
    Ephraim Mowry versus Samuel Adams.
    When the administrator of a surety pays the debt, he may maintain an action m his own name against the principal for indemnity; and the amount recovered by him will be assets in his hands.
    Assumpsit on a promissory note, dated the 6th of November, 1812, made by the defendant to Paul Boyden, or order, for 120 dollars, payable in nine months, with interest, and endorsed by said Boyden; also counts for money had and received, and for money laid out and expended. The plaintiff, having filled up the endorsement to the bearer, avers that he is the bearer for a valuable con sideration.
    It appeared in evidence, at a trial had upon the general issue, April term, 1816, before Putnam, J., that P. Boyden was desirous of borrowing 120 dollars of one Roswell Warner, that the defendant gave his note to said Boyden for his accommodation, and that 
      Warner lent the money, and .received the note endorsed in blank by Boyden. At the same time, Boyden gave his note to the defendant for the same sum, payable to him or * his order at the same time, as collateral security; which was not to be paid, unless the defendant should be obliged to pay the accommodation note he had given to Boyden.
    
    It was proved that the defendant sold the last-mentioned note, which Boyden had given him as collateral security, to Warner, and received the money for it, before it became due.
    
      Warner thus held both notes. P. Boyden died; and the plain tiff is administrator of his estate ; and he paid the amount of both the notes to Warner.
    
    If, upon this evidence, it should be the opinion of the whole Court that the plaintiff could maintain this action in his own name against the defendant, judgment was to be entered upon the verdict, which was taken for the plaintiff; otherwise he was to become nonsuit.
    
      Lincoln for the defendant..
    
      Newton for the plaintiff.
   Parker, C. J.

The plaintiff, Mowry, has brought this action in his own name; and the question is, whether he can maintain it, or whether he ought not to have sued as administrator of Boyden.

With respect to the count on the note, he could not recover, either in his own right, or as administrator, because the note was given by Adams.for the use and accommodation of Boyden, the intestate, and ought to have been paid by him, he having received the money from Warner. Besides, he derives no title to it from having paid and taken up the note, with the blank endorsement of Boyden; for the note was not payable to bearer, as he has declared, but to order ; and he has not averred any assignment of it to himself.

With respect to the other counts, as the defendant was guilty of a breach of faith in endorsing the second note and receiving the money for it, he never having given any valuable consideration to Boyden for the note, he is conscientiously, as well as legally, bound to pay the amount to some one.

The question is, whether he became indebted to the * plaintiff, or to the estate of Boyden; and this depends upon the time and manner of his becoming liable. The mere taking up the money from Warner did not create the debt; for Boyden was not prejudiced, until he should be called upon to pay, nor would he have had a right of action, until so called upon. He died without paying, and there was therefore no promise to him. His estate was. however, liable, and the admiuistrator, if called upon, was obliged to pay. The debt of Adams accrued when Mowry paid the money; an implied promise then arising to repay, it being, in fact, the debt of Adams for which Mowry was surety, and which was paid by Mowry to the use of Adams.

But the promise could not accrue to Boyden, he being dead. It was therefore a promise to the administrator. Now, it is settled that, when a contract is made with an executor or administrator personally, after the death of the testator or intestate, or where money is received by the person sued after the death, in such cases, the executor or administrator may sue either in his own name, or as executor or administrator. By suing in his own name, he becomes answerable to the estate for the amount recovered, and it is an implied acknowledgment of assets to that amount in his hands.

The present is a case of that sort. The plaintiff takes money of the estate to pay a debt, for which the estate is answerable; he sues the principal debtor in his own name; he is chargeable with the amount of the debt as assets ; and he may recover the amount from the debtor in his own name.

Judgment on the verdict.

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       6 Mod. 92, 181. —2 D. & E. 477.— Willes's Rep. 103. —1 Com. on Con, tracts, 526.
     