Lowther, et al. v. Chappell. made before the bar of the statute was complete, is supposed to prevent it from running. [Torbert v. Wilson, 1 S. & P. 200; Garrow v. St. John, 4 Porter, 223; Whitcomb v. Whitney, 2 Doug. 652; Parham v. Raynel, 2 Bing. 306; Jackson v. Fairbanks, 2 H. Black. 340; White v. Hall, 3 Pick. 291; Dinsmore v. Dinsmore, 21 Main. 433; Ballard v. Lathrop, 4 Conn. 336; Burleigh v. Scott, 8 B. & C. 36; Fry v. Baker, 4 Pick. 382; Sigourney v. Drury, 14 Pick. 387; Hunt v. Bridgan, 2 Ib. 581.] 2. Here is a joint obligation, in which an admission by one will be proper evidence to charge the others, so long as the contract remains undischarged; and the current of authority, as between partners, is, that the admission by one is the admission of all. [King v. Hardwick, 11 East, 589; 1 Taunt. 103; 1 M. & S. 249; Peake Ca. 203; 4 D. & K. 17; 3 Mun. 191; 6 John. 269; 15 Ib. 409; 7 Wend. 441; 4 Conn. 336.] [Smith v. Pollard v. 3. An admission by one partner, after the dissolution of the partnership, will take the demand out of the statute. Ludlow, 6 John. 266; Hefllin v. Banks, 6 Cow. 650; Cheek, 7 Wend. 441; Dinsmore v. Dinsmore, 21 Maine, 430.] 4. The case of Bell v. Morrison, 1 Peters, 351, is distinguishable from this, as that was the mere acknowledgement by a partner, after the statute had run. [Sigourney v. Drury, 14 Pick. 397; Bostwick v. Lewis, 1 Day. 33; Howard v. Cobb, 3 Ib. 309; Baird v. Lathrop, 4 Conn. 339; Clemenson v. Williams, 8 Cranch, 72.] G. W. GUNN, for defendant in error. GOLDTH WAITE, J.-The principle upon which the decision of Whitcomb v. Whiting, 2 Doug. 652, is rested, has often been doubted in the English Courts, and frequently denied in our own. Without reference to the many adjudicated cases on this much vexed question, it will be permitted us to state, the constant leaning now, of all Courts, is to restore the statute of limitations to its proper standing, and give it the effect which its authors evidently intended it to have; i. e. to shut out all litigation upon the expiration of the limited period, unless the original promise is revived by something equivalent to an express promise to pay, by the party sought to be charged. To this effect is Bell v. Morrison, 1 Peters, 351; Clementson v. Williams, 8 Cranch, 72; Jones Lowther, et al. v. Chappell. v. Moore, 5 Binn, 573; Levy v. Cadit, 17 S. & R. 175; Ex'n Bank v. Sullivan, 6 N. H. 137; and many other cases might be added. When one person becomes bound with others, either upon a joint contract, or as a surety, there is no reason why the admission of those with whom he is joined, that the debt is unpaid, or their promise to pay it, shall operate to his prejudice, because it seems entirely evident, that such admission, or promise, may be made without a knowledge of the circumstances which exist between the holder of the debt and the other parties, who are sought to be thus charged. In many cases, where the contest is with respect to the validity of the contract, there is great force in the argument, that as all have a common interest under the contract, the admissions of one shall operate against all; but even there it enterely fails, if the contract, in point of fact, was a several one, and other parties are subsequently joined as sureties; it would be most unreasonable to allow the admission of a subsequent surety, to validate a defective contract, so as to bind his principal; and on the other hand, it would be equally so by the admission of the principal to extend the term for which the surety has consented to be bound. Conceding then, that the payments made by the principal debtor, in this cause, in 1836, and his admission of the debt as existing, in 1838, coupled with his promise to pay, had the effect to prevent the statute from running, as to him, yet it in nowise prevented it from doing so as to the sureties. The legal effect of their engagement is, to continue bound for the principal for six years, after the period limited for payment, and no act or admission, which is not their own, can impair this ef fect of the original contract. It follows, that the law was correctly ruled by the Circuit Court. Judgment affirmed. Hobson v. Kissam & Co. &c. &c. HOBSON v. KISSAM & CO. SAME v. CLUTE & MEAD. NIXON v. J. R. W. & J. M. C. FOSTFR. 1. A certificate by the proper officer, indorsed upon a deed of trust, that the maker appeared before him, within the time prescribed by law, "and acknowledged that he signed, sealed and delivered, the foregoing deed of trust, to the aforesaid W. M. M." (the trustee,) is a sufficient acknowledgment of its execution, to authorize its registration. 2. After a levy on property, and bond given to try the right, a junior execution cannot be levied on the same property, pending the trial. An execution issued on an elder judgment, but which has lost its lien, by the lapse of a term, will be postponed to one issued on a younger judgment, during such interval. 3. It is improper to send the original papers to this Court, and if sent, will not be looked to, to settle any disputed question. 