* [Philadelphia,
January 14, 1836.]
FRITZ against THOMAS and Another.
IN ERROR.
An executor or administrator, sued, in his representative character, for a debt due by the decedent, may plead the statute of limitations as a bar to the action, although such executor or administrator may have made such an acknowledgment of the debt, as, in the case of a person sued for his own debt, would be sufficient to take the case out of the statute.
-Upon a writ of error to the Court of Common Pleas of the County of Montgomery, it appeared that Christian Fritz brought an action of assumpsit, in that court, to November Term, 1833, against Charles Thomas and Merchant Maulsby, administrators of the goods, &c., of George Fitzwater, deceased, to recover the amount of a promissory note for 71 dollars, dated the 30th day of December, A.D. 1818, drawn by the said George Fitzwater, in his life time, in favour of the said Christian Fritz. The declaration averred a promise by the intestate, in his life time, and also a promise by the administrators, after his death, to pay the amount of the said note. The defendants pleaded “ non assumpsit, non assumpsit infra sex annos, actio non accrevit infra sex annos, and payment; and issue having been joined upon these pleas, the cause came on for trial upon the 26th of November, 1834.
The plaintiff having proved the hand-writing of the intestate, offered the note in evidence, which was objected to by the defendant and rejected by the court; who decided that the note being on its face barred by the statute of limitations, could not be admitted as evidence of a debt, until proof of a promise to pay within six years was first given. The plaintiff then called William Wright, a witness, who being sworn, testified as follows:
*66“ I was present when Christian Eritz presented the note to Charles Thomas, in January, 1832. Mr. Eritz stated that he had a claim against the estate of George Eitzwater, to which Mr. Thomas replied, ‘you have just come in time.’ On reading the note Mr. Thomas said, ‘ it is too old, you should have collected it sooner.’ Eritz said, owing to the removal of Mr. Eitzwater it was out of his power; that he had sought after him but could not find him. On examining the note, Mr. Thomas calculated the interest upon it. Then stating to Mr. Eritz, ‘ if you can get the principal I suppose that will satisfy you without the interest.’ Mr. Eritz replied, ‘ why not both, or, how is the estate likely to hold out ?’ Mr. Thomas said it was likely to hold out so that there would be nothing left for the widow. Some conversation then took place which has escaped my memory, but the tenor of pjtgYi it was Mr. Thomas was endeavouring to get Mr. *Eritz to *- -* abate the interest in favour of the widow, and Mr. Eritz endeavouring to obtain Mr. Thomas’ promise to pay both principal and interest; at the close of this, Mr. Eritz said, ‘ if I take only the principal, I shall expect to get it without further trouble.’ Mr. Thomas replied, ‘ I have not funds in hand to pay you, — but the debt is a just one, I will see my colleague and we will do what ive can for you. This I will do, I have a note here against one of your neighbours, which I will trade with you, and as you live near him you can trade it out with him;’ he then presented a note he held against Andrew Scott: the exact amount of Scott’s note I do not recollect, but it was more than Eitzwater’s. On Mr. Thomas presenting the note he said, ‘ he had not done as Mr. Eritz had done, he had kept the interest down.’ Mr. Eritz replied, ‘if I were Andrew Scott’s administrator, as you are George Eitzwater’s, I would trade. But Mr. Scott is an old man, who has been much embarrassed and is now doing better. If I were to do it, it might discourage him: I should not like to do it without saying something to him first.’ Thomas then requested that he would see Scott concerning it; and then stated he would also see his colleague, concerning Eitzwater’s note. Mr. Thomas read the note twice. Mr. Thomas and myself both made a calculation of the interest. The calculation of interest took place before he asked that it should be abated. Eritz said he would not agree to let the interest go into the general fund; but, if reserved for the widow, he would like to have the pleasure of presenting it to her himself. This was when Thomas was endeavouring to persuade him to give up the interest in favour of the widow. There was a difference between Scott’s note and Eitzwater’s note. Scott’s was the largest. Thomas said if the trade took place, Eritz must pay the difference. This conversation was in Mr. Thomas’ house, when we were just starting. At the *67wagon, Mr. Thomas again said, I will see my colleague and ‘ we will.do what we canfor you.’ Thomas made no remark before reading the note, except ‘you have just come in time.’ All the rest was said after the note was read. Andrew Scott’s note was, I think, in favour of Charles Thomas. I saw the note, it was a sealed note. I have seen the same note since that time.”
