
    Daniel McCann et al., Admrs., &c., vs. Sloan & Caldwell.
    ¿IMITATIONS,- — WHEN BARRED BY PROMISE OR ACKNOWLEDGMENT OK ONEÍ ok two Joint Administrators: Evidence. — In an action against joint administrators to recover a claim alleged to have been due by their intestate, a promise or acknowledgment by one of them is sufficient to remove the bar of the Statute of Limitation as against both, provided the existence of the claim has been established by proof aliunde, especially •where such promise or acknowledgment is made before the statute has operated upon the claim.
    Such promise or acknowledgnieñt cannot, however, he relied upon for the purpose of establishing the existence of the debt as against the administrator, who is not a party to the promise — proof aliunde being indispensable for that purpose.-
    Procedendo. — Where the judgment below has been for the plaintiffs, and is reversed on the defendants’’ appeals, and it appears from the plaintiffs'1 exceptions contained in the records, that the ruling of the Court below thereby excepted to' was correct, there is no ground- for granting a procedendo.
    
    Appeal from the Court of Common Pleas of Baltimore eity:
    This action was brought by the appellees against the ap-pellants, as administrators of Jamos II.- Nussear, on the 18th-of June, 1863. The declaration contained the- common-money counts-, a count for work done, and also a count on a promissory note. The defendants pleaded,- 1st ¿non-assumpsit,* 2nd, non-assumpsit infra tres aamos f 3rd, actio non aoorevit infra tres annosf and 4th, plene admvnistrmit. At the trial several exceptions were taken on- both sides, — ‘those of the appellants only need be stated-.
    
      Fi/rst Exception. The plaintiffs-proved the-grant of letters-of administration on Nussear’s estate to the defendants, on the 14th of November, 1859; and then- offered in evidence' this certificate from the Register of Wills, dated August 20th, 1861:
    “It is hereby certified, that it appears from the docket of accounts against the estates of deceased persons,* being on'e' of the records of this office, that an account against the estate of James H. Nussear, deceased, amounting to $374.48, and due to Sloan and Caldwell, (which is said to be lost or mislaid,) was regularly passed and recorded in the words and figures following, to wit: “Date, 1859,. No. 29; name of the’deceased — James II. Nussearnames- of the creditors — Sloan and Caldwell; character of the claims-^-account; amount of claims — $374.43.” The Court admitted this certificate to go' to the jury for the purpose only of proving notice to the de-fendants, that such an account had passed the Orphans’ Court.At the time of offering this evidence, the plaintiffs’ attorney stated he had served a notice on the defendants’ attorney,* directed to the defendant, Daniel McCann, requiring him to1 produce at the trial the cause of action, being the original-account passed by the Orphans’ Court,-and delivered to-him by the plaintiffs, and that he had failed to produce-it.- The5 Court decided this notice was served in time.
    The plaintiffs then offered the bond of the defendants,- given as administrators, for the purpose of showing their joint liability, and the Court allowed the paper to- be read to- the5 jury, subject to exceptions to be raised on their prayers.-
    
      The plaintiffs then undertook to prove their claim, and to lay a foundation for the introduction of the plaintiffs’ book,- and to prove the handwriting of the entries therein by Eeatherstone, their clerk, at the date of the entries; they' offered proof by Ray, that Featherstone was salesman and book-keeper for the plaintiffs in 1859, and that he understood1 hs was dead ; that he had heard from all his friends and acquaintances, that he had died in some place in Virginia \ heard a year ago that he was dead; saw him frequently, and missed him in April, 1861, They further offered to prove by Martin, that he knew Featherstone, that he left Baltimore in April 1861, that he told witness he was going South, and he’ missed him in April, 1861; he went South, and witness heard from his friends and relations that he was killed in the Com' federate service; heard so from Featherstone’s uncle. The' Court decided this evidence sufficient to authorise the plaintiffs to introduce evidence, that the entries in their books’ were in the handwriting of Featherstone, their clerk, and to* this ruling the defendants excepted.
    
