
    Grier against Huston.
    In all cases ©f promises express or implied, made to or by an administrator after the death of the intestate, the action lies by or against the administrator personally. Where, therefore, an administrator gave a receipt, in that character, for money paid to him by mistake, it was held, that the action to recover it back, must be against him personally.
    
    And if the administrator, in such a case, has administered the money in payment of debts of the intestate tdthout notice of the mistake, lie may plead this matter specially, and if he can prove it, nnd that the estate of the intestate is insolvent, he is protected.
    Where an account with a receipt at bottom, left it doubtful whether a sum of money had been paid by a partnership, or by one of the partners in his individual capacity, it was held> that it ought to be suffered to go to the jury, with permission to the party offering it, to explain the obscurity ijy other evidence.
    In Error.
    ERROR to Lycoming county.
    
      The plaintiff in error, who was plaintiff below, declared against the defendant,' in two counts: one for money had and received, &c.; the other for money, lent, &c. On the trial, the plaintiff offered in evidence the following account and receipt:
    “ John Kidd, esq. deceased, account against Samuel E. Grier 8? Co.:
    
    An order on Phineas Bond, on which Mr.
    
      Gr.ier received, on the 10th of May, 1803, $559 15
    
    Interest on the above to this time, 335 40
    894 55
    
    
      Hepburn 8? GriePs account proven against John Kidd, esq. deceased 443 75
    
    Balance g451 80
    “ Received of Samuel E. Grier, the above sum of four hundred and fifty-one dollars and eighty cents. 23d April, A. D. 1813.
    
      John Tuck.
    
    Witnesses
    
      Walton.
    
    
      Thomas Huston,
    
    administrator of I. Kidd, esq. deceased.”
    At the time of offering the above paper, the plaintiff declared, that after he had read it he should produce proof, “ that the four hundred and fifty-one dollars eighty cents, were paid in mistake, and that he had been compelled to pay five hundred and fifty-nine dollars fifteen cents, stated in the said paper, to Phineas Bond, upon whom the said order was drawn by John Kidd, his agent.”
    The Court rejected the evidence, and the counsel for the plaintiff excepted to their opinion.
    
      Bellas, for the plaintiff in error.
    1. The first question is, whether, upon the evidence offered in the Court below, the suit should have been brought against the defendant, as administrator of Kidd. Although he signed the receipt in that character, Kidd was never liable for the money which had been received by his administrator, through a mistake, after his death. The action, therefore was well brought against the defendant personally. 1 Dall. 347, (note.) Wilson v. Wilson, 3 Binn. 557. Wallis v. Lewis, 2 Lord Raym. 1215. Betts v. Mitchell, 10 Mod. 316. 3 Bac. Ab. 94.
    2. Nor ought the suit to have been brought in the name of Grier Company. The account, it is true, is thus headed; but it is stated, that the money was received from. Phineas Bond by Samuel E. Grier alone ; and the transaction in which it yvas received, did not concern the partnership. Hayes v. Grier, 4 Binn. 80.
    
      Campbell and Burnside, for the defendant in error,
    answered : 1. That the defendant having received the money as administrator, and applied it in the course of administration, he ought to have been sued as administrator ; for if sued personally, he could not plead, fully administered, which would be highly injurious to him.
    2. That the paper offered by the plaintiff, upon the face of it, did not support his declaration. Upon his own shewing, the debt was due to Samuel E. Grier U Company ; and nothing was more clear, than that for a debt due to a partnership, an action cannot be supported by one partner alone.
   The opinion of the Court was delivered by

