
    The Executors of Susan N. Niemcewicz v. Jonathan Bartlett, Administrator of Jonathan Dayton.
    Bart payment or acknowledgment by an administrator, of a valid existing claim against his intestate, -will take the case out of the statute of limitations, so that time will begin to run only from the period of such payment, and the claim will not be barred until the expiration of the limited period thereafter. '
    This is an action of debt, reserved from Hamilton county for decision in bank.
    
      The plaintiff declares on the following bond :
    “Know all men by these presents, that we, William Dayton and Jonathan Dayton, of Elizabethtown, in New Jersey, are well and firmly bound, unto Mrs. Susan U. Niemeewicz, of the same place, in the just and full sum of $6,500, money of the United States, to be paid to the said Susan U. Niemeewicz, her heirs, executors, administrators, or assigns ; for which payment, well and truly to be made, wo bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated November 1, 1802.
    “The condition of this obligation is such, that if the above bounden William- Dayton, or Jonathan Dayton, their, or either of their heirs, executors,- or administrators, shall well and truly pay, or cause to bo *paid, unto the above-named Susan U. Niemeewicz, or to her certain attorneys, executors, administrators, or assigns, in one year from the date hereof, the sum of $3,250, money aforesaid, with interest at the rate of seven per cent, per annum, to be paid quarter yearly, viz: On the first days of February, May, August, and November, of each and every year, then the above obligation, and every part thereof, to be void, or else to remain in full force and virtue.
    “ William Dayton, [l. s.]
    Jonathan Dayton, [l. s.]
    “ Sealed and delivered in presence of William D. Williamson and Abm. Robinson.”
    Sundry payments are indorsed upon the bond, which are noticed in the opinion of the court.
    Those facts are agreed: “This suit is brought, October 2, 1843, upon the bond marked A; the bond is admitted to be genuine, and the defendant pleads the statute of limitations.”
    The present administrator is de bonis non. O. M. Spencer, the former administrator, deceased in 1838, and the present administrator was appointed in 1842.
    On May 5, 1826, the attorney in fact of Mrs. Niemeewicz, then alive, made oath to the amount due upon the bond, and transmitted it'to the administrator, Mr. Spencer, who paid on June 24,1828; to Judge Crane, as per receipt, $530, on account; the original bond was loft with Mr. Spencer, who filed the same with the probate court on December 30, 1830, and in his account current reported the claim as proved and properly authenticated, charging the plaintiff’s testator with the amount paid to Judge Crane, and casting interest thereon till December 28, 1830. This account was examined and approved by the court, and the bond itself filed away with the papers, and marked on the back thereof, “ allowed,” voucher number 139. The bond has there remained until this iday, whence it has been taken, by leave of the probate court, to ¡be used in this action.
    It is also agreed that Mr. Spencer, as administrator of Jonathan Dayton, paid to Henry Stoddard, as agent of the executors of Mrs. Niemcewicz, on December 15,1835, the %um of $281.40, on account of the amount due on the bond sued upon.
    If this payment, and the acts of the administrator of Dayton, are sufficient to take the suit out of the statute of limitations, judgment is to be rendered against the defendant; if the court shall be of opinion that the facts do not authorize a recovery against him, judgment is to be entered for the defendant.”
    Stoker and Gwynne, for plaintiffs:
    The defendant presents to the court the question, whether, upon the facts, the action is not barred by the statute of limitations. The determination of this depends upon the view which the court shall take of two points: 1. Whether there be any statute of limitations applicable to the case, and if there be any, what the provisions of that statute are. 2. If the case come within any statute of limitations, whether the acts of the administrator, O. M-Spencer, have not exempted it from the bar of the statute.
    We contend that there is no statute of limitations applicable to the case. The statute of limitations of the state where the suit is brought, is the only one which can be pleaded in bar of the suit, unless there be some statutory provision to the contrary. 7 Ohio, 247, pt. 2: Let us examine the legislation of Ohio on this subject. The right of action on this bond accrued on November 1, 1803. At the time the bond was made, in the opinion of the territorial legislature, a law for the limitation of actions was unconstitutional. Chase’s Stat. 287. Eor this reason the act of 1795 was repealed, Territorial Laws, ch. 123, Chase’s Stat. 287, on Decomber 19, 1799. And from 1799, to January 4, 1804, when the first act for the limitation of actions was passed by the state legislature, Chase’s Stat. 392, no such act was in force in Ohio. The present cause of action accrued prior to the passage of this act, and came within section 5 of that act, “that all causes of action enumerated in this act, which have already accrued, shall only bo barred by counting the time of limitation given to those actions respectively, *from the passage of this law.” The act of 1804 was amended, Chase’s Stat. 620, but in no respect is necessary to be now considered. Both the act of 1804 and its amendatory act were repealed by act of .January 25, 1810, Chase’s Stat. 656; but "section 5 of the act of 1810 provided, “that all causes of ac. tion enumerated in this act, which accrued before the passage of the act of 1804, shall only be barred by the provisions thereof, as well as those causes of action which have accrued since the passago of the act aforesaid, and before the passage of this law.” The acts of 1804 and 1810, barred an action of debt, founded upon a specialty, within fifteen years next after the cause of such action, provided that no part of the principal or interest be paid or demand be made within that time, and the limitation upon this bond, under these acts, was to bo counted from the passage of the act of 1804. Payments were made upon it in 1803, 1805, 1807, 1808, 1809, 1813, 1818, 1819, 1820, 1821, and 1822, so that when the act of February 25, 1824, was passed, to take effect June, 1824, Chase’s Stat. 1402, the action upon this bond had not been barred.
    Tho act of 1824 repealed tho act of 1810, with a proviso, that the act of 1824 should not extend to any action, or cause of action, which may have been heretofore barred by any statutes of limitation. The action upon this bond, it is clear, does not come within the proviso; nor does it come within the explanatory act of February 8, 1826, which revives the act of 1804 for causes of action which accrued between January 4, 1825, and January 25, 1810; and the act of 1810, for causes of action which accrued between January 25, 1810, and February 25, 1824. The act of 1824, in repealing tho act of 1810, repeals its section 5, by which alone, causes of action accruing prior to the act of 1804 were brought within the act‘of 1804, and those causes w.ero not affected by the act of 1826, which revived the acts of 1804 and 1810, for causes of action which accrued during tho time those acts were in force, and “-for no other purpose whatever.”