      2d Exception. [The plaintiffs then- made an ineffectual effort to prove their claim by the introduction of their books,' as stated in their two exceptions. These need not be referred to further than to state, that the rulings of the Court expressly threw out all the’evidence in support of the plaintiffs’ claim, and up to this stage of the trial there was no proof,whatever, of any claim on their part.]
    The plaintiffs then offered in evidence a promissory note, proved to have been executed by the intestate in their favor,dated January 29th, 1859,-payable at one day after date, for $176.75. They then proved by Martin, that he knew Mc-Cann, one of the defendants, and that witness, in company With Caldwell, one of the plaintiffs, met McCann on the 25th of March, 1861, on the street, when Caldwell asked him, '(Mc-Cann,) why he had not paid the plaintiffs’ claim ; to which- ' McCann answered, he had not collected sufficient assets; witness then asked the plaintiff why he did not cite the defendant before the Orphans’Court; the defendant said hehad been cited before the Court, and that the plaintiff would haVe got his claim long before, if he had not done so ; that the claim was per^ fectly good; that he got six months from the Court, an'd could get six months more. On cross-examination, he said he recollected the conversation, and the date of it, because he took a memorandum thereof at the time, which he produced, and is as follows:
    “ On the 25th day of March, 1861, Mr. S. R. Caldwell and myself met Dan. McCann, corner of Gray and Second st.; Mr. C. asked Why the Nussear balance was not paid. Mr. McC. said he had not collected sufficient yet. I asked Mr. C., why he did not cite him to Court ;■ Mr. McC. said he had done so, and had he not, he would have paid him his money before this, the claim was' good $ that he, McC., had got six months and could get six months more of the Court.”
    To all of which evidence the defendants objected ás- being inadmissible to remove the bar of the Statute of Limitations as against the co-administratrix,. Mrs.- Nussear, or to prove the original indebtedness-of the deceased to the plaintiffs; which objections the Court overruled,- and the defendants excepted.
    
      od Exception. The plaintiffs then offered in evidence ai Certified' cop'y of the first administration account of the defendants,- as administrators, passed in the Orphans’ Court on the 27th of August, 1861, tód showing’ a balance due the estate of $3,727.20, for flie purpose of proving assets in thé hands of the defendants; to which the defendants objected,- and insisted that a full record from the Orphans’ Court must' be tendered’. The Court overruled the objection, and allowed the account to go to the jury, and to this ruling the defendants excepted.
    
      4Ah Exception* The plaintiffs then proved by O’Neill, that he called upon Mrs. Nnssear, one of the defendants, in refer? ence to the plaintiffs’ claim, about December, 1863, and slie referred him to McCann, and said she knew nothing about it, that it was under his charge.
    Two prayers were offered by the plaintiffs, and four by the defendants. The Court rejected the prayers on both sides, and gave the instruction as set forth in the opinion of this Court. The defendants excepted to the rejection of their prayers and to the instruction given by the Court.
    The case was tried in January, 1861, and the jury rendered a verdict in favor of the plaintiffs for $159.43, and the defendants moved for a new trial, and in arrest of judgment, for the reasons stated in the record. The Court overruled both motions, and the defendants appealed.
    The cause was argued before Bowie, C. J., and Bartob, Coldsboeough, Cochean, and 'Weisel, J,
    