On his cross-examination, the witness answered as follows:
“ I don’t know which note was the oldest; as to the original dates the dates were not far apart. Scott had been sold out by the sheriff. I did not hear Thomas say he considered Scott’s note good for nothing. Mr. Fritz did not bring me along as a witness in the matter, to my knowledge. The reason I was with Mr. Fritz was, I had business with one of Mr. Thomas’ neighbours, Moses Lukens. Mr. Fritz went with me there, before we went to Thomas’. The family of Mr. Thomas, Moses Lukens, Mr. Fritz, myself, and Mr. *Thomas, were present at Thomas’ at r^o-i this conversation. Scott’s note was not 100 dollars more *- -> than Fitzwater’s. From conjecture I would say it was 20 dollars more. Can’t say whether above or below. I do not remember that Thomas told Fritz, that if he would give him the difference, he might have both notes. There was no conversation between Mr. Fritz and myself on this subject, afterwards, except that going home I told him I thought he would get the business settled without difficulty. All the reply he made was, ‘I don’t know;’ he made no remark about apprehending difficulty. In offering Scott’s note, Thomas said, I have here a note of one of your neighbours, which I will trade with you for your’s; I can’t be certain, but my impression is, Thomas went out of the room, to get Scott’s note. Mr. Thomas did not say in my hearing, he considered Scott’s note good for nothing. I did not state before the arbitrators that Mr. Thomas intimated he considered Scott’s note good for nothing. I did not hear Mr. Thomas tell Mr. Fritz, he had better present the note before the auditors. I have no recollection of any thing being said at this interview about an audit. I have a recollection there was an audit upon Fitzwater’s estate.”
On a re-examination, the witness testified further as follows :
“ Mr. Fritz stated at the first interview, that he must owe Scott near 30 dollars. Scott was a wheelwright; Fritz and Fitzwater lived eight or nine miles apart, at the date of the note. At the date of the note, Fritz lived in Warwick township, Bucks county, twenty-three miles from Philadelphia, and seventeen or eighteen from Norristown. The principal due on Fitzwater’s note, as calculated by myself and Mr. Thomas, was 56 dollars principal, and interest 43 dollars and 68 cents, amounting to 99 dollars 68 cents : there was no difference between us as to the amount.”
*68And the plaintiff further to maintain the issue on his part, again called the said William Wright, who testified as follows:
“At the time of the arbitration of this cause, the question was put by one of the arbitrators, ‘Well, Mr. Thomas, you did promise to pay this note ?’ Mr. Thomas replied, ‘ Yes, with this note, and’ we will do it yet.’ This last note was Mr. Scott’s note, and was there at the time. At the time •the conversation took place at Mr. Thomas’ house, I thought, and still think Scott was at that time able to pay the note, and was of property sufficient to pay it. I am not so well acquainted with him now.”
The note was then again offered in evidence, and objected to by the defendants’ counsel; and the court, being of opinion that the evidence was insufficient to take the case out of the statute of limitations, refused .to admit it. No other evidence having r*pq-i been given on *the part of the plaintiff, the president of L 3 the court charged the jury as follows :
“ There is no evidence before the jury, upon which they can find'a verdict for the plaintiff. The claim of the plaintiff appears by his declaration to be found upon a note, dated 30th December, 1818, payable in twenty days after date. And upon its face, recovery is barred by the statute of limitations. The court decided that that note could not be given in evidence, unless proof of a new promise to pay within six years first given. At one time, the courts not only of Pennsylvania, but elsewhere, considered almost any acknowledgment, however slight, of the original debt, sufficient to take the case out of the statute, but of late years the statute has grown into favour; and the courts have retraced their steps, and held it as a wise and beneficial law. A simple acknowledgment that the debt was originally just, is not enough. It must go to the fact that it is still 'due, or be accompanied with some proof of a clear and explicit promise to pay. If there be accompanying circumstances, which repel the presumption of a promise or intention to pay; if the expression be equivocal, vague, undeterminate, leading to no certain conclusion, but at most to probable inferences, which may affect different minds different ways; it is not sufficient evidence of a new promise, for the party to recover upon. In the case before you, the court consider the evidence offered of a new promise, as of this character; and have therefore not suffered the evidence of the original debt to be laid before you; there is consequently no evidence before you, upon which you can find a verdict for the plaintiff; and it must be given for the defendants.”
