#### John L. Sullivan, Administrator, &c., *versus*John Holker.

In *assumpsit*by an administrator *de bonis non,*the promise may be laid to have been made to the first administrator.

This was *assumpsit*by the plaintiff, as administrator *de bonis non*of *Thomas Russell,*deceased, intestate. The declaration contained several counts. 1. *Insimul computassent*between the defendant and the said *Russell,*on 16th of February, 1790, and a promise to pay the balance found due ; *2.*A like count as between the defendant and the original administrators of the intestate, on the 10th of August, 1796, and a promise to pay them the balance then found due; 3. Á similar count with the last, with an averment that the defendant, in consideration of his being so indebted, on the 30th of October, 1813, promised the plaintiff, in his said capacity, to pay him the sum so found due as aforesaid.

The defendant pleaded, 1. *Non assumpsit; 2. Non assumpsit infra sex annos;*3. *Actio non accrevit infra sex annos.*On all which issues were joined, and a verdict being returned for the plaintiff on all of them, and on all the counts, the defendant filed a motion in arrest of judgment, on the ground that the plaintiff had joined in his declaration counts, or causes of action, which could not by law be joined, *viz.,*a promise to the plaintiff’s intestate, — a promise to the former administrators of the said intestate, —r and a promise to the plaintiff, the present administrator *de bonis non;*— and that some of the counts were bad.

*Williams,*for the defendant.

The first count is unobjectionable in point of form; but no evidence was produced, at the trial, in support of it. The second count, which alleges a promise to the former administrators, shows no ground on which the now plaintiff can recover, there being no * privity between him and them. A bond, note, or other cause of action, being made to an executor or administrator, as such, would still go to his executor or administrator, and not to the administrator *de bonis non*of the first testator or intestate. The two causes of action cannot be joined. (1)

The third count, being on a promise to pay the plaintiff in consideration of the defendant’s indebtedness to the former administrators, is clearly bad. Although, at common law, an executor of an executor is also executor of the first testator, there is no precedent *338to be found of a declaration, by the second executor, upon a promise made to the first.

*G. Sullivan*and *Curtis,*for the plaintiff,

contended that the counts were well joined. The executor or administrator is a mere trustee, to collect and preserve the property of the deceased, for the benefit of his creditors, legatees, and heirs; and as he represents the deceased in all personal contracts, he may maintain all such actions to enforce them, as the deceased might have maintained. He may also prosecute and defend suits upon causes of action which accrued after the death of his testator or intestate. The administrator *de bonis non*succeeds to all the rights and powers of the antecedent administrator, and has the same interest in'such of the effects as remain unadministered. (2)

The statement of an account, between the administrator and a debtor to the intestate, creates no new cause of action. It only ascertains the old cause of action, existing in the lifetime of the intestate. (3)

The cause of action, then, being the same in all the counts, the rule is believed to be that, where the same plea may be pleaded, the same judgment rendered, and the money, when recovered, will be assets, the counts may be joined. (4)

The case before the Court coincides with this rule in every particular. It is objected that, for want of privity between the first administrators and the plaintiff, a promise made to the'former, in their representative character, does not survive to the latter. They are both mere creatures of *the law, appointed to protect the estate of the deceased, of which they are trustees. This doctrine about want of privity arises from a position, established in *England*in very early times, when forms were more regarded than substance, that an administrator *de bonis non*could not, by any means, avail himself of a judgment recovered by the former administrator. At the same time, the courts cheerfully lent their aid to enable an executor to make himself a party to a judgment, recovered by an administrator *durante minoritate.*(5)

This distinction seems without foundation ; and will not be supported by the Court. Many cases might be put, where the doctrine set up by the defendant would be extremely prejudicial to the rights of individuals interested in the estates of persons deceased. Suppose, for instance, an administrator pays a bond, in which his intestate was surety, and dies ; how can the administrator *de bonis non**339recover of the principal the money so paid, unless the implied promise to the first administrator survives to his successor in that trust ?

But if the opinion of thé Court should be against the plaintiff on this point, the verdict may be applied to, and judgment rendered upon, the first count in the declaration, which is not objected to, il the evidence by which the jury were governed in assessing the damages was applicable to that count. (6) That such is the fact will appear from the papers filed in the case, and from the minutes of the judge who sat at the trial.

(1)

 3 *B. & P.*10, *Hosier & Al., Exrs.,*vs. *Lord Arundel.*—1 *Chitty on*Pleading, 206

(2)

*Toller’s L. of Exrs.,*&c., 243, 431, 437, 447. —14 *Mass. Rep.*327

(3)

*Toller,*162.

(4)

 1 *D. & E.*274. — 1 *Chitty on Pleading,*202, 3. — 2 *Sound.*117, e

(5)

*Toller, US.*

(6)

7 *Mass. Rep.*358. —11 *Mass. Rep.*57.—1 *B. & P.*329.

Parker, C. J.

The Court being all of opinion that the first count is good, and that the evidence given was sufficient to support it; and also that the promise made to the present plaintiff was sufficient to avoid the statute of limitations, which is pleaded against it, — there is no necessity for investigating the merits of the second and third counts. For, although the verdict is general, and, therefore, if one of the counts is bad, judgment must be arrested, — unless the verdict can be restricted in its application,—yet it is well * settled that, in such cases, the plaintiff may elect his count, and have the verdict made applicable to that,

only ; provided the judge will certify, or slate, that the evidence was proper to maintain the good count, and that there was no evidence but what might be properly applied to it. (a)

The objections made to the second and third counts are merely technical. But we are not satisfied that they have been sufficiently answered. It is said the second count is bad because it alleges a promise made to the former administrators, between whom and the plaintiff there is no privity ; and that the third is bad because the accounting with, or indebtedness to, the former administrators is no consideration to support the promise alleged, in this count, to be made to the plaintiff. For the reason before stated, we give no opinion upon the sufficiency of these counts.

Some time after the foregoing decision, the *Chief Justice*observed that the counsel for the plaintiff had referred the Court to the case of *Hirst, Adm. de bonis non,*vs. *Smith,*7 D. & *E.*182, in which it was decided that a count like the second in the present case is good, and also that a count like the third is good and sufficient; and his honor observed that, if the Court had seen that case seasonably, no doubt would have been entertained.

*Judgment on the verdict.*

(a)

**1 *Dougl.*376. — 2 *Dougl.*746. — 3 *Bingh.*334. — 1 *B. & P.*329.—1 *B. & A.*161.—8 *East, 357.—2 Arch. C. P.*285 *—Barnes*vs. *Hurd,*11 *Mass. Rep.*58.— *Barnard*vs. *Whiting,*7 *Mass. Rep. 358.—Patten & Al.*vs. *Gurney,*17 *Mass. Rep*182. — *Clark*vs. *Lamb,*6 *Pick.*512.