The opinion of the court was delivered, January 3d 1870, by
Agnew, J. —It was an error to refuse to the administrator the benefit of the plea of the Statute of Limitations. In Man v. Warren, 1 Whart. 455, a case most elaborately argued and carefully decided, it was held that the statute applies to -claims against the estates of deceased persons, whether payable in the lifetime of the decedent or falling due after his death. The same point was decided expressly in Mitcheltree’s Admr. v. Veach, 7 Casey 455, and the case of McClintock’s Appeal distinguished on the ground that the creditor was there claiming to be paid out of a fund in the Orphans’ Court viewed as á trust, to which the debt having attached, the subsequent running of time did not bring it within the bar of the statute. To hold that when an action is brought for a debt against the administrator, the statute cannot be pleaded with effect, is to contradict all those cases in which it has been decided that a debt is not revived by a promise of the administrator to pay it: Fritz v. Thomas, 1 Whart. 66; Steel v. Steel, 2 Jones 64; Clark v. Maguire’s Admr., 11 Casey 259. It contravenes also those deciding that the creditors and others interested may intervene and plead the statute: Hoch’s Appeal, 9 Harris 280; Ritter’s Appeal, 11 Id. 96; Kittera’s Estate, 5 Id. 416. In some of these cases the fund was in the Orphans’ Court for distribution. How McClintock’s Appeal can stand against all these cases I could not myself perceive, and therefore dissented from the judgment of my brethren last winter at Philadelphia, reaffirming it, in its application to the facts in the case of McCandless’s Estate, 11 P. F. Smith 9.
*245In McClintock’s Appeal, not a cited case appears in the argument of counsel or the opinion of the court. It is counter also to the whole policy of restraining liens against the estates of decedents found in the Act of ,24th February 1884, as will be seen in a full summary in the opinion in the case of Trinity Church v. Watson, 14 Wright 528. McClintock’s Appeal has been recognised, however, within the narrow field of its facts; and my purpose is not to deny its authority, but to show that its sphere is not to be extended, and to add that we all regard it as inapplicable to a case where an action is brought directly against the administrator.
The very ingenious argument for the defendant in error overlooks the fact that the 4th section of the Act of 1797, substituted in this respect by the 24th section of the Act of 24th February 1834, was not an enlarging, but a restraining act for the purpose of confining the prior unrestricted lien of the debts of a decedent against his estate. It did not create a lien, but limited it to a term of years, now five. Its purpose was to take away the unrestricted lien, in order that estates might be settled in a convenient season: Trinity Church v. Watson, supra. The argument overlooks also the fact that the 24th section of the Act of 1834, as well as the 34th, its handmaid, relates only to real estate, making no change therefore in the law as to personal estate, the primary fund for the payment of debts. The administrator is the sole representative of this primary fund, and it would present a singular feature, if in an- action with notice to the widow and heirs to charge the real estate, a judgment could be obtained against the bar of the Statute of Limitations to bind the real estate, when the personal estate would be relieved by the plea of the statute. The Statute of Limitations was well pleaded therefore in -this case, and the court erred in not supporting it. The offers of evidence were partial. The 3d, which is the most perfect, omits the important fact as to how the plaintiff came into possession of the note. Lut as a whole undoubtedly the defendant was entitled to have the évidence submitted to the jury. The note fell due in February 1859. It had been discounted in the hank, and the proceeds carried to Fleming’s credit. The note was not protested and charged to Fleming, showing that it was satisfied in some way. It remained in possession of the cashier who held it after the death of Campbell in 1863 until 1868, when it was handed to the plaintiff by the daughter of the cashier by his direction. During all this time no demand was ever made of Campbell, nor of his administrator, to whose hands an ample estate came. Now while it is possible that Fleming had paid the note to the bank, yet the circumstances were strongly persuasive evidence that it had been paid by Campbell, and ought to have gone to the jury.
Judgment reversed, and a venire facias de novo awarded.