The jury having found for the defendants, the record was removed into this court by the plaintiff; who assigned several errors; which may be comprised into two.
*691. The refusal of the coiirt below, to admit the note in evidence in the first instance.
2. The refusal of the court below, to allow the note to go, to the jury, after the evidence of a new promise had been given.
Mr. Sterigere, for the plaintiff in error,
contended that the court was wrong in refusing to admit the note in evidence. The plaintiff had a right to read it to the jury. Its effect afterwards was another question. Upon this point he cited Hershey v. Hershey, (8 Serg. & Rawle, 333;) Patton v. Ash, (7 Serg. & Rawle, 127;) Fisher v. Kean, (1 Watts, 278). He then argued that there was sufficient proof of a new promise, to take the case out of the statute of Limitations. 2 Penn. Practice, 81; M'Gowan v. M'Gowan, (Wallace, 66;) Fries v. Boisselet, (9 Serg. & R. 128;) Guier v. Pearce, *(2 P. A. Browne, 37;) Miles v. Moodie, (3 Serg. & R. 211;) Jones v. Moore, (5 Binn. 573, &c.;) Henwood v. Cheeseman, (3 Serg. & R. 500;) Boggs v. Bard, (2 Rawle, 102,) in which case this point was expressly decided; Johnson v. Beardslee, (15 Johns. Rep. 3;) Bailey v. Bailey, (14 Serg. & R. 199.)
Mr. Tilghnan, for the defendants in error.
This court will not send the case to another jury if upon the whole the law was correctly laid down. Weidler v. The Farmers’ Bank, (11 Serg. & R. 141.) The judge charged the jury in nearly the same words, as those used by the Supreme Court of the United States in Bell v. Morrison, (1 Peters, 362.) It is settled by a long series of decisions in this state, that to take a case out of the statute, there must be something said, equivalent to a promise to pay. Here, there is nothing like a promise. Besides, in this case the defendants were the administrators of the drawer of the note; and a distinction exists between the case of a party acting in his own behalf, and in a representative character. Peck v. Bosworth, (7 Conn. Rep. 172.) Here, the acknowledgment, if it can be so called, was made by one of two administrators, which is not sufficient. Scull v. Wallace, (15 Serg. & Rawle, 233, 234.)
The opinion of the court was delivered by
Gibson, C. J.
The concession that the plaintiff’s claim is just, and the promise to see what could be done for him, would doubtless be sufficient to maintain an action, if> the consideration were, the defendants’ 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 Binney, 573, and subsequently in Bailey v. *70Bailey, 14 Serg. & Rawle, 195, and Scull v. Wallace, 15 Serg. & Rawle, 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 i-y a personal representative, is but evidence of a new promise, on which he may not be sued, otherwise than in his personal character, without overturn-1*711 *n§ *some mosi; firmly fixed principles of the law; 1 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 ionis'p7'oprn§; 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 colour ;of Ale 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 '<m 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 pre*71judice 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 comes, 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 r^o-i was not adjudged; and the step remaining to be taken in L -I 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. 565, and Peck v. Botsford, 7 Conn. R. 178; in both of which, the point was directly ruled. There was, therefore, nothing to leave to the jury; and the exclusion of the evidence, as well as the direction to find for the defendants, was entirely proper.
Judgment affirmed.
Cited by Counsel, 2 Wharton, 300; 3 Id. 101; 9 Watts, 180; 6 Watts & Sergeant, 216; 1 Barr, 56; 3 Id. 112; 8 Id. 189, 340, 511; 8 Harris, 212; 7 Casey, 236.
Cited by the Court below, 4 Barr, 59.
Cited by the Court, 4 Wharton, 479; 5 Barr, 226; 6 Id. 270; 2 Jones, 66; 2 Harris, 356; 11 Id. 96; 10 Wright, 242.
Followed, 7 Watts, 421.