
    Sutton Byrd et al. vs. George Holloway.
    An executor or administrator is not bound to pay the debts of his decedent, beyond the assets which he receives; nor will his written promise to do so, make him liable, unless founded on other sufficient consideration.
    B. and J. B., being sued by H. upon their joint note, offered to prove that the note was given in satisfaction of a decree of the probate court against B., as administrator of P., who in his lifetime was administrator of N. P.; in favor of H., as administrator de bonis non of N.P.; which evidence the court refused to admit: Held, that the evidence was admissible; and that if the note were executed in settlement of that decree, B. and J. B. were not liable on it, unless B. had assets sufficient for its payment.
    In error, from the circuit court of Franklin county; Hon. Y. T. Crawford, judge.
    George Holloway sued Sutton Byrd and Ira E. Byrd, upon their joint note for one thousand two hundred and forty-three jog dollars, dated May 4, 1842, in favor of George Holloway. The defendants pleaded non assumpsit, and five special pleas ; the first of which was in these words : “ actio non, because they say that said note was given in part satisfaction of a decree of the probate court of Franklin county, rendered at the February term thereof, A. D. 1842, in a certain matter of controversy in said court, depending wherein the said plaintiff, as administrator de bonis non of Nancy Porter, deceased, had obtained a citation against said defendant, Sutton Byrd, administrator of Abednego Porter, deceased, to show cause why he, the said Sutton Byrd, as administrator as aforesaid, should not pay over the amount due on a final settlement of the accounts of the said Abednego Porter, as administrator of Nancy Porter, deceased, to George Holloway, administrator de bonis non of said Nancy Porter, deceased, wherein, to wit: in said matter of controversy it was ordered, considered, and adjudged by the court, that the said Sutton Byrd, administrator as aforesaid, pay over to the said George Holloway, administrator de bonis non as aforesaid, the amount due on final settlement of the accounts of said Abednego Porter, administrator of Nancy Porter, deceased, amounting to $8501 84, after deducting therefrom $6155,37|, already paid over, and this they are ready to verify; wherefore, &c”
    The other four pleas were in substance the same, and consisted of the averment that the note was not given for a legal or valuable consideration.
    To the special pleas the plaintiff demurred, and the court sustained the demurrer.
    The issue taken on the general issue was submitted to a jury, who found for the plaintiff.
    During the trial the defendant offered to read the copy of a decree of the probate court of Franklin county, in these words:
    “ State of Mississippi, Franklin Counkj Probate Court, 1 February Term, 1842. \
    
    George Holloway, administrator de bonis non of Nancy Porter, deceased, against Sutton Byrd, administrator of Abednego Porter, deceased. Upon citation to show cause why he shall not pay over the amount due on a final settlement of the accounts of the said Abednego Porter, as administrator of Nancy Porter, deceased, to George Holloway, as administrator de bonis non of said Nancy Porter, deceased; it is ordered, considered, and adjudged by the court that the said Sutton Byrd, administrator as aforesaid, pay over to the said George Holloway, administrator de bonis non as aforesaid, the amount due on final settlement of the accounts of said Abednego Porter, administrator of Nancy Porter, deceased, amounting to $8501 84, after deducting- therefrom $6154 37|, already paid over.”
    This copy was certified under the official seal of the clerk of the probate court; the judge refused to permit it to be read to the jury, and the defendant excepted.
    After verdict the defendant moved for a new trial, on the ground of the exclusion of this decree from the jury; and on his motion being overruled, filed another bill of exceptions, spreading out the whole case; from which it appears that James M. Jones, on the part of the defendants, testified that the note sued on was written by him; that he assisted the plaintiff and Sutton Byrd in making a settlement; that the note was given in payment or satisfaction of the decree of the probate court of Franklin county, a copy of which he then held in his hand, being th? same decree before recited in the record.
    The defendants prosecute this writ of error.
    
      Oscar J. E. Steiuart, for plaintiffs in error.
    1. The plaintiff below, being the administrator de bonis non of Nancy Porter, was not entitled to receive the sum due by Abednego Porter, the former administrator of that estate. The heirs and distributees of Nancy Porter were entitled to it, not the administrator de bonis non, who had given no bond for its distribution, or administration.
    2. The note sued on was unsupported by any good or valuable consideration; it imported no legal obligation therefor against the makers. Had the decree been permitted to go to the jury, in evidence, the chain of testimony would have been complete, that the note was a nudum pactum ; and the defendants would have been entitled to a verdict.
    3. The pleadings, though informal perhaps, clearly set out the defence; the first special plea states that the note sued on was executed for no other consideration, than the one of the decree against Byrd, as administrator of Porter; a sum for which, personally, he was not at all responsible, and which, by his mere promise, he could not be forced to pay. This is pleaded, and is a bar to the action.
    
