
    Gregory v. Hooker’s adm’r.
    From Halifax.
    The persona] representative of a deceased person, is not liable to pay for the funeral expenses of the 'deceased, unless he contracts foi them or subsequently promises to pay for them — there is no implied promise to pay for them.
    Where an individual, of his own mere motion, buried a deceased per. son, and without giving notice to the administrator of the expenses, sued him, he was not allowed to recover.
    A count against an executor, charging him upon his promise as executor, may be joined with a count upon promises of his testator.
    Where, on the division of an intestate’s slaves among his children, an allotment is mude to A. greater than that to B, another child, and to equalize the division, A is directed, out of h>« share of the property, to pay a certain sum to B, this gives ". a iit. , t.u tin slaves tor that amount; and if A’s administrator sell the slaves allotted to A. before such payment is made to B. the balance only of the purchase money will be assets in the hands of the administrator, after the sum directed is paid to B.
    The declaration In this case contained five counts. The first was on an implied promise of Defendant’s intestate to pay Plaintiff for board, &c. The second was In indeUtt^^assúmpsit, laid on the promise of the administrator as such. The third was a count quantum vale-iat, laid on the promise of the administrator as such. The fourth was a count for funeral charges against the Defendant as administrator, laying the promise to have been made by him as such. The last count charged; that in consideration the Plaintiff would give her note to the Defendant for a debt due him as administrator, he, as administrator, promised he would set it off against so much of her account against the intestate, and then alleged a breach of the promise, by compelling the Plaintiff to pay the note, which increased the amount of his assets.
    The Plaintiff, on the trial below, produced in evidence, an account for board of the intestate and of his servant during his life-time, and for keeping and feeding intestate’s horses, which was admitted ; there were also in the account, the two following charges, viz: “ To making, sheet and pillow case, £0 5 0 — To one pillow furnished him when deceased, ¡£0 5 0. To establish these charges, the Plaintiff proved that the intestate, Dr. 'Hooker, died at her house, that he was buried before administration granted, and that after his death she rendered the services, and furnished the pillow for his funeral. There was no evidence of an express promise by the administrator to pay the funeral expenses.
    The Defendant, in support of his plea of fully administered, produced an order of the County Court of Tyr-rell, to divide the negroes of Stephen Hooker among his distributees, and appointing several persons therein named to make such division, and a copy from the re1cords shewing that such division was made •, fr,om which, it appeared that the negroes assigned to Defendant’s intestate, exceeded his dividend Of personal estate by Si74, and by the return he was directed to pay that sum to his younger brother : the Defendant then offered to the Jury the receipt of the guardian of the younger brother for 
      $174, dated before this suit was brought, fc$|j$íew an ex* pcnditure of assets to that amount: the C-ourt would not permit it to be read, on the ground that the testimony of the guardian waft better evidence. The Defendant also contended, that as the sum of 8174 was due from the intestate on the partition of the negroes, and that as two of the negroes divided were sold by the administrator after the death of the intestate, the administrator should not hold said sum as assets, but was bound to pay it to the younger brother, who had a lien on the negroes to that amount. The court ruled that the whole value of the negroes was assets. The Defendant pleaded outstanding bonds at the time of the Plaintiff’s suit brought, and proved a number of bonds outstanding. The Court instructed the Jury that, although there might not be assets to pay bonds, that the administrator was bound to pay the Plaintiff the ten shillings for the funeral charges in preference to bond debts, and that, if they believed the articles were furnished for the funeral, that they would find assets to the amount of ten shillings to pay said funeral charges ; and the Jury found accordingly. It was admitted there were assets to satisfy the funeral charges, provided they were entitled to priority of bonds.
    A new trial having been refused, Defendant moved in arrest of judgment, for misjoinder of counts on promises of the intestate, witii a count on the assumpsit of the administrator : this was overruled, and Defendant appealed.
    Tiiis cause was argued at great length by Jl. Henderson, Seawcll, Ruffin and Hogg, for the appellant, and Gaston and Mordecai for the appellee.
    For the appellant..
    It is not necessary, in this case, ¿0 deny the duty of the administrator to bury the deceased : it may be remarked, however, that it is at best but a duty of imperfect obligation, rather encouraged than enjoined. If he bury the deceased, he is allowed the necessary expenses out of the assets 3 if he omit it, it has not yet been shewn that he is liable, either civilly, or on a criminal prosecution. The rites of sepulture are readily afforded to the dead by the piety of the living 3 and it has not yet been found necessary to add the sanction of the law. But admitting the duty of the administrator to be the burial of the dead ; and admit that he is hound to pay funeral charges, yet no other person can pay them, and compel him to repay. No one can make another his debtor without his assent. Unless there be a previous request, or an express subsequent promise, no action arises. Although the administrator may pay funeral expenses, and retain for them, yet it docs not hence follow that any one who pays them can make him a debtor therefor. The articles here were furnished at Plaintiff’s peril. One parish (for instance,) cannot recover from another, for necessaries furnished a pauper, during illness, by the former, nor for funeral expenses of a pauper belonging to the latter parish — Mkins v. Barn-well, (2 East. R. 505.) There must be an express promise. A moral obligation is a good consideration for an express promise, hut never raises an implied one— (1 Belno. M. P. 66, 67) — Wennal v. Jhlncy, (3 Bos. & Pul. 247.) The very able note of the Reporter, in this last cited case, demonstrates that a legal liability is a good consideration for an express promise only. If the law be, that any one may perform the duty of an administrator, and a contract will thereby be raised without the assent of the administrator, it must also be law, that one may maintain the slaves, and pay the debts of the deceased, and support assumpsit for these several acts : it cannot be that a rational or legal distinction exists between goods furnished for a funeral, and goods purchased for it j or between monies expended for such goods, and in the payment of debts. If the contract be implied in one case, it can be in all: the difference is in form only, not in substance. The doctrine contended for by the Plain! iff in this case, will, if traced to its results, be found to leave an administrator the name of an office only, the duties of which may be. usurped by any one at pleasure. An individual has, by law, in ordinary cases, a right to contract With a substitute to perforin his duties, or not; and this discretion is necessary for his own safety, and the faithful performance of the duty: it is, then, a strange anomaly in the law, if such choice be denied him, when he takes upon himself a sacred and responsible trust, and acts for creditors and distributees.
    ' If there be in this case a legal remedy against the administrator, it can only be enforced against him after qualification ; for until then there is no obligation imposed : and if it bo said, his duty is to have a retrospective operation from necessity, then it should appear tiiat he had notice of the payment' of these funeral charges, had then assets, and refused to pay. The Plaintiff, in this case, may have done a personal favor to the Defendant ; but this action cannot be sustained without the express promise of the Defendant — (Skinner 2,74, pi. 2 Garth. 104, viewed in connection with Toller 19.)
    The necessity of an actual contract to support this action, is apparent from the pleadings in indebitatus as-sumpsit. In all indebitatus counts, except for ¡poney had and received, it is usual and proper to set out a debt on request, and if the request were not stated, it was formerly ground of error — Wallis v. Troll, (1 Stra. 88 :) this rule is now relaxed, and the omission is not material, because the assent to the contract, on the performance of which the promise is implied, must be proved; . and it is sufficient in the declaration to state a contract, which ex vi termini, includes an assent, and the law will presume the promise. In the count, for money had and received, the act itself shews an assent; and hence it never was necessary to set forth a request — (Luwes on pleading in assumpsit, 87, 435 — 1 Chitiy, pi. 322 — Precedents in in-deb. ass* in 2 Chitty — 3 Johns, 434 — 8 Johns. 436. )
    