Tilghman, C. J. —

The first reason assigned by the counsel for the defendant, in support of the opinion of the Court below, is, that the receipt was signed by Thomas Huston, administrator of John Kidd, deceased, and therefore not evidence in this action, in which Thomas Huston is charged personally. But this is not a sufficient answer; for although the defendant signed the receipt as administrator, he is responsible personally. The plaintiff never had any claim against John Kidd, the intestate, for the money paid by him to the defendant, the repayment of which is demanded in this action. It is impossible that he should have had, because it was not paid until after John Kidd's death. In all cases of promises, express or implied, made to, or by, an administrator, after the death of the intestate, the action lies for or against the administrator personally. If a promissory note be given to A. as executor of B., the naming him executor is surplusage, and the action lies in his own name. 10 Mod. 316. 2 Lord Raym. 1215. An administrator giving a bond as administrator, is chargeable personally. 1 Dall. 347, (note.) 3 Bac. Ab. 94, Executors and Administrators, (O.) So where executors bring suit, to recover money paid by them by mistake, they should sue personally. If an executor brings an action as executor, to which the Statute of Limitations is pleaded, proof of a promise to the executor, within six years, will not support the action. And yet, in that case, if the money had been sued for and recovered .by the executor personally, it would have' been assets. But it is objected, that it would be both hard and unjust, that the defendant, who had received money through the plaintiffs mistake, and had administered it in payment of debts of the intestate, without notice of the mistake, should be responsible personally: Whereas, if he had been sued-as administrator, he might have pleaded, that he had fully administered. Undoubtedly it would be unjust, that the defendant should be deprived of his defence, by this form of action. But that is not the case. He may plead the special matter, and shew, that he had disposed of the money, in payment of debts of the intestate, before he had notice of the mistake ; just as an agent may do, who, in a like case, may defend himself, by proving that he had paid over the money to his principal, before notice. There is indeed this difference between an administrator and an agent: The administrator, besides proving that he has applied the money to the payment of debts, must shew that the estate of the intestate is insolvent, because if there are assets, he may indemnify himself. But where the agent pays over to his principal, the person who has .made the mistake, may have hjs action against the principal, which he could not have against a creditor, who had received, payment of his debt from the administrator. From necessity, therefore, the action must be brought against the administrator personally, and if he has assets by which he may be indemnified, he cannot be injured. I am of opinion, therefore, that the action was well brought against the defendant personally, though he signed the receipt as administrator. But the defendant relies on another reason for rejecting the evidence. He says, that upon the face of the paper offered in evidence, the money was paid by Samuel Grier & Company, and therefore it is not evidence in this action, which is brought by Samuel Grier alone. It is true, that when a debt is due to several partners, an action cannot be supported by one of them. And if this money was really paid by Samuel Grier Company, the evidence was inadmissible, and the plaintiff must fail in his action. But that is a fact which' should have been left to the jury, because, in the receipt signed by the defendant, it is expressed, th *t the money was received of Samuel Grier. This receipt is at the foot of an account, at the head of which it is called John Kidd’s account against Samuel Grier Co, ; but the only article charged bv Kidd, is, u an order on Phineas Bond, on which Mr. Grier received five hundred and fifty-nine dollars fifteen cents.” It does not appear, that the order was produced on the trial; but from the evidence which the defendant offered, it is at least very doubtful, whether the order was not drawn by Kidd, payable to Samuel Grier, f and not to Samuel Grier Co.) The plaintiff offered to prove, that he had been compelled to refund the money to Phineas Bond, on whom the order was drawn, which is not compatible with the supposition, that the order was payable to Samuel Grier Co. or the money received from Phineas Bond by Samuel Grier, í¿? Co. The plaintiff should therefore have been permitted to give the receipt in evidence, and explain the obscurity which appeared in the account, by the other evidence which he proposed to offer afterwards. And the jury should then have been instructed, that if the money was paid to the defendant by Samuel Grier Co., the verdict should be for the defendant. When this cause goes back to the Cqmmon Pleas, the defendant will have an opportunity of availing himself of any defence which he may have, in consequence of having administered the money in payment of debts, without notice of the alleged mistake. I am of opinion, that the judgment should be reversed, and a venire facias de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  