      O. Miller, for the appellants ■:
    1st. There is error in the Court’s instruction to the jury in this, that the jury were told by it, in effect, that the admission or acknowledgment of one of two administrators was sufficient to remove the bar of the Statute of Limitations pleaded in this case. Kent vs. Wilkinson's Admire, 5 G. & J., 497. Gardiner & Bowling vs. Hardy & Sims, 12 G. & J., 384. Hesson vs. Hesson, 14 Md. Rep., 8. Caruthers vs. Mardis, 3 Ala., 509. Forsyth vs. Granson, 5 Wend., 561. Atkins vs. Tredgold, 2 Barn. & Cress., 23. Tullock vs. Dunn, 21 Eng. C. L. Rep., 478. Connoway vs. Spicer, 5 Harrington, 425. McCullough vs. Dawes, 22 Eng. C. L. Rep., 385. Scholey vs. Walton, 12 Mees & Wels., 509. Cayuga Bank vs. Bennett et al., 5 Hill, 336. Lane vs. Doty, 4 Barb., 535. 14 Wend., 93. 24 Ala., 474, 475.
    2nd. The prayer is also wrong, inasmuch as it assumes that the acknowledgment testified to by the witness, Martin, was not only sufficient to remove the bar of the statute, but also to establish the existence of the debt without any proof thereof aliwnde. See same authorities as above, and also Wood vs. Howell, 5 H. & J., 60. Miller vs. Dorsey, 9 Md. Rep., 323. Quynn vs. Carroll, 10 Md. Rep., 208. Seighman vs. Marshall, 17 Md. Rep., 569. Oakes vs. Mitchell, 15 Md. Rep., 360. 7 Conn. Rep., 172. 2. Const, Rep. 767, (S. C.) Chapmam vs. Dixon, 4 H. & J,, 527.
    3rd. Under the plea of plene achminist/ravit, the onus of proving assets is .on the plaintiff, and he must produce the ¡record of the proceedings in the Orphans’ Court. A mere ¿copy of an account passed on the 27th of August, 1861, and ydiich purports on its face to be the first and not the final account, without any other evidence, is not sufficient proof of assets in a suit commenced in June, 1863. The prayer was therefore erroneous in assuming there was sufficient proof in •the case from which the jury could find assets ip the hands pf the defendants. Seighman vs. Marshall, 17 Md. Rep., 569,
    4th, The prayer was also erroneous in instructing the jury •that the plaintiffs were entitled to recover without stating on ■what account. The note was ip. evidence, but limitation was ,a clear bar to that, as there was no .eyidence whatever that it formed part of the account passed by the Orphans’ Court. Ey the instruction, the jury were left at largo to include in their verdict this note as well as the account.
    5th. Eor the same reason as stated in the preceding points, there was error in the Court’s ruling in the second and third exceptions, which in fact raise only the samp questions which are raised on the prayers.
    
      A. H. Hobbs, for the appellees ■:
    1. It is clear that the promise of one of two or more joint administrators will remove the bar of the Statute of Limitations, and especially will it so operate if the promise is made before the statute applies, 7 Gill, 102. 2 Smith’s Leads 
      
      Ca., 387, 388, (5th Ed.) 4 Cow., 494, 495. 2 Monroe, 131. 4 Id., 37, 38. 5 J. J. Marshall, 257. 12 B. Monroe, 409. 15 John., 4. 19 Wend., 493, 16 Mass., 429.
    2. It is submitted, that the principles enunciated by these .■authorities, if traced to their legal conclusion, will be efficient -to establish the original demand. When a claim is barred by limitations, the bar may be removed by a new promise within three years before the institution of suit. When the statute operates upon a claim, it is presumed, in legal contemplation, to be extinguished ; if it is a joint demand, the joint liability is severed, destroyed. A new promise,however, “reanimates ■the old promise, and imparts vitality to the remedy.” In the case of a single bill, for instance, over twelve years standing, the bar may be removed by a new promise, or by any recognition of the existence of £he claim, and the law would raise the assumpsit; but, in that case, the action would be brought on the new promise, and the single bill would be used merely as an inducement to the action. The new promise does, in effect, therefore, establish the original demand. The same extent of power, the same measure of authority, it is thought, is requisite in both cases. Andit isfurther submitted, that co-administrators, acting separately, have greater powers than one of two or more joint contractors, one co-administrator represents the whole estate, and can, it is conceded, do many things conclusively binding on the estate he thus represents; whereas, joint contractors must all concur. Co-administrators, like joint tenants, are’possessed “per my eipertoutP
    