4. Upon a trial of the right of properry, the fact that an execution from the Federal Court had five years before been levied on the same property, and bond given to try the right, raises no question, until it is shown that the trial is still pending, although the levy of such execution was first made. Error to the Circuit Court of Tuscaloosa. TRIAL of the right of property claimed by the plaintiff in error, the defendants in error being execution creditors of Baker Hobson. From a bill of exceptions, it appears, that the claimant derived his title by virtue of a sale made under a deed of trust, made by the defendant in execution, on the 25th March, 1839-the execution of which he proved by one of the subscribing witnessesthe plaintiff then read the certificate of the probate of the deed, as follows: The State of Alabama, Personally appeared before me, Cyrus A. Miller, a justice of the peace for said county, the within named Baker Hobson, who acknowledged Hobson v. Kissam & Co., &c. &c. that he signed, sealed and delivered, the foregoing deed of trust, to the aforesaid William M. Murphy. Given under my hand and seal, this 23d of April, 1839. C. A. MILLER. Filed for registration the 23d of April, 1839, and on the same day and year recorded, in book P. &c. Test: MOSES MCGUIRE, Clerk. And moved the Court to exclude the deed from the jury, for want of a sufficient certificate of probate-it not appearing thereby, that the deed was executed on the day it bore date-upon which motion the Court rejected the deed, there being no proof of express notice to the plaintiff, of the execution of the deed. The claimant then introduced certified copies of six alias executions, which issued from the Circuit Court of the United States at Mobile, in favor of Suydam & Nixon v. Baker Hobson, and which were, on the 22d April, 1840, levied on the same slaves as the present execution, and proved, that the said property was claimed by the trustee, and bond given to try the right, and insisted that the slaves were not subject to levy under this execution, because of the previous levies from the Circuit Court of the United States, and bonds given to try the right of property. But the Court held, that as it was not shown affirmatively, that the suits for the trial of the right of property were still pending in the Federal Court, it interposed no obstacle to the levy of the plaintiff. The claimant then introduced an execution from the County Court of Tuscaloosa, in favor of Baker, Johnson & Co. against Baker Hobson and others, which came to the sheriff's hands on the 24th August, 1839, and was on the 25th January, 1840, levied on the same slaves now in controversy, and that the claimant gave bond for the trial of the right, which was still pending in the Circuit Court of Tuscaloosa, and insisted, that in consequence of this previous levy, they were not subject to the levy of the plaintiff's execution-but the Court held, that as both executions issued from the same Court, and as the trials of the right of property were depending in the same jurisdiction, the said levy could be made. The claimant then proved, that the first execution in this case, issued on the 8th March, 1839, and was returnable to the July term of the County Court-that no other execution issued until Hobson v. Kissam & Co., &c. &c. the 18th November, 1840, under which the levy in this case was made, and insisted that by the lapse of an entire term, the first execution had lost its lien, and that the levy on the last execution must be postponed to those previously mentioned; but the Court overruled the objection, and charged the jury, that the property levied on in this case, was liable to the satisfaction of this execution. To all which the claimant excepted, and which he now assigns as error. MURPHY and JONES, for the plaintiff in error: The question upon the probate of the deed, has in effect been decided in this Court, in Bradford v. Dawson & Campbell, 2 Ala. Rep. 203. The different acts on the subject, when collated, show, that the probate is not of the substance of the requisition, necessary to put a deed upon record, though to make it evidence, under the statute, it may be, that the form must be strictly pursued. The case of Bradford v. Dawson has been repeatedly recognized, and approved by this Court, in 2 Ala. Rep. 314; 3 Ala. R. 629; 4 Ib. 469, and 5 Ib. 297. The levy of the execution of the Federal Court, placed the property in the custody of the law, and it was not necessary to show, that it was still pending. [10 Peters, 400; 6 Ala. Rep. 45.] The issue, in such a case as this, is to the time of the levy. [5 Ala. Rep. 770; 6 Id. 27-] And having proved that there was a levy, and a bond for trial, it devolves on the other side to show it was at an end. As to the execution of Baker, Johnson & Co., it was evidently entitled to priority over the execution of the plaintiff. THORNTON, PECK and CRABB, contra: The statutes of registration contemplated two purposes, the giving of notice, and the perpetuation of testimony. The first is common to all the acts-the last is confined to absolute deeds of real estate. The law merely requires deeds of trust to be proved as deeds for real estate, and does not make the probate evidence of the execution of the deed. The case of Fipps v. McGehee, 5 Porter, 403, is not shaken by the cases cited from 2 Ala. Rep. 203. That case merely determines, that where the deed is executed on the day of the pro |