
    Quarles’s Administratrix with the Will Annexed v. Littlepage and Co.
    May, 1808.
    Assumpsit of Testator. — On the trial of an issue upon the assumpsit of the testator, an assumpsit of his executor cannot he given in evidence to establish the demand.
    Admission of a Debt. — The mere admission of a debt is not sufficient to charge the defendant with the whole demand of the plaintiff: he must, nevertheless, prove the amount.
    This was an appeal from- a judgment of the District Court held at King and Queen Court-house.
    Littlepage and Co. brought indebitatus assumpsit against the administratrix with the will annexed of John Quarles deceased, upon a store account. The declaration contained two counts: 1. For goods, wares and merchandizes sold and delivered to the testator in his life-time; 2. Quantum valebant; and in both instances, charged the assump-sit of the testator. Plea, “non assump-sit.” At the trial, the plaintiffs exhibited the account, on which the suit was brought, and offered evidence to prove, that when the said ^account was presented by the witness to the administratrix, she read it over, and did not object to any item contained in it, and said, that some things in the first part of the account, stated to have been delivered to her husband, (the testator,) she knew nothing of, but did not doubt that they were delivered, and that she would pay the balance. To this evidence, (which seems to have been all the evidence adduced, though the bill of exceptions does not expressly say so,) the defendant, by her counsel, objected as improper to go to the Jury, and as insufficient to prove the aforesaid assumpsit of the testator. “But the objection was overruled by the Court: and as, from the nature of the items, the defendant probably knew whether most of the articles had been delivered to the testator, the Jury were allowed to weigh the said testimony to the delivery of the items to the testator.” To which opinion an exception was taken; and there having been a verdict and judgment rendered for the plaintiffs, the defendant appealed to this Court.
    Randolph, for appellant,
    referred to the case of Fisher’s Executor v. Duncan and Turnbull,  as settling this question ; and ■did not suppose it could require an argument.
    Call, for the appellees,
    contended, that there was a distinction between this case ■and that of Fisher’s Executor v. Duncan and Turnbull. The great question there was, whether the assumpsit of the executor, on an isssue upon the assumpsit of the testator, could be given in evidence to ■countervail the plea of the statute of limitations. But, in this case, the sole question is as to the delivery of the goods. The Court left it to the Jury to weigh the circumstances, connected with the assump-sit of the administratrix, and determine whether they amounted to proof of the delivery of the articles or not. Mr. Call also cited Gilbert’s Eaw of Evidence, 160, (179 old edition.)
    *Randolph, inreply.
    The distinction attempted by Mr. Call, brings the case to 1he same thing as Fisher’s Executor v. Duncan and Turnbull. If the declarations of the administratrix with the will annexed be allowed to form the basis of an assumpsit to charge the estate of her testator, it comes completely within the reason of that case.
    But the opinion of the Judge, in this case, from the manner in which it was expressed, had an obvious tendency to influence the minds of the Jury as to the weight of evidence ; which was clearly erroneous.
    Call. There is a difference between an action to charge an executor personally, and to charge the estate of his testator. This distinction is founded on the words of the statute of frauds,  Before the making of that statute, all the books agree, that an executor might verbally assume to pay the debt of his testator. Suppose an action be brought against an executor on the bond or assumpsit of his testator ; can there be a doubt but that he may confess a judgment, or suffer one to pass by default? If he can bind the estate by coming into Court and acknowledging the plaintiff’s action, can it make any difference that he made the acknowledgment out of Court? Does it not happen every day, that such judgments are entered up?
    It must be admitted, that an executor may pay an account against his testator, which he knows to be just, or confess a judgment. This point was settled in the case of Bentley and Mayo,  The only question, there, was, whether Bentley had acted fraudulently in preferring some creditors to others. The Court was divided upon the question, whether the precijútancy of Bentley in paying and confessing judgments in favour of certain creditors of his testator, did not amount to an evidence of fraud. But no Judge doubted of his right to confess a judgment.
    As to the opinion of the Judge in this case, there was nothing improper in the manner of expressing- it. He admitted *the evidence to go to the Jury to be weighed by them ; and they had a right to presume an assumpsit.
    Randolph. It is not denied but that an executor may go into Court and confess a judgment. But the reason of this is, that he is acting deliberately, after ascertaining the justice of the claim, and situation of the estate of his testator. But is that like the mere conversation of an executor out of Court, without any certain knowledge of the nature of the claim, and without any reference to the ability of his testator’s estate to pay the debt?
    
      
      Assumpsit of Testator. — See Henderson v. Foote, 3 Call 248, and note, and monographic mote on “Assump-sit” appended to Kennaird v. Jones, 9 Gratt. 187. The principal case is cited in Lonsdale v. Brown, 15 Fed. Cas. 856. See also, Kayser v. Disher, 9 Leigh 357.
    
    
      
       Suit upon Account — Admission of Debt by Executor. —At law, if an executor plead plene administra/ott in a suit founded upon an account, which is an admission of debt; or if he even suffer judgment by default or nil ¿licit to pass against him in such a case, yet the plaintiff must prove his account, or he shall recover only one penny damages. Lewis v. Bacon, 3 Hen, &M. 101,102, citing the principal case.
    
    
      
       1 Hening- & Munford, 563.
    
    
      
       See Rev. Code, vol. 1, c. 10, p. 15.
    
    
      
       3 Nov. 1800, MS.
    
   Thursday, May 5. The Judges delivered their opinions.

JUDGE TUCKER.

This was an action of assumpsit against the administratrix for goods, &c. sold to the intestate.

The plaintiff declared on an assumpsit by the testator, and on the trial offered evidence, that the account was presented to the ad-ministratrix, and she read it over without objecting to any of the articles ; but said that some things in the first part of the account she knew nothing of, but did not doubt they were delivered, and that she would pay the balance. This evidence was objected to, but admitted by the Court; and verdict and judgment were rendered for the plaintiff.