    3. There can be no reasonable doubt that the admission of an.a;Jminisiraio? is evidence sufficient, not only to remove the bar of the Statute of Limitations, but to establish the original demand. 1 H. & J., 109. 4 H. & J., 529, 530. 21 Pick., 243, 245. The admission of a trustee is binding on him. 3 Gill, 484, and 9 Gill, 220.
    4. Having shown the effect of the declarations of a sole administrator on the estate of his intestate, let us see what difference, if any there is, when there are two or more administrators. Joint or “ co-executors are regarded in law as an individual person, and by consequence, the acts of any of them, in respect to the administration of the effects, are deemed the acts of all, for they have a joint and entire authority over the whole property.” “ Hence, a release of a debt by one of several executors is valid, and shall bind the rest.” 2 G. & J., 226. (And the same law applies to co-administrators. 2 Wms. on Executors, 854.) 6 Md. Rep., 210. 1 Md. Rep., 190, 191 and 195, and 10 Md. Rep., 247. 8 Texas Rep., 336. 35 Maine, 280, 8 Blackf., 172. 4 Harrington, 457. 4 H. & McH., 391.
    The admission of a sole executor or administrator is sufficient to establish the original demand, and as co-executors or administrators, howevpr numerous, are but one person in law, each representing the whole estate, does it not legitimately and logically follow that the admission of one of the co-executors has the same binding force and efficacy; I liken it to the case of partners, the partnership being established, the declaration of any one of the firm is evidence against all.
    And the argument is strengthened when the fact is McCann made the admission before the statute had operated upon and extinguished the claim; he thereby created no new liability, but simply recognized an existing demand. Ellicott vs. Nichols, 7 Gill, 102, 103, 104,
    Again, his declarations are evidence, because he was thp “ acting administrator,” and Mrs. Nussear, the co-defendant, when applied to by witness, O’Neill, in December, 1863, admitted she knew nothing about the claim, referred him to McCann, and said the whole business was under McCann’s charge. He was then authorized to speak, not only for himself, but as her recognized agent, and as well as by virtue of his “ entire authority over the whole property.”
    5. But suppose what is above stated does not receive the approbation of the Court, still the declarations of McCann are evidence and entitle the appellees to an affirmance as to him. 1 GreenLeaf Ev., secs. 171, 172, 174. 1 Ch. Pl., 52. App. vs. Driesback, 2 Rawle, 301.
    6. The administration account offered in evidence was Competent and proper to show assets in the hands of the administrators; it was the first and only account passed by the Orphans’ Court, and was at least prima facie evidence that the appellants had the sum of $2,951.90 in their hands due the estáte of the deceased. No suitor is bound to show moré than a prima, facie case till his opponent exhibits countervailing evidence. 4 Md. Rep., 173. Gould on Pl., ch. 3, sec. 193. See also, 2 GreenLeaf Ev., sec. 347. Furthermore, McCann, in the conversation in the presence of the witness, Martin, admitted there wer¿ sufficient assets to piiy and satisfy the claim. Here the appellees close the argument of the case as presented by the record, and respectfully ask that the judgment be affirmed.
    Now, although the judgment of the Court of Common Pleas was in favor of the appellees, which prevented their appealing,yet, as it is possible, this Court may reverse the judgment of the Court below, it is thought best to bring to the notice Of the Court the evidence offered by the appellees of the handwriting, original entries, and subsequent death of the book-keeper and salesmen, referred to in the record. I think I am justified in asking this under the decision in Long & Byrn vs. Crawford, 18 Md. Rep., 226. The evidence offered ought to have been submitted to the jury, leaving it to them to say whether the Entries therein referred to were “ original entries,” in' the proper handwriting of the book-keeper, and whether the bookkeeper subsequently died. It was a question of fact, legitimate and proper, lor the consideration of the jury. And it as further insisted, that by presumption of law, the entries were original in the absence of all evidence to the contrary.
    Should the Court, therefore, determine to reverse the kdgment, it is hoped it will also pass upon the appellees’ first, second and third exceptions, as it may prevent a second appeal.
   Bartol, J.,

delivered the opinion of this Court.

