#### Mary Eure *adm’r. of*John Tillery, *v.*Elisha H. Eure.

When an executor sells the assets of his testator and takes a bond payable to himself, *as executor,*and dies leaving- the' bond uncollected, it was held, Rrorizr, J. *dissentients,*in the absence of any evidence that the executor had appropriated the bond to his own use, that both at common law and under the act of 1794, *(Jlev..c.4li,) “to*explain and supply the deficiencies of certain acts of Assembly respecting sales by executors and admintrators,” the bond was of the assets of the testator, and an action on it might be brought by the. administrator *de bonis non.*

This was au action of debt originally commenced by warrant upon a bond executed to *Stephen Eure,*as administrator of *John Tillery,*upon the sale of the personal property of the intestate. After the execution of the bond, *Stephen Eure*died intestate, and administration *de bonis non*upon the estate of *Tillery*was then committed to the plaintiff*. Upon the trial before Man gum, Judge, at Halifax, on the spring'circuit of 1829,'it was objected for the defendant, that the bond was not evidence of a debt due by the defendant to the plaintiff, as administratrix of Tillery, but was only evidence of a debt due *Stephen Eure*in his life-time ; and that the action ought to have been brought by his administrator.

Upon this objection his Honor being of opinion with the defendant, nonsuited the plaintiff, who appealed.

*Bevereux,*for the plaintiff,

cited *Catherxvood*v. *Cha~ baud.*(8 *Eng. C. L. Rep.*45) and the act of 1794, *(Rev. eh.*415).

*207No counsel appeared for the defendant.

HekbersoN, Chief-Justice.

If we resort to authority, we shall find, that as soon as it was determined, that an executor or an administrator conlxl receive a bill ,or note as executor or administrator, and could sue thereon in his representative character, that those decisions were immediately followed by others, declaring that if the bill or note was not collected by the executor or administrator, but was left uncollected at his death, the right to collect and sue on it devolved upon the representative of the first testator or intestate, as unadministered by the first' representative. And were it not for a difference in the opinion of the court, I should think that there could not be a doubt upon the question. Because the reason why the executor or administrator could sue in his representative character, was that the bill or note was of the estate of his testator or intestate, yet -to be administered. On no other principle, could the action by him in that character be sustained. If unadministered by the first representative, the administration of it devolved on the administrator *de bonis non;*or the executor of the executor, as the case might be; who thereby became the executor of the first testator. ■ In the case of the administrator *de bonis non,*his commission or letters of administration direct and authorize him to *administer all the estate of the testator or intestate miadministered by A. B. the former executor or administrator.*And the law makes the same injunction to the executor of the executor, as to the unadministered estate of the first testator. When it was held for law, as it once >vas, that an executor or administrator could not receive a bill or note in his representative character, and of course could not sue on it in that character, it is not to be wondered at, that it was also held, that if he died, holding a note or bill, altho’ professed to be received in that capacity, and for a debt due to his testator or intestate, upon his death, his executor or administrator only could sue upon *it;*and the representative of the first testator or intestate could not. Indeed it would have been wonderful if it had *208hold, that the représeritativfe of the first testator could have sued. For it would have presented a case, where the administrator *de bonis non*could sue as such, where first administrator or executor could sue only in his private, and not in his representative character. It would be saying that the bill or note, in the hands of the first administrator or executor, was not of the .estate of the testator or the intestate *;*but on the death .of the executor or administrator, it became so. The doctrine can only be attacked in the bud, in the right of the executor or administrator to receive a bill or note, as "executor or administrator. For if that is admitted, I think the other follows of course. In deciding this case, I have no in-, terest to support or deny the modern doctrine of the English courts, that he can. Indeed it seems now to be universally admitted there over since the case of *King v. Thom,*(1 T. *R.*487,) that executors or administrators may receive bills or notes in Iher official character. The doctrine has been gradually extending itself to other official acts. And in the case of *Catherwood*v. *Chabaud,*(8 *Eng. C. L.*45,) where the assignment was to the administrator *generally,*not *as administrator,*yet being for .a *debt due to the intestate,*the. bill being uncollected by the administratrix in her life time, it was held, that it ^devolved on the administrator *de bonis non,*as assets of the estate of the first intestate, to be administered by him as unadministered by the first administratrix.

