text:
    GEORGE HIMES against GEORGE JACOBS, ROBERT HUSTON, GEORGE CRONISTER and ANTHONY DEARDORFF.
    in error.
    Where suit is brought against the personal representatives of a deceased debtor, with notice to the tenants in possession of the land upon which the debt is alleged to be a lien, and the tenants appear, and make defence, they are concluded by the verdict and judgment; although they may not, in fact have put in issue the question of lien; and in an ejectment brought by a sheriff’s vendee under that judgment against such terre-tenants, they will not be permitted to contravert the lien of such debt.
    It is a rule of pleading that whatever is not contested, at the proper time, is conceded.
    In Pennsylvania, where lands are assets for the payment of debts; it is most just to afford the terre-tenant, who is the party to be affected, an opportunity to contest the debt — and the plaintiff may do so.
    Even where the terre-tenants have been called upon prematurely, still, if they avail themselves of the occasion, and have a fair opportunity to make a full defence, they are concluded.
    Writ of error to the court of common pleas of Adams county.
    The case was ail action of ejectment, brought by the plaintiff in error, who was plaintiff below, to recover a tract of land; and both plaintiff and defendant made title under John Ross, deceased, in whom it was admitted it was originally vested.
    The plaintiff claimed by virtue of a sheriff’s deed, which was made to him upon a judgment obtained at the suit of Isaac Boyers and Abraham Boyers, against Sample Ross and Samuel Ross, executors of John Ross, deceased, with notice to the tenants in possession.
    The proceedings in that suit were material to his title, and so far as they are so, are here given at length.

      Docket entry,

    Isaac Boyer, and Abraham Boyer, "1 v. > Sample Ross and Samuel Ross, executors of the testament and last will of John Ross, deceased, with notice to Anthony Deardorff, David Ross, and others, tenants in possession of the real estate of said John ■Ross, deceased.
    No. 135, April term, 1828, Summons debt £1510 05.
    Sheriff Gilbert returns served on Anthony Deardorff, David Ross, &c. Narr. filed. Defendant pleads payment, with leave, &c. Replication non solvit. Issue, &c.

      Stevens and Srceney, for plaintiffs. MConoughy, for terre-tenants.
    April 28th, 1826, Samuel Ross, one of the defendants, agrees that judgment be entered against the executors and devisees in this suit. Judgment according to agreement.

      And now, 28th August, 1826, verdict for the plaintiff for fifteen hundred and ten pounds and five shillings, to be released on payment of three hundred and seventy-one dollars and fifty-four cents. — Judgment»
    Declaration, filed' April term, 1823»
    Adams County, ss. — Sample Ross and Samuel Ross,, both late of the county aforesaid, yeomen, executors of the last will and testament of John Ross, late of the county aforesaid deceased, were summoned to answer Abraham Boyer and Isaac Bayer of a plea that they render to them the sum of one thousand five hundred and ten pounds five shillings, equal to four thousand and twenty-seven dollars and thirty-three cents, lawful money of Pennsylvania, which to them they owe and unjustly detain, &c»
    And whereupon, the said Abraham and Isaac, by George Srnney, their attorney, complain that, whereas the said John Ross, in his life time, that is to say, on the fifteenth day of June, in the year of our Lord one thousand seven hundred and ninety, by his certain writing obligatory, to the court here shown, acknowledged himself to be bound unto the said Abraham and Isaac, in the aforesaid sum of one thousand five hundred and ten pounds, five shillings, to be paid to the said Abraham and Isaac, when he the said John should be (hereunto afterwards requested; and whereas the said John, at and immediately before the signing and sealing of the aforesaid writing obligatory, was seized in his demesne as of fee, of and in a certain tract of land, situate in Franklin township, in the then county of York, now Adams, and state of Pennsylvania, adjoining lands of William Shalcely and Robert Shakely, the heirs of Samuel Russell, deceased, the heirs of Moses Jenkins, deceased, and others. And whereas the said John, afterwards, to wit, on the sixth day of January, in the year of our Lord one thousand eight-hundred and five, made his last will and testament in writing, and constituted the said Sample Ross and Samuel Ross, the executors thereof; which said last will and testament was duly proved and recorded, according to law; by which said last will and testament, the said John Ross devised the tract of land aforesaid to the said Sample Ross and Samuel Ross, to be sold, and the proceeds thereof to be applied to the payment of his debts, and certain legacies in the said will and testament specified, and died seized thereof — which said tract of land was not sold by the said Sample Ross and Samuel Ross, agreeably to the provisions of the said last will and testament, but still remains subject to the lien of- the debts of the said John Ross; and subject to the payment of the said sum of one thousand five hundred and ten pounds five shillings, mentioned in the aforesaid writing obligatory, to the said Abraham Boyer and Isaac Boyer. Nevertheless, the said John Ross, in his life time, and the said Sample Ross and Samuel Ross,, since the death of the said John Ross,
      although often requested, have not paid the aforesaid sum of one thousand five hundred and ten pounds, five shillings, to the said Abraham Boyer and Isaac Boyer, but have hitherto refused, and still do refuse, to pay the same to them; to the damage of the said Abraham Boyer and Isaac Boyer, five thousand dollars, and therefore they bring this suit, &c.
    Upon the judgment so obtained, in this action, the land in question was levied and sold to the plaintiff; and on the 26th May, 1827, a sheriff’s deed was made to him.
    The defendant, Anthony Deardorff, claimed title under a judgment obtained at the suit of Tobias Kepner, guardian of Bitiinger, against Samuel Ross, and another, on the 10th of April, 1820, upon which the land was sold, on the 25th of November, 1822, to the defendant; and on the 16th January, 1823,. a sheriff’s deed was made to him.

