
    [Chambersburg,
    October 25, 1824.]
    COLLINS, (late WOMELSDORF,) Administratrix of WOMELSDORF against WEISER.
    IN ERROR.
    A declaration, setting forth an implied promise by ah administratrix, as such, to pay money paid, laid out, and expended by the plaintiff for her use, as adminis-iratrkc, in consequence of the payment, after the death of the intestate, of a debt for which he and the plaintiff were jointly liable in his lifetime, is good s and a judgment de boiiis intestati, founded upon it, may be supported.
    The declaration filed in this suit, which was brought in the Court of Common Pleas of Cumberland' county, by John Weiser against Eve Collins, (late Womelsdorf,) administratrix of Daniel Wo-melsdorf, deceased, set forth that the said Daniel, in his lifetime, and the said John, were indebted to one Jacob Rupley, in two joint and several obligations, each conditioned for the payment of sixty pounds; all of which moneys, payable and due on the said bonds, amounting to the sum of one hundred and fifty-one pounds, five shillings and ten pence, at the request of the said Jinn, as adminis-tratrix of the said Daniel, the said John, since the death of the said Daniel, to wit, &c. hath paid and discharged, by reason whereof, the said Jinn as administratrix of the .said Daniel, is indebted to the said John in the sum of seventy-five pounds, twelve shillings and five pence, being one moiety or half part of the same moneys, which at the special instance and request of the said Jinn, as administratrix of the said Daniel, the said John, then and there on the day and year last mentioned, for her use as administra-trix, paid, laid out, and expended, and being so indebted, the aforesaid Jinn, as administratrix, at the day last aforesaid, in consideration thereof, as far as she had assets in her hands, unad-ministered of the said Daniel, to pay the same, then and there did assume, out of the said assets to the said John, that she the said Ann, the aforesaid sum of seventy-five pounds, twelve shillings and five pence, to the said John, when she should be thereunto required, well and faithfully would pay and content. Nevertheless,” &c.
    The jury found a verdict in favour of the plaintiff, for one hundred and twenty-five pounds, nine shillings and ten pence; and the court, having overruled a motion in arrest of judgment, directed judgment to be entered “ against the said administratrix, and that the plaintiff do recover his damages and costs out of the assets of the intestate, if the defendant has so much; but, if not, then the costs of the defendant’s own goods.”
    The defendant removed the record, by a writ of error, to this court, where Mahon and Carothers, for the plaintiff in error, contended, that the declaration set forth no cause of action. It charges the defendant in her own right, and does not aver that she had assets. When the intestate died, he was under no liability to the plaintiff; for the declaration states, that after his death, the defendant requested the plaintiff to pay the bonds, on which the intestate and he were jointly liable, and promised to pay the proportion of the intestate, out of his assets. It was a promise made by an ad-ministratrix to a third person, — not to the original creditor. Such a promise is personal, and does not bind the administratrix in her representative capacity. Forth v. Staunton, 1 Saund. 210. Pearson v. Henry, 5 T. R. 6. Hughes v. Ran, 7 T. R. 350. Tre-vannion v. Iiowel, Cro. Eliz. 91. Clark v. Herring, 5 Binn. 33. Grier v. Huston, 8 Serg. & Rawle, 403. 1 Chitty on PI. 228.
    
      Penrose, for the defendant in error.
    The declaration does not set forth a promise by the defendant below personally. Her liability, as administratrix, is averred throughout. It avers that, as administratrix, she requested the plaintiff to pay these bonds, and as administratrix she promised to repay him. She was liable as administratrix, and as such was her promise given to pay not out of her own funds, but out of those of the intestate’s estate. That an administrator may restrict his promise, so as not to charge himself personally, is abundantly proved by authority. 1 Chitty on PI. 304, 305, 306, 307. 2 Chitty on PI. 100. 5 Binn. 37. Jones v. Moore, 5 Binn. 573. 1 Saund. 210, (note 1, 2.) 2 Saund. 137, (note 2.) Beach v. Kenriclds Executors, 1 Vez. 123. dll kins v. Hill, Cowp. 284. Hawkins v. Saunders, Cowp. 289. Wheeler v. Collier. Cro. 406. Swearingen v. Pendleton, 4 Serg. & Rawle, 493. 1 Peters, 441. The court will go very far to support a verdict, Cowp. 826.
   •The opinion of the court was delivered by

Gibson, J.

Although the promise is laid, in this declaration, as having been made by the administratrix, as such; yet, if the action must necessarily be considered as having been brought against her personally, the judgment, which is de bonis intestati, is undoubtedly wrong. But, notwithstanding the early decisions to the contrary, there is no difficulty in supporting this count, as of a promise made by the defendant, in her character of administratrix. The action is for money laid out and expended to her use, as adminis-tratrix, in consequence of the payment of a debt after the death of the intestate, for which he and the plaintiff were jointly liable in his lifetime; consequently, the promise is an implied one. Now, the money could not be considered as having been expended to the use of the intestate, for he was dead at the time; and, as it was not expended to the use of his administratrix personally, the law would raise no promise from such a consideration, to bind her personally: so that, unless it would imply such a promise as is laid in this declaration, a plaintiff would be without remedy where there was no express promise, in consideration of assets. It is said, that as the money was paid to relieve the assets in the hands of the adminis-tratrix, a conditional promise to pay out of the assets might be implied; and that the cause of action should have been so laid here, in which case, the promise being by the defendant, in her own own right, the judgment de bonis propriis would still-have been exclusively proper. I am, however, inclined to think, that an implied conditional promise would be considered as much an anomaly, as a promise by an executor or administrator in a representative capacity. A conditional promise must be specially declared on; and, for this reason, it must be an actual express undertaking. Ah implied promise arises out of, and follows the nature of the consideration, which, in this case, was the actual payment of money to the use of the administratrix, as such; and there is, therefore, no great technical absui’dity in implying a promise by her in the character, in relation to which, the money was paid to her use. But this form of declaring, is not without support from precedent and analogous cases; as, for instance, the form of declaring against executors or administrators, to save the bar of the statute of limitations; in which it is the practice to join with counts on promises by the testator or intestate in his lifetime, an insimul co?nputas-sent with the executor or administrator, in respect of money due by the testator or intestate in his lifetime; in which case, the promise which the law implies from the stating of the count, is laid as having been made by the personal representative, as such. It is certain, that, in the case of the insimul computassent, the moneys must have been owing in the lifetime of the decedent; and here the debt did not arise till after his death. But the liability which produced the payment, which is the consideration of the promise, existed in his lifetime; which is, in substance, the same thing. But, I take it, that is not the most material part of the inquiry. In the case of the insimul computassent the promise, which is the gist of the action, is laid as having been made by the personal representative after the death of the decedent; which fully establishes the principle for which it is necessary to contend, in the case under consideration. Mr. Chilty, whose judgment in matters of this bind, is entitled to great respect, is of opinion that if the point should again come before the English courts, it would receive a different decision. 1 can see no reason why it should not. The same convenience which requires such a form of declaration to be supported, where it is employed to elude the statute of limitations, equally requires it to be supported in cases like the present. At all events, it is entirely within the power of this court to establish a precedent for itself, and I am therefore of opinion, that the judgment should be affirmed.

Judgment affirmed.  