I said, I felt no interest in supporting, the English decisions, that an executor or administrator, as such, might receive a bill or note, in order to support the opinion I have formed. For be that as it may in England, they can certainly in this state, take hills, bonds and notes in their representative character. The apts of our legislature direct executors and administrator's to sell the estate of their testator or.intestate *on a credit, to take bonds*with surety ; that the money *when collected shall be assets,*and prescribe bow judgments shall be entered against them before collection. Argument is useless, I think, to prove, that they hold the evidences of these debts in their official, and not in their individual character. The *209money due on the sales is not assets, until collected. They may therefore sue on these bonds, as executors or administrators, for they are of the estate of their testator or intestate unadministered, if they can, and should die before they do, the administrator *de bonis non*certainly can and must. They devolve on him as unad-ministerered assets of the first testator or intestate. It is- said, that inconveniences will result from giving- this right to the administrator *de bonis non*to sue: as that the-first executor or administrator will lose his right to retain for his own debt j and his opportunity of reimbursing himself for advances. Not so. lie has nothing to-do, but by some overt act, to make an appropriation, and the debt is his. It is administered. This, however, is not a contest between the two representatives ; but the debtor sets up this defence against the administrator *de bonis non.*Besides, we find this- bond in the hands of the administrator *de bonis non;*and we must presume, it came rightfully there. But if the law is settled, inconveniences cannot alter it. They can only bo thrown in, in doubtful cases, to show how the law is, and I think, from our acts of Assembly, were it not for the difference of opinion, that this is not one of those doubtful cases, where inconveniences should have any weight. But I think the inconveniences are the other way. If this be as contended for, that is, the first administrator’s own., debt, (and they who hold that the administrator *de bonis non*cannot sue, affirm it,) if the defendant, the pus-chaser at the sale, have a debt against the first administrator, he may. set it off; and thus make the administrator, who may he an insolvent, act unjustly against his will. For nothing can-prevent such debt being a set off, if the note-he the first administrator’s. They are due then in the same right, that is, both individually. They are therefore *mutual.*Thus the whole property may be swept away, by the creditors of the administrator purchasing up the property at the cxecutor’sor administrator’s sale, and setting off their debts against the executor or administrator. A further inconvenience will follow. The administrator *de bonis non*must stand by, and wait the *210pleasure of the representative of the first administrator or executor in the collection of the debts, and his further pleasure in paying them over to him, after he has collected them ; when it might be done at once, by authorizing the admistrator *de bonis non*to collect them.

As to *the*objection, that it does not appear, that *Til-lery*was the first administrator, the bond shows it, as to this defendant. But if it did not, the letters *de bonis non,*of which the court had a *proferí,*do. They are to administer all the goods, not administered by *Tillery,*the former administrator. Í have taken it for granted, that this is a bond taken at a sale of the assets.

Ham, Judge.

It was held in *Jenkins*v. *Plombe, (6 Mod.*181) that where an executor sued *as such,*but might have sued in his own name, he was liable for costs. *(Buyer’s Law of Costs. Atkey v. Heard, Cro. Car.*219). And that was the reason given, why counts-in such an action, could not be joined with counts in an action, where an executor could sue only as executor ,* because it was said he was liable for costs in the first case, but not in the latter, *(Rogers*v. *Cooke, 1 Salk.*10. *S. C.*1 *Show.*366.) and because the costs were entire and could not be severed. (Betts v. *Michell*10 *Mod.*316). The objection therefore would not lie-against either suit, when brought singly, although in the name of tiie executor.