    It is evident, then, that after the passage of the acts of 1824 and 1826, the suit upon this bond was not, by their enactments *left within the act of 1804 or 1810. There was, therefore, up to the present act of limitations, no statute applicable to this case, unless it was the act of 1824, and that act can only be made to apply, by giving it a retrospect from the time of its passage, to the year 1803, when there was no act upon this subject. Will the court construe the act of 1824, so as to give it such an extensive retrospective application as this? It was considered well settled by Hazel et al. v. Critchfield et al., 7 Ohio, 155, pt. 2, and West v. Hymer, 7 Ohio, 235, pt. 2, that the act of 1824 had a prospective operation only; but in Bank of Marietta v. Rees, 12 Ohio, 21, the court were divided in opinion upon this point. This leaves the law, as to the statutes of limitations of our state, in a perplexing state of uncertainty, after it had been for seven years regarded as fully established, and acted upon accordingly. Where the law has been once promulged by the highest court in the state upon a point, to say the least, of so much uncertainty, it might be better to adhere to it from considerations of stability alone, than to throw the whole matter once more into doubt and difficulty. We- would present a few considerations in favor of the construction of the acts of 1824 hnd 1826, which gives the act of 1824 a prospective operation. It is a common rule of interpretation that courts will not suppose statutes were intended to have a retrospective operation, unless that intention has been manifested by the most clear and unequivocal expressions. 12 Mass. 285; 10 Ib. 439; 8 Ib. 430; 2 Show. 17; 8 Wend. 663: There are no such clear expressions in the act of 1824. If the statutes of 1804 and 1810 are inspected, it will be seen that they were prospective only, except in section 5 of both ; and when it was intended that prior causes of action should be included within their enactments, unequivocal expressions are used. So also the act of 1824, whenever it refers expressly, as it does in section 5, to prior causes of aetion> enacts that they shall be adjudged under the prior statutes. And the act of 1826 is unequivocal in its declaration that prior causes of action, accruing under prior acts, shall be barred by them.- As there is, then, nothing *in those acts clearly indicating that the act of 1824 was to extend to causes of action accruing prior to 1804, and as, wherever there is an unequivocal expression in either of the statutes of limitations, it designates them as prospective; we conclude that, at the time of the passage of the act of 1831, there was no act of limitation in Ohio applicable to causes of action accruing prior to 1804; for the act of February 22, 1830, Chase’s Stat. 1654, amendatory to the act of 1824, places this matter in no different light. So far as it speaks expressly, its section 2 applies only to actions brought after the taking effect of the act.
    What is the effect of the act passed February 18, 1831, and now in force, upon causes of action which accrued prior to tho act of 1804? Its section 8 enacts that the acts of 1824, 1828, and 1830, and “all acts and parts of acts heretofore passed for the limitation of actions, be and the same are hereby repealed ; provided that all causes of action not heretofore barred, which subsisted or accrued during the time those acts were in force, shall be commenced within the times therein limited; and not after; and all such actions shall be barred after the expiration of the several times allowed for their commencement, according to tho provisions of said acts respectively and their amendments.”
    Upon the question, whether this statute should have a retrospective operation, wm have the decision in Bigelow’s Ex’r v. Bigelow’s Adm’r, 6 Ohio, 96, and the cases already cited in our remarks upon the act of 1824. The same rule of interpretation, and tho same remarks which we have applied to that act, will apply here. Section 8 of the act of 1831, it may be contended, revives the act of 1804 as to the causes of action which subsisted under it. There is no unequivocal expression giving it such a retrospect, nor does it contain anything which may not reasonably be construed to refer only to tho acts of 1824,1826, and 1830. Those are the only acts expressly mentioned, and they were the only acts then in ex> istence for the limitation of actions, inasmuch as the acts of 1804 and 1810 had only then vitality, not of themselves, but *so far as -the acts of 1824 and 1826 gave them efficacy. The words “ and all acts and parts of acts heretofore passed for the limitation of actions,” need not be construed as expressly intended to embrace the acts of 1804 and 1810, on the ground that they will be senseless without such a construction, for those words are often inserted in laws without any significance being attached to them. Thus, in the act of 1804, all acts and parts of acts coming within its purview are repealed, although there was then no act for the limitation of actions in existence. Nor can it be said that this cause of action is within that proviso because it subsisted, although it did not accrue, during the time the act of 1804 was in force. For supposing this section 8 of the act of 1831 to refer •only to the acts of 1824, 1826, and 1830 then in force, there would still be a propriety in not limiting the proviso to causes of action which accrued, but extending it to those which subsisted during the time those acts were, in force. For the aetsof 1824 and 1826, themselves, made provision for causes of action which did not accrue, but subsisted under them ; and incorporated as part of themselves the acts of 1804 and 1810, to govern as to causes subsisting after 1824, which accrued between 1804 and 1824.
    We would make another remark upon the language of this proviso. It says, “all causes of action not heretofore barred, which subsisted or accrued,” etc. The causes of action of which it. speaks would seem to be causes which it was possible might have been barred prior to the act of 1831. As to causes of action which accrued prior to 1804, there was no such possibility, as we-think we have shown, inasmuch as there was no act to bar them-between 1824 and 1831.
    If there be anything in the act of 1831, which revives the act of 1804, in regard to this suit, it must be contained in the proviso. We do not see how such an effect can be given to a proviso merely,, which, to say the least, is obscurely.worded. That proviso is incompatible with the idea that either the acts of 1824 or 1831 extend to this case. Tet, if the construction contended for by the defendant is to be supported, this proviso is to have the effect of reviving and re-enacting the act of 1804, *which had been repealed for seven years, so far as causes of action accruing prior-to 1804 were concerned.
    We suppose there must be something unequivocal, to lead the court to carry back any of these statutes to causes of action accruing in 1803.
    2. Should the first point made by the plaintiffs be ruled against us, it will then be necessary to inquire whether the act of an administrator can avail to take a ease out of the statute of limitations. The last payment m-ide by Jonathan Dayton was in 1822. Twonty-one years had elapsed between it and the commencement of' this suit. Within six years alter the payment made by Dayton,'his administrator, Spencer, made a payment on account of' this debt. Within eight years after the payment by Dayton,, be reported it to the court as a subsisting claim against the the estate of Dayton ; and within thirteen years after the last payment by Dayton his administrator made a further payment,, from the date of which not eight years elapsed before this suit was brought.
    
