an acknowledgment made to him by a debtor to the estate will remove circumstances he can fairly be said to have used due diligence. "The form of the replication by an executor to a plea of the statute, where he recently brought a new action after the death of a testator, was to state that the testator, on such a day sued out a writ of summons against the defendant, whereby he was commanded, &c. (and then continuing the writ down to the time of the testator's death); that he appointed the plaintiff as executor, recently after his death, to wit, on such a day, &c., the plaintiff sued out the writ upon which the action is founded; that the several writs so prosecuted by the testator against the defendant were with an intent to have impleaded the defendant upon the several promises in the declaration specified; and that the writ sued out by the plaintiff against the defendant was prosecuted against him with an intent to implead him for the causes of action in the declaration specified, and upon his appearance to declare against him for the said several causes of action, and that he afterwards, on, &c., declared against the defendant, &c., with an averment that the several causes of action accrued within six years next before the suing out of the writ first above specified by the testator. 2 Saund. 64 c, note. "Again, if an executor brought assump. sit, but died before judgment and the six years run, his executor might, notwithstanding, bring a fresh action, so as he brought it in a reasonable time, which is to be decided at the discretion of the justices upon the circumstances of the case. Bull. N. P. 150 a. "The principle of these cases, according to the judgment of LORD CHIEF JUSTICE TREBY, in the case of Kinsey v. Heyward, is, that when once the proviso in the statute of limitations is complied with by the commencement of an action within due time, the party is out of the purview of the act, and set at liberty out of the restraint of the said statute. But the true ground of these decisions appears to be that they proceed upon the equity of the fourth section of the statute, and that the courts have extended that section to the case of an executor whose testator has died pending an action brought by him; which, though not within the words of it, was evidently within the mischief. 2 Ad. & El. 403, 404. In Adam v. The Inhabitants of the City of Bristol, 2 Ad. & El. 389, the premises of A., a termor, having been burnt by a riotous assembly, A. complied with all the requisites of the statute 7 & 8 Geo. IV. c. 31, and commenced an action against the inhabitants of the city and county within three months from the offence. Before verdict or judgment, and after the expiration of the three months, A. died. His executrix commenced an action against the inhabitants on the sev enth day from A.'s death. And the Court of King's Bench held, that, supposing an executrix entitled to sue in any such case (as to which the court gave no opinion), the action, having been commenced more than three months from the offence, was too late under the provision of section 3 of the statute, and that there was no analogy between this case and the above decisions on the general statute of limitations. But the same equitable construction that has been applied to the fourth section of the statute of James has been followed as to the limitation of actions on bonds, &c., imposed by the Stat. 3 & 4 Wm. IV. c. 42, § 3; Sturgis v. Darrell, 4 H. & N. 622; 6 id. 120. "Where the right of action accrued to the testator during his residence abroad, and he died abroad, never having returned after the accrual thereof, the statute is no bar to an action by his executors, although it accrued more than six years before action brought; at all events if it is brought within six years after his death. Townsend v. Deacon, 3 Exch. 706. See also Forbes v. Smith, 11 Exch. 161." Hammon v. Huntley, 4 Cow. (N. Y.) 493; Cayuga Bank v. Bennett, 5 Hill (N. Y.), 236; Forsyth v. Ganson, 5 Wend. (N. Y.) 558; Oakes v. Mitchell, 15 Me. 360; McIntire v. Morris, 14 Wend. (N. Y.) 90; Patterson v. Cobb, 4 Fla. 481; Moore v. Parker, 1 Bailey (S. C.) Eq. 195; Reigne v. Desportes, Dudley (S. C.), 118; McTeer v. Ferguson, Riley (S. C.), 159; Pearce v. Zimmerman, Harp. (S. C.) 305; Hender 5 the bar as to such debt;1 and it has even been held that payments made by a debtor to the estate, to a person who had not then been, but was subsequently appointed administrator, was sufficient to revive the debt and remove the statute bar. In any event, if an acknowledgment of an executor or administrator is relied on to take a debt out of the statute, it must be shown to have been made by him in his representative capacity. And the declaration should contain a count upon a promise by the executor or administrator as such, although in New Hampshire this is held to be unnecessary. In accordance with this rule it has been held by the English courts that, if an action is brought against an executor or administrator on a bill or note given by the testator or intestate, and the declaration alleges a promise by the defendant to pay the bill or note, such promise may be denied by a plea of non assumpsit, notwithstanding the rule abolishing the plea of non assumpsit to a declaration on a bill or note." However, it is said. to have been held that if the declaration charges the executor, on a promise made by his testator, and the defendant pleads the statute of limitations, to which