In other cases however, the validity of this objection seems to be impaired *;*for in *Bull*v. *Palmer, (2 Lev.*165,) the plaintiff charged, that the defendant covenanted with him as executor, and was nonsuited. It was held, that as the action was brought in right of his executorship^ and the money if recovered would be assets, he should not páy costs. *(Partman*v. *Came, Str.*682. *Peacock v. Steere, Cro. Car.*29. *Mason*v. *Jackson,*3 *Lev. 60).*

In another and a later case, the question was, not concerning costs, hut whether executors, to whom a bill of exchange had been endorsed, could sue upon it as executors. It was held that they could, because, *amongst the*reasons, it was said that the money, when recovered, would be considered as assets. *(King*v. Thom, 1 Term. 487).

*211In a still later case, in an action of trover by an executrix for a conversion in the testator’s life-time, and also for a trover and conversion after his death, on a non-suit it was held, that the plaintiff was not liable for costs. And *Butter*stated, that whether the conversion was before or after, if the goods when recovered, would he assets in the hands of the executrix, she must sue for them in her representative character, *(King*v. *St. Mary,*4 *Term*477).

It was said in *Cowell*v. *Watts,*(6 *East*405) that the correct and rational rule is, that counts may he joined, in which the money, if recovered, will he assets. *(Petrie*v. *Hannay,*3 *Term*659).

In the late case of *Catherwood v*. *Chabaud.*(8 *Eng C. L.*45)- it was held, that where a hill of exchange was endorsed generally,hut delivered to *S. C.*as administratrix for a debt due to the intestate, and *S. C.*died intestate after the bill became due, and before it was paid, the administrator *de honis non*could sue upon the. bill. The money, in case it had been received by *S. C.*upon the bill of exchange, would have been assets of the estate of the intestate. As if was not received, the plaintiffs, the administrators *de honis non,*had a light to sue for it.

This last case seems to he decisive of the one before the court. The note in question was given to *Stephen Eure,*as administrator of *John Tillery.*When *Stephen Eure*died, and letters of administration were granted to the plaintiff, she had a right to institute the present action, according'to the principles laid down in the foregoing authorities. Whether the debt was recovered by *Stephen Eure,*the former administrator, or by the pre-* sent plaintiff, the administratrix *de honis non,*it is assets of the estate of *John Tillery.*I therefore think, the non-suit should be set, aside and a new trial granted.

IturriN, Judge,

*dissentiente*— It seems to me, that a reversal of this judgment is *(¡nieta moveré.*Nothing, I thought, was better settled in the law of this state, than that a bond, taken by an administrator, for property of Ms intestate sold by the administrator, belonged to the *212administrator. The opinion now entertained by the-other members of the court has led me seriously to reconsider my own. It has not resulted in any change.

The old law was certainly in conformity to the opinion of the court below. An executor could declare in his representative capacity, only for matters arising- in the testator’s time. The executor’s own acts were all personal to himself, and were declared on in his own right. Upon his death, there wás no privity between him and the administrator *de bonis non.*I admit, that changes to a certain extent have gradually taken place in England 5 which, after producing no-little confusion in the-law of administration, have resulted in the modern case *oí.Catherwood*v. *Chabaud,*the reasoning in which is nearly in point with the case before us. I not only entertain profound respect for those adjudications, as the opinions of eminent and learned men, but I acknowledge them to be authoritative, as determining what the common law-is. Nevertheless I cannot allow so much authority to a. single judgment of a single court, as to suffer it to over-x*ule a multitude of the decisions of their predecessors, and the uniform course of our own. Innumerable cases have occurred, in which this question; has arisen. Yet I have not hoard of a solitary instance* in which the law has not been expounded as by the judge below. I have myself had it ruled on me, and ruled it so repeatedly, on the circuit. I am well, satisfied, that those decisions, were.right. . •

It is of the utmost importance, that the course of administration should be certain ; that no rule should be countenanced, which'will disturb the order of paying, debts, or embarrass the right of set-off; or impair the right of retainer in the first administrator,, or his claim to indemnity for advances for the estate. I think all these consequences will follow the change now made.

