#### Mosher, Executor of Briggs, *against*Hubbard.

*J„*the administrator of an intestate estate, xmdev an order of the surrogate, sold certain land of the intestate, and took a.bond and mortgage from the pur«rnaíis drew an order upon favourof?erfor im testate to stating in . order that the amount should fie credited on the bond mortgage tic Rand j but reruser«>hapay bSndidnii'moftfSJSVcTM 0». and ceived the full 'amount of the bond and mortgage being credited for the amount j? iniRsaccoixnt giíe.wa? “tabte for the amount of the order, as for money had and received to

in recover the ,amount of an or-the” defmdaíC drawee had re-the ddefenaaní’ ?¿etedeodf tb¡em1ta.’ tions, and a witness testified *¡¡¡píe e*seated the order iothedefeodant, who did not pre* tend butthatthemonéy was due; and said that he did not recollect paying it, but that he would examine-Im .papers,.and if he-had páTulit hewould write to' the|wilness, who, however, never received any communication from the defendant upon the subject; it was-held, that this was sufficient evidence from which to imply a promisehy the.defendant to pay the money, if he should find .that it had not .been paid-; andthus to take the case' out of the statute oí limitations.

.THIS was art áction of *assumpsit*iipotí the-eommon money-counts. The defendant pleaded *non-assumpsit*and *non assump* sit infra sex annas.*The cause was tried at the *Rensselaer*circuit, in June, 1816.

At the trial tfe plaintiff-gave in evidence the following .“Pay *William Briggs*110 dollars;-on sight, and the same shall be, passed to your credit, on a bond and mortgage which'f . 1 • • oo hold *Jes^*Potter, executed by yo.u.- Your Friend, Rug*gUs -Hubbard.*, To *Mr. Daniel Eldrcd. Troy, November*7£hj 1308.”

The bond and mortgage referred to in the order were dated the 19th *October,*1807, and were assigned by the defendant’and 1 . ¿ * _ •• • , * 1808; -but by a *dr'ed*testified that the order in question was presented to him by plaintiff’á testator in his lifetime, but that he had refused to . *■* ,*’ ' ' ' *^esse Toller,*.the mortgagees, to *Thomas Sampson*and *Henry Warren,*by assignment, dated the 27th memorandum on the rbórtgage, the assignment was stated to have been delivered On the 15th *December,*1808, ’ *Daniel ÉÍ-*pay it, because the bond and mortgage had1 been assigned to *L J ’ , rTr*' ® e ° . ,-5aw?fW£m ailci *Warren,*and they had told him that he must pay no more to'the defendant; that he had paid up the whole amount bond and mortgage, and that the order was never paid ' f ' ‘ ' ' Uui-Ui it,

given to the defendant and *Jesse Potter,*to secure the considera- ■ »■ tión for the real estate of *John*Potter, sold by them under the -Surrogate’s order: that the order in question was given in part payment of a debt due from the estate of *John Potter*to the plaintiff’s testator,. and not for an individual debt of the defend-*Jonathan' Brown*testified that the bond and mortgage’were The witness also testified that he had examined an, ac« ant, as the witness had understood from the-testator in his life- ‘ .* tlulC* count on file in the. Surrogate’s office; endorsed by the defendant, after the date of the order, in which was' stated an account y . *511in favour of the plaintiff’s testator, against the estate of *Potter,*of about 190 dollars, stated to be receipted and allowed to the defendant by the surrogate. The witness also testified that in *April,*1815, he called on the defendant in *Albany,*at the request of the plaintiff, and showed him the order in question, which the defendant admitted that he had', given. The witness then told the defendant that the plaintiff had found the order among the papers of his testator, which the.^ witness had understood from, the testator, before his death, hadfoeen lost some time ; that he had called upon *Eldred,*who said .that he had not paid it; and who wanted to know whether the defendant had paid it, and if not, he wished to have it settled. The witness further stated to the defendant that the reason why Eldred'had not paid^the order was, probably, because the bond and mortgage had been assigned about the time that the order was given ; to which the defendant replied, that he supposed that that was the reason. The witness then asked the defendant if he had any recollection of paying'it, but the defendant answered that he had not; and on the witness asking what should be. done about it, the defendant said that he was in great haste, but that he would examine his papers on his return to *New-York,*and that if he found that he had paid the order, he would write to the witness; but the witness testified that he had never received any letter or communication from the defendant- upon the subject; and that the defendant did not pretend but that the money was justly due to the estate of the plaintiff’s testator.

