Mr. Justice Black
delivered the opinion of the court.
Black, J.
—“This case comes-before the court on a writ of error to the Superior Court of Newcastle county, to which is annexed the hill of exceptions containing-the evidence in the cause.
The narr .contains the usual money counts and also a count on an account stated by John Parkin in his lifetime. There is also a count on a promise by the administratrix to pay the money lent or advanced to, or received by the testator, and a count on an account stated between theplff. below arid Mary Parkin the administratrix.
It appears.from the' bill of exceptions, that Bennirigton had deposited in the Burlington Bank in Yorkshire, £400 sterling, for which he received a check or certificate of deposit. That on the 21st April 1819, the day before he sailed "for the U. States, he handed this check to John Parkin to be delivered by him to one William Robson, to be kept by the latter until Bennington should send from America for the money. -This bank paid an interest on the deposits of four and a half or five per cerit. Parkin did not deliver the check to Robson, but some short time after he received it, drew, the money out of the bank: Parkin.came to the U. States in September 1820; and, on the 3rd of October 1820, on being called on by Bennington, he addressed a communication to Richard Lovel his agent in England, which he handed to Bennington, and which is in the following words; to wit:—
“Philadelphia,
October
3, 1820.
Mr. Richard Lovell. Dear Sir, The bearer hereof, John Bennington, will wait upon you (with Christopher Morris of Harpham, in order to prevent any imposition, being personally known to him) to receive from you the money or1 securities which I left to pay him the sum of £400, as by-the account sent" from Liverp'ool, by my brother Wm. Parkin.
(Signed)
JNO. PARKIN.”
John Parkin died in April 1826. In May 1828 Mary Parkin, who had administered on his estate in the state of Delaware, directed the executors named in the will, who resided in England, to pay Bennington the principal sum of £400, but no interest, admitting that that sum was at the death of her husband John Parkin due from him to Bennington, and further instructed these executors that if they were short of funds, she would pay the balance in America. In October 1829, the executors in England paid to Bennington £100. In May 1830, Mary Parkin, the administratrix, admitted that £400 was due from her husband at his déath to the plff. below, and agreed to pay £300 the balance of principal remaining due after crediting the payment made by the executors in England, but contested the interest. This,action was instituted-on May 27, -183.0. r
The plaintiff in error insists that this claim is barred by the act of limitations passed on the 4th day of February, 1792.
(2 Del. Laws 1031.)
That it was barred by that act in April, 1826, when John Parkin died, and that being so barred at the decease of Parkin, no acknowledgment or promise made by the administratrix afterwards can take the case out of that act or revive the debt or cause of action so as to render the
estate of John Parkin
liable for it.
Under the act of 1792, the voluntary payment by executors or administrators of accounts or demands against the estate of a deceased person of any longer standing than three years next before the death of the deceased is prohibited; and our courts have held, prior to the passage of the act of 1829, and as we think correctly, that an acknowledgment or promise by an administrator or executor to pay an account or demand thus barred would not revive such claim so as
to render the estate of the deceased
liable for its payment. If it could be thus revived the executor or administrator might do in an
indirect
mode what by that law he was expressly prohibited from doing. If however the debt was not barred at the death of the intestate there is nothing in the act of 1792 -preventing the administrator from keeping the cause of action alive or the act of limitations from affecting or barring it by his promise or acknowledgment.
The important question in this cause is whether the cause of action on which the .present suit is founded, is of that description, or of that class to which
three
years is a bar by the act of 1792, and therefore barred by that act.
The act of the 18th June 1793, (supplementary to the act-of 1792 2
Del. Laws
1133) declares—That nothing contained in the act of 1792 shall extend to any demands founded on mortgages, bonds, bills, promissory notes or settlements under the hands of the parties concerned. Bonds, bills, notes and settlements under the hand of the parties are placed on the same footing as to time; exempted from all operation of the act of 1782; and, according to the decisions of the courts in this state, were not affected by any of the acts of limitations of the state until the act of 1829 was passed.
The count upon the account stated by John Parkin, in his lifetime is the important count in the declaration. Such a count is supported by evidence" of an acknowledgment on the part of the deft, of money due the plff. upon an account between them—or by a promissory note or written abknowledgment of indebtedness by the defendant; (2
Starkie
123;) and it is unnecessary to set forth in the narr, or to prove, the items of which the account consists or is the subject of the original debt. (2
Starkie
123; 1
Chitty’s Pl.
344-5; 1
Term Rep.
42,
n.)