      Samuel Ross was one of the five sons and daughters of John Ross, deceased, and one of the executors named in his will.
    In the will of John Ross, which was proved on the- Gth April, 1805, he directed that his real estate, of which the land in dispute was a part,, should be sold by his executors, that they should pay his debts, and distribute the residue of the proceeds among his children equally.
    On the 26th of February, 1813, William Baxter, who was mar- ' ried to a daughter of John Ross, deceased, and his wife, and John Ross, the son, released to Samuel Ross their respective interests under the will.
    , In the same year, David Ross and Samuel made a division of the land which had been of John Ross; and David agreed to take the portion divided off to him, on account of his interest under his father’s will. After the divison, which was by parole and in pais, David built a tenant house, on his part, and enjoyed it separately.
    To show that the interest of Sample Ross, the remaining legatee, under the will of John Ross, had been also vested in Samuel Ross, the defendant gave in evidence a judgment which had been obtained against Sample Ross, on the 15th August, 1808, at the suit of W. Ilosack, administrator of Brown; and a levy, and judicial ■ sale of the interest of Sample in the land of his father, to Samuel Ross; and a sheriff’s deed of the same to Samuel, dated the 3d day of October, 1809. Samuel had improved the land, and the houses built upon it; and expended considerable sums of money in these improvements, after he obtained the releases of his brothers and , sisters.
    In answer to points put by the counsel of the plaintiff, the court below charged the jury- — that by the act of the 4th, April, 1797, no debt, unless secured by mortgage, judgment, recognizance, or other record, shall remain a lien on the lands of decedents for a 'longer period than seven years from the decease, unless action be commenced within that period; or, if such debt be not due within seven years, unless a written statement of the debt be filed of record in the prothonotary’s office within such period.
    That John Ross died before the Qth of April, 1805, and that no suit was brought upon the bond from John Ross to Isaac and Abraham Boyer, or any description of it filed in the prothonotary’s office, within seven years after the death of John Ross; and that consequently as against a bona fide purchaser, which Anthony Deardorff was, the lien of that debt was gone before suit was brought.
    And that Anthony Deardorff was not estopped by the pleadings and proceedings in the suit, which was brought on that bond, in 1823, from denying the existence of that lien, and controverting its effect in tins action.
    The errors assigned were to the charge of the court on these two points.