      Montgomery and Boyd, on the same side :
    Without noticing further the points already commented on, it is evident the court erred in not admitting, under the general issue, the paper referred to by Jones, the witness, even if it be true that this copy from the minutes was not evidence under the special pleas, or was not a record, but only an extract from the minutes. The witness swore that the note sued on. was, giyen in consideration of the demands contained in the paper, or copy referred to; it became, therefore, wholly immaterial whether the copy, was a record or a mere private memorandum. It constituted the consideration of the note; and not amounting in law to a good or valuable consideration, the note was void, a mere nude pact. This was clearly proper proof under the general issue; it made, even a stronger case for the defendant, than if it had been a perfect record ; because it did npt constitute a prima facie demand or liability.
    
      Cassidy, for defendant in error.
    1. The pleas were defective ; the one which sets up that the npte was given in satisfaction of the decree of the probate court referred, to, is bad, both in substance and form,; in substance, for the decree is valid and binding until reversed, and cannot, for any defects, be collaterally attacked, the subject-matter being, wholly within the jurisdiction of the probate court; the plea, does not aver that the decree was illegal or, erroneous, but argumentatively leaves it for inference. If issue had been taken.on the fact alleged that the decree was the consideration of the note, it would, have been an immaterial issue, and no judgment could have been rendered on it: a repleader must have been awarded. The other pleas, setting up that the note sued on was without consideration, are mere conclusions of law, not issues of fact, and as such, bad. 1 Chit. PI. 573; 19 Johns, R. 371.
    2. Did the, decree of the probate court tend to prove the issue 1 If not, it was rightly rejected. 5 How. R. 499. The decree was in the course of administration, in favor of an administrator de bonis non ■ — ■ against an administrator, the probate court had jurisdiction, therefore, and the decree, however erroneous, not void ; and the decree, so far as the circuit court was concerned, being obligatory upon Byrd, his note, executed in satisfaction of it, would also be obligatory. The decree was then a good consideration for the note, and being so, was properly excluded, as not tending to prove the issue, to wit: the absence of consideration.
    
      3. The whole record, and not the mere decree, should have been produced; part alone was inadmissible. 5 How. R. 68.
   Mr. Justice Clayton

delivered the opinion of the court.

The defendant in error brought suit in the circuit court of Franklin county, against Sutton Byrd and Ira E. Byrd, upon their joint promissory note. Several special pleas were filed by the defendants, stating that the note was given in satisfaction of a decree of the probate court against Sutton Byrd, as administrator of Abednego Porter, deceased, who was administrator of Nancy Porter, deceased, in favor of the plaintiff as administrator de bonis non of said Nancy Porter. To these pleas a demurrer was filed, which was sustained. The general issue was also pleaded, and as the whole proposed defence was admissible under that plea, the decision upon the demurrer need not be revised. Upon the trial, the defendant offered to introduce the decree as evidence, and to prove that the note was given in satisfaction of said decree, but the court ruled it out.

An executor or administrator is not bound to pay the debts of his decedent, beyond the assets which he receives. His promise will not make him liable, unless founded on a sufficient consideration. After promise, he still remains chargeable as before, only to the extent of assets in his hands, in the same manner as if no such promise had been made. By the common law, a good consideration is requisite to make such promise bind personally; and the statute of frauds superadds the requisition that it shall be in writing. 2 Lom. Ex. 274.

The point must be open to inquiry, whether the note upon which this suit was brought, was founded upon the decree of the probate court, and whether it is payable to the plaintiff in his own right, or as administrator de bonis non of Nancy Porter, deceased; whether it was for a debt which it pertained to him, as such administrator, to collect, or for one with which he had no concern. The nature of the consideration for the note, and the fact of assets to pay it, must also be considered, before a verdict can properly be rendered against the defendants.

There was error in the opinion of the circuit court, excluding the decree of the probate court from the jury, and for this error the decree must be reversed.

Several other difficulties will probably be found to arise in the way of the plaintiff, in the farther prosecution of this suit; ,.but as they are not now presented, we allude to them merely to show that these points are still open.

Judgment reversed, and new trial awarded.  