On the 3d October, 1820, John Parkin delivers to Bennington a communication to Richard Lovell in which he states— “Bennington will wait on you to receive from you the money or securities which I left to pay him the sum of £400 as by the
account
sent from Liverpool by my brother William Parkin. ” Whether the account referred to as having been sent by" his brother was an account of the
iimoney or securities left”
or an account between him and Bennington is not clear, nor perhaps is it very material. Here however is the written admission and acknowlengment of Par-kin, that he then stood indebted to the plff. below in the sum of £400; that he had made provisions for its.payment by placing funds, money or securities in Lovell’s hands for this specific purpose; and that an account, either of the transactions or dealings between him and Bennington, or of the funds and securities deposited, had been forwarded by his brother; and instructing the agent with whom this deposit had been made that Bennington would proceed from the Uni
ted States to England, to receive from him the money or securities which he,' Parkin, had left in his hands to pay him.
Had an account current been drawn out at length and signed' by both the parties, could it more strongly have evidenced a debt, or had a more solemn or binding character, than the writing on which this action is founded? It not only 'admits the debt which he owes, but specifies the provision made for its payment, and directs the payment according to the provision made.
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Mr. Justice Black
delivered the opinion of the court.
Black, J.
—“This case comes-before the court on a writ of error to the Superior Court of Newcastle county, to which is annexed the hill of exceptions containing-the evidence in the cause.
The narr .contains the usual money counts and also a count on an account stated by John Parkin in his lifetime. There is also a count on a promise by the administratrix to pay the money lent or advanced to, or received by the testator, and a count on an account stated between theplff. below arid Mary Parkin the administratrix.
It appears.from the' bill of exceptions, that Bennirigton had deposited in the Burlington Bank in Yorkshire, £400 sterling, for which he received a check or certificate of deposit. That on the 21st April 1819, the day before he sailed "for the U. States, he handed this check to John Parkin to be delivered by him to one William Robson, to be kept by the latter until Bennington should send from America for the money. -This bank paid an interest on the deposits of four and a half or five per cerit. Parkin did not deliver the check to Robson, but some short time after he received it, drew, the money out of the bank: Parkin.came to the U. States in September 1820; and, on the 3rd of October 1820, on being called on by Bennington, he addressed a communication to Richard Lovel his agent in England, which he handed to Bennington, and which is in the following words; to wit:—
“Philadelphia,
October
3, 1820.
Mr. Richard Lovell. Dear Sir, The bearer hereof, John Bennington, will wait upon you (with Christopher Morris of Harpham, in order to prevent any imposition, being personally known to him) to receive from you the money or1 securities which I left to pay him the sum of £400, as by-the account sent" from Liverp'ool, by my brother Wm. Parkin.
(Signed)
JNO. PARKIN.”
John Parkin died in April 1826. In May 1828 Mary Parkin, who had administered on his estate in the state of Delaware, directed the executors named in the will, who resided in England, to pay Bennington the principal sum of £400, but no interest, admitting that that sum was at the death of her husband John Parkin due from him to Bennington, and further instructed these executors that if they were short of funds, she would pay the balance in America. In October 1829, the executors in England paid to Bennington £100. In May 1830, Mary Parkin, the administratrix, admitted that £400 was due from her husband at his déath to the plff. below, and agreed to pay £300 the balance of principal remaining due after crediting the payment made by the executors in England, but contested the interest. This,action was instituted-on May 27, -183.0. r
The plaintiff in error insists that this claim is barred by the act of limitations passed on the 4th day of February, 1792.
(2 Del. Laws 1031.)
That it was barred by that act in April, 1826, when John Parkin died, and that being so barred at the decease of Parkin, no acknowledgment or promise made by the administratrix afterwards can take the case out of that act or revive the debt or cause of action so as to render the
estate of John Parkin
liable for it.
Under the act of 1792, the voluntary payment by executors or administrators of accounts or demands against the estate of a deceased person of any longer standing than three years next before the death of the deceased is prohibited; and our courts have held, prior to the passage of the act of 1829, and as we think correctly, that an acknowledgment or promise by an administrator or executor to pay an account or demand thus barred would not revive such claim so as
to render the estate of the deceased
liable for its payment. If it could be thus revived the executor or administrator might do in an
indirect
mode what by that law he was expressly prohibited from doing. If however the debt was not barred at the death of the intestate there is nothing in the act of 1792 -preventing the administrator from keeping the cause of action alive or the act of limitations from affecting or barring it by his promise or acknowledgment.
The important question in this cause is whether the cause of action on which the .present suit is founded, is of that description, or of that class to which
three
years is a bar by the act of 1792, and therefore barred by that act.