      Mr. Angelí, in his work on Limitations, 278-281, considers that -the adjudged cases establish that tho act of the administrator may take a case out of the statute of limitations. His opinion we will fortify by a reference to tho cases.
    In Secar v. Atkinson, 1 H. Bla. 104; 2 Saund. 117, n. 1, it is Btatcd that a count on an account stated with an executor, for money due from the testator, may be joined to a count on a promise made by the testator, this being the common mode of declaring against executors and administrators to save tho statute of limitations. In Salter v. Salter’s Adm’r, 1 Halst. 405, the statute of limitations having been pleaded, leave was given to count on a promise by the administrator. It is evident that these recognize the availability of the act of the executor or administrator to take the case out of the statute, else where is the use of counting ■on his act?
    But we are not left merely to inference. In the late case, in South Carolina, of Wilson’s Adm’rs v. Wilson et al., 1 McMul. Eq. 331, the case of Lomax v. Ex’rs of Robertson, decided in 1838, was cited and sustained. The ^decision in that ease was, “that before the bar of the statute is complete, tho administrator may rovive the debt by an acknowledgment or promise.” This is a later case than that of the Ex’r of Fisher v. Representatives of Fisher, 1 McCord’s Ch. 175, where it was said that an ex•ecutor can not prevent the running of the act of limitations by his admission. The case in McCord can not, therefore, be con■sidered as an exposition of the rule prevailing on this subject in •'South Carolina?
    There are, in fact, many cases in that state holding a different •doctrine, and going even further than the case just cited from McMullen’s Equity, though the facts of the present case show that it comes oven within the limited rule in that case. Thus, in Pearce v. Ex’rs of Zimmerman, Harper’s S. C. 355, it is hold that the acknowledgment of an executor will revive a demand barred by the statute of limitations at the time of the acknowledgment, which was not barred at the death of the testator.
    Other decisions, both in South Caroliua and elsewhere, give effect to the act of the administrator for the purpose now under ■consideration, without regard to the fact, whether, at the death of (the intestate, tho claim had or had not been barred.
    In Scull and others, Adm’rs of Irwin, v. Ex’r of Wallam, 15 Serg. & Rawle, 232, the court seemed to think there was no doubt that an acknowledgment by one administrator, unless it was •couched in such terms as to be inconsistent with a new p.omise, could take a case out of the statute of limitations.
    That an acknowledgment of a debt by an executor or administrator, will take the claim out of the statute of limitations is decided in Walter et ux. v. Radcliffe, Adm’r, 2 Eq. 567; Forbes v. Perrie, Adm’r, 1 Har. & Johns. 109; Chapman v. Dixon’s Adm’rx, 4 Ib. 527; Kent’s Adm’rs v. Wilkinson, 5 Gill & Johns. 498, commented on in Sothoron v. Hardy, 8 Ib. 135; Baxtor, Adm’r, v. Penniman, 8 Mass. 134; Brown v. Anderson, 13 Ib. 213. The same is implied in the remarks of the*court in Larason v. Lambert, 7 Halst. 255, that it must be shown, in order to take the case out of the statute, that he who made the acknowledgment was administrator at the time he made it; and in Henderson et al. v. Foote’s Ex’rs, 3 Call, 248, 252, that loose conversations will not raise an assumpsit to take a case out of the statute of limitations.
    The cases hitherto cited have been cases of acknowledgments by an executor or administrator. Other cases, and among them the English cases, differ somewhat from these as to the precise act of the administrator or executor, which has the effect hero attributed to it. Yet all those cases show that his act has that effect; they only promulge another doctrine as to the nature of the act.
    In McCulloch v. Dawes et al., Ex’rs, 9 Dowl. & Ryl. 40; 22 Eng. Com. L. 385, the motion for a new trial was refused, not on the ground that the act of one of the executors could in no way have availed to take the case out of the statute, but that his remark, which was in evidence, was not a personal promise to pay the debt, nor even a personal acknowledgment of its existence. In Tullock v. Dunn et al., Ex’rs of Hanly, Ryan & Moody, 416; 21 Eng. Com. L. 478, the court held, in an action against several executors, that an acknowledgment bv them was not sufficient to avoid the bar of the statute, that there must be a promise, not by one only, but both. In Oakes v. Mitchell, 15 Maine, 360, the court say: “That an executor or administrator may, by an express promise, take a caso out of the statute of limitations, appears to be the settled law in England.” The court did not, in that case, decide what was the law of the State of Maine upon the point, but they inclined to the opinion, that, under the decision in Ryan. & Moody, an express promise must be proved.
    Other cases in the United States, while they do not expressly notice the distinction between an acknowledgment and a promise, are authorities to the effect, that a promise by an administrator or executor will revive a debt barred by the statute of 'imitations. It is so held in Emerson v. Thompson et al., 16 Mass. 429; Elliot v. Croak’s Adm’r, 13 *Wend. 35; Bishop v. Harrison’s Adm’r,. 2 Leigh, 534, and in Bennington v. Parkin’s Adm’r, Harr. 128, 209, while the case of Gailey v. Washington, Ex’r, 2 Harr. 204, decided in the same state (Delaware) as the latter, seems to have been founded on a peculiar statute. In Martin v. Williams. 17 Johns. 331, it was held that “the testimony offered to prove the amount as set off ought not to have been rejected on the ground of the-statute of limitations, when it was accompanied by a new promise on the part of the executor to pay.” In Jones et al., Ex’r of Wister v. Moore, Adm’r of Gray, 5 Binn. 573, and in Greening’s Ex’r v. Brown, 1 Minor’s Ala. 353, the court apparently entertained no doubt that the promise of the administrator took the case out of the statute. The same remark applies to the opinion of the court in Richmond, Adm’r, Petitioner, 2 Pick. 569, in which case, as well as Rogers v. Rogers et al., 3 Wend. 504, 517, the debt was due to the executor or administrator himself, and there was, therefore, no opportunity afforded him of showing a renewal of the promise.
    A question has been mooted, and has called forth conflicting decisions, whether, when there are Several co-administrators and co-exoeutors, an acknowledgment or promise by one, or by any number of them less than the whole, will take a case out of the-statute of limitations, as against all of them. That it will, is held in Briggs v. Ex’rs of Starke, 2 Mass.; Const. Ct. S. C. 111; Cobham, Assignee, etc. v. Adm’r, 2 Hayw. 7; Hammon v. Huntley et al., 4 Cow. 494; Deyo’s Ex’rs v. Jones’ Ex’rs, 19 Wend. 493; Horde’s Adm’rs v. Lee, 4 Mon. 36, and in Johnson v. Beardslee et al., 15 Johns. 3; in which latter case the acknowledgment of' executors is made the ground of a charge against heirs and devisees. On the contrary, may be quoted Caruthers and Kinkle v. Hardis’ Adm’rs, 3 Ala. (N. S.) 600; Atkins v. Tredgold, 2 Barn. & Cress. 23; Ryan & Moody, 416; while in 5 Gill & Johns. 498, the court refuses to decide this point, because it was there unnecessmy; and in the -tease of the Cayuga County Bank v. Bennett, 5 Hill, 239, the question is touched upon, but nothing .definite is said about its merits. These authorities all seem to us to show that where there is a sole administrator, his act revives the debt barred. For if the act of one of several administrators will do this, the same, most assuredly, will be the effect of an act by a sole administrator; and those cases which enter into an examination of the bearing of the act of the administrator, whore others are connected with him, admit, in so doing, that were the act one of a sole administrator, it would be sufficiently •efficacious.'
    We would ask particular attention to the case of Emerson v. Thompson et al., 16 Mass. 429, and Bishop v. Harrison’s Adm’r, 2 Leigh, 534, both because they clearly lay down the doctrino of the competency of an executor to exempt a case from the statute of limitations, by his promise, and because they are peculiarly applicable to this case, as showing that such a promise avails auainst the administrator de bonis non.
    
