
    CONSTITUTIONAL COURT, CHARLESTON,
    JAN., 1810.
    Timothy Pearce v. Savage Smith, Administrator de bonis non of Wm. Goddard.
    Assumpsit cannot be maintained on an implied promise of an administrator ie bonis non, to comply with a promise mado by a former administrator, to pay for services rendered to the intestate’s estate. .
    Nor can such an action be maintained against an administrator de bonis non, on an express promise to pay for such services, if the promise be predicated on the promise of a former administrator; nor even on the knowledge of the services rendered, if no consideration be stated in the declaration, or a consideration not sufficient.
    All contracts made with an administrator must be personal; and there can be no privity of contract between one administrator and another.
    Motion for a new trial. Action of assumpsit, in Georgetown district, before Waties, J., November, 1808.
    The declaration contained five counts. 1. That John Paisley, in his life time, was indebted to the plaintiff $300 for wages, before due, for services done and performed, as an overseer, on the plantation of the said William Goddard, deceased, at the special instance and request of the said John Paisley, in his life time, and on his retainer, and being so indebted, he, the said John Paisley, in consideration thereof, promised, &c. 2. A like count on a quantum, me-ruit. 3. That John Paisley, as administrator as aforesaid, in his lifetime, was indebted to plaintiff for work and labor, bestowed for said Paisley, as administrator as aforesaid, as an overseer, as in the first count; and being so indebted at ihe time of his death, and the said sum remaining wholly unpaid, he, the said Savage Smith, as administrator as aforesaid, in consideration thereof, after the death of Paisley, undertook to pay the same when requested ; yet, ;&c. 4. Alike count on a quantum, meruit. 5. That Savage Smith, as administrator, accounted with plaintiff, relative to the same demand as above, and was found in arrear.
    No staled account was filed with the declaration ; nor was it pretended that defendant had made any express promise to -make han liable for any demand such as was charged in the declaration.
    To Ibis declaration the defendant demurred generally, and the plaintiff joined in demurrer.
    Waties, J., overruled the demurrer, whereupon this motion was preferred, to reverse the decision of the District Court.
    The motion was argued on Monday, the 7th of January, 1810, before Geimke, Bay, Brevard, Wilds, and Smith, Justices, by
    Drayton, for the defendant, and Simons, contra.
    
    For the defendant, it was contended, that the declaration was ill, and the demurrer ought to have been sustained. That between the administrator of Goddard, and the administrator de bonis non, there was no privily. The latter is liable only to pay the debts of the intestate, remaining unpaid by the first administrator. The crops made by the overseer of the estate, during the administration of the first administrator, went into his hands, and could not be recovered by the administrator de bonis non. The promise made, by the first administrator, must be considered as a personal promise ; and judgment could-not be given thereon, to charge the assets in the hands of an administrator de bonis ñon. The words, as adminis• ■trator.as aforesaid, in the declaration, are repugnant, and inoperative. There can be no judgment in this action de bonis intestato. ris. The contract was with the administrator. The demand against him is personal. There is no consideration alleged, which supports the promise as administrator. The consideration is a benefit done io another. The declaration should have stated, that ■assets came to his hand. The defendant is not chargeable as administrator de bonis non, on the promise of a former administrator, as no privity subsists between them. He is not chargeable on his own promise, for that is personal, as administrator. The representative cannot be sued on any contract which his testator, or in. testate, did not make, in his representative character. He must be sued in his own right, though it relates to the concerns of the deceased. If the defendant can be made personally liable, it must be an express promise in consideration'of assets. Here he issued as administrator. Besides, the declaration contains several counts, which ought not to be joined ; personal demands against different •persons, in different rights. I Vern. 94. 1 T. R. 484. 1 H. Bl. 108. Coup. 284, 2&9. S Buc. Abr. 20, new ed.
    
      For the plaintiff, it was argued, that letters of administration may be revoked by the Ordinary, by act of assembly, and another administrator appointed, who will be administrator de bonis non, in place of, and not a successor to, the first administrator. In such case, there is a privity, and the promises of the first are binding on the second. That the administrator of an administrator, cannot sue a sci. fa., to revive a judgment recovered by a former administrator, does not go on the ground of want of privity; but because the last administrator does not represent the first. On this case both administrators represented Goddard, whose estate is justly chargeable with this demand. The contract, although made with a former administrator, was a contract in behalf of the estate. The estate of Goddard being benefitled by the contract, ought to fulfil its part of the contract; and cited, in the course of his argument, 2 Saund. 72, o. note. S T. R. 659. Comyns on Cont. 271. Lord Raym. 265. Toller, 324. 4 Cranch. Assets are admitted. The last count is unobjectionable. 1 Ves. 526. Cow. 268.
    Drayton,
    in reply. The demurrer admits only what is well pleaded. 5 Com. Dig. 473. Co. Litt. 72, a. 1 Wils. 252. The promise of Paisley was to pay the debt of another. Stat. Frauds. The counts heterogeneous, and cannot be joined. T. R. 347. Cowp. 292. Some of the charges are against defendant in his individual, and some in his administratial capacity. The breach alleged is against him as administrator. No consideration, nudum factum. 1 Crauch. The act of assembly makes no difference ; does not change the nature of an administrator de bonis non. If it can be so considered, yet he stands on a similar ground with administrators durante minortate, durante absentia, or pendente lite; noways connected in privity with another administrator of the same estate. Only accountable for the debts due by his intestate, so far as assets extend.
   13th Jan. 1810.

Wilds, J.,

delivered the opinion of the court, Guimke, J., absent. All contracts made with an administrator must be personal, and cannot bind the estate of the intestate. An administrator is not authorized to charge the estate of his intestate. He is answerahle for the contracts of the intestate in his representative character, and not personally, or out of his own estate. He is answerable for his own contracts personally, or out of his own estate, although made in behalf of the intestate’s estate. He may sue on such contract in his own name. All the promises stated in the declaration, except the last, are stated to be made after the death of the intestate, with his first administrator, who is dead.The promises of the defendant, on consideration of Paisley’s promises, are nudum pactum, and void,. If any action lies on these pro.mises, it must be against the representatives of Paisley, who made them, and not against the representative of Goddard, who had nothing to do with Paisley’s estate, o'r contracts. The last promise is stated, as made by the defendant, as administrator, upon account of the same services of the plaintiff, performed for the estate, after the death of the intestate. The promise is not said to have been made in consideration of assets; besides, it seems to be a persoual promise. At all events, it is joined with other counts, which are bad.

Note. See the case of Nettles’ executors v. D’Oyley, in this volume, p, 27. See, also, the case of Wright’s executor v. Wright, in this volume, p. 125.

Judgment was given, reversing the decision given in the District Court, and for the defendant on the demurrer.  