It is said, that the principle of the modern cases is, that an executor may declare on a promise to him, *as such,*if the. debt, when recovered, will be assets. I will not deny that. But if a new bond bo taken by the executor for an old debt, due to the testator himself, it is a change *213of tlie debt, which makes it assets immediately. Why ? Because upon his death, the new bond will not survive to 1 nni the administrator *cmi testamento annexo.*This is the very reason given in the old books. Such a bond is de-dared on in the *debet*and *detinet,*and goes to the executor’s own administrator. But here the bond was taken for property sold. *That*was assets as soon as it came to hand ; and if the executor sell it, it does not cease to be assets. ' Whether the price be recovered or not, the value of the property is assets. Suppose a conversion or detention of it. Certainly the executor sues upon his own possession, and declares in his own right. He does not make a *proferí*of his letters ; but gives them in evidence, as a link in his title. The reason is, that before recovery the property is assets-; and since the executor is chargeable the property is *his.*I am not speaking of a mere constructive possession by the executor; as where the trover was in the testator’s time, and the conversion in the cxebntor’s. In such a case, he may declare as executor, because the whole matter did not arise in his own time. But where he has had actual possession; it is clear that he declares in *propria jure.*Then the property is changed, and becomes his. Is it not strange, that the property is assets and the price should not bé ? And upon a bond taken for it, debt in the *detinet*will not lie. *(Hosier*v. *Ld. Arendel,*3 *Bos.*& *Put. 7).*For it cannot ho'alleged, that the obligor *owed*to the testator, and detains from the executor.

The English cases, allowing counts upon promises to the testator and to the executor, *as such,*to be joined, had their origin in á necessity under which the courts felt themselves to permit that mode of declaring, for the sake of avoiding the statute of limitations. They first held, that if the promise was laid to be imple to the testator and the statute was pleaded, evidence of a promise to the executor was not admissible to take it out; because that was a different contract. Why a different contract, if it relate to the same subject, and. the debt due upon each promise is to be assets, only when recovered ? Yet the coxirts of "Westminster did not say until a late day,. *214if it be yet definitively said, whether the recovery is to be on the old promise as being revived by the new one, or upon the latter. *Lord Mansfield*indeed tells us, that the statute goes to the action only, and not the cause of action. Tire reports of *Burrow, Gowper*and *Douglas*are full of such expressions, as that'thc *remedy*and not the right is barred. In our own day, the question has been more minutely discussed, and an attempt made to follow the rule, that an executor might so declare, by another, *that this now promise*is the ground of the action and the old debt but the consideration. On this I must remark, that this court has said nothing yet. Though pressed to it in *the Bank of Newbern*v. *Sneed,*(3 *Hawks*500) it was declined j and what was dropped, leaned the other way. But let the rule prevail, to the extent of the necessity which caused it. I cannot carry it further so as to overturn other well settled principles, and the rights of third persons.

