time be for the advancement of justice or consistent with the implied agreement amongst the practitioners, is not to take advantage for want of a replication. The plaintiff's counsel then said, if the practice had been as stated he would not infringe it, wherefore the evidence was given, which proved that the intestate in his lifetime had admitted the debt, and that after his death the note was presented to one of his administrators, who said it is the signature of the deceased and all his just debts shall be paid when the Holly Shelter lands are sold.

Counsel for the defendant-Here is not any admission of the existence of this debt; admission of the signature does not amount to that, for the debt may have been discharged after the signature, and three years elapsing without any demand, is presumtive evidence of payment, according to the doctrine contended for. If a bond has remained dormant twenty years, and the executor admits the hand writing, the presumption is destroyed; and supposing the debt to be admitted, it is only evidence of a new promise and far that reason only it is deemed to be out of the act of limitations; and ifin fact a new promise is made by an executor, the acti on must be against himself in jure proprio and not against him as executor to charge the assets of the testator, H. Bl. Rep. 108, 114. This action is not against the executor in jure proprio, but upon the old foundation of the contract made by the testator and therefore the admission of the executor if it amounts to a new promise can not be applied to it; lastly the admission of one executor or administrator where there are two or more, should not he obligatory upon the others, but he may notwithstanding make any defence he thinks proper for the benefit of the estate of his testator; the rule being that where there are many executors and they sever in pleading, the best plea pleaded by any of them for the estate, shall be taken and relied upon; the other administra tor may still say this is not the signature of his testator, or if it is that he has paid the debt, or is barred by the act of limitation.

Per Curiam. Williams and Haywood-Admission of the signature is not an absolute admission of the debt; but the admission of the signature with the addition that all his just debts shall be paid, is equivalent to saying that this debt if a just one shall be paid, which in ordinary cases would certainly avoid the act of limitations; also in ordinary cases the admission of one of several defendants would avoid the act as to all, Douglass, 652, 653; and we can see no reason why the admission of one of several executors should not have the same effect; any one of the executors may pay a just debt though barred by the act of limitations if he will, for he is not bound to take advantage of the act of limitations; such payment would be a good one and he would be allowed it on a plea of plene administravit as to creditors or in a settlement with legatees or next of kin; then why not also bind the assets by his promise to pay it if one of two execu tors should admit the debt and be sued first and plead the gene

ral issue, that in the case of unsealed instruments would be good evidence of the debt and supersede the necessity of proving the instrument on trial; then why not take it out of the act of limitations also. As to a new promise being the ground for an action against the executor only in jure proprio, he may possibly be sued that way and be charged perhaps de bonis propriis; for it has been sometimes held that a new promise is net only evidence of the old debt, but also of assets to pay it, at least it is so laid down in many of the old books, but that does not prove that the old cause of action is extinguished, and that no action will lie against the executor as executor, after such new promise.— With respect to the act of limitations, the bar does not proceed upon the idea that the old debt is extinguished for an admission of the debt after the action commenced will avoid the bar, 2 Bur 1099; the act was intended to operate where a presumption of payment could fairly be raised from acquiescence for a considerable length of time that the debt was paid, which presumption remains not after a recent acknowledgment of the debt; an acknowledgment or new promise, gives not a new cause of action only to be used as a substitute for the old, but removes the picsumption of payment which is an obstacle opposed by the act to the plaintiff's recovery on the old cause of action.

There was a verdict for the plaintiff and a motion for a new trial, and a rule made in order that the above points might be again argued and maturely considered; and on the day appointed to shew cause the above points were again argued on both sides, & the court gave the same opinion as before-upon the latter argument a new point was made; it was argued that if here was a promuise to pay, it was conditional, and to take effect when the Holly Shelter lands were sold and cannot be obligatory before that event takes place which as yet it has not, the Holly Shelter lands being not yet sold.

Per Curiam-In this conversation there are two branches; the one admits the debt if it be a just one, the other relates to payment to be made out of a particular fund. All that is material as to the act of limitations, is the admission of the debt; for upon that the law says it shall be paid out of the personal estate, and it is to no purpose for the executor to say he will pay out of the real, over which he has no controul. Here is no evidence to impeach the justness of the debt; his signature may well stand as evidence of that originally till the contrary be shewn, though the signature alone may not be evidence that it is a subsisting debt.

Fitzpatrick vs. Neal.

The rule discharged.

DUNCAN was elected by letter from Fitzpatrick, to cause

Near to be arrested for a debt due to him should he arrive

at Wilmington. Neal was arrested accordingly, and imprisoned; and now Neal being brought up as upon a habeas corpus, moved by his counsel, to be discharged, because Duncan had not a letter of attorney under seal. The counsel argued that every letter of attorney for the purpose of causing an arrest, or recovering a debtor the like, should be under seal, in order that he who gives the power may be estopped to say he did not give it, and so charge the defen dant again as he might do if the attorney or agent acted without proper authority; and in a case like the present where a suit is carried on in the name of the principal, the power should be filed amongst the records of the court, and should be duly authentieated, otherwise a bar or recovery in this action could not be effectually pleaded against a new action for the same cause; the principal might say he gave no power to commence any such action as the former, which if true would avoid the plea; the principal could not be bound by his acts, for otherwise debtors might come here and cause themselves to be sued by their friends and have a judgment of the court in their favour, and become discharged of their just debts. And to prove that letters of attorney should be under seal, they cited Cok. Litt. 52, 1. Ba. Ab. 198, 2 Roll. Ab. 8.

Williams, Justice. For the reasons given at the bar, I am of opinion the authority given by this letter is insufficient.