      Penrose and Stevens for the plaintiff in error,
    1st. Contended that under the will of John Ross, James Ross and Sample Ross, the executors become invested with an estate in his lands devised in trust for the uses of the will, and that the power to sell never having been executed by them, and the entire title never having been acquired from all the cestique trusts the entire estate had never been so vested in them as to warrant the application of the limitation of the act of 1797, which was made for the benefit of the bona fide purchaser. Where trustees have an' estate vested in them, a purchase by them of part of the interest of cestique trust does not vest in them such an interest in the trust fond as that a sale on a judgment, obtained against them, would transfer the title clear of the trust.
    Here one of the trusts of the will was the payment of the debts of the testator, of which the debt under which the plaintiff claimed was one. To have the effect contended for, the purchase by the trustee must be of the entire interest. In case of a-partial purchase the tnist'remains, and the purchaser at sheriff’s sale, under the judgment against the trustee, would take subject to the trust.
    It is obvious that nothing less than an agreement of the parties in interest could extinguish the trust; a partial agreement could not have this effect.
    Here the lapse of time did not run against the trust, and Deardorff comes m with full notice. He claims under a judgment against Samuel Ross; and one of the muniments of his title is the will of John Ross, which gave him notice of the trust, and which imposed upon the executors the duty of paying the debts of the testator. The title which Deardorff bought was an equitable title, and he must take'it with all the circumstances of the equity: anda paramount incumbrancer is not defeated.
    Any'other, doctrine would establish a rambling and licentious equity, to depend on the circumstances of each case.
    The judgment against Sample Ross, and the sale upon it of his interest in the land devised .to Samuel Ross, vested no .title in Samuel.

    He was a legatee under the will of John Ross, and took no interest in the land upon which that legacy was charged, which was the subject of a judicial sale. Allison Ex’r of Henderson, v. Wilson’s Ex’rs. 13 Serg. Rawle, 330.
    2d. But Deardorff has, had his day of grace, and it has gone to judgment. In the suit brought on the bond of Boyer and Boyer he ■appeared and made defence. In the declaration the plaintiff set forth certain facts, among them those which constituted a lien. The plaintiff in that casehad a right to call -in the terre-tenants, ■and save the expense of a subsequent investigation.
    It is not competent for a party after trial and judgment, to allege •that he might have put in another plea which would have answered his purpose better. If he might have put in the plea that is enough; lie is concluded by the trial and judgment as to every fact alleged, and not denied by him. Nor docs it lay in the mouth of the defendant to say, that there was no trial on the point, as to the lien of the debt, alleged by the plaintiffs in that suit. It was a matter of no importance to the terre-tenants whether the debt was due by John Ross; the lien of the debt, on their land was the only question of interest to them. 1 Phil, E. 140. 243. 238.
    In ejectment the irregularity of the proceedings in a scire facias sur mortgage, as that the judgment was entered on one nihil, cannot be inquired into. Allison v. Rankin, 7 Serg. Rawle, 260. So in a scire facias against an heir and ter re-tenant, what might have been pleaded is concluded by the verdict and judgment. Coyle el ais v. Reynold,’s Ex’r 7 Serg. ¿f Rawle, 328. White v. Ward et al, 9 John. R. 232. JYace et al, v. Ilollenbach, 1 Serg. fy Rawle, 548. Bender v. Fromberger, 4 Dali, 436.
    The mode of proceeding adopted by the plaintiffs in the suit upon, the bond was perfectly regular. They first took judgment against the defendants, the executors of John Ross, and then went to trial with the terre-tenants.
    Such is the mode in the case of á scire facias on a mortgage or recognizance: judgment is taken against the cognizors or mortgagors, and then the plaintiff goes to trial as to the terretenants.

      Carothers, for the defendants in error.
    1st. Samuel Ross was executor, and also seized of the legal estate in the land in question, under the will of his father. The. interest of the legatees become vested in him by purchase, and the execution of the power, under the will, was thereby dispensed with, and the devise became absolute. The court here told Mr. Carothers that he need not labour this point.

