
    Dickinson against Brick.
    EBROR FROM SALEM PLEAS
    William Brick, the defendant in this court, brought an action of debt in the Common Pleas, against John Dickinson, the plaintiff in error; Brick brought the action as administrator of William Dickinson; which said William Dickinson in his lifetime, was executor to Thomas Dickinson, and testamentary guardian of John Dickinson, son of the said Thomas Dickinson. The action was founded on the decree of the Orphans’ Court, and set out in the declaration as follows :
    Bor that whereas lately, to wit, on the 15th day of September, A. D., 1805, at an Orphans’ Court then held at Salem, in and for the county of Salem, it was allowed, adjudged and decreed, by the consideration of the said Orphans’ Court, before the judges thereof, (previous proclamation being duly made, and proof of public notice thereof by the said court being first had, agreeably [f] to the directions of the act of the Legislature of the State of New Jersey, in such case lately made and provided) that the sum of $146.19 was due and owing to the said William Brick, as surviving administrator of the estate of the aforesaid William Dickinson, esquire, deceased, who was the executor of Thomas Dickinson, deceased, and testamentary guardian of the said John Dickinson, to wit, at Salem, &c., whereof the said John Dickinson afterwards, to wit, &c., had notice, by reason whereof, and by force of the act of the Legislature of the said State, in such case lately made and provided, an aetion had accrued to the said William Brick, surviving administrator as aforesaid, to demand and have from the said John Dickinson, the said sum of $146.19 as adjudged to him, the said William Brick, as surviving administrator as aforesaid, by the said judgment and decree of the said Orphans’ Court, &c., yet the said John Dickinson, although often required, hath nol paid, &c.
    
      On this declaration judgment by default was rendered for the plaintiff. The defendant brought this writ of error to reverse the judgment of the common pleas.
    
      Mr. Crane, for the plaintiff,
    contended, that William Brick, the administrator of William Dickinson, who was executor to Thomas Dickinson, and testamentary guardian to John Dickinson, son of Thomas, is not the representative of Thomas Dickinson; £ Blae. Com. 506; that the administrator of an [512] executor, was not the representative of the testator, although an executor was the representative of the first testator.
    On the opening of this cause,
    
      Mr. L. H. Stoohton and Mr. JEwing, for the defendant
    in error. It is stated in the declaration that the intestate of the plaintiff below, was the testamentary guardian of the defendant, and that the money was due to him in that capacity; and although it is also stated that the intestate of the plaintiff was executor of Thomas Dickinson, yet that part can be struck out as surplusage, and then it will stand as so much money due to the plaintiff, as administrator of William Dickinson, the testamentary guardian of John Dickinson, the defendant.
   Pennington, J.

Observed, that admitting that an action of debt could be maintained on a sentence or decree of the • Orphans’ Court, and declared on as such, and that the proceedings were in every other respect regular, which he much doubted, yet he could not perceive from the declaration of the plaintiff below, in [*] what manner John Dickinson, the defendant below, was answerable for the demand of Brick. The, decree of the Orphans’ Court ascertains, it is true, that a sum of money is due to William Brick; but from whom is it due? The record is silent. It does not appear from the record, that John Dickinson was a party before the Orphans’ Court; and if not, how could a judgment be rendered against him there; nor does the record show a judgment or decree against him; he does not appear to be the representative of his father, Thomas Dickinson, and so liable in that capacity.

Pennington, J.

It is stated that the money is due in both capacities; can you strike out one and leave the other ? if you strike the whole of the additions out, how do you connect the plaintiff with the defendant at all ? But suppose it could be done as you say. It would appear then by the record that a sum of money was due to the estate of the plaintiff’s intestate, which money was due to the intestate as testamentary guardian to the defendant; it would not, even in that case, follow that the defendant below was responsible for the money; it might have been advanced by the direction of the testament creating the guardianship, and the estate of Thomas Dickinson, yet liable.

The court took time till the next day to look into [*] and examine the case; and then gave an unanimous opinion that the declaration was sufficient to maintain an action.

Judgment reversed.  