
    George Lomax vs. Thos. P. Spierin, John Robertson and David Robertson, Ex’ors of Sam. Robertson.
    If one be sued as executor, and be do not deny the character by bis plea, the plaintiff is not bound to prove that be is an executor.
    Where a debt due by the testator was not barred by the statute of limitations at the time of his death, and an acknowledgment or promise to pay is made by one of several executors, before the statutory term is complete, they will all be liable on a count alleging promises by the testator, if the action is brought at any time within four years from the time of such acknowledgment or promise made.
    The principle of all the cases seems to be, that the debt is not barred if there has been a sufficient promise to pay at any time within four years from the commencement of the action.
    BEFORE EVANS, J., AT ABBEVILLE, SPRING TERM, 1838.
    The declaration in this case contained counts alleging promises by testator, and some alleging promises by the defendants, as executors, in consideration of the testator’s liability.
    Pleas — general issue and statute of limitations.
    The plaintiff’s demands were proved; they were not barred at the death of the testator: they were soon after presented to one of the executors, who acknowledged them and promised payment; they were repeatedly acknowledged by this executor, and another of the executors, before the expiration of four years from the time they became due. This second executor expressly promised payment of them, after the expiration of five years from the time they became due, but within four years from, Ms former acknowledgments. The third executor bad never made any acknowledgment, or promise to pay. The action was brought six years after the demands became due.
    A motion for nonsuit was refused; and the plaintiff bad a verdict.
    The defendants appealed, and renewed their motion for nonsuit on the following grounds, viz:
    A defendant, as executor, cannot be made liable on bis promise as executor, without proof that be is such, even when the general issue only is pleaded.
    An acknowledgment of the testator’s liability, made by an executor, will not stop the running of the statute of limitations, without an express promise to pay, even although such acknowledgment be made before the statutory term is complete.
    After the expiration of the statutory term from the accrual of the action, no promise of the executor can be a good reply to the plea of the statute, so as to authorize a recovery on a count alleging only the promise of the testator; and on a count alleging the joint promise of these defendants, as executors, there can be no recovery against any of them, without proof of a promise by all.
    So that, whatever may be the plaintiff’s rights against some of these defendants, be cannot recover in this action, without proof that all of the defendants are executors, and that all of them expressly promised payment of bis demands.
    
      Wardlaw and Perrin, plaintiff’s attorneys.
    -, contra.
   Evans, J.

There is nothing in the first ground in the brief. If one be sued as executor, and does not deny it in bis plea, the plaintiff is not bound to prove it.

I think it is now well settled, that after a debt is barred, nothing short of an express promise to pay, or a clear and distinct admission of liability, from which a promise may be implied, will suffice. The legal liability in such case is gone, and nothing remains but the moral obligation. Upon this no action can be maintained; but it is a sufficient consideration for a new promise. But until the bar is completed, and whilst the legal liability remains, slight acknowledgments will be sufficient.

In this case, before the expiration of four years, the debt was acknowledged by two, and payment promised by one, of the executors. The statute could not therefore bar, until four years after this new promise and admission, unless there be something in the argument, that the promise or admission, to be binding must be made by all. But before the expiration of that time, one of the executors again promises to pay it. There was no period of time, between these successive promises, when the plaintiff’s cause of action was barred. This case differs from Briggs vs. Stark and Pearse vs. Zimmerman, in this only — in those cases there was but one promise — in this, the promises are successive; a circumstance which I apprehend cannot vary the .case. The principal of all the cases seems to be, that the debt is not barred where there has been a sufficient promise to pay within four years before the commencement of the action. The case of Briggs vs. Stark and others, was an action against the defendants as executors. They pleaded the statute, and on the trial it was proved one of the executors had promised within four years; this was held sufficient, and in the opinion of the Court the promise of one executor is put on the same ground as the promise of the joint makers of a note. I am therefore of opinion, the plaintiff is entitled to recover on these counts which charge them on the promises of the testator. This renders it unnecessary to discuss the other question, whether in a case where the debt was barred at the time of the subsequent promise, the promise of one executor will bind the others. I have looked into the English cases, and find that the subject has been much discussed and is still unsettled, The cases will be found in Doug. Whitcomb vs. Whiting, 21 Eng. Com. Law Rep. 478; Tullock vs. Dunn, 9 Eng. Com. Law Rep. 413; Perham vs. Raynal, 9 Eng. Com. Law Rep. 12; Atkins vs. Thredgold.

The motion is dismissed.  