- Haywood, Justice.-Powers of attorney to attornies at law, to sue or defend, are always without seal, unless given by corporations who can only act by their common seal: these attornies may enter satisfaction on record, receive the monies due, cause arrests to be made, and do many other acts; on the contrary, all the instances that in West and other books, of letters of attorney to private persons, are under seal, which, to be sure, is some argument that the law requires them to be so, but why a seal in the latter case is necessary when in the former it is not, I cannot well see any good reason-I will consider further of it at another day. This case being again moved, Judge Williams gave the judgment of the court, that the defendant be discharged from his imprisonment, the authority to Duncan to cause the arrest not being sufficient for want of a seal.

He was discharged accordingly.

Young vs. Irwin.—Ejectment.

THE land in question, was granted by the King to Solomon and James Ogden on the 20th of February, 1735; they conveyed to Clark in 1737, and he to Gabriel Johnston in 1738.-Johnston devised in 1751, that his executors should sell; his widow being his executrix, intermarryed with Rutherford, and they conveyed to Orme in 1754, who in the same year re-conveyed to Rutherford, who in 1763 conveyed to Duncan, and he in the same year re-conveyed them. Rutherford in 1773, pur

C

suant to a decree of the court of Chancery, conveyed to Murray, and in 1774 Murray conveyed to Young, who died, leaving the plaintiff his heir; but before the decree, Rutherford contracted for a sum of money to sell to Irwin, and to convey when he should have paid the consideration money.-Irwin in 1757, made his will and died. He left Rutherford his executor, and it was proven that Rutherford wrote his will: he directed money to be raised out of his personal estate to discharge the debt due for the land, and then devised it to his sons John and James: he died in possession, which he took, pursuant to the contract. Some time in the year 1753, Rutherford as executor, took the whole personal estate, to a much larger value than the debt in question, but said he had expended it in the payment of debts; what was the precise amount either of the personal estate, or debts of the deceased, did not appear.

Taylor, for the plaintiff, rested his case here; saying he had deduced the title from the original patentee to the lessor of the plaintiff, and should expect a verdict unless some material objection, more than he could at present forsee, should be stated against the plaintiff's title.

The counsel 16: the defendant argued, that the lessor of the plaintiff should shew himself to have been in possession within seven years, otherwise he is not entitled to recover in ejectment. He cited Bull. N. P. 102, and other books, to establish the same doctrine. Secondly, he argued that an adverse possession in the defendant for the space of seven years, without any colorable title, will take away the plaintiff's right of entry; and that here was such an adverse possession for forty-three years and upwards; during all that time, the land in question has been occupied by the defendant and his ancestor, who have claimed the same as their own, pursuant to their contract with Rutherford. Irwin the ancestor, did not, as suggested by the court, take possession as a tenant at will. 2. Bl. Com. 145. An estate at will, is ́ where lands and tenements are let by one man to another, to have and to hold at the will of the lessor. If the tenant by force of this lease obtain possession, the lessor may determine his will and put him out when he pleases-Did Irwin enter under any such condition? Was it understood that he was to be turned out whenever Rutherford pleased? No! he took possession of the land, to be enjoyed as an inheritance never to be turned out of possession if he paid the purchase money; and this he did pay, for he charged his personal estate with it; and Rutherford, who was the debtce, in his capacity of executor received more than enough of the personal estate, and so by operation of law was paid; and then it is not only against all equity, but also against the express stipulation of Rutherford, under whom the plaintiff claims, that the defendant should be turned out of possession. Thirdly, if colour of title is necessary to accompany

a seven years possession, in order to form a right of possession. in the defendant and create a bar against the plaintiff's claim, then here is the will of the ancestor proven in the year 1760 and made in the year 1757, and a possession under it in the devisees. from that time to the present.

Taylor replied.

Per Curiam. Haywood, Justice only in eourt. After stat ing the facts as they were proven on the trial:The legal title. has been regularly deduced from the original proprietor to the lessor of the plaintiff, and he is entitled to recover in this action unless barred by the act of limitations, or by Rutherford's sale, or the joint operation of both. With respect to the contract to sell and the taking possession in consequence thereof, by the permission of the vender; if that be considered independent of any concomitant or subsequent circumstances, it can give no title whatsoever; the land could not pass nor any estate in it upon the making of the contract and taking possession pursuant to it by the vender's consent. A deed properly executed and registered, is at least required to pass an estate of inheritance in this country; and this to avoid the danger of claiming estates as passed from the owner's verbal testimony, and of turning men out of their estates and possessions, by corrupt witnesses. When a purchaser in a case like the present, takes possession, he takes it by consent of the owner, and may continue it until he fails in payment, and then is liable at law to be turned out: he does not take a tortious possession and gain a tertious fee, as has been contended: if he is not strictly speaking, a tenant at will, his possession is that of the owner, and not a distinct independent possession opposed to his: if he is ousted of possession by a stranger, he cannot regain it by an action in his own name, but only in an action which sets up and affirms the vender's title. Such possession of the purchaser is therefore not an adverse possession to the vender; and if by the act of limitations, an adverse possession is necessary to bar the plaintiff's title, such an one as has been in the present case, will not answer that description. Under the act of limitations, it is very true the English Law Books require the plaintiff in ejectment to prove himself to have been in possession within twenty years; but by our law he need not be in actual possession within seven years if he has a title by deed or grant, he has a constructive possession by operation of law, which preserves his.right of entry, until it be destroyed by an actual adverse possession, continued for seven years together, if he has never seen his land-if he has not entered upon it for fifty years, his title may be good, if his adversary hath not been in possession for seven years continually, during the whole time with a colour of title. The act of limitations. operates between individuals having different grants of the same lands, or claiming by mesne conveyances under them, where