This case turns mainly upon the decision of the question raised by the appellants’ second exception, as to the admissibility of the evidence of the witness, Martin, whereby it was sought to charge the defendants by proof of the acknowledgment of McCann made to the plaintiffs. The same question-is also presented by the Court’s instruction to the'jury conv tained in the appellants’ third exception.

The suit is against the appellants as administrators of James-H. Nussear, deceased, to recover a sum of money alleged to-be due to the appellees, from their intestate in Mb life time,Limitations were pleaded, and the evidence was offered for the two-fold object of establishing the' existence of the debt,- and of removing the bar of the statute.

The Court below admitted the evidence and instructed the jury: “If they find from the'evidence that the defendants,Daniel McCann and Susan Nussear, have been duly appointed administrators of the estate of James-H, Nussear, deceased ;- that the plaintiffs exhibited an account against the estate of the deceased amounting to the sum of §374.43, which was-duly passed by the Orphans’ Court of Baltimore'city,- an'd that one of the plaintiffs-, on the 25th of March, 1861,-had the conversation with DanielMcCann, one of thndefendan-ts,-detailed by the witness, Martin, and if the jury shall further find-from the evidence, that the defendants-are'in possession of assets, to be administered, sufficient in hand,-that then the plaintiffs are entitled to recover.”

It appears from the proof that the appellees qualified as administrators on the 14th of November, 1859. On the 29th of November, 1859, an account was passed by the' Orphans’ Court,, of the appellees again-st Jamos H. Nussear,- deceased,for $37-4.43, and a memorandum or record thereof was made by the Register, under Code, Art. 93, sec 114, in a boolc kept for the purpose. It is plain, from the certificate of the Register, that the 29th of November, 1859, was the date when the account was passed by the Orphans’ Court. What the date of the account was when due, or what were the items composing it, does not appear; it was not produced at the trial. The registry of the claim was evidence of notice of the same to the administrators, and as such the certificate was properly admitted. Seighman vs. Marshall, Adm'r, 17 Md. Rep., 569. But it was not evidence to establish the claim as against the appellants in this suit.

There was proof given of a promissory note signed by James H. Nussear, the defendants’ intestate, dated January 29th, 1859, for $176.75, in favor oí the appellees; but there was no evidence that this note formed any part of the account and claim exhibited to, and passed by, the Orphans’ Court, or that the administrators had any notice thereof. In the conversation between the appellee, Caldwell, and McCann, testified to by the witness, Martin, no allusion was made to the note. That conversation must, therefore, be understood as relating only to the account, that being the only claim exhibited to the Orphans’ Court, or of which the defendants appear to have had notice. The note was clearly barred by limitations, and there being no evidence of any promise or acknowledgment with regard to it, the plaintiffs were not entitled to recover thereon; and we do not understand the instruction of the Court below as comprehending the promissory note.

We now proceed to consider the question presented, so far as relates to the account. The evidence of the entries in the plaintiffs’ books having been rejected, there was no proof in the cause to establish the account, except the declarations of McCann, testified to by Martin. We are correct, therefore, in saying that those declarations were offered for the double 1 purpose of establishing the claim, and of taking it out of the operation of the Statute of Limitations. Are they competent evidence for that purpose?

In Forbes vs. Perrie's Admr., 1 H. & J., 109, which was a suit against a sole administrator, it was held by the General Court that a count against an administrator as such, was supported by evidence of his promise to pay a debt of the intestate.

In Chapman vs. Dixon's Admx., 4 H & J., 527, and Quinn vs. Carroll's Admrs. d. b. n., 10 Md. Rep., 197, it was decided that a promise or acknowledgment by a sole executor or administrator, will take a case out of the statute.