    There are some cases which may appear to conflict with those we have cited, though they do not in reality. Thus, in Collinson v. Owen, 3 Gill & Johns. 9, it was decided that an admission by an administrator is no evidence against an heir; and in Mooers v. White, 6 Johns. Ch. 373, the same doctrine is laid down. Now we are not here endeavoring to. reach the real estate. As the administrator of Dayton stands before the court, he can only be regarded as the representative of the personalty. In Mooers v. White, the court admitted that the executor might charge the personal estate by confession; but there, and in Collinson v. Owen, the attempt was to charge the heir directly. In Mooers v. White the complainant sought to charge the proceeds of real estate with his debt, although the executor had not made any application or' obtained any order to sell real estate.
    There are other cases which may be cited by the attorneys for the defendant, where claims were' held to be barred,'and not revived by the act of the administrator, such as Dawes v. *Shed, Ex’r, 15 Mass. 8, and Heard v. Meader, Adm’r, 1 Greenl. 157. But these were decided upion special acts respecting administrators and executors, and were expressly distinguished from cases under the general limitation act. The Massachusetts act provided that no executor or administrator should be com-polled or held to answer any suit not commenced within four years from the time of' his giving public notice that he had-accepted the trust. The first decision under this act, upon which the latter decisions were founded, was in Brown v. Anderson, Adm’r, 13 Mass. 203, in which it is admitted that an acknowledgment of a debt by an executor or administrator would avoid the-general statute; but it is held that it can not avoid this special act, designed to produce a speedy settlement of estates.
    We have, then, in favor of the position assumed by the plaintiffs, the decisions of the courts of New York, Massachusetts, South Carolina, Kentucky, Delaware, Maryland, Virginia, New Jersey, Alabama, Maine (so far as its courts have spoken), and the early eases in Pennsylvania. There are but three cases wjiich impugn this position, one in Pennsylvania, Fritz v. Thomas, 1 Whart. 66, to the effect that an acknowledgment of an executor does not take a case out of the statute; the others in the Supreme Court of the United States and Connecticut. The former, Thompson v. Peter, 12 Wheat. 565, first holds,that “had this even been a suit against, the original debtor, the declarations would not have been sufficient to take the case out of the statute.” This was all that was. necessary lor the decision of the case, and the remarks succeeding are but obiter dicta. In the other case, Peck v. Botsford, 7 Conn. 172, the above ease of Thompson v. Peter, was relied upon; and it is asserted that the doctrine we advocate is not supported by any adjudged case but that of Emerson v. Thompson. We trust we have shown that the latter assertion is incorrect. Had the court made further examination, we may suppose they would have-decided differently.
    *Such are the decisions out of our state. By a.reference to the several acts respecting administrators, it will be seen there is no special act which can bo set up hero, as in Dawes v. Shed. The act of 1840, section 247, excludes this case from the operation of that act. Administration on Jonathan Dayton’s estate was-granted under the act of 1824. 2 Chase’s Stat. 1308. The third section of this act simply provides that the administrator shall publish a notice calling upon creditors to produce their claims within a year; it gives eighteen months to settle up the estate. O. M. Spencer was appointed administrator on December 14,1824,, and the claim was ready for presentation on May 5, 1826, and probably presented within a few weeks after. The act of 1824 does not bar a suit even after the eighteen months; under it, the court may enlarge the time to five years for the settlement of the estate; and by the explanatory act of January 16, 1827, Chase, 1541, it is enacted that, even after the expiration of the time allowed by law or the court, for the settlement of the estate, suits may be prosecuted against the administrator for debts due and owing by the intestate. The act of 1831, section 41, Chase’s Stat. 1784, merely bars claims presented for final settlement or final dividend, and provides that such settlement or dividend shall not be made or declared until the expiration of eighteen months from the date of the letters of administration ; and this act, section 42, does not even discharge the real estate of the intestate from the lien of his debts until final settlement has been made. It will not be pretended there has been a final settlement or dividend of Jonathan Dayton’s estate, and this act of 1831 is the one, which, under the act of 1840, is to govern.
    There is nothing in the general limitation acts of Ohio which establishes any different rule from that deducible from the cases cited, as to the efficacy of an act of an administrator to take a case out of the limitation. As to the nature of the act necessary, the statutes themselves must determine that, and it will be seen they do not, in terms, give efficacy to the act only of the debtor himself. Under all the limitation acts, fifteen years has been the limitation to an action of debt on a bond. All *havo contained saving clauses. Under the act of 1804 and 1810, it was “provided that no part of the principal or interest be paid, or demand be made, within that time.” Under the act of 1824, “ when any part of the principal or interest shall have been paid, or a demand made therefor, within the time limited, such action may be commenced within the time hereinbeforo limited, after such payment or demand.” The act of 1830 enacted, that demand shall not be sufficient, unless the person, of whom the demand was made, acknowledged the claim or promised to pay it. The act of 1831 saves from its operation actions where there has been a payment, an acknowledgment, or a promise to pay. In the present case, we have an acknowledgment of the administrator of the most solemn character — the presentation of the claim to the court in 1830, and action of the court upon it almost equal to a judgment. 6 Wheat. 514. After the creditor had authenticated his claim, the administrator had treated it as subsisting, and reported it to the court for the purpose of declaring a dividend, and the.court had sanctioned his payment made on account of it, the creditor might well relrain from bringing suit. We have a payment, also, in 1828 and 1835.
    We leave the case, confident that it is with the plaintiffs on both points, making only this further remark : “ It is giving a grcaier efficacy to the act of the administrator to make his admission of a debt proof of its correctness, than to give to his act the effect of taking the claim out of the act of limitations. Tet, in ' Ohio, according to Mattoon v. Heirs and Adm’rs of Clapp et al., 8 Ohio, 24.9, the admissions of the administrator are prima facie evidence of the liability of the estate, and creditors are not required to go behind them, unless fraud or mistake is shown. This rule, it seems to us, includes the doctrine for which wo contend.
    We ask interest at the rate of seven per centum per annum. That is the rate agreed upon by the parties themselves, and was the rate in New Jersey. The lex loci contractus governs as to interest, unless where the place of payment or of performance is different from that of the contract. Story’s Conflict of Laws, sec. 296.
    *Morris and Rairden, for defendant:
    It is claimed for the de endant in this case thrt this action is barred by the statute of limitations of January 4, 1804. Chase’s Slat. 392.
    This act provides that11 all actions of covenant or debt founded upon a specialty under hand and seal, shall be sued or brought within fifteen years next after the cause of such actions or suit.”