That the proof ought to correspond with the nature of the charge in the plaintiff’s declaration is one of those maxims which have never been controverted. It has, however, been attempted, on the part of the appellees, to shew that this maxim does not apply to the present case, by identifying the admin-istratrix, with the intestate, and relying on the rule in legal proceedings, that, if an executor or administrator be sued for a debt due from his testator, &c. and does not defend the suit, he admits the debt, and judgment may thereupon be had against the estate of *his testator in his hands. But this rule is not true to the extent which was contended for. If an executor be sued on a bond of his testator, and does not defend the suit, it is very true that judgment shall be rendered for the whole debt, appearing to be due by the bond. But, if he be sued upon an account, although the executor, by not defending the suit, admits that there is something due, yet the plaintiff must prove his account, or he shall recover but one penny damages, although there be assets: and it is the same if he pleads plene admin-istra vit, which admits the debt, but not the amount, In the present case, the admin-istratrix said there were some of the articles she knew nothing of. If the evidence had been even admissible, how were the Jury, from this evidence, to ascertain what articles she knew something of, and what she knew nothing of?

The appellees’ counsel relied also on a case noticed in Gilbert’s Law of Evidence, 160, (179, old edit.) where, in assumpsit by an executor for money due his testator in his life-time, on the plea of the act of limitations, an assumpsit to the testator, eight years before, was proved, and a renewal of the promise to the executor, within six years, was allowed to maintain the issue, though the assumpsit in the declaration was laid to the testator only ; for, it was said, the as-sumpsit to the executor, the representative of the testator, is an assumpsit to the testator himself. For which Carthew, 471, is cited. But the contrary was expressly determined by the whole Court, in Green v. Crane, 2 Ld. Raym. 1101,(1) and that case, I find, was recognized as authority by the whole Court of K. B. 3 East, 409. The conclusion drawn from the case in Carthew must ^therefore fail. My opinion is* that the judgment be reversed, and the verdict set aside; and that the cause be remanded to the District Court for a new trial to be had therein, with directions that the evidence excepted to on the former trial be not again admitted.

JUDGE ROANE.

This subject was so fully discussed in the case of Fisher’s Executor v. Duncan and Turnbull, that I shall say little more than to refer to the decision in that case.

The testimony offered and admitted, consists of two parts: 1st. Of the remarks of the administratrix upon the account when it was presented to her, and which, it is contended, amount to an admission that the goods were delivered to the intestate; and 2dly. Of her declaration thereupon that “she would pay the balance.” The admission of this declaration in evidence, amounting to an assumpsit by the administratrix, when the issue was joined upon the assumpsit of the intestate, is justly reprobated in the case of Fisher’s Executor v. Duncan and Turn-bull ; and, if the other testimony were proper, the opinion of the Court is still erroneous, in not withholding the evidence of this promise from the Jury. But the other part of that testimony, if it amounts to an admission, that any of the goods were delivered to the intestate, is wholly uncertain and incomplete to shew what part; at most, it is only equivalent to the case of a writ of inquiry, in whichv although the debt is admitted, evidence must be exhibited to ascertain the amount of the damages. The evidence in this case is, at least, not commensurate with the whole claim, and therefore *too uncertain and incomplete to be submitted to the Jury.

My opinion is, that the judgment be reversed.

JUDGE FLEMING.

The declaration is on an assumpsit of the testator, for goods, wares and merchandizes sold and delivered to him in his life-time. Plea, that the testator did not assume in his life-time, and issue thereupon. Had the delivery of the goods-been proved, the law would have implied an assumpsit, but the evidence to support the issue is, that, when the account was presented by the witness to the administratrix,, she read the account over, and did not object to any item in the account, and said that some things in the first part of the account she knew nothing of, but did not doubt that they were delivered, and that she would pay the balance.

This appears to me to be improper evidence at the trial of an issue on an assumpsit charged against the testator only. In Shelly’s case, 1 Salkeld, 296, (which was an action upon the case against an executor,) upon plene administravit pleaded, Lord Holt declared, that the plaintiff must prove his debt, otherwise he shall recover but one penny damages, though there be assets, for the plea only admits the debt, but not the quantity. So, in the present case, admitting that the assumpsit of the administratrix might be given in evidence, when an assump-sit of the testator only is charged, yet it is, at most, a qualified assumpsit, “that she would pay the balance,” and what that balance was, does not appear; which brings it precisely within the reason of Shelly’s case, above cited.

I am of opinion, therefore, that the judgment be reversed, the verdict'set aside, and the cause remanded for a new trial with an instruction that the evidence stated in the-bill of exceptions is not to go to the Jury, on such trial.

By the whole Court, (absent JUDGE LYONS,) the judgment of the District Court reversed. 
      
       1 Esp. 142, Buller, N. P. 140,1 Salk. 296.
      (1) See the same case reported in 1 Salkeld, p. 28, (6th edit, by Evans,) under the name of Dean v. Crane. See also, Executors of the Duke of Marlborough v. Widmore, 2 Str. 890, and Fitzg. 193, S. C. in which case, to a suit by executors on a promise to the testator, the statute of limitations was pleaded, and the plaintiffs had liberty to amend by laying the promise to have been made to themselves. But it is now usual to add a set of counts on promises to the executor.
      It may be proper to observe, that in the case referred to by Gilbert, an assumpsit to the testator, though before the last six years, was proved, as well as an assumpsit to the executor, within that time; and that in Green (or Dean) v. Crane, it does not appear that any promise to the testator was proved. — Note in Original Edition.
     
      
       1 Hen. & Munf. 563.
     