The statutes of set-off are amongst the most valuable we have. They save expense, and in the true spirit of equity,hold the balance due on dealings between parties to be the real debt. The debts to be set off must be mutual, and due in the same right. If an action be brought on a debt due the testator, a debt due from the testator may be set off. But if the debt arise in the executor’s time, the debt of the testator cannot be set off. Why? Because' it would disturb the order of administration. Specialty creditors, for example, are to be paid before those by simple contract. Yet if a sale of property by the executor create a debt from the purchaser to him *as executor,*a simple contract creditor by buying at the sale will defeat specialties by setting off the debt from the testator. If it be said, that the executor can avoid this, by suing in the *debet*and detinet; I answer, that fails, when the bond comes, upon the death of the executor, to the administrator of the testator: for he is obliged to declare in the *detinet*only, and *as*administrator. It cannot be said that the set-off is to be allowed or not, as it shall appear that there are creditors of higher *dignity;*for that would involve an. account of *215•estate upon every issue of set-off. I do not suppose, that if is meant that the right of set-off sli all be at the mercy of the executor. Yet I cannot tell how it is to be exercised hereafter. If the executor discovers, that the debt- or has a demand upon the testator, then he will sue in iiis own right, and by the form of declaring, preclude the set-off. If the debt be one of the executor’s own, then he declares as executor, and the issue is alike unfavorable to the defendant. If the executor is himself to be compelled, without reference to his mode of declaring, to admit as a set-off, against a debt contracted with himself, his own debt, why is that right of his creditor to be defeated by his death ; as it will be, when the bond passes to the administrator *cum testamento annexo*? The rights of the debtor ought not to be altered on one and the same contract, when sued by one or another person. It ought to be certain, what debt is the legal set-off and not varied by the will of the plaintiff. I have not cited authorities to these-points ; because I have chosen, as illustrations, positions the most elementary and familiar, But 1ho general doctrine of set-off is explicitly laid down in the cases of *Shipman*v. *Thompson,*(*Willes*103 ) and *Tegetmeyer*v. *Lumley.*(Id. 261 n). These considera--tions do not seem to have been adverted to by the judges who decided *Catherwood*v. *Chabaud.*They seem to mo *to*be important; and I suspect a case of set-off will be found very perplexing to that court, when it shall advise. One difficulty seems to have pressed itself on the notice of *Mr. Justice Pest,*who gave his opinion last. The thought occurred to him, how he would have treated the action, had it been brought by the administrator of the administratrix. He does not dispose of it, otherwise than by remarking, that “it was unnecessary to decide whether he could sue *;*for that it was sufficient to say, that the administrator *de bonis non*might.” He is plea-, sed-to add, that “this observation will reconcile the cases.” With great deference, I do not see any harmony in that argument. It seems rather to increase the discord. ‘ For I am at a loss for a principle. upon which' twq different persons, in distinct rights, can have the power *216to site on .the same contract, for the same sum, at one and the same time. The right existing in one must, *ex ne - cessitate,*exclude the other. I can hardly suppose, that tf the administrator of the administratrix had been plaintiff then, he would have been turned out of court. If not, the other ought. *Chief Justice*Mbot, struck with the new view of *Justice Best,*takes up the case again, and remarks that there is much weight in the distinction. But he immediately admits, that “ there may be cases, where the' administrator of the administrator might and *ought*to sue, viz. if the first administrator, had made himself *debtor*to *the*intestate’s estate, for the amount of a hill received in payment of a debt due to that estate.” Does not this give up the argument ? There is no principle, on which the administrator can make himself debtor to the estate by taking a hill, but that by changing the original debt, he makés it present assets — a *debt*not being assets, until collected or altered, or the lapse of a reasonable time for collection. When thus extinguished, it is assets chargeable to the executor, and therefore \\ hate ver he receives in satisfaction of it, whether a hill, the purchaser’s bond or a Specific thing, is the administrator’s own. But specific chattels, once in the executor’s hands, are assets *e-o instanti,*whether sold or retained by him — that is to say, at the common law.

