Wilson’s Red Book, 201[*]
Court of Common Pleas of Delaware, Sussex County.
April, 1798.
April, 1798.
Case. Assumpsit to recover a balance of Ann Vaughan’s estate by settlement in the Orphans’ Court by Trustin L. Polk, executor of William, executor of Edward, who was administrator [of] the said Ann Vaughan; also one count that Trustin, as executor, in consideration of the said balance had promised (which promise could be proved).
Trustin L. died before the last term. His widow (since Mrs. Sorden) and William Polk are his administrators. Plaintiff suggested the death and, thinking him personally liable on his promise, issued scire facias against his said administrators under Article VI, Section 11 of the Constitution of 1792.
A rule to show cause why the scire facias should not be set aside was given at last term, and now at April Term, 1798, Common Pleas at Sussex, Miller was proceeding to show the irregularity of the scire facias — that the eleventh section of Article VI was only designed to substitute a scire facias
instead of commencing another suit and would not extend the effect of the first action to any but those who would be liable in a second. That an action would not lie against the administrator of an executor as representing the testator. The Court stopped him and desired to hear the plaintiff’s counsel.
Peery and Wilson. A legatee has his remedy in chancery or the spiritual court, 2 Bac.Abr. 409, 410. Edward Vaughan may also be considered as having forfeited his administration bond by not accounting [1] Salk. [316]. Yet assumpsit will also lie by heir or legatee against the executor or administrator upon an express promise with averment of assets, Cowp. 284, 289, 1 H.Bl. 109, but not on an implied one, 5 Term 692. This action was therefore rightly brought against Edward Vaughan’s executor’s executor upon Edward Vaughan’s express promise, and if there were no other count in th narratio this action would abate
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upon the death of Trustin L. Polk intestate, for there is an end of representation, and only an administrator de bonis non
could answer for such express promise. But Trustin L. Polk is personally liable upon his own express promise in the last count and as to that properly represented by his administrators. The witness is in court who will prove Trustin’s express promise. That promise was certainly effectual in point of law, and, unless his administrators, who are to answer for it out of his estate,[1] would be answerable in another action, the scire facias is proper. It is no objection that the last count is against him as executor, for the judgment may b de bonis propriis, Cro.Eliz. 406. The case in 2 Str. 1270 only extends to the case of plaintiff, that an executor cannot join a count in his own right and as executor, and also the verdict was general, which would have been well upon either of the counts alone vide 1 Esp.N.P. 138. The case of Wilson v. McNatt
was read but not relied on.
PER CURIAM. BASSETT, C. J.
We are of opinion that this case does not come within the letter or spirit of the Article in the Constitution, which has only in contemplation the executor or administrator of the parties in immediate representation. In consequence of the death of defendant, no person could be made a party but the administrator of Edward Vaughan; the administrators of Trustin L. Polk do not come within the spirit or intent of the Article. We must take notice of the case in Kent County. There is this difference: here the question arises under the clause in the Constitution; there an action had been brought against the administrators of a person who had settled and passed an account and struck a balance. The accounts were liquidated; it is not so here. This case is or is not under the Article in the Constitution. It is unnecessary to say whether a suit would or would not lie against an administrator of an executor of an executor; we have already determined that it will not reach the case of an administrator of an executor.
Scire facias quashed.
(NOTE.) JOHNS, J., in the course of the argument expressed himself of opinion that a count against an executor in his own right could not be joined with others against him as executor. This was the question agitated and not the one decided by the court, for plaintiff’s counsel contended that Trustin’s being named executor in the last count was surplusage, and the judgment upon his express promise must b de bonis propriis.
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If the Court were of JOHNS’ opinion, perhaps the scire facias was properly quashed.[2]