The act of the 18th June 1793, (supplementary to the act-of 1792 2
Del. Laws
1133) declares—That nothing contained in the act of 1792 shall extend to any demands founded on mortgages, bonds, bills, promissory notes or settlements under the hands of the parties concerned. Bonds, bills, notes and settlements under the hand of the parties are placed on the same footing as to time; exempted from all operation of the act of 1782; and, according to the decisions of the courts in this state, were not affected by any of the acts of limitations of the state until the act of 1829 was passed.
The count upon the account stated by John Parkin, in his lifetime is the important count in the declaration. Such a count is supported by evidence" of an acknowledgment on the part of the deft, of money due the plff. upon an account between them—or by a promissory note or written abknowledgment of indebtedness by the defendant; (2
Starkie
123;) and it is unnecessary to set forth in the narr, or to prove, the items of which the account consists or is the subject of the original debt. (2
Starkie
123; 1
Chitty’s Pl.
344-5; 1
Term Rep.
42,
n.)
On the 3d October, 1820, John Parkin delivers to Bennington a communication to Richard Lovell in which he states— “Bennington will wait on you to receive from you the money or securities which I left to pay him the sum of £400 as by the
account
sent from Liverpool by my brother William Parkin. ” Whether the account referred to as having been sent by" his brother was an account of the
iimoney or securities left”
or an account between him and Bennington is not clear, nor perhaps is it very material. Here however is the written admission and acknowlengment of Par-kin, that he then stood indebted to the plff. below in the sum of £400; that he had made provisions for its.payment by placing funds, money or securities in Lovell’s hands for this specific purpose; and that an account, either of the transactions or dealings between him and Bennington, or of the funds and securities deposited, had been forwarded by his brother; and instructing the agent with whom this deposit had been made that Bennington would proceed from the Uni
ted States to England, to receive from him the money or securities which he,' Parkin, had left in his hands to pay him.
Had an account current been drawn out at length and signed' by both the parties, could it more strongly have evidenced a debt, or had a more solemn or binding character, than the writing on which this action is founded? It not only 'admits the debt which he owes, but specifies the provision made for its payment, and directs the payment according to the provision made. .Was it not the design of the act of 1-793, to exempt from the operation of the act of limitation of 1793, to which it was a supplement, those claims which were specially adjusted and settled by the parties, and which were sanctioned by the signature of the party indebted. Here the party who is to pay, on .payment being demanded, promises to give a check for it, and signs the acknowledgment of his indebtedness^ and "provides in it the means of payment, places this written evidence of the debt in the hands of the other party to enable him to receive the money due and as evidencing the exact amount he owes. What greater solemnity or obligation could attach to a promissory note, or to an account settled under the hands of the parties, than to this written paper? Is not such an acknowledgment of indebtedness at least within the equity of the act of 1793?
This court in 1833, in .the case of
James Booth’s executor
vs.
John Stockton’s executor (ante 51,)
when considering a question depending on this same act of 1793 said “they would not confine themselves strictly within the letter of the statute, but that any case coming clearly within its spirit might be recognized as not barred”; and they laid down the rule “that any engagement which of
itself
would he the
foundation
of an action, without needing proof aliunde to support it would be an.exception to the operation of the statute.” We consider the paper signed by Parkin .and handed to Bennington as of this character, and within the principle established in that case. It is the foundation of the fiction; no proof of the account, items, or matters for which it was given was necessary; under the account stated it was evidence of a specific indebtedness; we therefore consider that it is clearly within the spirit of the exception of the act of 1793, as showing a settlement between the parties sanctioned by the signature of the party on whom the obligation of payment. rests, and that therefore it was not barred by the act of 1793. As the debt' was not barred by the act of 1793, it was not barred at the death of John Parkin, as that was the act of limitation which was in force at his death; and as it was not
then
barred it was clearly competent for his administratrix by her promise or acknowledgment to keep the claim alive and free-from the operation of the act. In May 1838 she directed the executors in England to pay Bennington £400, and they, conforming to this order, paid £100, the amount of funds in their hands. In May 1830 she admitted her husband owed Bennington £400 at his death. At the time when these aeknowledgments were made, the-claim of the plff. was not barred, as it was not within the act of 1793. The claim is not barred by the act of 1839, for this suit was instituted in the court below on May 37th 1830, and the 13th section .of that act declares—that its provisions shall not extend to any acknowledgment under the hand of the party
of a subsisting demand, if an action be brought thereon before the first day of September, 1830.
J. A. Bayard,
for appellant.
Booth,
for respondent.
We are therefore unanimously of opinion that the judgment of the court below be
affirmed.”