
    Caller’s Executrix against Boykin and Bassett, Administrators de bonis non of Birney.
    1, On a note payable to an administrator, Sic. the right of action follows the administration, and the administrator de bonis non may sue, &c.
    2, Declaration describing a note iiv which time of payment is not named, is not supported by a note payable 9 montbsafter date.
    IN Washington Circuit Court, Francis Boykin and Sarah Bassett, administrators de bonis non 'of William B. Birney, declared in debt against Winny Caller, Executrix of James Caller, on a bill single of her testator, dated 6th day of March, 1815, payable to Thomas Bassett, administrator of William B. Birney, deceased. The declaration as to time of payment is thus: “ And by the same note he, the said James “ Caller, promised to pay to the said Thomas Bassett, admini- “ trator of William Birney, the sum of $253 34, for value ré- “ ceived. Nevertheless,” &c. The Defendant in the action demurred, and set down as causes,
    1, The note was given to Thomas Bassett, and the right to sue and recover thereon is in him, or, if he be dead, in his legal representative, and not in the plaintiffs, either in their own right or as representatives of William B. Biruey.
    
    2, The declaration does not allege any liability in said defendant to pay.
    The Circuit Court overruled the demurrer, and adjudged that the defendant to the action should answer over; whereupon the defendant plead non assumpsit by her testator, and non assumpsit by him within six years; on which issues were joined, and verdict and judgment rendered for the plaintiffs. A bill of Exceptions was taken during the trial, by which it appears that the plaintiffs offered m evidence a note of James Caller and Joseph Carson for the sum mentioned in the declaration dated 6th March, 1815, payable nine months after date to Thomas Bassett, administrator of William B, Birney; to the admission of which as evidence the defendant objected, and the objection was overruled.
    She here assigns as Errors,
    1, That the Court below overruled the demurrer.
    2, The Court suffered the instrument mentioned in the bill of Exceptions to be read in evidence.
   Judge Minor

delivered the opinion of the Court.

The writing- sued on was payable to Thomas Bassett as administrator of William B. Bimey. The action was by defendants in Error, the administrators de bonis non of Bir-ney, the declaration setting out that such administration had been committed to them.

The Statutes of this State, regulating the powers and duties of executors and administrators (L. A. p. 326, 334, 341, &c.) require that the personal estate of an intestate, &c., shall be appraised; that the administrator, by order of the County Court, shall sell at public sale, on a credit, the purchasers giving bonds, «fee.; that he shall not sell at private sale, or take the property at its appraised value. The administrator may resign, and in that case the unadminis-tered assets shall be delivered over to his successor. Under the English law an administrator may sell for ready money, which, as well as the choses in action, debts, damages, &c.,,. to which he is entitled in right of his intestate, will be assets in his hands (2 Bl. Com. 510—Toller’s Law of Exors. 157. 162.) Are bonds «See., taken by an administrator here, as required by Statute, his individual property of assets in his hands ? If the obligors prove insolvent, is he necessarily liable for the amount of such bonds ? Can his creditors, in his private right, by attachment or otherwise, recover such debts of the obligors for the satisfaction of debts due to them by the administrator? These consequences would seem necessarily to follow from considering the bonds payable to the administrator as such, as belonging to him in his private right. The effects and the money which can be specifically ascertained to have belonged to the deceased at his death, are not liable for the debts of the administrator (Toller, 134, 135). As he is required by our Statutes to make his sales on a credit and take bonds, &e., the bonds and monies collected thereon are assets in his hands as- much as were the effects he was required to sell; and in ease of his decease or resignation, must, like other uhadministered assets,- go to-his successors in the administration. The second cause of demurrer is not supported by the Record. The Record sets out that, the testator by his bill single, sealed, &c., bound himself to pay, which is a sufficient obligation of his liability in his lifetime, and of his Executrix since his death.

As to the second assignment — The writing obligatory described in the declaration was by legal intendment payable presently, that given in evidence was payable nine months after date. This was an action of debt on a specialty. The issues joined and tried were on the pleas of non assumpsit, and non assumpsit infra sex annos. In this action there were immaterial issues. (Tidd’s P. 829.) The judgment and proceedings must be reversed back to the judgment of the Circuit Court overruling the demurrer, and the cause remanded.

Judge Saffold not sitting.  