    2d. As to the lien of the debt to Boyer and Boyer, it was gone. The debt had stood from 1793 to 1823, and if there was a lien, as against Samuel Ross, it was discharged by the sheriff sale, under which Deardorff became the owner of the land. Commonwealth for the use of Guernsey v. Alexander, 14 Serg. Sp Rawle, 257. M‘Lanahan v. MLaniahm, ante. p. 96.
    It is not conceded that Deardorff had notice of the debt, but in Bombay v. Boyer, 14 Serg. 41 Rawle, 253, it was decided that express notice of a judgment does not avoid the limitation of its lien to five years. This principle is equally applicable to the act of 1797, as to the lien of debts of decedents.
    But if actual notice had been given by Boyer, it would not be enough,forthe act of assembly requires the notice to be of record: and none other will suffice to preserve the lien of the debt under that act.
    . The lien was clearly gone, nor is there any virtue in the proceedings in the suit upon the debt to preserve it. That proceeding was an anomaly. In Pennsylvania there is'no such thing as an action of debt with a notice to the tenants of land, against which a lien is asserted. In England the heir is not bound unless the ancestor bound him, but in Pennsylvania lands are subject to the payment of debts, and are bound in the hands of the heir, independent of any contract to that effect. It is not in such case affected directly but collaterally.
    The principles, therefore, which prevail in England on this subject, are wholly inapplicable here. The form of action is without any precedent, and no good can result from adopting it.
    The whole proceeding on this point was a nullity, and altogether immaterial.
    A party is never concluded by an immaterial averment or issue.
    An estoppel must be clearly shewn. This record does not show it clearly. The plea put in was “ payment,” suppose it to have been put in by Deardcfrff, it would not admit the trial of the question of lien. It would not in the case of a scire facias on a recognizance or mortgage. In Magauran v. Patterson, 6 Serg. 4* Rawle, 278. it is said a verdict is conclusive as to the fact found, or passed Upon. Where it is a man’s duty to plead he may be bound. But the application of this principle to this case would be unjust.
    The record of a proceeding, between landlord and tenant, is not conclusive in ejectment. Galbraith v. Black, 4 Serg. ¿p Rawle, 212. Hess v. Heebie, ibid. 246.
    The action was on a bond, with a collateral condition to perform Covenants, anda general judgment was confessed by one of two executors.
    The amount of the damages were not ascertained, and until that was done, the terre-tenants were not bound to answer. A jury in court, or inquest on a writ, was the proper tribunal for this inquiry. The jury then tried nothing but this preliminary issue, to which the terre-tenants, could not be parties. Reigart et al v. Ellmaker, 6 Serg. Sf Ramie, 45-6. Kean v. Ellmaker, 7 Serg. cj’ Ramie, 1 — 3.
    The verdict is general, and if it were between the plaintiffs and terre-tenants, it would bind them personally, which cannot be.
    The plea put in was “ by the defendant,” and not by the terretenant, and he can in no way be affected by it
   The opinion of the court was delivered by

Gibson, C. J.

Land being assets for payment of debts, may be seized in execution in the hands of the heir, on a judgment exclusively against the executor who has no occasion to do more than discharge himself of eventual liability in respect of the personal assets; and, therefore, nothing is more common than to pray judgment of the land after the executor has discharged himself on pletie administravit. Surely it would be more just to afford the terretenant who is the party to be affected, an opportunity to contest the debt; and it has never been supposed that the plaintiff may not do so. Where it is dpubtful whether the land has not been discharged in the hands of a purchase^, the reason for affording him an opportunity to shew the fact is not so urgent, because a judgment against the executor, being conclusive only of the existence of the debt; the question of lien may, with equal advantage, be tried in an ejectment by the sheriff’s vendee. Still, where the terre-tenant has actually appeared and had an opportunity to make a full defence, even though he may not have availed himself of it, he is concluded to every intent. In Heller v. Jones, 4 Bin. 61, a younger judgment creditor who had appeared to a scire facias and given notice that he would insist on collusion in the concoction of the original judgment, but had afterwards taken no part at the trial, was precluded from controverting the fairness of the judgment in an ejectment by a purchaser under it: and this on the ground that he had in fact had an opportunity' to try the question and neglected it. The principle of that case is in accordance with a rule, not merely of pleading, but good sense, that whatever is not contested at the proper lime is conceded. Even had the terre-tenants here been called in prematurely, still they availed themselves of the occasion, and had as fair an opportunity to make a full defence, as if the proper time to do so had not been anticipated. They came in to shew that the land was not debtor; and this they were competent to do, either by disproving the debt or nullifying its lien; each of which was open to them as an available ground of defence, and there is no. reason why they should be suffered to use but one and reserve the other. That is the naked point, here, as their right to do so, is evident from the proceedings in the original action. The plaintifls.brought debt on bond against the executors of the obligee, with notice to terre-tenants who had purchased from the heir, and. claimed to.hold the land discharged. The executors confessed judgment; but the terre-tenants went to trial on the plea of payment, and it was found against them. Now I am not going to say what may be given in evidence under that plea. The question of lien was tried or it was not. If it was tried, it will not be pretended that it ought to be tried over again; and if it might have been tried under a proper plea and was not, then the case is within the principle of Heller v. Jones, and the terretenants are concluded just as if the fact had been expressly found against them. That case, however, is by no means so strong in circumstances. There the younger judgment creditor had only given notice of an intended defence, without proceeding further ; here the terre-tenants actually went to trial, and were necessarily bound to bring forward their whole defence: so that notwithstanding the lien was clearly gone, yet having missed the opportunity to. shew it, we are of opinion they are concluded.

