#### Daniel v. Morton.

Argued Tuesday, January 4th, 1814.

i. Assumpsit — Declarations—Necessary Allegation*— Case at Bar. — A declaration, in assumpsit, stating that, the plaintiff being a creditor of a person deceased, and having (with a view to secure his debt) moved the proper court to grant him administration of the estate of said decedent, the defendant, (alleging that he was a creditor also,) assured him that if he would withdraw his said motion, and suffer the defendant to have the administration, he the defendant would pay him his debt out of the first money which should come to his hands as administrator; “'that, thereupon, the plaintiff did agree to relinquish his right to administer as aforesaid; and the defendant did then and there administer;” (without averring that, in conformity with the said agreement, the plaintiff did relinquish his pretension to the administration;) — such declaration is altogether defective, and not to be aided by verdict.

The declaration in this case, being uncommon, is here inserted :

*“Cumberland County, to wit;—

“William E. Morton surviving partner of Quin & William E. Morton complains of John Daniel, in custody, &c. of a plea, .for this, to wit, that, whereas a certain Samuel Price, in his lifetime, to wit, on the 15th day of May 1799, at the parish of-in the county aforesaid, was indebted to the said Quin *&*William E. Morton in the sum of 451. 5s. 9d., with interest from the day and year aforesaid, by bond, which said bond has by time and accident been lost; that the said Samuel Price afterwards, to wit, on the-day of-in the year of - departed this life, having first made and published his last will and testament, therein appointing Elizabeth Price, John N. Read, Clement R. Jameson, and William Price his executors ; and whereas, afterwards, to wit, on the 6th day of October 1801, the said Quin & William E. Morton, by motion to the County Court of Charlotte, procured .a summons to be issued by the said court of Charlotte, commanding the said executors and executrix to produce the said will at the December court then next, and shew cause why they did not take probate thereof ; and whereas, afterwards, to wit, on the 7th day of December 1801, the said will was produced to the said Court of Charlotte County by the said executrix, and was proved and ordered to be recorded ; and the executrix and executors aforesaid did, then and there, in open court, renounce the burthen of the execution of the said last will and testament; and whereas, afterwards, to wit, on the day and year last aforesaid, the said Quin & William E. Morton moved the said Court of Charlotte County to grant letters of administration, with the will annexed of said Samuel Price deceased, to the said William E. Morton, with a view to secure the debt aforesaid to them ; and, before the said court of Charlotte county had given any opinion on the said motion, the said defendant John Daniel,, to wit, on the day and year last aforesaid, at the parish and county aforesaid, and within the jurisdiction of the district court held at Prince Edward court house, requested the said William E. Morton to consent that he the said defendant should have the administration *as aforesaid, stating that said estate of Samuel Price was much indebted to a mercantile concern to which he belonged, that he knew the debt due to the said Quin & William E. Morton was by bond, for that he himself was the subscribing witness thereto, and that if the said William E. Morton (who was acting for the said Quin & William E. Morton) would withdraw his said motion, and suffer him the-said defendant to take administration as aforesaid, he the said defendant would pay to the said Quin & William E. Morton the debt due by the said deceased Samuel Price to them, out of the first money he got in his hands belonging to the said estate of Samuel Price deceased; and thereupon the said William E. Morton, for and on behalf of said Quin & William E. Morton did agree with the said defendant that he would relinquish his right to administer as aforesaid, and the defendant agreed that he would administer as aforesaid, and would pay the debt aforesaid to the said Quin *Sz.*William E. Morton out of the first money which came to his hands as administrator aforesaid, and the said defendant did then and there administer as aforesaid; and the' plaintiff avers that afterwards, to wit, on 'the-day of-at the parish of-and county aforesaid, and within the jurisdiction of this court, assets of the said Samuel Price deceased, more than sufficient to pay the debt aforesaid came to the hands of the said defendant; but the said plaintiff avers that the said defendant hath not performed! his said agreement, but the same has violated and broken, in this, that he hath not paid the debt aforesaid either to the said Quin & William E. Morton in the lifetime of the said Quin or to the plaintiff since, and to pay the same to the plaintiff doth still refuse, to the damage of the plaintiff $200, and .he sues, &c,”

The defendant having pleaded the general issue, a verdict was found for the plaintiff, subject to the court’s opinion upon a demurrer to evidence, which need not here be stated. The demurrer was overruled, and judgment entered for the plaintiff; whereupon the defendant obtained a writ of supersedeas from the court of appeals.

'"The petition for the supersedeas set forth the following reasons for reversing the judgment: — ■

1. Because there is no cause of action *55shewn ; for no consideration is laid ; as it does not appear that Quin & William B. Morton lost, or the petitioner gained any thing by the said supposed arrangement relative to the administration on Price’s estate ; because the petitioner had as much, and even a better right to apply for the administration than the said William B. Morton, who was not a creditor in his individual right, but merely as a partner of Quin & William B. Morton ; whereas, the petitioner was a creditor in his own right only, and therefore his pretensions, if not superior, were at least equal to those of the said William B. Morton. Besides, it is not stated in the declaration that the said William B- Morton did, in fact, relinquish his application ; but, (for aught that appears to the contrary,) the administration may have been granted to the petitioner after contest.

2. Because, if the consideration were even good, the declaration is defective in not laying an assumpsit, in consideration of the forbearing of William B. Morton to prosecute his application for the administration ; for such forbearing, if it had existed, ought to have been particularly alledged, and that, in consideration thereof, the petitioner assumed: (a) whereas nothing of that kind is stated in the declaration.

3. Because the supposed agreement is stated to have been made with William B. Morton, and not with Quin & William B. Morton ; who, therefore, could not support the action upon that statement: — but the declaration should have alledged an agreement with the plaintiffs directly ; for, in pleading, it is not sufficient to draw inferences of an agreement from the circumstances, but the agreement itself must be directly alledged.

4. Because there was no evidence that the bond was lost, or unpaid ; — so that there was nothing to shew an existing debt due to the plaintiffs at the time.

5. Because the agreement, as supposed, would have been against law ; for it alleges in effect that the petitioner promised to pay the plaintiff’s debt, at all events, out of the first ^assets which came to his hands, without regard to the dignity of debts ; whereas it is the duty of an administrator to pay the debts according to dignity ; and, therefore, every agreement to the contrary is fraudulent on the creditors collectively, and repugnant to law.

Saturday, January 8th, 1814.

*

See monographic *note*on “Assumpsit” appended to Kennaird v. Jones, 9 Gratt. 183.

(a)

 See Cooke v. Simms, *2*Call. 39; and Winston’s Executor v. Francisco. 2 Wash. 187.

The "following was delivered by JUDGE ROANE as the opinion of the court.

“The court (not deciding *upon any*other question occurring in this cause,) is of opinion that the declaration is defective in this, that there is no averment therein that the appellee did relinquish his pretension to administer on the estate of Samuel Price, deceased, pursuant to the agreement therein stated, and because, for any thing in the said declaration averred, the said appellee may not have relinquished ; but, on the contrary, the administration on said estate may have been granted to the appellant, on the decision of a motion, which may have been contested by the appellee notwithstanding the agreement aforesaid; so that, if a recovery were had upon this declaration, it might be, for aught averred therein, wholly without consideration. On this ground, the judgment is reversed with costs, and judgment entered for the defendant.”