
    Hansell v. Gregg, Adm’x, and others.
    'Where an action was brought by one of two joint obligees on a note secured by mortgage, and the defendant excepted to the petition on account of the non-joinder of the representatives of the other obligee, whom the plaintiff had alleged to be deceased: Held, That the exception was sufficiently answered by another averment of the petition, that the survivor was the sole owner of the cause of action.
    'The statute does not require the affidavit which accompanies a claim on presentation to an administrator for allowance to be made by the owner; it may be made by an agent or attorney who is conversant with the facts, Quereii a claim were rejected expressly on the ground that the affidavit was made by an agent, and did not disclose his means of information. (Note 32.)
    Where a claim consisting of a note and mortgage, apparently barred by the statute of limitations, but accompanied by written acknowledgments of the justice of the claim, was presented to an administratrix, and the affidavit stated that the above claim (referring to the note and mortgage) was just, «fee.,* the administratrix rejected the claim, on the ground that it had been “paid and discharged:” Held, That the description of the claim con tained in the affidavit was sufficient.
    if an administrator indorse on a claim his reason for rejecting it, he will not be permitted to plead or urge, in abatement of the suit, any other reason which goes merely to the sufficiency of the presentation for allowance,
    if the objections to the manner in which the claim was presented were, in our opinion, well taken, it may well be doubted whether they should have any other effect than to impose costs on the plaintiff. (Note 33.)
    Appeal from Burleson. The appellant brought suit against the appellees, •tlie administrator and heirs of John Gregg, deceased, to foreclose a mortgage given to secure tlie payment of a promissory note bearing date on the 28th day •of November, 1842, and clue on tiie 1st of March, 1844. The suit was commenced on the Gth clay of June, 1S50, and, to take tlie case out of the operation ■of the statute of limitations, the plaintiff alleged in his petition, and made a part thereof, certain written acknowledgments of the defendant and promises ■of payment of the debt, made within less than four years next before the commencement of the suit. Tlie petition further alleged the deatli of Gregg; the appointment of his administratrix; and tlie due presentation to her of the •claim, including both the original note and mortgage and the several subsequent promises of payment, for her allowance, accompanied with an affidavit by the attorney of the plaintiff attached to'the note, stating “that the above note, dated on*the 28th day of November, 1842, for the sum of three thousand ■dollars, due on the 1st day of March, 1844, and payable to Win. B. Hansell and John Hansell, and signed by John Gregg, together with the mortgage executed ■on tlie same day by the said Gregg, to secure the payment of said note, are the property of John II. Hansell, and that the claim is just; and that after allowing-all legal offsets, payments, and credits known to affiant, there is a balance of* two thousand one hundred and twenty dollars and ninety-six cents due and payable to said John II. Hansell, on tills day, from tlie estate of the said John Gregg, deceased.” Tlie administratrix refused to allow the claim, and •stated her reason, in writing, on the back of the note, as follows: ‘•‘This note 'has been fully paid and discharged; therefore it is rejected.” The note and mortgage were given in favor of the plaintiff John H., and William B. Hansel], jointly, and the petition alleged that the said William B. is deceased, and that lie, the plaintiff, was the sole owner of said claim.
    The defendants excepted to the legal sufficiency of the petition. The court gave judgment for the defendants on the exceptions to the petition, and the plaintiff appealed.
    