the plaintiff replies, that the testator did promise within six years; proof on the part of the plaintiff, that the executor promised within six years, and that the testator's death was within this period, will support the count in the declaration; for that the executor's promise shows a liability to pay, existing before the time of the testator's death, and the law will imply a promise by the testator to pay what he was liable to pay. But the mere existence of a debt owing by the testator or intestate is not evidence of a promise to pay by the executor or administrator, as executor or administrator. Hence, as against an executor or administrator, an acknowledgment merely by him of the debt's existence is not sufficient to take the case out of the statute; there must be an express promise. And in accordance with this rule in the case last cited, which was an action of assumpsit against several executors, who pleaded the general issue and the statute of limitations, ABBOTT, C. J., held, that neither an acknowledgment of the debt by all the executors, nor an express promise by one of them, took the case out of the statute; there ought to have been an express promise by all. 10 In New Jersey it has son v. Ilsley, 19 Miss. 9; Fisher v. Duncan, 1 H. & M. (Va.) 563; Oakes v. Mitchell, 15 Me. 360; Bunker v. Athearn, 35 id. 364. 1 Martin v. Williams, 17 Johns. (N. Y.) 330; Townsend v. Ingersoll, 12 Abb. Pr. (N. Y.) N. 8. 354; Jones v. Moore, 5 Binn. (Penn.) 573. 2 Townsend v. Ingersoll, ante. 3 Scholey v. Walton, 12 M. & W. 510. 4 Browning v. Paris, 5 M. & W. 120. 5 Buswell v. Roby, 3 N. H. 467. been held that a sole executor has the power, by a new promise, to remove the bar of the statute, and that all of several, or one of two, executors or administrators may bind the estate by a new promise without making the representatives personally liable.1 SEC. 191. What Acknowledgment by an Executor is sufficient. It was formerly held in England 2 that an acknowledgment or promise by an executor, in order to be operative to remove the statute bar, must be express, or at least of a more definite character than one which would be sufficient to bind the original debtor if it had been made by him. But under the present theory as to acknowledgments it would undoubtedly be held in England, as well as in the States where the English doctrine as to the effect of an acknowledgment made by an executor prevails, that an acknowledgment which would be binding on the original debtor, would also be sufficient if made by his executor.3 SEC. 192. Where Executor is also Devisee in Trust. - It has been held in England that, where an executor acts in a double capacity, as where he is both executor and trustee of real estate, and in that capacity makes a payment which amounts to an acknowledgment of a debt in his character of executor, it does not revive a debt against the realty, as in such a case no principle of marshalling exists; and such would doubtless be the rule in all those States where the acknowledgment of an executor is regarded as sufficient to revive a debt, except where real estate and personal property are put upon the same footing in the hands of an executor. 4 SEC. 193. Where Statute has run against Debt before Testator's Death. Where the statute has run against a debt due the estate, before the death of the testator, although upon the very day of his death, it will be barred, although the executor brings an action within a reasonable time after his death, unless it is saved by the express provisions of the statute, as is the case in several of the States. SEC. 194. When Statute has begun to run during the Life of the Testator, Except in those States where the statute otherwise provides, when the statute has begun to run upon a claim during the life of a creditor it is not suspended by his death, although no personal representative has been appointed; but, when the statute has not begun 1 Shreve v. Joyce, 36 N. J. L. 44. v. Wilson, 5 De G. M. & G. 12. 4 Fordham v. Wallis, 10 Hare, 217. 5 Penny v. Brice, 18 C. B. N. s. 393. 6 Nicks v. Martindale, Harp. (S. C.) 135; Abbott v. McElroy, 18 Miss. 100; Davis v. Garr, 6 N. Y. 124; Burnett v. Brian, 6 N. J. L. 377; Hall v. Deatly, 7 Bush (Ky.), 687; Baker v. Brown, 18 Ill. 91; Byrd v. Byrd, 28 Miss. 144; Tynan v. 6 Walker, 35 Cal. 634; Brown v. Merrick, 16 Ark. 612; DeKay v. Darrah, 14 N. J. L. 288; Jackson v. Hitt, 12 Vt. 285; Stewart v. Spedden, 5 Md. 433; Hayman v. Keally, 3 Cranch (U. S. C. C.), 325. In Young v. Mackall, 4 Md. 362, a right of action accrued on one of two bonds in 1834, and on the other in 1835, and the obligee died in 1837, in which year his executor filed a bill against the obligor, which suit abated by the death of the complainant in 1841. The obligor died in 1846. An ad to run during his life, it will not begin to run against his estate until an executor or administrator has been duly appointed and qualified, upon the principle that the statute cannot begin to run until there is a person in existence capable of suing or being sued upon the claim.1 8 Thus, where property was acquired after the death of the intestate, it has been held that the statute does not commence to run against an action of trover therefor until administration is granted; 2 and where the statute gives a remedy to the executor or administrator of an estate of a person killed by the negligence of another, and also provides that the action shall be brought within