A majority of the Court override the present motion. We differ in sentiments. For my own part, I conceive this Act of Assembly [2 Body Laws 110] does not apply to this case. The Act contemplates two objects. First, that before the executor or administrator pays any debt, the creditor must swear or affirm that etc., as in the Act; this the executor is to do before the receipt of money from executor or administrator. Secondly,, if executor or administrator or other person brings a suit against an executor or administrator, he shall be nonsuit without the oath. The present suit was brought by Ezekiel Brown against Anderton Brown as of August, 1791. The parties die; by the Constitution the suit survives. I conceive the Act does not apply to this suit; and the Legislature must have had a prophetic spirit to have formed the Act to this case. Inconveniences may arise, but they will not warrant the court to apply the law to a case not within it. Our powers are judicial, not legislative. Nothing further is necessary to entitle plaintiff now to recover than was necessary when suit was brought. A payment to Rhea, unless taken advantage of after the last continuance and before the next continuance, could not be given in evidence. No evidence can be given out of the issue.
Mr. Rhea was not bound (supposing a probate necessary) to prove the bond and award. Mr. Rhea’s endorsement on the suit only secured it to him to prevent Mr. Brown, the plaintiff, from discontinuing; and for this purpose only was it necessary for Mr. Rhea to appear on the record.
*192One of my brothers, Johns, J., is of opinion that the oath of both executors is necessary, and he rather inclines to think the probate should have been made.
A bill of exceptions was made and signed as follows:
And now, to wit, on the trial of this cause, the plaintiffs by their counsel learned in the law gave in evidence to the jury the writing obligatory aforesaid called an arbitration bond (prout the said writing obligatory and the condition thereof), and also a certain endorsement thereon purporting to be a probate of the said writing obligatory (prout the endorsement) , and, to maintain the action aforesaid, the said counsel of the plaintiff further gave in evidence to the said jury one other instrument of writing under the hands and seals of D. P., R. C. and I. C., purporting to be an award under the submission aforesaid and a similar probate as aforesaid (prout the said award and probate), and also one other instrument of writing purporting to be a letter from Anderton Brown to Ezekiel Brown dated August 3, 1790 (prout the said letter). And further to maintain the action aforesaid, the said counsel called and examined before the jury aforesaid a certain Elijah Colbourne, who gave in evidence that sometime in the fall of the year 1790, Ezekiel Brown, being indebted to him, sent him to Anderton Brown to receive a sum of money, that Anderton Brown then acknowledged he was owing Ezekiel Brown money and paid to him, the said Elijah Colbourne, £4.4.9. Whereupon the counsel of the said Francis Brown, administrator aforesaid of the said Anderton Brown, having read in evidence a certain instrument of writing purporting to be an assignment to the said Peter Rhea from the said Ezekiel Brown (prout the said assignment), did move the Court that the said plaintiffs should become nonsuit and pay full costs of suit forasmuch as no sufficient probate oath or affirmation had been or was made according to an Act of the General Assembly entitled an etc. (2 Body Laws 110), which said motion and prayer of the counsel of the defendant the Court here did overrule; whereupon the counsel last aforesaid did pray the benefit of an exception to the opinion of the said Court upon the promises and that the Judges of the said Court, or some of them, would to this exception annex their hands and seals according to the statute in such case made and provided etc.
Richard Bassett (Seal)
Daniel Rodney (Seal)
Kensey Johns (Seal)
*193Some difference arose about the heading the bill of exceptions, one party wishing it to be headed as the original suit, the other as the jurors were sworn.
Per Curiam.You may strike out the heading you have given it and insert the whole docket entry.
In the trial, defendant’s [counsel] proved the arbitrators all dead and were giving in evidence what they had said on the subject. Plaintiffs’ counsel objected to such conversation as improper on this issue of no award.
Bassett, C. J.(Interrupting defendant’s counsel.) Upon this issue, what the arbitrators said is not evidence; if there is any book that says so, show it.
Vining wishing to persist, Bassett, C. J., said what referees or arbitrators have said as such is not admissible as evidence.
Miller contended that the award was not good, not being indented.
Ridgely found a satisfactory answer to that objection in 2 Bl. Comm. 295,1 Com.Dig. 541, Barn. 55, Cromp.
Plaintiff had a verdict.
[Note.] Want of a seal where required is fatal. Cro.Jac. 278, 1 Str. 116, 1 Bac.Abr. 141.