      This declaration contains counts which cannot be joined — -4 Term U. 347. ”
    For the appellee.
    Two questions are presented in this case; first, was the Defendant under a legal obligation to pay the funeral charges of his intestate? If he was, he is hound to the Plaintiff to the amount of the articles furnished, and labour done by her. There is a fallacy in the argument, on the other side, which arises from supposing that we declare, not for haring buried the intestate, having actually furnished the necessaries for the funeral, but for having paid those who did, and seeking, without a promise, to recover the money. Is then the administrator liable to us for our services ? The administrator is bound (not morally, but absolutely,) to pay the funeral charges out of the assets of his intestate— (Richardson's Executors, 381) — (2 Bl. Com. 515.) There can be no other inode of compelling payment, but by as-sumpsit against him as administrator. A promise to pay is always implied, when necessaries are furnished on the part of him, who, by law, ought to furnish or pay for them. Witness the case of repairs done by a carpenter to a ship, with the knowledge of the owner — of medicines provided by an apothecary for a daughter— fees.of office due on admission to any honour — (Com. Big. “assumpsit,” 133.) So assistance to a pauper, raises an implied assumpsit against flic parish — fVednallx. Jldney, (S Bos. & Pul. 253.) In the case of an executor, the suit can be brought against him as executor only, because he is liable (le bonis inlestati. The law hero' raises the assumpsit, because of the administrator’s legal liability. There is no necessity for an express promise — nor is an express promise ever more binding than the promise which the law raises : for if there be a duty and a ^consideration, the law raises a promise; if no duty and no consideration, an express promise is void. The only exceptions to the rule, arc cases where there has been a consideration, but the legal obligation has been defeated; ^ien> though no promise can be implied, an express promise will be valid — Wednall v. Mney, (s ilos. & Pul. 251 m note.)
    
