
    Daniel Coffin versus David Cottle
    An action brought against an administrator, in which the plaintiff declared 4>n protón ises by the intestate and by the defendant as administrator, was referred under n rule of court, together with all demands between the plaintiff and the intestate Held,, that the administrator might lawfully enter into such rule of reference, and that under such rule it was immaterial whether the counts were good in form, and whether counts on promises by the intestate were rightly joined with counts on promises by the administrator; and that the referees might allow advances made by the plaintiff on account of debts due from the estate of the intestate, although they became due and were paid after his death, and might award damages de bovis testatoris.
    
    The sheriff of Nantucket was commanded to attach the goods of N. Russell, deceased, in the hands and under the administration of D. Cottle, administrator &c. of Russell, and to summon Cottle, as he was administrator, to answer to the plaintiff, for that Cottle, as administrator aforesaid, being indebted to the plaintiff in the sum of 3690 dollars, according to an account annexed to the writ, in consideration thereof, promised &c., — and also for that Cottle, in his capacity aforesaid, being indebted to the plaintiff in one other and like sum, for so much money had and received by Cottle as ad ministrator aforesaid, in consideration thereof, promised &c., — and also for that Cottle, as administrator as aforesaid, being indebted to the plaintiff in one other and like sum, for so much money laid out and expended by the plaintiff for the use of the said Cottle and at his request, in consideration thereof, promised &c., yet, though requested, neither Russell in his life time, nor Cottle in his said capacity, had ever paid either of said sums, &c. The account referred to in the first count was against “ the estate of N. Russell.”
    In the Court of Common Pleas the parties referred the action, and all demands, to referees ; who awarded, that the plaintiff “recover against the goods and estate of N. Russell &c. in the hands and under the administration of D. Cottle, the administrator on said estate, the sum of” &c.
    The acceptance of this report having been ordered by the Court of Common Pleas, the defendant excepted to the order, as deciding that the referees had authority to arbittate in the case, and that the award was good against the estate of the "ntestate in the hands of the defendant, though the plaintiff’s declaration alleged the debt to be due from the defendant personally, and did not set forth any debt due from, or promise made by the intestate.
    
      March 17th.
    
    
      March 26th.
    
      T. Fuller, in support of the exceptions,
    said that although the first count was equivocal and might justify a judgment de bonis testatoris, the second and third had relation only to what had taken place subsequently to the death of the intestate, and would require a judgment de bonis propriis; and the counts could not be joined. 5 East, 150 ; 4 T. R. 347 ; 2 Bos. & Pul. 424 ; 2 Wms’s Saund. 117 d, 117 e ; 1 Chit. PI. 205. The presumption is, that the referees took cognizance of all things that might come before them on all the counts, as the award should follow the submission. 1 Dane’s Abr. 264 ; Bac. Abr. Arbitrament, El. At least the Court cannot see on which of the counts the award is founded, and it ought not to have been accepted.
    
      Fletcher and Rand, for the plaintiff.
   Per Curiam.

We think it very clear that the administrator had a lawful right to enter into the rule of reference; Dickey v. Sleeper, 13 Mass. R. 244; Whitney v. Cook, 5 Mass. R. 139; and that under this rule, whereby all demands between the plaintiff and the administrator of Russell were referred, the particular form of the counts, whether good or not at law, or whether rightly joined, is wholly immaterial. Forseth v. Shaw, 10 Mass. R. 253. If it appeared to the referees, that the money advanced by the plaintiff was on account of debts due from the estate of the intestate, we think they did right to allow them, although they might have become due and been paid after his death ; for if due, the administrator would have been obliged to pay them, and would have charged the amount in his administration account. The award of damages de bonis testatoris was correct, because the action was against the defendant as representative of that estate, and so far as appears in the case, the debts proved were all due from the intestate or his estate.

Judgment of C. C. P, affirmed. 
      
       See Bean v. Farnham, 6 Pick. 269.
     