Huston, J. and Smith, J. dissented.

Judgment reversed and venire de novo awarded.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    The BANK OF PENNSYLVANIA against JACOB M. HALDEMAN and RICHARD T. JACOBS, Administrators de bonis non, with the will annexed, of SAMUEL JACOBS, deceased.
    IN ERROR.’
    Upon the allegation of forgery, it is not-neeessarv to produce, aS Witnesses, all the persons in whose possession the forged paper had been, in order to identify it — its identity isa matter of fact for the jury.
    A Comparison of hand-writing, is admissible in evidence in civilcaseS incorrbboration1 of a belief of a witness, founded' upon- actual knowledge.
    The testimony of an exfiert, who speaks alone from iiis knowledge and skill in hand-writing,- is- not competent to establish a forgery.
    When’the court of Common Pleas, erroneously permit' evidence to be given-to the jury, no such evidence beiug.afterwards given, this court will'not reverse the judgment.
    If an'executor,-upon- the settlement of afi account of his testator,, allows-a credit for a cheek, this is not such an-administration of this part of the assets-as will preclude an administrator de bonis non,, from- sustaining an action to recover the amount of the check, which lie proved to be a forgery.
    A promise laid' in one count,-as having b'een made to the testator in his lifetime; and in another, as having been made to his administrators after his death, is not such a misjoinder of counts,as will be fatal to a general verdict and judgment.
    Wherever .the funds to which the money and1 the Costs are to be' applied, or out of which the costs are to be paid, are the same, and- the money when recovered- would be assets, then the counts may be joined.
    Writ of error' to tbc District Court of Lancaster county.
    The defendants in error were plaintiffs below, and brought an action on the case, against the Bank of Pennsylvania, to recover the sum of two thousand live hundred dollars, with interest from the 22d March, 1819, under the following circumstances.

      Samuel Jacobs, the plaintiff’s testator, was a depositor in the Bank of Pennsylvania, which in the year 1819, paid six checks signed « Samuel Jacobs,” the last of which was for two thousand five hundred dollars, and dated 22d March, 1819, and for the amount of which this suit is brought.

      Samuel Jacobs, the testator, died on the 14th April,. 1819,having first made a will and testament, by which he appointed William Coleman and James Coleman to be his executors. Afterwards, on the 6th June, 1819, William Coleman went to the bank, with the testator’s bank-book, and had it settled, including the check of two thousand five hundred dollars in the settlement, and received from the bank the six checks. Upon his return to the late residence of his testator, some of the heirs doubted the genuineness of the check of the 22d March, 1819, and one of them pronounced it a forgery,. On the 2d July, 1819, Mr. Coleman returned to the hank, and brought with him the checks and hook, which were examined by the cashier and others, and then thought to be genuine, and Coleman was of the same opinion; and said that the heirs wished him to bring suit against the bank to recover the money, but unless they could produce some proof to him, he would not do it. On the same day, the balance in favour of Samuel Jacobs, of two thousand five hundred and eighty seven dollars and sixty-nine cents, was transferred by the check of William Coleman, to the credit of William Coleman and James Coleman, executors of Samuel Jacobs, deceased, with whom the account continued till 10th January, 1821, when it was finally closed, and the balance of three hundred and eighty-nine dollars and twenty-four cents, drawn out by William Coleman,