    But it has been said, that although the administrator may be permitted to retain, when lie makes advances for the funeral, yet he is not bound to pay when another makes tiie advances. The answer is, tiiat he can only retain in cases where, if he were not administrator, he might sue. The case of Mkms v. Barnwell, (2 East. 505,) on which the other side relies, was decided on the ground that there was no legal obligation on the Defendant, The case of Wednall v. Mney, goes on the ground of a want of legal obligation on the master to provide medicine for his hired servant. The opinion of the Chief-Justice is in our favor. “I have no doubt that parish officers are bound to assist when such accidents happen; and the law will raise an assumpsit against them, to enable any person who affords the immediate assistance the case may require, to recover the amount expended.”
    The case of Watson v. Turner, which is cited, (S Bos. & Ful. 250,) was decided in favor of the Plaintiff, because of the legal obligation, and the express promise was unnecessary. The case of Scarmlm v. Castell, (1 Esp. Rep. 270,) presents only the question as to the Ie-gal liability of the master. There was no express promise by the master, nor any previous request proved. They were implied from his legal liability.
    The objection, that no person shall make another a debtor against his will, does not apply : for no dissent appears, and the assent is an implication of law.
    The second question is, as to the joinder of counts in the declaration. The criterion of determining, is this— ^where the same plea may be pleaded, and the same judgment given j or where the counts are of the same nature, (though the same plea cannot be pleaded,) and the same judgment can be given, — actions may bo joined — (l Chitty PI. 197 — 2 Saund. 117 c. n. 2. — Bacon, actions in general — Com. Big. “.fiction” G. — Brown v. Dixon, 1 T. Hep. 276, 277.) A count on a promise of testator, and on such a promise of executor as only charges him de honis testatoris, may be joined — (l Chitty, 205-6 — 2 Ibid. 60, 61 — 1 H. Bl. 182 — 10 East. 313 — 8 Johns. 440.
    The proper rule is, that where all the demands are-payable out of) or go to increase, the same fund, the counts may bo joined — (2 Lev. 165 — 3 Ibid. 60 — .1 T. Hep. 487 — 4 T. Rep. 281 — 6 East. 404 — 1 Taunt. 322..)
   Taxxor, Chief-Justice.

The heavy costs accumulated by a protracted litigation, have made tills suit very important to the parties; and though the two items for funeral charges amount together to but ten shillings, yet whether the Defendant be liable to pay them, depends upon principles which are not to be understood without some research. I must own that the argument, which has been able on both sides, has presented the subject in many lights which were new to me $ and, together with my own reflections, has produced an opinion altogether-different from what I have ever entertained on the subject. Notwithstanding the reasons drawn from propriety and decency, tending to shew the Defendant’s liability, the only enquiry I have permitted myself to make, is, what is the Law ? My enquiries have ended in believing that it is in favor of the Defendant.

Of the two classes of contracts, express and implied# this cannot belong to the former, since there was no debt owing from the intestate, and no engagement entered into by him. Does it belong to the latter ? It is said that it does, because the Defendant was subject to a legal liability to pay this debt, and that, in every such cáse, the law implies a promise. His liability is inferred from the language in which the duty of an executor or administrator is stated in the elementary books, with regard to the payment of debts. Funeral expenses, according to the degree or quality of the deceased, are to be allowed of the goods before any debt or duty whatsoever, for that is opus phm et caritatis ” — (3 Inst. 22.) “ He must observe the rules of priority in the payment of the debts; otherwise, on deficiency of assets, if he pays those of a lower degree, first, lie must answer those of a higher out of his own estate, and first he may pay all funeral charges.” — (2 Bl. 511.) li The expenses attending the funeral shall he allowed in preference to all debts and charges.’—(Toller 191.) These writers, and all others, I believe, make a distinction between debts and funeral expenses : this position is warranted by them, that if the administrator or executor pays debts of inferior dignity in preference to those of a superior dignity, of which he has notice, he shall be liable to the latter de bonis pro-priis. Funeral expenses are not a debt, but properly a charge upon the estate; and if the executor voluntarily pays them, he shall be allowed such payment before all others, because it is a work of charity and piety.

