The action was upon a note of hand which plaintiff proved, and rested.
Mr. Wales, for defendant, moved a nonsuit for want of a probate. Gilpin. — Probate is not necessary. The action was brought before the death of Dutton, and the case at issue; not, therefore, a case within the mischief of the act requiring probates before an executor shall pay demands against him as executor. The demand was made against the deceased. This court decided to that effect in Cleaver's adm'r. vs. Starr. Mr. Hamilton suggested, that that was the case of an appeal from the judgment of a justice of the peace, rendered against the appellant's testator in his life time.
Per Curiam. Show us your authority. I can well understand the propriety of such a decision on appeal, or in a scire facias where the judgment was rendered against the party in his lifetime. But the act of assembly expressly provides that "before an executor or administrator shall pay any debt demanded as due from the deceased, the person holding such debt shall make affidavit declaring upon oath or affirmation, that nothing has been paid or delivered towards satisfaction of said debt, except what is mentioned, and that the sum demanded is justly and truly due. Digest 236. I can see no reason why the estate should not be protected by probate from demands against the executor, in suits brought before the testator's death, but not prosecuted to judgment, as well as in suits brought against the executor himself. If Mr. Gilpin thinks upon reflection that we are wrong, we will hear a motion during the term to take off the nonsuit, and he can then produce the authority cited.
HARRINGTON, Judge, was absent, and the court asked the late chief justice Thomas Clayton, if any decision had been made to the effect stated. "He did not recollect any precise decision, but whilst on the bench he entertained the opinion, taking the present law in connection with the old one (1 Del. Lairs. 421,) that a probate in such case was not necessary." *Page 473