Bennington v. Parkin's Adm'r.

1 Del. 128

• Court: Superior Court of Delaware
• Decided: July 5, 1832
• Status: Published

Opinion

By the Court.

—It has heretofore been decided, under the existing laws of the state, that the promise of an administrator would not take a case out of the statute of limitations. This decision was founded on a construction of the 5th section of the act of 1792, which prohibits an administrator from paying a debt barred by limitation, the courts held that it would be an evasion of this section to allow the promise of an administrator, to revive a debt which he could not legally pay. That law is repealed; and we apprehend that as the law now stands, the promise of an administrator may take a case out of the statute. ' A promise of this administratrix has been proved since the repeal of that act, and the question is what is the effect of that promise at the time it is made? It is of the same force as if made by the intestate himself. Thus, whether the act of 1792 or of 1829 applies to this case as it regards the limitation of action it is totally immaterial, if the general law gives to the promise of an administratrix the effect of reviving a debt. Being of opinion that it has this effect we refuse the nonsuit.

Rogers, for plff. J. JL. Bayard, for deft.

Whereupon an exception was prayed and granted.

The deft, then went on with his case and called Christopher Bainton; who was objected to, he being the surety of the deft, in her administration bond.

Rogers.

—There is no plea of pléne administravit, and if there be a recovery in this case, this witness is personally responsible as surety whether there be assets or not. If the assets have been wasted he will undoubtedly be liable. Phil. Evid. 49; 3 Com. Law Rep. 139, 235.

Bayard.

—The administratrix herself would be liable for any recovery in this action, whether there be assets or not, but not so the surety, unless a devastavit be shown. The court will not presume a devastavit. This is not like the case of special bail—the witness cannot be affected by the result of this suit. 7 Terra Rep. 6.

The Court.—The witness must be sworn. He is not directly interested in the event of this suit, nor will a decision "here against the" deft, fix any liability on the part of the surety. He is only bound for the application óf the assets received. Whether they be applied to this claim or that, is of no importance to him. The question of a devastavit is not to be decided in this case. It is true, that the verdict in this cause for plff. would fix the administratrix to the amount,' whether there be assets or not, there being no plea of plene administravit. It amounts to an admission of assets on her part; but it does not preclude the surety; and, in an action on the administration bond, he may dispute the assets. The rule is that the witness must be interested in the event of the suit or in the record; that is, where the record may be given in evidence in another suit either for or against him. Otherwise he is a competent witness.

Judge Robinson charged the jury:

First. That the plff’s. action was not barred by limitation. Second. That if the certificate of deposit was placed in Parkin’s hands to deliver to Robson and he failed to do so, it was a breach of trust; and, if he drew the money, he was liable to the plff. in this action. Third. That the delay or negligence of Bennington to present the order given to him in 1820 by Parkin on Richard Lovel, was not a bar to this suit as there were no funds in Hovel’s hands, and the claim had been ratified by subsequent promises. That was not a bill of exchange, nor partook of any of the qualities of a bill of exchange. It was a mere letter of advice, but available as an acknowledgment of the debt. Fourth. That the interest and damages were in the discretion of the jury.

The plff. had a verdict for $2,645 16.

$3° Vide post, page