      Giddings, for appellant.
    I. The court erred in ruling that the affidavit must in all cases he made by the owner of the claim, and that it could not be made by tito agent of the plaintiff.
    Tlie statute requires an affidavit to be made, but does not say it shall be made by the plaintiff in person, nor does it provide by whom it shall be made. Any one who knows the facts 'may make the affidavit in such cases. (Phill. Dig., Ala. R., Affidavits.)
    As the attorney has sworn to all the facts required by the statute, the court will not, in the absence of proof, presume that he has sworn to facts which he did not know; and in this case the affidavit proves nothing, where the party is put to his suit, for the claim must be established by other means.
    An agent or attorney may make the affidavit in various cases. (Impey’s Brae., 67; Comvn Dig.. 332; 2 Smith, 61.) If made by an agent or attorney in fact, affidavit need not show an excuse for not being made by the party himself. (Murray v. Kirkpatrick, 1 Cow. B., 209; Jackson v. Watts, 1 Mc-Cord. R., 288: 1 Whart. R. 320.)
    U. The court erred in ruling the affidavit to be insufficient, inasmuch as the same was not attached to each and all of the various subsequent promises. The affidavit contains every requirement of the statute. The affidavit need not be attached even, nor describe the cause of action or various papers which arc presented as evidences of the claim. The claim is only required to be presented, accompanied by an affidavit. The administrator is advised of the nature of the claim by (he presentation to him; he'can examine for himself when presented. In this instance the various papers, the note, mortgage, agreement, and subsequent promises were all presented to the adminis-tratrix, accompanied by an affidavit in the language of the statute itself.
    The main ground of objection to the affidavit made below was, that it should have named the subsequent promises, (he letter, &c., when the affidavit only names the note and mortgage. There, is no doubt but that a subsequent promise, when relied upon to take a case out of the statute, must be averred in the petition ; this doctrine is settled in the case of Coles v. Kelsey, (2 Tex. R.) But that decision does not prescribe the mode of presentation of claims, nor can it be cited as authority for the construction of the above act. It seems to me that it is wholly immaterial, so far as the affidavit and presentation of the claim are concerned, whether the.old or new promise be considered as the cause of action, or whether both together compose the cause of action. In this case the original note was never barred, the same being renewed every year by subsequent promises, all of which were presented and are set forth in the petition. Hence it is unlike a case where full four years had elapsed and the cause of action becomes extinct.
    In the present case all the several promises, both old and new, were presented to the administratrix, and the objection seemed to be that the new was not specialty described in the affidavit, as that alone was held by the court below to be the sole cause of action. It is sufficient for the affidavit to accompany the claim. This is the identity required by the act; this was done, and it is all that the plaintiff can bo called upon to do. To require more, would be to elevate the affidavit to the character of a petition.
    
      Webb fy Oldham, and A. JK Lewis, for appellees.
    I. Where the original claim is based and the plaintiff relies on a subsequent promise to take the case out of the statute, lie must make the subsequent promise the foundation of his action. (Coles- v. Kelsey, 2 Tex. R.)
    
      Before an administrator is authorized to allow a claim, it must be sworn to as directed in art. 1158, Hartley’s Digest. Now, it seems clear that tlie claim to be presented must be the one tliat'is the evidence of a subsisting debt — one that tlie intestate would, were lie living, be bound to pay, and that debt must have the requisite affidavit. Before the holder of such a claim is authorized to bring suit, he must make the required affidavit and present to the administrator for his approval or rejection. There appears to be two objects in view :
    1st. As experience lias taught, it is often tlie case that offsets, credits, or payments ought fco be allowed which are only known by the parties; and inasmuch as tlie payor is dead, the law lias made it necessary for the payee say on oatli whether any such exist.
    2d. If tlie claim is such an one as the administrator is legally bound to pay, he may save tlie estate as well as tlie payee the expense of a law suit. And the effect of his allowance is precisely the same as tlie judgment of the court. Can lie be justified in allowing it on less evidence than is required of the court? This would reverse tlie general rule, and place tlie greatest reliance on the discretion of one that, under ordinary circumstances, lias the least. The allowance of the administrator and the approval of tlio probate judge pari alee very much of the nature of a judgment.
    II. It is evident that if the ruling of tlie court was right in sustaining tlie exceptions, the plaintiff' liad no cause of action. If he hail any, it ivas his duty, and he doubtless would have asked leave, to amend, but lie did not, and the court will not force a party to do so.
    III. It may not he necessary in' all cases for the owner of a claim to make tlie required affidavit; but when we consider the object of the law there seems much reason for tlie construction which the District Court gave the law. There may he cases where the agent would possess the best means of knowing. In such cases the affidavit should show that superior information. Tlie payee may evade the object of tlie statute by handing over the claim to one who knows less than lie does — one who can safely swear that all “the, credits,offsets, and payments known to affiant have been allowed.” All that the agent lias said may be true, and yet there may be just credits, offsets, and payments known alone to the claimant.
   Wheeler, J.