    Section 5 of this act provides “ that all causes of action enumerated in this act, which have already accrued, shall only be barred by counting the time of limitation to those actions, respectively, from the passage of this law.” The cause of action- in this case ahcrued on November 1,1803, and thereiore comes within sections 1 and 5 of the act of 1804. The statute then began to run on January 4, 1804, and run out on January 4, 1819 — unless some part of the principal or interest had been paid, or demand made, “within that, time,” or unless the plaintiffs bring themselves within one of the savings of section 3 of the act of 1804, which is not attempted.
    There is no evidence, in the agreed case submitted to the court, of any payment or demand “ within fifteen ” years, but, on the ■contrary, it is agreed that no payments or demand had been made until Juno 24,1828, and December 15,1835, when tho former administrator made the only payments which had been made on the bond, and that, too, long after the debt bad been canceled by lapse of time.
    It is claimed by the plaintiffs in the argument, that payments were made by the Daytons at various times, until 1822, which saves the running of tho statute. Such is not the proof agreed on by the parties, and we suppose the court will not go beyond the agreed facts submitted to them, to find testimony upon which to predicate a judgment.
    The indorsements on tho same sheet of paper with the bond by the plaintiffs, or their attorneys or agents, aro no evidence of demand or payment, without proof of the fact. We can *not permit the plaintiff to make indorsements on the obligation, the ■effect of which will be to revive a debt clearly barred, and use these indorsements as evidence, with no proof that tho indorsements are properly made; this would be destroying the rule, that no man can give testimony in his own case. It would go further; it would be permitting him to make his own testimony, and receive it in evidence, without even his own oath to support its truth. The defendant pleads the statute of limitations, and all that is necessary to support his plea.is, to show that tho cause bf action accrued more than fifteen years before the commencement ■of the suit; this may be done either by tho obligation itself, or by other testimony, and tho plaintiff, to rebut this, must show either a demand or payment within the time limited. How must this be shown? By an indorsement of his own on the bond, without proof of payment? Certainly not. If this wore permitted, no ■case could ever be barred by a statute of limitations ; tho act would not only be a dead letter, but an absurd farce. The plaintiff brings his suit, and, belore trial, finds he is barred by'the stat-, ute of limitations; he immediately indorses on his obligation a ■demand on the defendant for payment, or a payment of a few cents or a few dollars, which are received as evidence, without even his own oath to verily the truth of the indorsements, and his -case is saved from the operation of tho statute. To establish such m rule of evidence would, we think, present too strong induceanonts to. fraud.
    Then we say that the plaintiff must show either a demand on, or payment by, Dayton, within fifteen years from January 4,1804, and that, too, by testimony not manufactured by himself — testimony independent of any indorsements which appear upon tho bond. 4 Pick. 110; 2 Pick. 156.
    But should the court be of opinion that these indorsements are sufficient proof of what they purport to contain, we then insist that the court can not go beyond tho facts agreed on by the parties any move than they can look beyond a special verdict of a jury for evidcnce or facts, apart from the verdict ^itself; in other words, that the parties are concluded by the facts agreed on.
    Does this case come within the provisions of any other act of our legislature, for the limitation of actions, than tho statute of 1804? The act of 1810 (Chase’s Stat. 655, sec. 5) provides that all actions which accrued before the act of 1804, and all actions which accrued alter the passage of the act of 1804, and before the passage of tho act of 1810, shall be barred by the act of 1804. The act of 1824 (Chase’s Stat. 1402) repeals tho act of 1810, but provides that the act of 1824 shall not extend to any action before that time barred by the statute of limitations, but that such action shall be decided under the statute by which they shall bavo been barred. This brings us to the act of 1826 (Chase’s Stat. 1528), which was passed for the purpose of removing any doubts which might arise under the acts of 1804 and 1810, after the passage of the act of 1824, and provides that all actions accruing during the time the two acts of 1804 and 1810 were in force, shall be commenced within the times limited by those acts, and not after. Now, in this aspect of the case, it is only necessary to inquire whether, on tho statement of facts presented to the court, the action on this bond was ever barred by the act of 1804? And' this, it seems to us, is fully determined by stating that the cause-of action arose in 1803. The statute commenced running January 4, 1804, and, consequently, run out January 4, 1819.
    This case being barred by the statute of limitations of 1804, it becomes necessary to inquire whether the payments by Spencer, administrator, in the years 1828 and 1835, revive the cause of action.
    On this point we insist that the action of covenant, or dobt,. founded on a specialty or debarred, can not bo revived, except by specialty — or, in other words, that a bond, barred by the statute' of limitations, can not be revived by acknowledgment, or expresa promise, or a part payment.
    It is well to notice here the proviso in section 1 of the statute of 1804. Chase’s Stat. 392. “ Provided that no part* of the principal or interest be paid, or demand be made, within that time.” Now, within what time must this paymerit or demand be made ? We suppose that it must be within fifteen years from the commencement of the running óf the statute, and not after the-statute has run out, and within fifteen years before the commencement of the suit. If the legislature intended that the payment, or demand, should be within fifteen years before suit was brought, but after the statute had run out, why do they use the proviso at all, and not leave the action on a specialty to the general rules, applicable to the statute of limitations. Again, the language used in the proviso confines it to the single term of fifteen years ; and to take the case out of the statute, the payment or demand must be before “that time” expires; and the case being saved by the-payment or demand, the statute will again commence running at the date of such demand or payment? Again, it is not clearly ■shown by this proviso to section 1 of the act, that the legislature intended that when the suit was once barred on the specialty, it should not be revived by parol, else why is the proviso inserted as to this cause of action, and not as to all other causes of action enumerated in the same statute?
    A claim once barred by the statute of limitations is canceled,, void, but may bo revived by an act of the debtor of equal validity, or of equal high character with the evidence of the original-contract between the parties; and in the case of simple contracts, it will be revived by an acknowledgment of a subsisting debt, or a promise to pay by parol, because the promise to paj^ may be-established by proof of equally high character with the original contract between the parties, by which the debt was created ; not so with a specialty, the parol promise can not bo proved by testimony of character as high as the evidence of the original contract between the parties, and we hold that only such evidence can be-received to give life and vigor to the before dead and canceled bond.
    But that debt, founded on specialty, can not be revived by parol, we are not left without authority, and we deem it useless to follow the argument further than to refer the court to *2 Hals. N. J. 113; 2 Penn. 435, 702 ; 1 Root’s Conn. 238.
    