I know of no case, where an administrator is liable in his representative character, on any contract not made by the intestate; for if he is sued on a contract made by himself, though relative to the estate of the intestate, the suit must be in his own right. Declaring on an insimul computassent against an administrator, as such, is not an exception to the rule, for that raises no new debt, but is merely an acknowledgment of the old one. lie is liable as far as ho has assets, for the debts, covenants, and contracts of his intestate, .although the cause of action accrue not till after the death, as, on a bond or note which became due after that event; but there the duty is created by the intestate. But if the duty arise afte¿‘ the death of the intestate, the administrator js liable in. his prívale capacity. For rent in arrear in the. testator’s lifetime, his representative is liable in that character, ¿nd can be sued only in the detinet, and may plead, fully administered; whereas, for the subsequent rent, he is personally liable. — (Comyn’s Digest, “ Administration,” 1‘4, B.) So if he promise to pay a debt, in consideration of forbearance or of assets, he must be sued in bis individual character; the law guarding with caution its principle, that if an administrator is liable beyond the assets, it must be by his own act, sustained by a proper consideration.

But, admitting for the present, that there is a legal liability on the Defendant, and that the Law therefore implies a promise, (which I shall presently shew not to be the case,) it may be asked, what has made the Defendant a debtor to the Plaintiff on these charges ? The Defendant’s intestate was not buried by the Plaintiff, or at her expense, and besides the sheet and pillow, there must have been other articles suitable to the sphere and condition in which Dr. Hooker had lived, and which doubtless were furnished before the state of the assets was ascertained. Every individual Who furnished any one article has the same right to sue with the Plaintiff, and to demand payment from the Defendant in preference to creditors. A man is legally liable to pay his own debts, and the Law implies a promise to his creditor that he will do so ; but if another, voluntarily and unasked, pays the debt, the Law does not imply a promise to him. In such case, assumpsit will not lie with-, out an express promise to repay it, for the debtor may have a set-off, or some good reason to resist the payment, and another person shall not pay it for him, whether he will or not. It is true, that if a party derives benefit from the consideration, it will bo evidence to the' Jury of a previous request $ as if a man pays money or buys goods for another, without his knowledge or his request, and he afterwards agree to the payment or receive the goods. But in this case, there is no reason to believe that the articles charged were furnished with the knowledge of the Defendant, of course his assent cannot be implied. The principle, that as the charge accrued subsequent to the death of the intestate, the Defendant is not liable in his representative character, is, as I conceive, fortified by a case I have met with since the argument, wherein it is laid down, "that an executor is not liable to pay for funeral expenses, unless he contracts for it”—Aston v. Sherman’s ex’r, (Holt’s Rep. 309.) The case is quoted with apparent approbation, by 1 Com. on Contr. 529, who states the reason of the decision to be, that such a charge, if sustainable against an executor, would make him liable de bonis propriis. In other words, as neither debt nor duty was created by the testator, if the right to sue the executor, as such, were admitted, it would follow, that he would be liable to pay for funeral charges, whether he had assets or not f but as the law will not so charge him without his own act and consent, it gives no remedy to a party voluntarily performing the service. As on this ground I am satisfied there ought to be a new trial, I have thought it unnecessary to give an opinion on any other points raised in the argument.

Haii, Judge.

The Defendant’s intestate was never debtor for the amount claimed by the Plaintiff for funeral expenses $ and if the Defendant is liable, he became so after the death of bis intestate, and if he became so after the death of the intestate, it was by the act of the Plaintiff, who furnished the articles for the funeral from her own mere motion, and not at the request of the Defendant 5 if so)' he ought to have been acquainted with that fact prior to the commencement of this suit, otherwise he will be subjected to costs without having been guilty of any default, or improper conduct. It is not like the case where the administrator is sued for a debt due by his intestate, of which, until suit is brought, he had no knowledge. In that case, his intestate might have been sued, and his death neither places the Plaintiff in a worse, nor the Defendant (his administrator) in a better situation than he himself stood in before his death. '

I entertain the opinion, that the counts in the declaration are properly joined, and that the amount due by the intestate, on a division of his father’s estate, is not assets in the hands of his administrator, and that the rule for a new trial should be made absolute.

