#### JOHN JONES ALSTON’S ADM’R *vs.*SAMUEL S. JACKSON.

Where A. and B. -were co-executors of C--, and A. gave his bond for money *to*B., styling him executor, and stating that he himself had borrowed the m-oney in his private capacity and not as executor, and B. afterwards died! *—held*that B.’s executor or administrator could maintain an action on this . bond, and this even- without having settled or paid over the amount to another executor.

The case of *Eure*v Eure, 3 Dev. 306, cited, approved and commented on,-

Appeal from the Superior Court of Law of Chatham County at Fall Term, 1843, his Honor Judge Manly presiding.

*50This was an action of debt upon a bond of the defendant, ^t°ught by the plaintiff as the administratrix of John Jones Alston. The case appeared to be this. Joseph John Alston ap-p0jnte(j John jones Alston, the defendant Samuel S. Jackson, and one Rives, the executors of his will; of whom the two former only undertook the office at the death of the testator. John Jones Alston, having in his hands money belonging to the estate, lent the sum of $711 74 to Jackson, the co-executor, and took his bond in the following words, viz :

“One day after date I promise to pay to John J. Alston, executor of the last will and testament of Joseph John Alston, deceased, seven hundred and eleven dollars and seventy four cents; which sum I have borrowed of him in my private and individual capacity, and not in my character of executor of the said will; and which is to bear interest until paid. September 23d. 1841. Samuel S. Jackson, (Seal.)”

John Jones Alston afterwards died intestate, and the plaintiff became his administratrix, and came to a settlement of her intestate’s administration with Rives, who had then qualified also as an executor; and, upon that settlement, the plaintiff accounted for the money mentioned in the bond and paid it to Rives. The plaintiff, as administratrix of John Jones Alston, then brought this action on the bond ; and it came on to be tried on the general issue.

To the evidence of the settlement and the payment of the money to Rives the defendant objected ; but it was admitted by the Court.

It was then insisted for the defendant that the plaintiff could-not maintain the action, but that the debt belonged to the surviving executors of Joseph John Alston. But the Court held otherwise ; and a verdict and judgment were rendered for the plaintiff. From the judgment the defendant appealed.

*Manly*for the plaintiff.

*Waddell*for the defendant.'

Ruffin, C. J.

Without adverting to the state of the *51pleadings, the Court is of opinion that the judgment should be affirmed, because, upon the facts stated, the merits are for the plaintiff. The general rule is, that for a cause of action, i • i i ■ , ,. . , , . , which has arisen wholly in the executor’s own time, he is to sueinhisovvn name, without callinghimselfexecntor. It follows, that, upon the death of the executor, the action survives to his representative, and not to the representative of his.testator. But to ihe rule certain exceptions have been established. They were stated and sufficiently discussed in the case of *Eure*v *Eure,*3 Dev. 206. It is admitted, that for a debt due the testator, executors may take bills or notes in their official character, and declare on them as given to the executors *as such.*And in the case cited it was held, that, where an executor sold property, according to the act of 1794, on credit, and took a bond for the price, payable to him as executor, and died without collecting the money or appropriating the bond, an action might be maintained on it by the administrator *de bonis non*of the testator. From that decision we have no inclination in any case, and there is no necessity in this case, to depart. For, although it proba* bly gave rise to the defendant’s objection,-it.does not support it. It is manifest, that it and every case, .in which an exception to the general principle has been admitted, proceed on the ground, that the executor meant to take and hold the security in his representative character, and that no injustice would arise from so treating the transactions. Such may be the presumption, when a single executor, in the due course of administration, takes a bill, note or bond payable to himself as executor; and so, likewise, if there be two or more executors and the security be taken to them all, either by the general description of their office, or *nominatim*and as executors. But it never can be presumed or admitted, when one of two or more executors, upon a transaction of his own, though in a matter touching his office, as in taking security for a previous debt or for the price of a chattel sold, takes a bond, payable, not to all the executors, but to himself alone. Such a dealing with the assets is essentially a *52conversion of them, which renders the executor responsible *or ^111 J and, therefore, he holds the security taken for them *proprio jure.*Though called executor in the bond, jie jg not entitled to it *virtute*officii, for he does not fill the office, but others are also in it, who are not named nor described in the bond, and for that reason cannot sue on it. And this is true *a*fortiori, when one who is an executor, gives hi.s bond to another, who is also an executor. It is absurd to suppose an intention, that it should operate as a bond to the executors as such ; which would be at once tp extinguish it. On the- contrary, the object must have been to bind one of these parties personally to the other personally ; and it is obvious, that it was just it should beso. If an executor, who h.as the money of the estate, lets it go into the hands of another executor, not for the purposes of the estate, but for the use of the latter, the former is answerable as for a *devastavit,*upon the insolvency of the co-ex-e.xecutor. Moreover, he, who first had the money, has no means of compelling the other to restore it to his possession, if he has the rights of an executor merely; for each executor has an equal right to hold what he gets, provided he gets it as money of the estate. Before parting from funds tp his co-executor, it was then an act of prudence, with a view to his own indemnity, and of official duty to those entitled to the estate, to provide a security, which, in case of danger, CPU Id be promptly and efficiently enforced ; and the bond of the borrowing executor to the lending executor seems very proper for that purpose. By lending the money, the one executor became immediately responsible to the estate ; and, by giving the bond, the borrowing executor became responsible to the other.

The plaintiff was, therefore, entitled to recover on the'' face of the bond, and without the settlement and payment to Rives. But, though not necessary to the plaintiff’s action, that evidence displays the justice of it more distinctly ; as it was another overt act of appropriation of the bond, according to the idea of Chief Justice Henderson in *Eure*v *Eure.*It was not incompetent and injurious evidence; *53but was, at most, irrelevant and harmless, and, therefore, no ground for reversing the judgment.

Per Curiam, Judgment affirmed.