Forbes VS. Perrie. MAY 1801 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 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 H. Blk. Rep. 102—and Beard Ex'r. of May, vs. Cowman's Ex'r, October 1793, (3 Harr. and M•Hen. 152.) 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 the plaintiff to to the jury on the part of the plaintiff. join in a demurrer to his evidence Unless the par ties can agree up be no demurrer to parol evidence. The plaintiff, (for that he had shewn in evidence to on facts there can the jury sufficient matter to maintain the two last issues joined on his part to the pleas of non assumpsit 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. For which were cited 1 Morg. Ess. 448. Viner's Abr. 261. Doug. 119, 224. Prac. Reg. 83. 5 Co. 104, Dyer, 53. 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. MAY 1801 Forbes VS. Perrie Where A is inforney of both of gives to C the atthem, bills, notes, persons, to be col (to lected and appli ed to the payment thereby makes the attorney his agent trol over him in such debts. 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 &c. against other the plaintiff in particular courts, had the claim recover which this suit is brought,) of the plaintiff of B's debt, he against the defendant, as administrator of his father, and B has no con to collect, or bring suit thereon. That he received the collection of 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 attor ney to the plaintiff; that the plaintiff, relying on the promise of one of the defendants, against whom a fi. 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 fieri facias, when the sheriff, without his interference could and would have received the same upon the said fi. fa. that then the defendant is entitled to a credit for the amount of the said debt. CHASE, Ch. J. The Court are of opinion, that according to the receipt signed by P. B. Key, esquire, the said Key was the agent of the defendant and the Forbes vs. Perrie, MAY 1801 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 had 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. 4. The plaintiff proved to the jury, that the defenan exhibit in a dant's intestate was the executor of a certain C. S. Where an admi nistrator files as suit in chancery an account against his intestate in fa- Smith, and the guardian of his children, and after the vour of A, it is a sufficient acknow death of the said Smith, possessed himself of his real ledgment of such account to prevent and personal estate, and contracted a debt with the the operation of the act of limita tions; and the at plaintiff on behalf of the children of the said Smith, torney of both and for the articles charged in the account upon which administrator A, is competent administrator di to prove that the this suit is brought(a), and afterwards acknowledg just, and promised payment rected such ac ed the said account to be count to be used as an exhibit, and thereof to the plaintiff. insisted on in such suit 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 P. 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 (a) There were two suits upon two separate accounts between the parties. Forbes VS. Perrie of the intestate, the defendant took out letters of ad- MAY 1801 ministration 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. The defendant objected to the said testimony being given by the said Key. CHASE, Ch. J. The Court overrule the objection, and permit the evidence of Mr. Key to be given to the jury. The defendant excepted. Verdicts and judgment for the plaintiff. Martin, (Attorney General,) Johnson, and T. Buchanan, for the plaintiff. Shaaff and Mason, for the defendant. MAY 1801 Onion VS. Paul. A, being indebt ed to B upon an assigns the same GENERAL COURT, MAY TERM, 1801. ONION US. Paul. ASSUMPSIT. The counts in the declaration were open account, B for sundry articles properly chargeable in an account; to C. of which A for the use and occupation of a mill; indebitatus assump had notice, and promised to pay C. Held, that C sit for a mill sold; and an assumpsit to Zaccheus Onion amount in an ac- for sundry articles, &c. and which was assigned by could recover the tion of assumpsit; and that it was the said Zaccheus Onion to the plaintiff, &c. The ac not necessary that the assignment should be in wri- count exhibited with the declaration, contained amongst ting, or that it should be produ- other charges the following, viz. ced in court, "To an assignment from Zaccheus Onion to me 6th To one half upper mill rent from 22d The defendant pleaded the general issue. £92 10 0 56 1 0 1. At the trial the plaintiff gave in evidence, that the defendant acknowledged that he owed to a certain Zaccheus Onion a sum of money charged against the said John Paul, in the said account filed, and that he had assumed to pay the same to the plaintiff. The defendant, by his counsel, applied to the court for their opinion, and direction to the jury, that the debt due from the defendant to the said Zaccheus Onion, was no consideration to support the promise made to the plaintiff, even though an assignment had been previously made of the said debt to the plaintiff by the said Zaccheus; and further, that even if such assignment was made, there must be other proof thereof than merely the promise to pay the debt. DUVALL, J. (a). The court are of opinion, and so direct the jury, that if they should be of opinion from the evidence in this cause, that a debt due on an open account existed from the defendant to Zaccheus Onion, and so being due, was assigned by the said Zaccheus Onion to the plaintiff, and that the (a) Done, J. concurring. Chase, Ch. J. did not attend. |