This was an action of debt brought upon some notes executed by John W. Roach and James Marshall, and all made payable to “Nathan Adams, guardian for the minor heirs of James Blair, deceased,” except one, which was payable to “Nathan Adams” simply.
Marshall pleaded that the notes were paid by Roach, who was the principal in the notes, in his life time. The jury found against the plea, and the plaintiff below had judgment for the amount due upon the notes.
Upon the trial, the plaintiff was permitted to prove the admission of the administrator of Roach, that the notes were not paid by Roach in his life time; and, also, for the purpose of proving the admissions of the defendant, Marshall, to read in evidence to the jury the following entry upon the records of the Probate Court of Marion county, to wit: “ Special term, Aug. 25th, 1842. And now at this day came Nathan Adams, and made proof, by the testimony of James Marshall, that he did, on or about the 20th of September, 1840, resign his guardianship as guardian,” &c. The Court also instructed the jury- at the instance of the plaintiff, “ that the admissions of an administrator are competent to bind the estate of his intestate,” and refused to instruct at the request of the defendant, “ that the note payable to Nathan Adams, without describing him as guardian of the heirs of James Blair, deceased, does not of itself afford any evidence that this note belongs to Adams as guardian.”
The admission of the foregoing evidence, which was objected to at the time, and the giving of the instruction asked by plaintiff and refusing the one asked by defendant, are now assigned for error.
It was clearly erroneous to admit in evidence, in this action against Marshall alone, the admissions made by the administrator of Roach. Admitting the law to be as plaintiff below insisted, that an administrator may by his admissions bind the estate of his intestate, and it by no means follows that such admissions can bind a joint promissor with the intestate. Where there are several administrators, the confession of a debt due from the estate by one is not admissible in a suit for the debt against the co-administrators, to establish the original demand. Hammon ra. Huntley, 4 Cowen, 493; Forsyth vs. Ganson, 5 Wend., 558. And there is no such joint interest between a surviving promissor and the administrator of his co-promissor, as to make the admission of the one binding upon the other. 1 Greenleaf Ev., 176. But we are not prepared to admit that an administrator can, under our laws, which prescribe the mode of establishing claims against an estate, bind the estate by his admissions. R. S., ch. 109, secs. 95, 116, 118, 119, 122; Quarle vs. Littlepage, 2 Henning & Munf., 401. It is, however, unnecessary to settle that question in this case, as such admissions are clearly inadmissible as against Marshall.
The probate record was also improperly admitted in evidence, for the purpose for which it was offered. If it became necessary to give evidence of what Marshall had previously said or verbally sworn to, it could only be done by the sworn testimony of some one who heard him make the statements, and then Ms words substantially must be given, and not the result of what his evidence proved.
The instruction asked by defendant should also have been given. That a note made payable to an individual by name simply, affords of itself no evidence that the note belongs to him in a representative capacity, is a self evident proposition.
The judgment of the Circuit Court is reversed, and the cause remanded.
Judgment reversed.