      But should we be mistaken on this point, and the court be of -opinion that the debt founded upon a specialty can be revived by parol, the "question arises whether the acknowledgment of the •debt, and part payment by the administrator, will take the case out of the statute, for it will be observed that there is no promise to pay the balance of the claim by Spencer, nor is it shown, ex•cept by inference from the fact of payment and filing the bond by Spencer, that he over acknowledged any portion of the debt to be ■due; and for aught we know, may have made these payments by way of compromise, in the exercise of a sound discretion, for the •purpose of avoiding vexatious litigation.
    But it is unnecessary to labor this point, the authorities are clear, that part payment will not take the case out of the statute, •except to the extent of such payment. In Long v. Greville, 4 Dowl. & Ryl. 632; Eng. Com. Law, 214, Abbott, C. J., says: “ If we wore to hold, that the payment of money into court, in this •case, doprivod the defendant of the benefit which he seeks under his plea of the statute of limitations, wo should be going much farther than any case upon this subject has hitherto gone, and -than we are warranted by any sound construction of law to go. The utmost effect of that payment is to admit the sum so paid is •due; and to that extent, it concludes the defendant, and to that •only.”
    Bay ley, J., in the same case, says that the admission, “being limited to a part of the amount claimed, is a denial as to the rest; and it would be too much to say that an admission, as to one part, .and a denial as to the rest, will afford an inference that the whole is due.”
    Ttolroyd, L, says, “ that the 'same principle had recently been laid down, with respect to the plea of tender, in the case of Simpson v. Roth, 4 Dowl. & Ryl. 181, to which we refer the court, where it was held that a tender does not confer upon the plaintiff a right of action for a larger sum than that actually tendered, and can not bo construed as an admission of a debt due beyond that sum.” *Littlodale, J. “The payment of money into court only •admits the defendant’s liability to that amount. It does not make him liable for the whole.”
    This case is also reported in 3 Barn. & Cress. 10; and see S. C. Ham. Alr. 189; 4 Bing. 315; Eng. Com. Law, 447.
    
