
    CONSTITUTIONAL COURT, CHARLESTON,
    JAN., 1807.
    Executors J. A. Wright v. J. J. Wright.
    Admission of an executor, that his testator is indebted, cannot be admitted in evidence to charge the testator’s estate.
    On motion for a new trial. The case was as follows : To as-sumpsit, defendant set up a discount, of various items charged on book, amounting to an hundred pounds and upwards, and gave in evidence to support the same, that the plaintiff, Simons, one of the executors of J. A. Wright, upon a reference of the matters of account between the parties, before the master in equity, admitted and allowed the said items as charged ; having agreed to do so, if the defendant would declare, upon oath, that the said charges were just and true, and remained unpaid, which he had done in the presence of said Simons, before the master. Wilds, J., before whom the cause was tried in Charleston, in charging the jury, told them that the present case was one of the very few cases in which laws ordained to enforce the principles of justice were themselves the occasion of injustice. That from the evidence of the master in equity, it appeared that between the plaintiff, Simons, and the de-fendaut, there existed the greatest libera/ity. That by the admissions of the defendant, the plaintiff was enabled to support his demand, which otherwise he might not have been able to prove. The executor, on his part, agreed to admit the defendant’s discount, to the amount of whatever he would swear to. In justice, perhaps, he ought to have complied with his promise. He was not obliged, even on a trial at law, to have receded from it; but having done so, hard as the case appeared to be, the judge said, he considered the remedy not within the reach of the court. Every promise, or obligation, he observed, is personal, and damages for a breach thereof can only be recovered from him who makes it. An executor, or administrator, as such, can make no contract which will bind the estate under his care. Their powers extend to the discharging of contracts made by their testator or intestate, not to the creating of new contracts. The plaintiff’s agreement in this case, therefore, did not bind the estate, nor estop the executor from objecting to the discount. If damages are recoverable, said the judge, from the breach of promise, the promisor is alone liable, personally liable. See 5 T. R. 8. Do. 690. 7 T. R. 350. 1 Saund. 210.
    Desausstjre, for the motion,
    argued, that the promise of the executor did not create any new obligation, but only established a contract which existed before. • The parties had made an agreement, by which the strict rules of evidence were agreed to be dispensed with, and they ought to be confined to their agreement. One of the parties could not deprive the other of the benefit of that arrangement, after having profited by it himself. It was in the power of the executor to make the agreement; for he might have admitted the debt without any proof. An executor may confess a judgment.
    Gaillard, on the other side.
    The charges were incapable of proof by book. It was not pretended that they were legally prove-able. That there was any subsisting debt is denied. The admission of the executor would, therefore, go to create a debt; to charge the estate with a debt which never existed. The agreement to admit cannot bind an executor. It is nudum pactum.
    
   The court,

all the judges present, except Wilds, J., refused a new trial.  