WILKINGS v. MURPHEY, 29 F. Cas. 1248

MARSHALL, Circuit Justice. I doubt whether an admission of the debt by the administrator will take the case out of the act of limitations; for the admission presupposes-a promise made within three years, and how can this be when the intestate has been dead ten years? If it were true that an admission of the debt did take the case out of the act, and it could not be given in evidence at all unless allowed of upon such a replication, I should think that a strong argument for admitting the evidence.

But the premises are not correct; it is not true that a count upon the intestate’s promise, and upon that of the administrator to pay the debt of the intestate may not be joined; the contrary is directly proved by the case cited from H. Bl. 104, where the administrator upon an insimul computasset and promise thereon was held liable de bonis testatoris.

The other cases cited, which state that he is bound de bonis propriis, are where neither the consideration nor the promise arose after the death of the intestate, and in the time of the administrator; here the promise was on a consideration arising in the time of the intestate. The cases are reconcilable. The verdict founded on the admission of the evidence was set aside, and leave given to the plaintiff’s counsel to add a count, the plaintiff paying costs up to this time.