      We are, therefore, warranted in saying that the admission of Spencer went only to the amount of indebtedness actually paid by him; and filing the claim with the papers of the estate, was-for the same amount. In tho cases to which we have referred tho court, the admissions and payments were made by the parties to-the original contract themselves; and in the present case, the payments were made by the administrator.
    But we hold that the administrator can not, by any act of his, revive a debt against his intestate, barred by the statute of limitations.
    The duty of an administrator is to settle and pay off the legal debts due by tho intestate, and to account to the heir for any balance that may be in bis bands; and be is bound to make the proper defense to any claim which is not legally a debt due by the intestate, and not by his admissions, promises, or payments, to create a debt against the estate which did not exist, before such admission, promise, or payment.
    A claim barred by the statute of limitations is not without an acknowledgment, or a promise to pay a subsisting debt; and-whose rights are to be affected by such an admission ? Not that of the administrator, but the heirs; and reason would certainly teach us that the administrator was bound to make tho defense which would avail the heir, had ho the power of making the defense himself.
    The administrator is but a naked trustee for the settlement of the estate for the benefit of others, and can not create debts which-will bind the estate. In 7 Conn. 180, it is held to be the duty of an administrator to settle the estate according to law, and not-subject it to debts by his admission. In 12 Wheat. 565, it is said that the declarations of the personal representatives of tho deceased, “ have never been held sufficient to take the promise of the testator or intestate out of the act. ^Indeed, the contrary has been held.” In 2 Pick. 567, it is held that tho administrator can not revive the cause of action ; and the same doctrinéis laid down in 13 Mass. 201; 15 Mass. 6, 11; 16 Mass. 172. In 5 Pick. 140; 4 Mon. 37, it is held that the administrator can not revive a debt due himself, barred at the death of the intestate.
    It is held in various authorities that the act of one joint debtor-will take the case out of the statute as to both, or all the debtors; but we believe it has never been held that the act of the admin■istrator of one joint debtor will take the case out of the statute as to the others. 1 Barn. & Adol. 396; 20 Eng. Com. Law, 409; 2 Barn. & Adol. 23; 9 Eng. Com. Law, 409.
    The contract sued on was made in New Jersey, where both the parties to it resided at the time ; Dayton, the obligor, died in New .Jersey, and the original administration was there taken out on his estate, and consequently became the administration of the domicil of the decedent, and drew to it for the purposes of settlement and distribution, according to the laws of New Jersey, all assets in the hands of all the ancillary administrators of the deceased.
    The administration in this state, and all other states, where the decedent had property, became, and were merely ancillary to the .administration of the domicile.
    We claim that none of the ancillary administrators would have the right to adjust, and pay claims against the estate of decedent, but must pay over to the alministrator of the domicile, who must distribute according to the laws of Now Jersey, the place of domicile of the deceased. That no ancillary adm-inistrator could, by part payment, or promise, revive the claim, as against the statute of limitations, so as to charge the estate. That if it were even compelent for the administrator of the domicile to do this, still it could not be done by the ancillary administrator.
    Suppose, as was really the fact in this case, that the plaintiff’s claim should have been originally presented to the administrator in New Jersey, lor allowance and payment, and rejected *by that administrator, would the plaintiff have been authorized to present the same to the ancillary administrator in this state, or some other state, and promise an allowance of it, and part payment, so as to revive it against the decedent’s estate ?
    Such a principle would be subversive of the safety of every estate in the country, and would place it in the power of the creditors, and dishonest administrator, to revive any claim barred by the statute, and this could always be accomplished in some state by the procurement of the creditor, especially where a decedent might have property in more than one state.
    W. Green, on the same side:
    The case comes within the statute of 1804. The statute of 1810 repeals that of 1804, with a saving of all causes of action that accented before or after the act of 1804. The statute of 1824 repeals the act of 1810, saving all causes of action that had been barred by any previous statute. An act, explanatory of the act of 1824, was passed in 1826, providing that all causes of action that accrued during the times, respectively, of the acts of 1804 and 1810, should be governed by the provisions of these acts; and they were revived a- cordingly. As the cause of action in this case accrued before the act of 1804, viz., on November 1, 1803, it was, of course, excluded from the operation of the reviving act of 1826. Butin 1831, an act, the one now in force, was passed, which, after repealing “all acts and parts of acts heretofore passed for the limitation, of actions,” provides that “ all causes of action, not heretofore barred, which subsisted or accrued during the time those acts were in force, shall be commenced within the times therein limited, and not after.” Now the cause of action in this case, although it did not accrue under the act of 1804, it certainly subsisted under it, causes accruing before as well as after the passage of that act having been provided for by it. It may be objected, perhaps, to this view, that the repealing clause of the act of 1831 does not reach the act of 1804, on *the ground that it was not in esse at the time the act of 1831 was passed, having been repealed by previous acts, and revived by the act of 1826 for one particular purpose, and for “ no •other whatsoever.” The answer to this is, that the acts actually in esse at the time of the act of 1831 are all named specifically in the repealing clause; and, unless the acts of 1804 and 1810 were intended to be referred to and embraced within the meaning and purpose of the legislature, the clause “ and all acts and parts of acts heretofore passed,” etc., would be utterly senseless. To give this clause effect, therefore, we can not escape the presumption that the legislature intended to cover all acts that had ever'existed, and all cases that had ever arisen or subsisted under them, whether such acts had been previously repealed or not. The inference then is that the case before the court comes under the limitation act of 1804.
    Is the case taken out of the statute by Mr. Spencer’s payment within fifteen years of the commencement of this suit? This question turns upon the power of an executor or administrator to yield a legal advantage against the estate, as the testator or intestate might have done against himself.
    After the lapse of the period of limitation fixed by the law, the ■debt is presumed to be paid or settled. The administrator knows not to the contrary. Hence his promise or acknowledgment, express or implied, shall not bind the estate to a liability7- which may-have been discharged before, and which the law presumes was discharged. This doctrine is strongly put by C. J. Marshall, in Thompson v. Peters, 12 Wheat. 565.
    Also, in Peck v. Botsford, 7 Conn. 181, Dagget, Justice, recognizing Thompson v. Peters with unqualified approbation, says, “It is some consolation to reflect, that by this decision two grounds of evading the statute, now first attempted in Connecticut, are rejected. Neither a clause in a will directing debts to be paid, nor an acknowledgment by a personal representative that a stale demand is due, will defeat the operation of a beneficial statute; a statute of repose, already so much impaired by repeated decisions as to be divested of much of its importance.”
    *In Mooers v. White, 6 Johns. Ch. 373, Kent decides that “an acknowledgment or admission by an executor’, etc., will not bind the real assets in the hands of the heir,” etc. The principle of his reasoning applies equally to this case as to that. An executor or administrator can not, by any personal commitment, compromit the interest of the estate he represents.
    So, in Dawes v. Shed et al., 15 Mass. 10, it is decided not only that the administrator can not, in any way, waive the statute, but that the sureties on his bond shall not be held liable in a judgment rendered against him inconsequence of such waiver. See also 1 Hen. & Munf. 563, 567.
    It is understood that this case presents, for the first time in this state, the question of an executor’s power to waive the advantage of the statute of limitation, by acknowledgment, payment, promise, of otherwise, so as to bind the estate. It is admitted that the authorities on the point, whether in’England or America, are not uniform. Authorities, however, of the highest respectability, are with the defendant, and these, it is believed, sustained, as they most clearly are, by the abstract reason of the thing,'can hardly fail to insure a judgment for the defendant. The argument ab inconvenienti is full of force as opposed to the power in an executor or administrator, or trustee of any sort, to bind an interest not his own, by a gratuitous concession of an advantage which the law has provided for the wisest purposes in favor of the cestui que trust, and the assertion of which, in some cases, might bo necessary to prevent ruin to the trust estate. The law has ever been most watchful of the interests of trusts, with a decided tendency to restrain rather than enlarge the powers of trustees; and to make an exception to the rule which this tendency suggests, the case should be one in which the power in question should be clearly beneficial and not injurious, even by possibility, to the trust estate. This-case is not of that class.
   Birchard, J.

