
    GENERAL COURT,
    MAY TERM, 1801.
    Forbes vs. Perrie’s Adm’r.
    On a promise by an administrator to pay a debt ofhis intestate, he must be sued as administrator.
    ActioN of assumpsit. The declaration contained sundry counts^ one was, that the intestate being indebted to the plaintiff, on the 1st of March 1793, in the sum of 1121Í 10s 3d current money, for sundry matters, & c. the administrator, in consideration thereof, on the 1st of April 1798, undertook, &c. Another count on an insimul computasset between the administrator and the plaintiff and his promise to pay, &c. See 1 Harr. Ent. 161, 162, 179. Non assumpsit and limitations pleaded. General replications, and issues joined.
    Where the court would not compel the plaintiff to join in a demurrer to his evidence
    Unless the parties can agree upon facts there can he no demurrer to £>aroi evidence. •
    1. Shaaff, for the defendant,
    contended, as to the count upon the assumption by the administrator, that if the administrator did assume, yet the action was brought wrong, being against the defendant as administrator. He cited 1 Ventris, 268. 2 Lev. 122,
    
      T. Buchanan, for the plaintiff.
    The administrator promises, in his capacity of administrator, and the action can only be against him as such. He cited 7 T. R. 182. 1 Salk. 208. 1 II. Blk. Rep. 102—and Beard Ex’r. oj May, vs. Cowman’s Ex’r, October 1793, (3 Harr, and M‘Hen. 152. J
    
    Chase, Ch. J. The court are of opinion, that the promise made for the administrator is binding, (if there are assets,) and the action is well brought.
    2. The defendant demurred to the evidence offered, to the jury on the part of the plaintiff.
    The plaintiff, (for that he had shewn in evidence to the jury sufficient matter to maintain the two last issues joined on his part to the pleas of non as-sumpsit infra tres annos, by the defendant, as to the 5th and 6th counts in the declaration, and from which evidence the jury might infer an assumpsit within three years next preceding the impetration of the original writ in this cause,) refused to join in demurrer to the evidence, unless the defendant would admit the fact on record, that he did, within three years before the institution of this suit, promise to pay to the plaintiff the sum of money, to recover which this action is brought; which the defendant refused to do.
    Whereupon the plaintiff prayed the court not to compel him to join in the said demurrer to evidence.
    
      Where A is in* debted to B and gives to C the attorney of both of them* bills, notes, &c. against other Íiersons, to be col-ected and applied to the payment of B’s debt, he thereby makes the attorney his agent and B has no control over him m the collection of 6uch debts.
    For which were cited 1 Morg. Ess. 448. finer’s Mr. 261. Doug. 119, 224. frac. Reg. 83. 5 Co. 104, Dyer, S3. Bull.N. P. 316. 2 H. Blk. Rep. 187. Pasch. 23, 114, 115,166. Reg. Plac. 129.
    Chase, Ch. J. The court are of opinion, that the plaintiff cannot be compelled to join in the demurrer to evidence. Unless the parties can agree upon the facts, there can be no demurrer to parol evidence. The defendant excepted.
    3. The defendant offered evidence to the jury, going to prove, that P. B. Key, Esquire, an attorney of this court, and who had conducted the business of the plaintiff in particular courts, had the claim (to recover which this suit is brought,) of the plaintiff against the defendant, as administrator of his father, to collect, or bring suit thereon. That he received from the defendant sundry bonds payable to the defendant for money due to him, and gave a receipt for the said bonds, stating that they were to be put in suit for the use of the plaintiff, and the money, when received, to be applied in discharge of the debt due from the defendant as administrator aforesaid to the plaintiff. That suits were brought upon the said bonds for the use of the plaintiff, judgments obtained, and executions issued thereon, and sent by the attorney to the plaintiff: that the plaintiff, relying on the promise of one of the defendants, against whom a ji.fa. had issued, prevented the same being laid.
    The defendant prayed the opinion of the. court, and their direction to the jury, that if they were of opinion, from the evidence given in this cause, that the plaintiff by his own act prevented the sheriff from receiving the money upon the said Jieri facias, when the sheriff, without his interference could and would have received the same upon the said Ji. fa. that then the defendant is entitled to a credit for the amount of the said debt.
    Chase, Ch. J. The Court arc of opinion, that according to the receipt signed by P. B. Key, esquire, the said Key was the agent of the defendant and the plaintiff, and that the bonds were deposited in the hands of the said Key by the defendant, for collection, and the money, when received by the said Key,, was to be paid over by him to the plaintiff, and applied to the discharge- of the debt due from the defendant to the plaintiff, and that the plaintiff bad no power or authority to interfere in the collection of the money due on the said bonds; but that the same were intrusted to the sole direction and management of the said Key. The Court refuse to give the direction to the jury as prayed by .the defendant. The defendant excepted.
    Where an administrator files us an exhibit in a suit in chancery an account against Iiis intestate in fa-vour of A, it is a sufficient acknowledgment of such account to prevent the operation of the act of limita tions; and the attorney of botli the administrator and A, is competent to p rove that the administrator directed such account to be used as an exhibit, and insisted on in such suit.
    4. The plaintiff proved to the jury, that the defpn-dant’s intestate was the executor of a certain C. 8. Smith, and the guardian of his children, and after the death of the said Smith, possessed himself of his real and personal estate, and contracted a debt with the plaintiff on behalf of the children of the said Smith, for the articles charged in the account upon which this suit is brought 
      
      , and afterwards acknowledged the said account to be just, and promised payment thereof to the plaintiff. That one of the representatives and devisees of the said Smith filed a bill in the court of chancery against the said intestate, among other things, for an account of the real and personal estate of the said Smith, to which bill the said intestate, by F. B. Key, esquire, his solicitor, put in his answer; which bill and answer were offered in evidence. That the said intestate, in the said suit in chancery, produced and exhibited the account before referred to, and claimed a credit against the said representative in discharge of his claim against him the said intestate, for the amount of the said account; that the said account had been sent by the intestate to the said Key, to be produced and exhibited as a voucher and claim, in the said suit in chancery, against the said representative, and that the said Key did accordingly, at the request and by the direction of the intestate, exhibit the said account in the said suit as a claim and voucher as aforesaid. That on the death of the intestate, the defendant took out letters of administration on his estate. That the plaintiff employed the said Key as his attorney, to recover the said account from the defendant, as the administrator of the intestate. The defendant offered to prove, that he, as administrator aforesaid, employed the said Key to appear for and manage the said suit in chancery on his behalf. The plaintiff then offered to prove by the said Key that, after he had been employed as aforesaid by the said plaintiff and defendant, he applied to the defendant for payment of the said claim due from the defendant’s intestate to the plaintiff, as before mentioned, as well as for another claim due from the said intestate to the plaintiff; and that the defendant told and directed the said Key to insist upon the said account being allowed against the said representative of the said Smith in the said suit in chancery, in the same manner that his father, the intestate, had done; and delivered to the said Key the bonds before referred to, to be sued for the use of the plaintiff, and the money, when received, to be applied to the payment of the claim of the plaintiff against the said intestate; which bonds were applied to a different account, and not to the account before referred to.
    Martin, (Attorney General,) Johnson, and T. Buck* anan, for the plaintiff.
    
      Shaaff and Mason, for the defendants
    The defendant objected to the said testimony being given by the said Key.
    
    
      
      
         There were two suits upon two separate accounts between -he parties.
    
   Chase, Ch. J.

The Court overrule the objection, and permit the evidence of Mr. Key to be given to the jury. The defendant excepted. Yerdicts and judgment for the plaintiff.  