HeNDersoN, Judge.

This action is brought in part for a pillow and winding sheet furnished to bury the intestate of the Defendant, without his previous, request, subsequent promise, or Plaintiff’s giving notice of the .charge before action brought | and I am decidedly of opinion, that that part of the case cannot be supported j and I will examine the consideration, whether those acts, being done by a stranger, for no one, and at the request of no one, but for the purpose of interring the dead, are not in Law mere acts of charity and humanity, which ereate no debt or legal duty ; but I am satisfied by reason and analagous authority, that before an action can be sustained, notice must be given to the executor or administrator. Where one person officiously pays the debt of another, an action cannot be supported on such officious payment, (for no person can make another a debt- or without his consent;) but it maybe ac|mitted that the intestate dying at the house of the Plaintiff, and there being no administrator to bury the corpse, the act of the Plaintiff was not officious; but certainly notice of the performance of the duty must have preceded the suit, for until notice, the Defendant was not put in the wrong, and it would be contrary to all our notions of justice, to subject a person to an action and its consequences, without a wrong committed by tiie Defendant, or the person whom Le represents. The consequence of the doctrine contended for by the Plaintiff, would in such cases lead to this, that an administrator or executor, who was not on the spot, might be liable to many different persons; one might furnish the plank to make a coffin, another the nails or screws, another the lining, another the ropes, another the pillow, another the shroud, and so on, perhaps, to the number of twenty, and if one could support an action without notice, so might each onej but the Law is not so unjust. Where the liability of a person arises from an act of which he is not bound to take notice, or where the knowledge rests more peculiarly with the Plaintiff, there notice is necessary. An administrator or an executor is bound to know so far as to be liable to an action for the debts of the intestate or testator, for he is his privy, he represents him ; but the assignor of a negotiable note is not bound to take notice of the omission of the maker to pay the assignee upon demand;, he must have notice before suit; it must be laid and proven, because the omission to pay is more peculiarly known to the assignee, who has failed to get payment: so here the services are more peculiarly known to the person performing them, than to the administrator. For these reasons, I think the charge for funeral expenses cannot be sustained. I differ from the presiding Judge below, upon the question, whether the difference duo from the intestate, on the division of the negroes among the children of his father, is assets; in other words, whether the negroes allotted to him are assets to their full value, or with a deduction of that sum. I think it formed a charge upon the negroes to that amount. The charge was made by the commissioners, without the agency of the other children; their property, to the amount of the difference, was taken from them by men acting under the authority of the Law, and the Law would never take from them property, and give them •only the personal liability of the person to whom the more valuable lot was awarded; and the law which takes from them the possession of their property, gives them the most ample security ,* in fact, so much in value of the negroes, is theirs, and nothing but .the impossibility of dividing them, converts that property into a charge upon the negroes, together with a debt upon the child. for he takes them cum onere. Suppose the Sheriff standing by when the division is made, with an execution to the full amount of all that child’s property, and the moment the division is made, he levies on the negroes so allotted, and applies them to the discharge of the execution ; and if the opinion below is right, such, I think, would be tiie consequence. I think there is no misjoin-der of counts. It is perfectly settled, that you may join a count against an executor, charging him upon his promise as executor, that is, to pay out of the assets, with counts upon promises made by his testator; in eacli case., the executor is liable in his representative character, that is, out of the assets. It is true, the precedents furnish only cases where the testator gave birth to the obligation, or received the consideration of the promise, but the reason of the thing applies to ail obligations thrown upon the executor by virtue of his office ,• and if in this case the executor was liable to pay the funeral expenses out of the assets, without a precedent request or subsequent promise, or had specially promised to pay out of the assets, the judgment would be de bonis lestatoris ; ana although the testator could not have received the consideration of the promise in case of funeral expenses, yet in this view of the case, the executor is performing a duty in his character of executor, (to say the least,) which the Law tolerates by enabling him to retain for tiie expenses of them. As, therefore, the Plaintiff might liave made out such a case as would have supported the count, and if she had, the judgment would have been the same as in the other counts, 1 can seo no reason for arresting the judgment.  