JOHN FARRELL, Administrator of the Estate of Thomas Dowell, Deceased v. PHILIP PALMER, PHILIP H. PALMER, SAMUEL G. PALMER, ANN A. PALMER, and JAMES McCOY, 36 Cal. 187

By the Court, Rhodes, J. : The defendant annexed to the interrogatories proposed by the plaintiff and attached to the commission certain objections, but it does not appear that he brought them to the attention of the Court and had a ruling thereon at the trial. There is, therefore, no ground for the specification that the Court erred in overruling those objections. But waiving this point, and looking at the objections themselves, it will be seen that those worthy of notice amount to an objection to the admission of parol evidence to prove the contents of written instruments.

Some of the questions were subject to this objection, but they were productive of no injury to the defendant, for the witness produced all the letters of the defendant about which he testified except one, and that lie stated was lost or mislaid, and they were annexed to the deposition; and the finding of the acknowledgment of indebtedness was based on letters written after the one which was lost.

Those letters, excluding those proposing terms of compromise, and those written more than four years before the commencement of the suit, constitute a sufficient acknowlment of the debt, both within the meaning of the statute and the definition given in McCormick v. Brown, ante, 180. The complaint alleges an express promise to pay the debt, but it was not necessary to prove it, because a promise is implied from the acknowledgment, which is also alleged, though not with technical accuracy.

The acknowledgment was made to the witness while acting as the administrator of the estate of the deceased, and was therefore valid, and inured to the benefit of the estate. The debt to which the acknowledgment relates is sufficiently identified. The witness wrote to the defendant in regard to the note in suit, and the defendant in his letters refers to the debt as payable to the witness, as the administrator of Thomas Dowell, deceased, and speaks of the mortgage given by him to the deceased.

The plaintiff having proved a debt to which the acknowledgment might apply, the onus was on the defendant to show another debt to which it referred. The Court was justified in finding that the acknowledgment related to the debt secured by the note and mortgage in suit. Judgment affirmed. Mr. Justice Sanderson expressed no opinion. .