    On the 3d January, 1821, William and James Coleman settled a-final account of their administration of the estate of Samuel Jacobs, and were discharged by the orphans’ court; when letters of administration de bonis non, with the will annexed of Samuel Jacobs, deceased, isued to Jacob M. Haldcman and Richard 1\ Jacobs, who gave to William and James Coleman, a receipt and acquittance in full for the balance in their hands.
    The following declaration (the joinder of counts in which was assigned as error,) was filed.
    Lancaster County, ss.
    The President, Directors and Company of the Bank of Pennsylvania, were summoned to answer Jacob M. Kaldeman and Richard T. Jacobs, administrators of all and singular the goods and chattels,, rights and credits, which were of Samuel Jacobs deceased, left unadministered, with the will of the said Samuel Jacobs, deceased, annexed, of a plea of trespass on the case, &c. And whereupon, the said Jacob and the said Richard, by George W. Jacobs, their attorney, complain, That whereas the aforesaid President, Directors and Company, on the first day of March, in the year of om Lord, one thousand eight hundred and nineteen, at the .county-aforesaid, were indebted to the said Samuel Jacobs, now deceased, in his lifetime, in the sum of five thousand dollars, lawful money of the United States, for so much money by the said President, Directors and Company, before that lime had and received, to and for the use of said Samuel Jacobs, now deceased. And being so' indebted, they, the said President, Directors and Company, in consideration thereof, afterwards, to wit: on the day and year last aforesaid, in the county of Lancaster aforesaid, undertook, and then and there faithfully promised the said Samuel Jacobs, now deceased, in his lifetime to pay him the said last mentioned sum of money, when they, the said President, Directors and Company should he thereunto afterwards requested.
    Yet the said President, Directors and Company, not regarding tlieir said promise and undertaking, but contriving and intending to deceive and defraud the said Samuel Jacobs, in his life time, and the said Jacob and the said Richard as administrators, as aforesaid, after the death of the said Samuel Jacobs in this behalf, have not as -yet paid the said sum of money, or any part thereof, to the said Samuel Jacobs in his life lime, or to the said Jacob, or the said Richard, administrators aforesaid, since the death of the said Samuel Jacobs, (although often requested so to do,) but they so to do have hitherto wholly refused, and still do refuse, to pay the same or any part thereof to the said Jacob and the said Richard, as administrators as aforesaid.
    And whereas, also the said Jacob M. Haldeman and Richard T„ Jacobs, administrators of all and singular the goods, chattels and credits] which were of Samuel Jacobs, deceased, left unadministered, with the will of the said Samuel Jacobs, deceased, annexed, complain against the President, Directors and Company of the Bank of Pennsylvania, For that whereas, heretofore to wit: on the twenty fourth day of December, in the year of our Lord, one thousand eight hundred and twenty-three, at the county of Lancaster, aforesaid, the aforesaid President, Directors and Company were indebted to the said Jacob and the said Richard, as administrators as aforesaid, in the sum of five thousand dollars, lawful money of the United States, for so much money by them, the said President, Directors and Company, to the use of the’ said Jacob and the said Richard as administrators as aforesaid, before that time had and received: And being so indebted, they, the said President, Directors and Company, in consideration thereof, after-wards, to wit: on the day .and year last aforesaid} undertook, and then and there faithfully promised the said Jacob and the said Richard, administrators as aforesaid, to pay them the said sum of money laA mentioned, whenever afterwards they the said President, 'Directors and Company should he thereunto afterwards •réquested. Yet the said President, Directors and Company, not . ¡regarding their said promise and undertaking, so.as aforesaid made, hut -contriving and intending to deceive and .defraud the said Samuel Jacobs in his life-time, and the said Jacob and the said Richard, as administrators as aforesaid after the death of the said Samuel Jacobs, in this behalf, hath .not .as yet paid the said sum of money, or any part thereof, to the said Samuel Jacobs in his lifetime,' or to .the said Jacob and the said Richard, as .administrators as aforesaid, since the death of -the said Samuel Jacobs, although to do the same, afterwards to wit: the second day of January, in ¡the year of our Lord one thousand eight hundred and twenty-four, af the cpunty of Lancaster, aforesaid, they .were required.; but the same to pay to them, the said Jacob and the said Richard, as .administrators as aforesaid, they the said President, Directors and Company have hitherto .wholly refused and still refuse to pay .the same, or any part thereof, although often requested so to do — To,the .damage of the said Jacob M. Haldeman grid Richard T. Jacobs, as .administrators as aforesaid, in the sum of seven thousand dollars. ,
    And therefore they bring this suit, &c.

