Under the old limitation act of 1792, which prohibited an administrator from paying any account or demand against the estate of his intestate, of longer standing than three years next before the intestate's death, it was held that an administrator could not by his acknowledgment or promise, revive a debt thus *Page 376 barred, so as to charge the estate. But it does not appear to have been decided in respect to debts not barred at the time of the intestate's death, that the administrator might not by his acknowledgment, prevent or remove the bar of the act. The contrary opinion was maintained by the Court of Appeals, in Parkin's administratrix vs. Bennington. (1 Harr. Rep. 209.)
The act for the limitation of personal actions, passed in 1829, which supplied and superceded that of 1792, omits the provision, which in efect, required an administrator to plead the statute, as a bar to every claim of longer standing than three years, leaving it in the discretion of an administrator, to use this defence only where the purposes of justice, and fair protection of the estate, require the statute to be pleaded: the exercise of this discretion being subject to review in the tribunals before which he is compelled to account. There is nothing, therefore, in our present limitation laws, that requires an administrator to set up the statute in bar of a claim which he knows to be just; though doubtless, he should be careful on his own account, as well as that of the estate, in declining to avail himself of such a defence: but, if in any case where a claim is barred, an administrator would be justified in suffering a recovery against him, on pleas going merely to the merits, there can be no reason why his deliberate promise or acknowledgment of a debt, should not revive the cause of action. If it be said that this is a dangerous power, it may be replied that it is one which results from his character as the representative of the intestate, unless he is specially prohibited by law; and that such prohibition might operate with great injustice to others. The act of limitation is a good shield, and ought to be used as such, and never for any purpose of fraud; but a law compelling an administrator to use it in all cases, might in many cases make it the known instrument of fraud. And it was probably for this reason, that the legislature, in revising the act of 1792, omitted it altogether. The effect of that omission is, to leave it in an administrator's power to set up this defence or not, at discretion; and to leave him also, with the power of paying, or binding his intestate's estate to pay, claims against which the statute of limitation has run so as to bar them.
In the present case, it appears that the administrator entered into a settlement with the plaintiff, and made a formal acknowledgment in writing, that there was a balance due from his intestate's estate, of $249 10. It does not appear whether this was a claim barred at the death of the intestate or not; but as the administrator had the *Page 377 power of paying this claim, or of defending the present suit without pleading the act of limitation, he had also, the power of reviving the debt by his acknowledgment.
The principle upon which a new promise, or acknowledgment, has been held to avoid the bar of the statute, has been understood differently by the courts; and this has produced an apparent, if not a real, conflict in the decisions. The older cases suppose the act of limitation to be based on a presumption of payment, which a new promise, or even an acknowledgment of the debt, removes; and in carrying out this principle, it has been held that a promise, even after action brought, would take a case out of the act. (Yea vs.Fouraker, 2 Burr. Rep. 1099.) But the more recent cases regard the acknowledgment as evidence of a new promise; a promise which is itself a new cause of action, being supported by the previous moral obligation to pay. (Pittam vs. Foster, 1 B. C. 248; Gowan vs. Forster, 3 B. Ald. 507;Bateman vs. Pindar, 3 Adol. Ellis, N. S. 873.) The principle of the old cases did not require any promise to pay; for an acknowledgment of the debt removed the presumption of payment as fully without, as with, a new promise; and rendered the party liable, even though his acknowledgment was accompanied by an express refusal to pay: the principle of the late cases requires a promise to pay, or an acknowledgment from which a promise may be fairly implied; and this being the cause of action on which a recovery is to be had, the declaration must count upon it.
Our courts have hitherto followed the older cases; and have considered a mere acknowledgment of the debt, as sufficient to take a case out of the reason of the act of limitation, and therefore, out of the act itself. (Newlin vs. Duncan, 1 Harr. Rep. 204;Waples vs. Layton, 3 Ibid 508; Black's Ex'rs. vs. Reybold,Ibid 528.) The Court of Errors and Appeals considered also, in the case of Newlin vs. Duncan, that an acknowledgment revives the old cause of action, and does not create a new one; that the declaration is necessarily for the old debt, and not for any new liability. An acknowledgment, (the court says,) rebuts the presumption of payment; and then the plaintiff recovers, not on the ground of having a new right of action, but that the statute does not apply to bar the old one.
This case being a decision of the highest court in the State, is of course, as far as it extends, binding on us; though I would with great deference suggest, that the principle of the recent English cases is very reasonable. The statute enacts, that no action of trespass, replevin, detinue, or debt not founded on a record, or specialty; *Page 378 no action of account, assumpsit, or on the case; shall be brought after the expiration of three years from the accruing of thecause of such action; and how can an acknowledgment of the debt enable a party to bring such an action after three years, unless it be that such acknowledgment gives a new right of action? Why also, is this doctrine of a waiver of the statute confined to actions of assumpsit, if the reason given in Hurst vs. Parker, be not the true one, namely, that the acknowledgment is evidence of a fresh promise, which is considered as the promise laid in the declaration, and one of the causes of action which it sets out. In actions against administrators, it is usual, as has been done in this case, to count on a promise by the administrator: and, though it may be very true, that as between original parties, no new promise is laid in the declaration in order to avoid the statute, yet, as time does not enter into the pleading, the new promise when proved, may be considered the promise declared on, and the proper ground of recovery.
I suggest this, however, merely as a doubt. The case cited is the law for our guidance, and it establishes that the acknowledgment is not to be regarded as a new cause of action, but simply as a waiver of the statute, as against the old one. Yet the opinion in that case must be confined to the case before the court; an action between originalparties, in which the acknowledgment relied on as waiving the statute, may be proved under a declaration on the original cause of action; and not requiring any count on the acknowledgment itself. Otherwise no acknowledgment, after a change of parties, can ever avail to waive the statute, for no such acknowledgment can be given in evidence without a count upon it, as it would not correspond with the declaration on a promise by the original party. The Court of Appeals, in the case referred to, alludes to this distinction. Speaking of an action by an executor, on a promise to himself, to pay a debt due the testator, the Chief Justice said: "In that case, no doubt you must declare on the new promise; for every promise, to be binding, must be made by a person competent to make it, and to a person in existence to receive it. (6 Taunt. 310; 13 Com. L. R. 88.) Besides, if the executor were to declare on the original promise to the testator, and to the plea of the statute of limitation, were to reply the promise made to himself, it would be a manifest departure in pleading, and a good ground for a demurrer. But who ever saw, asbetween the original parties, a declaration on the new promise? The case, therefore, of Newlin vs. Duncan, must be regarded as applying only to a suit between original parties; and not extending to *Page 379 a case where the plaintiff is compelled by the rules of pleading, to declare upon the acknowledgment, or promise, to or by a new party, as a new cause of action. In such case, the new promise or acknowledgment must be regarded as the cause of action, and declared on as such, or it cannot be put in evidence. The cause of action, therefore, declared upon, and proved in this case, is the account stated between the plaintiff and the defendant's administrator; and an acknowledgment in writing, under the hand of the administrator, of a sum due from the intestate's estate. Such an acknowledgment is itself a cause of action; and assumes such a form, in this case, as is protected from the operation of the act of limitation, for the period of six years.
Motion refused.