But the question whether, if there are two or more administrators, the promise of one will take the case out of the statute, seems not to have been decided in Maryland. In Kent's Adm'r vs. Wilkinson, 5 G. & J., 498, 499, the question is stated in the opinion of the Court, but not decided. And in Quynn vs. Carroll, 10 Md. Rep., 197, though the question was elaborately argued at the bar, the Court expressed no opinion upon it, (see page 209.) When we look outside of the State, there is considerable conflict of authority. In Tullock vs. Dunn, 1 Ry. & M., 416, (21 Eng. C. L. Rep., 478,) it was ruled by Abbott, C. J., that an express promise by one executor would not take a case out of the statute as against the others, and this decision was followed in Scholey vs. Walton, 12 Mees and Wels., 509, in a note on page 514: several American cases are referred to, and many more are cited in the argument of the appellee in Quynn vs. Carroll, 10 Md. Rep., 205, 206. Unquestionably, the current of decisions in this country is in accordance with the ruling in Tullock vs. Dunn.

In Hammon vs. Huntley, 4 Cowen, 494, the contrary is asserted; but in the Cayuga Bank vs. Bennett, 5 Hill, 236, before the same Court, the expression of Woodworth, J. in Hammon vs. Huntley, 4 Cowen, is called “obiter see, also, McIntire vs. Morris' Admrs Wend., 90; Lane vs. Doty, 4 Barbour, 535; Peck vs. Botsford, 7 Conn., 172, and Pitts vs. Wooters’ Exrs., 24 Ala., 474, where this question is considered. The cases in all the States are, however, not in harmony. The contrary was held in Emerson vs. Thompson, 16 Mass., 429, and in Hords’ Adm’rs vs. Lee & others, 4 Monroe, (Ken.,) 36.

We concur in what was said by Judge Cowen, in 5 Hill, 240, “ that the reasoning of Judge Mills, in the case cited from 4 Monroe, seems to raise a serious doubt whether denying the force of personal representatives, or any one of severa], to admit or to act in respect to any matter which concerns the estate, be not equivalent to saying that they are mere naked agents. They are clearly a good deal more. It has often been held that they are trustees with more than the ordinary powers incident to that character, for one may sell or convert the whole estate without the consent of the others.” See Bell vs. Hilliary, 1 Md. Rep., 186, &c., Mitchell vs. Williamson, 6 Md. Rep., 210, and Gardener & Bowling vs. Hardy & Simms, 12 G. & J., 365, where the powers of executors and administrators are considered.

Although there is much conflict of authority on the point, and it must be conceded, that the current of decisions both in England and in this country is the other way, we perceive no good reason why a promise or acknowledgment by one executor or administrator, where there are several, should not operate to remove the bar of the Statute of Limitations, especially when made before the statute has operated upon the claim.

But we are clearly of opinion that this can only apply where the claim is established by proof aliunde, and that such promise or acknowledgment cannot be relied on for the purpose of establishing the existence of the debt as against the other administrators.

(Decided July 19th, 1866.)

The law seems to us to be correctly stated in 2 Smith's Lead. Cases, (5th Ed.) 388, note, where it is said: “ Executors have joint authority and power touching debts due by the testator, and if you prove aliunde, that the claim sued upon was a debt of the testator, you lay a ground for admitting the acknowledgment of one to be evidence against the other; thus, if you prove that it was a debt due by the testator, an acknowledgment by one would take the case out of the Statute of Limitations against both, and against all. Johnson vs. Beardslee, 15 Johns., 3. But for the purpose of proving the fact whence the joint interest and power arise, viz : for proving that it was a debt due by the testator, the confession of one is not evidence in a suit against both. Hammon vs. Huntley, 4 Cowen, 493.

This must be understood, however, with reference to what has been before said, as to whether the acknowledgment has been made before or after the statute has operated. In the latter case it would seem a promise or acknowledgment of one of several co- administrators would not bind the others. See Ellicott vs. Nichols, 7 Gill, 102.

In this case, the declarations of McCann, being offered for the purpose of establishing the existence of the debt, were inadmissible, and for that reason there was error in the Court’s instruction. The judgment will therefore be reversed.

"We are of opinion that the Court below ruled correctly in excluding the evidence of entries in the plaintiffs’ book, contained in the first and second exceptions of the plaintiffs, for the reason that it did not appear from the evidence that the same was a book of original entries; there is, therefore, no ground for a procedendo.

Judgment reversed.  