This suit is brought upon the joint and several' bond of William and Jonathan Dayton, to Susan U. Niemcewicz,. ^dated November 1, 1802, in the penal sum of $6,500, conditioned for the payment of $3,250 in one year from the date, and interest at the rate of seven per centum per annum, to be paid quarterly, on the first days of February, May, August, and November of each and every year.

The following indorsements of payments, by the maker, appear upon the back of the bond:

May 7, 1803, $29.48.

May 14, 1805, the interest due to May 1, 1805.

December 9, 1807, the interest due to November 1, 1807.

December 28, 1807, $250.

June 1, 1808, the interest due.

November 28, 1808, $20 on account of interest.

August 1, 1809, $242.50, being the interest, etc.

December 15, 1813, the interest to August 1, 1813.

February 17, 1818, $105 on account of interest, also a note for $766.21, in full of interest to February 1, 1818.

October 15, 1819, $210 on acccount of interest.

May 9, 1820, $262.50 on account of interest.

May 2, 1821, the interest to April 1, 1821.

June 12, 1822, $250.

All these appear to be bona fide indorsements.

June 24, 1828, a receipt of J. H. Crane, attorney for Mrs Niomccwicz, of $530, from O. M. Spencer, administrator of J. Dayton. Connected' with this is an agreed statement, from which appear these facts:

The bond is genuine. This suit was brought October 2, 1843. O. M. Spencer, the former administrator of Dayton, died in 1838. The present administrator of Dayton was appointed in 1842. On-May 5, 1826, the attorney in fact of Mrs. Niemcewicz, then alive, made oath to the amount then due upon the bond, and transmitted-it to Spencer, who paid the sum receipted by Crane, and filed the; bond in the court of probate, December 30, 1830, and reported the ■claim as passed and properly authenticated; charged the estate with the amount paid to Judge Crane, in his account current, which was approved by the court; and the bond was filed with the papers, marked “Allowed ^Toucher, Ho. 139,” where it remained until procured to be used in this suit.

On December 15, 1835, Spencer paid to the plaintiff, on account of the bond, the further sum of $281.40.

If the statute of limitations is a defense, judgment to be entered for the defendant, otherwise for the plaintiff.

Two questions have been, by counsel, presented for our consideration ;

1. Whether any statute of limitations of the state, in any respect, affects this case?

2. Whether the act of the administrator takes the case out of the statute ?

The defense insists that this cause of action is barred by the act •of 1804, as revived by the act of 1826. Whether of not the act of 1804, taken in connection with the numerous subsequent acts limiting actions of debt upon contract under seal, shall be held to -operate as a bar in any case where the cause of action accrued prior to 1804, is a question not necessary to be determined to •enable us to make a correct disposition of this case. But admitting, for the sake of argument, that the statute of 1804 is applicable, how does it affect this case?

The arguments for the defense assume that this case presents the question whether an administrator has power, by acknowledgment, promise, or otherwise, to waive the advantage of a bar by the statute of limitation so as to bind the estate of his intestate. But does such a question arise? Dayton made payments upon the bond as late as 1822. His acts were sufficient to take the ease out of the statute and to 'prevent its running up to that date, so that when presented to Spencer, in 1826, it was a -valid demand against the •estate, and he had no defense against it to be waived. His allowance of the claim was a matter of duty, and it should have the same effect as if made by his intestate. There was an acknowledgment of the debt; an admission that it was a just claim; dividend struck and paid upon it, with the approval of the court of probate; since which the time limited by the statute has not ■elapsed. *Under these circumstances the statute is no bar, whatever it might be under a different stato of facts.

The act of 1804 barred the action of debt upon a specialty in fifteen years next after the cause of action, provided no part of the principal or interest be paid or demand made within that time. All that was wanted by this statute, to prevent a bar, was pay. ment or demand. The demand by the plaintiff was made upon Spencer, the proper person. The money was due when domanded, and of' course rightfully paid by him. It may well be held that these acts are sufficient to take the case oat of the statute, without determining that a debt once barred by statute may be revived by an administrator so as to incumber the estate of the heir.

Judgment for plaintiff.  