The objection to the non-joinder of the legal representatives of the deceased joint payee, if it be a valid objection, is answered by the averment of the petition, that the survivor who sues is tlie sole owner of the cause of action.

But the ground mainly relied on in support of the exceptions to the petition is, tiiat from tlie averments thereof it does not appear that the claim ivas duly presented to tlie administratrix for her approval; and in support of this ground it is insisted — -1st, that the affidavit was not made by the proper person — having been made by the attorney, when it should have been made by liis principal; and, 2d, that it does not sufficiently describe tlie claim presented, in that it does not refer to or describe the new promises relied on to take tlie case out of the operation of the statute of limitations.

To (.lie first objection to the affidavit it is a sufficient answer, that (he statute does not require the affidavit to be marie by the owner of the demand. (Hart. Dig., art. 1158.) An affidavit made by the agent or attorney who is conversant with the facts will bo a sufficient compliance with tlie statute in tills respect. On principle, the person who makes (he affidavit should be either (lie owner of the claim or some one acting for him, who is conversant with the facts; for tlie making of tlie affidavit presupposes a competent knowledge of tlie facts respecting which the party is required to make oath. But tlie agent may be equally well informed as the principal, and may have less inducement from interest to swerve from tlie truth. And where it is not objected that ho did not possess a competent knowledge of t-lie facts, we see no objection to liis making the affidavit. If the administratrix had rejected the claim on the ground that tile affidavit was not made by the proper party, and that it did not disclose tlie means of information possessed by the attorney, there would be more plausibility in the objection now urged. But she rejected the claim upon an entirely different ground, viz, that the debt had been fully paid — showing that the claim was'not rejected in consequence of the making of the affidavit by the attorney, nor in consequence of its not disclosing' the means of information possessed by him. We do not think the objection in this respect well taken; nor do we think it necessary that the affidavit should have described or specially referred to the new promises. It is alleged in the petition that they, together with the note, mortgage, and affidavit, were presented to the administratrix. She was therefore apprised that the claim was a subsisting legal demand against the estate, and this was sufficient.

Note 32. — Crosby v. McWillie et al, 11 T., 94; McIntosh v. Greenwood, 15 T., 110; Shelton v. Berry, 19 T., 154; Walters v. Prestídge, 30 T., G5.

Note 33. — The statute is imperative. (Converse v. Sorley, 39 T., 528.)

If any legal effect were given to the affidavit as proof, or if it imposed on tiie administratrix any legal obligation to admit the claim, greater strictness might be required. But its only effect is to make it optional with the administrator to allow or reject the claim. Without it, he could not, under the statute, legally allow the claim; with it, he may allow or reject, at his own discretion and according to his own sense of justice.

In the present instance, the administratrix has stated the ground on which she refused to allow the claim, which was, not that the affidavit was not made by the proper party, or that the claim was not duly presented, but a very different reason was assigned. It is manifest that the objection now taken to the presentation of the claim bad an influence in causing its rejection. If the objections to the manner in which the claim was presented were, in our opinion, well taken, it may well be doubted whether they should have any other effect than to impose costs on the plaintiff. But we are of opiniou that the objections are not well taken, and that the court erred in sustaining the exceptions to the petition; for which the j udgment must be reversed, and the cause remanded for further proceedings.

Judgment reversed.  