The jury, by the direction of the judge, found a verdict for. the plaintiff.

A motion was now made to set aside the verdict, and for a new trial.

*Mitchill,*for the defendant,

contended; 1, That die plaintiffs were barred by the statute of limitations.

2. That there was no sufficient consideration proved to Support an *assumpsit*by the defendant to pay the debt out of his own proper funds, it being the debt of the intestate, *Potter;*and the order itself, without the words, “ value received,’’ was no evidence of a consideration.* An executor or administrator can give no preference to one debt over another of 'equal degreé, except by payment, or confessing a judgment,

*5123. That there was not a. sufficient memorandum in- writing, within the eleventh section of the statute of fraud's, to, charge the defendant in his own; tight.*

4.-That the defendant having effects in the hands of the drawee,, notice, of the non-pavment of the order was, necessary.†

*Foot,*-contra,

relied on the case of *Sluby*v. *Chumplin,**‡***to show that the. evidence of a promise by the defendant was sufficient to take the casé out of the statute of .limitations. And he contended that, at any rate, there was sufficient evidence to enable the plaintiff to recover on the_ count for money had and received.

*

*Rann v. Hughes, 7 Term Rep. 350. note. Ballard v. Walker, 3 Johns. Cas. 65. Sears*v. *Brinks,*3 Johns. *Rep. 214. 5 Johns. Rep. 248.*

*

*1 N.*R. *L.*78. *5 East,*10. 3 Johns. Rep

†

2 Caines' *Rep. 344. 11 Johns. Rep. 180. 7 East's Rep. 359. 2. H. Bl. 609.*

‡

**4 Johns. Rep. 461.

*Per Curiam.*

Seyeral questions were raised and discussed on-the argument, which it will be. unnecessary to notice, as the facts in the case will, in the opinion of .the court, support the recovery, ou the count for money had"and repeived. The order drawn by the defendant- upon *Eldred,*irt favour of *vBriggs-,*the téstátor, was, as it imports upon the face of it, to-be/credited upon a bond and mbrtgage, given by *Eldred*to the defendant and *Jesse Potter.*'This bond and mortgage was given to them, as the administrators *oLJoJvn .-Potter,,*'deceased, .for lands belonging to bis estate; and sold under an order of the surrogate ; and the order drawn by the defendant was in part payment óf a debt due from- *John Potter*to the testator,' *William Briggs.*It is very evident, that- this order never was paid by *Eldred,*nor credited upon the bond and mortgage, as was intended at the time it was .drawn ;, and -the defendant afterwards transferred this bond'and mortgage to *Sampson*and *Warren,*and received the full amount thereof, without deducting the order; and in the account subsequently, rendere/1 f°j and settled before, the surrogate by the defendant,:of .his administration of *Potters*estate, he received a credit for the debt due *to-Briggp,.*in- part, payment of which.the order was drawn. These facts show conclusively, that the money has -come into -the defendant’s hands, and will warrant the conclusion, that he. received it to the use of *William Briggs.*The settlement of his account, and claiming a credit for the. debt paid to *Briggs,*shows that the defendant considered the money appropriated to the use of *Briggs,*and not as money in his hands, for the benefit of the'creditors of *Potter*generally. The plaintiff is, therefore,-entitled ;to. recover, unless barred by *513the statute of limitations; and, in the opinion of the court, the evidence is sufficient to take the case out of the statute. In the conversation stated to have taken place between the defendant and Brown, it was not intimated by the defendant that he intended to avail himself of the statute, but the only question in his mind seemed to be, whether the order had not been paid; and he promised to examine his papers, and if he found he had paid the order, he was to write to the witness; but, as the wit-. ness testified, he never has written. This was sufficient to raise an implied promise to pay the money, unless, on examination, it should be found that the order had been paid, and there is no evidence whatever of any payment. The motion for a new trial must, accordingly, be denied.

Motion denied.