Dunn was cited in the present case did not arise. There the ques tion was, not whether an acknowledgment by an executor was Another portion of Mr. Martley's argument was, that whatever the law may have been before the passing of Lord Tenterden's Act, that Act contained a legislative recognition of the case of Tullock v. Dunn; that as the statute enacts-[His Lordship read the enacting portion of the 1st section of the statute]-it amounts to a legislative declaration, that so far as executors are concerned, an express promise is required, though in the case of persons sued in their own right, a mere admission would be sufficient. On the other hand, it was argued by the plaintiff's Counsel that the case of Smith v. Poole (a) is an express decision that a mere acknowledgment of the debt was sufficient, and that a promise was not required; that whatever the law was before the passing of the statute, that no distinction being taken between executors and administrators, and persons suing in their own right, and the enactment being general, that whatever would be a sufficient admission of a debt as against a person sued in his own right would be equally so against an executor or administrator. I confess, so far as I am concerned, I cannot accede to the argument of Counsel on either side as to the construc(a) 12 Sim. 17. M. T. 1851. SPOLLAN V. MAGAN. Common Pleas. SPOLLAN V. MAGAN. M. T. 1851. tion of the statute. I see nothing in it to alter the law, whatever it was, to the sufficiency of a promise to take the case out of the statute, save only to render writing necessary in cases in which previously the admission or promise might have been verbal. Accordingly the statute states by way of preamble that whereas various questions have arisen in actions founded on simple contracts, as to the proof and effect of acknowledgments and promises offered in evidence for the purpose of taking cases out of the operation of the said enactments, and that it is expedient to prevent such questions and to make provision for giving effect to the said enactments. I consider that the effect of the statute was to alter the law in one respect, and in one respect only-namely, that as against one of two joint contractors, as distinguished from one of two executors, the written promise or admission of one shall not bind the other; but it leaves the effect of part payment of principal or interest just as it was before, and therefore it still remains to be decided what the effect will be of payment by one executor as against the other. In my opinion therefore we must consider whether before the statute the admission or statement in the answer would have been sufficient to take the case out of the statute; and this renders it necessary to see what was the exact point decided by the case of Tullock v. Dunn and on referring to that case it is, as I take it, a decision merely to this effect, that the mere admission of a debt being due by an executor is not sufficient; and if in the present case I thought necessary to our decision to overrule or act contrary to that case, so great respect do I entertain for a Nisi Prius decision of that eminent Judge, that I should wish to have the question put in a course of further investigation; however, as I take it that the admission in the present case is not merely that the debt is due, but that it is a subsisting valid claim on any assets that may be received applicable thereto, in priority to the claim of the plaintiff in the Chancery suit, the next-of-kin of the intestate, and as such entitled to his residuary personal estate, it appears to me that the case of Smith v. Poole (a) is an express decision in every respect similar to the present, and one which cannot in principle be distinguished (a) 12 Sim. 17. from it. The plaintiff in that case was the surviving executor of one Phoebe Smith, and the suit was an ordinary creditor's suit, instituted by the plaintiff in respect of a promissory note for £200, given by one James Poole, whose administrator the defendant was. The admission relied on was contained in an inventory and account, exhibited by the defendant in answer to a citation in the Ecclesiastical Court by one of the next-of-kin of the intestate, and it consisted of two parts; the first, which contained an inventory of the goods and effects of the intestate, which had come to the hands of the defendant. The second part, which was contained in a separate document, purported to be an account of disbursements made, and then the exhibitant proceeded to declare "that there were still outstanding "and owing the following sums and claims against the estate of the "said deceased from the several persons under-mentioned." Amongst these was the following entry :-"Executors of the late Phobe "Smith, on note, £200; interest thereon from the 1st of Octo"ber 1823, to the 1st of April 1832, £85." The case of Tullock v. Dunn was then relied upon as showing that the admission there was not sufficient, and that to bind the defendant as executor, there should have been an express promise. But the Vice-Chancellor says, in referring to the case of Tullock v. Dunn :-"I think, from the expressions used by Lord Tenterden, that his Lordship must have "considered that what was proved in that case as an acknowledg"ment of the debt did not amount to evidence of a promise by both "of them to pay the debt; but here I have the case of a clear "written acknowledgment of the debt made by a sole personal "representative, and signed by him, and therefore I think that I 66 ought to make the common decree in a creditor's suit." That case appears to me to be completely similar to the present. In that case, as here, after the defendant had become personal representative, a suit was instituted against him in relation to the assets of some one entitled to a share of the residue; and, as in this case, the defendant was required to set forth the particulars of the personal estate, and the claims and demands upon it. The only difference between the two cases is, that one is in the Ecclesiastical Court, the other in the Court of Chancery; there, M. T. 1851. SPOLLAN V. MAGAN. SPOLLAN บ. MAGAN. M. T. 1851. as here, at the time of filing the affidavit the debts appeared to be Common Pleas. barred; there, as here, the party alleged that he had no assets; there, as here, he set forth the debt as one due and outstanding; there, as here, he set forth other demands as claim on the assets; and as I understand the case, it is a decision that an admission of a debt being due, and a subsisting claim on the assets, was a sufficient admission to imply a promise to pay out of the assets. So in the present case we decide not the abstract question that the mere admission of the existence of a debt by an executor will be sufficient to take the case out of the statute; but that in a suit against the executor to administer the assets, an admission that a debt is due and a subsisting charge upon any assets which may be received applicable to the payment thereof, is a sufficient admission to raise a promise to pay out of the assets; and that taking the whole of the answer in Magan v. Magan, it amounts to an admission to this effect, namely, that this as a subsisting demand properly payable out of the assets, in priority to the claims of the next-of-kin; and therefore we must allow the cause shown against the conditional order, with costs. Cause shown allowed, with costs. WO THE |