This brings me to another branch of the subject not less important. The Chief-Justice puts an instance of an administrator becoming debtor to the estate; in which he admits the security ought to belong to the administrator. The reason is much stronger, when we consider him a *creditor*of his intestate or of the estate, by advances for it. Is he to lose his right of *retainer ?*This must he, if the right to the bond surv|ye to the administrator de *bonis non.*I had thought before, that the right to retain changed the property of the assets as soon as they came to hand. *(Muse*v. *Sawyer,*N. *C. T. R.*204, *Merchant*v. *Driver, 1 Saund. 307).*It is said.however, that suffering the administrator *de bonis non*to sue is midst convenient and accords more with justice, because it brings the intestate’s estate, more directly and speed*217ily, to be answerable to demands of creditors and next of kin. It is plain, that the circuity will be greater on the one side-or the other, as the first administrator *hap pens*to be a debtor or a creditor of the estate. I admit, that the executor of the first administrator holds the proceeds of the bond, in trust for the estate of the first intestate. But when ho accounts as trustee, the estate of the. first administrator is fully protected not only by a retainer, but by all fair allowances for advances. This is manifestly just. And I cannot assent to any rule, which inverts the natural order of things, and that to the detriment of plain right. This view is also taken in a modern English case — that of *Hosier*v. *Arendel,*before mentioned. And that is grounded on *Betts*v. *Mitchell.*(10 *Mod.*315). In the former it ivas expressly held (in 1802, and though reference, was made to the new fashion of declaring,) that an executor could not join a count on a bond to his testator, with one on a bond to himself as executor. In *Catherwood*v. Chabaud, this case is not noticed,, although *Lord Jlboanlcy*expressly declares, that if a bond be given toan administrator, and he happen to die before the debt be recovered, *“ it cannot be contended,*that the administrator *de bonis non*can put it in suit.” He says it could not be allowed, as it might affect the right to retain. And *Chambre,*Justice, says, the debt created by a bond to an administrator is a debt *to him,*and will devolve on *Ms*representative. This case is precisely in point. *Catherwood*v. *Chabaud*may indeed be distinguished from it, in what likewise will distinguish it from the case before us. It was an action of *assumpsit*on a bill of exchange, passed to the administrator *as such,*for a previous debt to the intestate. Now there is a latitude of declaring in that action, not allowable in debt. And since the case of *Bickerdike*v. *Bollman,*(1 *T. R.*405 ) it has been the common understanding, that a bill received for a previous debt does not extinguish it. If the bill be not good, an action will lie on the original debt, and the bill is only collateral security. The *debt*therefore might survive to. the administrator *de bonis non,*and draw after *218it the bill. But here there was no debt to the intestate. It was contracted with the administrator himself, and *he*could not declare in the detinet, but only in the *debet*and *detinet.*For no action but debt will lie on a *bond,*and there is a prescribed form for that, which ties the court down. The truth is, there is no *privity*between a first and second administrator ; and the law does not transfer contracts made with the one to the other. Let us consider the case of a judgment obtained by the administrator, even for a debt due to the intestate. Upon his death, it is well known, that at common law, the administrator *de bonis non*could not enforce it, but was remitted to the Original cause of action. Much less could he interfere with a judgment, rendered on a bond given to the administrator himself. As to the first, we have now a remedy in the act of 1824. But why was a statute necessary, if the mere volition of judges was adequate to change the law. The act is confined to judgments in favor of the administrator, in his representative character. How can we extend it to contracts *in pais,*entered into by the administrator himself ? If the bond had ripened into judgment before the act of 1824, it is plain that the administrator of the administrator alone could have sued on it. I cannot perceive any power in us to say, that any body else .can sue on the bond itself.

I apprehend the act of 1794, *(Rev. c.*415,) has no bearing on the question. That does not mean to change the executor’s rights, or those of creditors, or the law of set-off. It only means to say, when execution shall issue against the executor. If however it embraced the whole case, it would not affect the present question *;*because the bond fell due in January 1827, and *Stephen Enre*himself received part payment in February 1828. He lived long enough to make the bond his own ; for if he does not use all lawful means to recover the money, he is chargeable with it by the letter of the act.

I know not how far the reasons, upon which the judgment is reversed,' will carry us in other cases. But if this plaintiff can recover, upon the ground that the bond, payable to *S. Enre,*the administrator of *J. T.*is, in efs~ *219feet, a bond *to the estate,*I cannot see wliy a bond given to a guardian may not be sued on by tbe succeeding guardian, or by the ward in his own name ; or why upon the removal of a guardian, or death of an administrator, these bonds may not be recovered in *trover,*by the ward or by an administrator *de bonis non.*I do not deny, that the guardian or administrator is chargeable for the amount of the bonds payable to him, as part of the estate. But that is in another court, and upon the ground of a trust. That very proceeding admits the legal title to be in him, to whom the bond is payable. But here the question is, whether a *bond,*payable to one man, can. be sued on by another, who is not the assignee nor administrator of the obligee. If it can, I do not see, why dvery bond, payable to one, with a trust expressed on its face for another, is not a bond in law to the *cestni que trust.*I have examined tins subject thus minutely, because I consider it one of much practical consequence : I hope I am mistaken in my views of the law, and ip my apprehension of evil results ; but under my present impressions, I must say, that I think the judgment ought to be affirmed.

Per Curiam. — Judgment reverse»,-