
    Jehu Jones, jun. vs. Lavinia Jenkins, Ex’rx of Archibald Whaley.
    An estate is not bound by the unauthorized act of the attorney of an executrix.
    Colleton, Spring Term, 1823.
    THIS was an action of assumpsit on a note, dated January 18, 1815, and drawn by Archibald Whaley, the defendant’s testator. Four years and eleven months after it was due, the plaintiff applied to a brother of the executrix, who occasionally transacted her business, for payment. He replied that it should be paid. The defends ■ant pleaded the statute of limitations, and the only question was, whether the promise of the brother was sufficient to defeat the plea. The judge on the circuit was of opinion that it did not; a motion was now made to reverse that decision.
    
      Holmes, for the motion.
    
      Ford ¿5* Re Saussure, contra.
   Mr. Justice Huger

delivered the opinion of the court:

In this case, it is important whether the executrix could or could not have bound the estate by a promise made by herself ; for there is no evidence that she did promise to pay the note in question. Her brother had no written authority to act for her, and it does not appear that he had ever so acted for her in any previous case. If he had, and his act had been afterwards confirmed by her, there would have been such evidence of his authority as ought to have been submitted to a jury, but as there was no evidence of any authority vested in the brother to bind the estate, the non-suit was properly ordered, and the motion in this case must be discharged.

Justices Notf, Johnson and Richardson, concurred.  