the intestate, and in the time of the administrator : here the promise was on a consideration arising its, the tim.e of the. intestate. The casks are recosí» ciieable.

The verdict founded on the admission of the evidence was sefe aside, and leave given to the plaintiff’s counsel to add, % count.: ihe plaintiff paying costs, up to this time.