one year from the time when the right of action accrued, the action is not treated as having accrued until the appointment of an administrator; but the rule would be otherwise if the statute provided that an action therefor should be brought within one year from the time of such intestate's death, because in that case the statute attaches immediately, and the bar becomes complete at the end of a full year from that time. There is also another element that enters into cases of this character, and that is, that as the statute gives the right to sue, and no such right exists independent thereof, it only exists in the manner and for the period provided by the statute; and, strictly speaking, the provision as to the period within which action. must be brought is a condition imposed upon the right, rather than a limitation, and unless the statute is complied with, the right is defeated, and can never be revived either by an acknowledgment or promise. In a Connecticut case, before cited, an action was brought against the defendant to recover under a statute of the State, for injuries inflicted by the negligence of the defendant, upon the plaintiff's intestate, of which he subsequently died. The statute provided a remedy in such cases, but limited the right of action to one year after the cause of action arose. The injury was inflicted Dec. 29, 1864, and death ensued. a few days afterwards. The action was not commenced until June 14, 1866, considerably more than one year after the plaintiff's intestate died, but within one year after letters of administration were taken out ministrator de bonis non on the obligee's estate was appointed in October, 1849, and the claim on the bond was filed the same month. It was held that as the Maryland statute of limitations (running twelve years on bonds)had begun to run in the lifetime of the obligee, none of the facts above stated stopped its operation. If a suit is abated and not revived, it takes no time out of the statute. Boatwright v. Boatwright, L. R. 17 Eq. 71; Rhodes v. Smithurst, 4 M. & W. 42. 1 Joliffe v. Pitt, 2 Vern. 694; Burdick v. Garrick, L. R. 5 Ch. 233; Webster v. Webster, 10 Ves. 93. The statute is susVOL. II.-2 pended until the appointment of an administrator. Briggs v. Thomas, 32 Vt. 176; Toby v. Allen, 3 Kan. 399; Etter v. Finn, 12 Ark. 632; McKenzie v. Hill, 51 Mo. 303; Hall v. Deatly, ante; Nelson r. Herkell, 30 Kan. 456; Whitney v. State, 52 Miss. 732. 2 Johnson v. Wren, 3 Stew. (Ala.) 172 ; Clark v. Hardman, 2 Leigh (Va.), 347; Bucklin v. Ford, 5 Barb. (N. Y.) 393. 8 Andrews v. Hartford, &c. R. R. Co., 34 Conn. 57; Sherman v. Western, &c. Co., 24 Iowa, 515. 4 Andrews v. Hartford, &c. R. R. Co., ante. upon his estate. The defendants insisted that, as the action was not commenced within one year after the intestate's death, the remedy was lost. The court held that the remedy was not lost, because the cause of action did not arise until an executor or administrator was appointed upon the estate. "The cause of action," said BUTLER, J., "would have been perfect on the happening of the death, and would have been barred at the end of one year from the happening of the event, if an ordinary case, or there had been an executor. But it is a rule of law, recognized by the court,1 that a cause of action accruing to an administrator after the death of the intestate is not complete, and does not arise and exist so that the statute can begin to run upon it until an administrator is appointed who can bring suit. And the legislature seem to have had that rule in view when they enacted the statute; for they did not say that the action should be barred unless commenced within one year from the death, or the happening of the events for which it is given, but unless commenced within one year after the cause of action shall have arisen.' Inasmuch, then, as under a well-settled rule no cause of action can arise and exist in favor of an administrator until he comes into existence as such, and this suit was brought within one year after the plaintiff received his appointment, it was not barred.” The rule is well settled, that where a cause of action does not accrue until after the death of the creditor or claimant the statute does not begin to run until administration is granted; 3 but if it accrues before his death, the running of the statute is not suspended, unless express provision to that effect is made in the statute. In the case of an infant, or indeed any person under a statutory disability at the time of their death, the statute does not begin to run until administration is granted." 1 Hobart v. Conn. Turnpike Co., ante. 2 In Sherman v. Western, &c. R. R. Co., ante, the same rule was adopted in a case arising under a similar statute, where the plaintiff's intestate was thrown from a boat and capsized by reason of the negligence of the employés of the defendant stage company, whose passenger she was, and after struggling ten minutes, more or less, to save her life, was drowned. See also Wood v. Ford, 29 Miss. 57, where a similar rule was applied. 3 Hobart v. Conn. Turnpike Co., ante; Beauchamp v. Mudd, 2 Bibb (Ky.), 537; Abbott v. McElroy, 18 Miss. 100; Fishwick v. Sewell, 4 H. & J. (Md.) 393. 4 Nicks v. Martindale, Harp. (S. C.) 135; Burnett v. Bryan, 6 N. J. L. 377; Davis v. Garr, 6 N. Y. 124; Goodhue v. Barnwell, Rice (S. C.) Ch. 198. 5 Goodhue v. Barnwell, ante. In re Tilden, 98 N. Y. 434, it was held brace all grounds of relief not included |