
    *Matthew O’Driscoll, Administrator of Lewis Genay, deceased, v. William Fishburne, Executor of Wm. Sanders, Executor of Thomas Ladson, deceased.
    The executor of an executor represents the first testator.
    Where an action is brought against the executor of an executor, for a debt due by the testator, he may be declared against, as the executor of the testator, without noticing the first executor; but it is tlie most correct way to notice the prior executorship.
    This was an action of debt, on a judgment recovered against Thomas Ladson, in his lifetime.
    He died leaving a will, and William Sanders his executor. Sanders, the executor, died, leaving a will, and appointing the defendant, William Fishburne, his executor, against whom the present action was instituted, charging him as executor of William Sanders, executor of Thomas Ladson, deceased.
    Defendant pleaded payment, on which issue was taken.
    The defendant, by his counsel, on the testimony being closed on the part of the plaintiff, moved for a nonsuit, on the ground, that the defendant had not been charged as executor immediate to Thomas Ladson, deceased, which motion was sustained by the presiding Judge, Mr. Justice Grimke.
    • The plaintiff now moved this Court to set aside the nonsuit, on the grounds :
    1. That the action was well brought. — -And
    2. That on the issue had, the defendant could not avail himself of an objection of this kind, though it might, if duly taken advantage of, have been effectual to turn the plaintiff out of Court,
   The opinion of the Court was delivered by

Gantt, J.

There can be no question, but that the executor of an executor represents the first testator, and. may declare as such, without naming or noticing the first executor ; and e converso, where an action is brought against the executor of an executor, for a debt due by ^he testator, be may be declared against, as the executor* of the deceased testator, without noticing the first executor. (Toller, 1st Edition, 26, 44; Chitty, 13.) But'although this may be done, it does not follow, that it is an error to notice the prior executorship. On the contrary, it is the more usual and correct mode of proceeding.

The nonsuit was therefore improperly ordered and must be set aside.

It is unnecessary to give any opinion on the second ground taken in this case, as we are all of opinion, that the nonsuit ought not to have been allowed, on the objection taken by defendant’s counsel.

Colcock, Cheves and Johnson, JJ., concurred.  