    JOHN DOE and ) RICHARD ROE, \

      Pledges of Prosecution,

    And the said Jacob M. Haldeman arid Richard T. Jacobs, bring • .here into court the letters of administration in due form of law, which .give sufficient evidence to the said court here, of the grant of administration to the said Jacob and said Richard as .aforesaid.
    The pleas were non assumpsit, and payment with leave &c, replication, non solvit. Issues.
    The plaintiffs, to maintain the issue on their part, called Mr. ■Ogilby, the cashier of the- bank, to whom the six' checks were exhibited, and w.ho said, “ I presume these are the same checks' I gave to Mr. William, Coleman-. I believe the checks to be the same:” They then offered ¡to read the checks to the jury; to which the defendant objected, which objection was overruled by .the court, .and the evidence admitted, which formed -thcjfo'si bill of exceptions.

    Herieral Foster, being sworn as a witness, -and having said, that Re was well acquainted with the -hand-writing of Samuel Jacobs: 'The plaintiffs proposed to ask him this question: “ from your knowledge of -the hand-writing of Samuel Jacobs, -and from comparing the check of March 22d, 1819, with those parts of the check of Jan. ’20th, Jan. 21st, Feb. 4th, March 1st, and March 21st, 1819, which ypu have stated to be in his hand-writing, what is your opinion and belief as to the signature and body of the check of March 22d, 1819, being in the hand-writing of Samuel Jacobs,”— to which the defendant objected, but the objection was overruled and.eyidence given, which formed thejecond bill of exceptions.

    T.he plaintiffs then offered to prove, “that John Eberman is and has been cashier of the Farmers1' Bank of Lancaster for 12 years — that ■Wm. White was cashier of .the Lancaster Bank far seven years prior to October, 1824 — that John Schmidt .is and has been cashier of the York Bank for teii years — -and that the said Eberman, ■White and Schmidt, are and have been for .the said number of .years, experienced and, skilled-in the examination of bank notes, checks and other writings, with a view,and for the purpose of detecting forgeries..” And to prove by said witnesses that in their opinion .and belief, the check of 22d March, 1819, is not .the hand-writing of Samuel Jacobs, nor any part thereof — said opinion and belief being formed fr.om comparing the said check with the signature and whole check of January 20th, 1819. — the signature .to the check of'January 21st, 1819— the signature and whole check of February 4th, 1819, excepting •the marks and figures at the head •“$350=00” the signature to the check of March 1st, 1819, and with the whole check of 21st March, 1819: which have been testified by John Forster, Henry Alward and Joseph Wallace, to b.e in the hand-writing of Samuel Jacobs, and .that in their opinion -and belief the part of the check of March 22d, 181.9, which is in writing, is zoritten in an imitated character or traced hand.” — To all which the defendant objected, but the court admitted .to go in evidence, that part of the offer, which •is in italic letter, which formed the third bill of exceptions.

      John Eberman was then sworn, and said, “that he had been cashier of the Farmers’ Bank of Lancaster eleven years, that he was often called upon to detect forgeries,” — as to the check in question, he said, “from the appearance of this check I could not «ay that it is imitated: I never saw Mr. Jacobs write;, I do not know his hand-writing at all.” The witness was then shewn the check of the 21st March, 1819; and the plaintiffs offered to prove by him, “That in the beginning of the year. 1824 or about that time, this check of the 21st March, 1819, with the other 5, were exhibited to the witness. That at that time, in the word March, the h had a singular turn at the end of it, which the witness will describe — that the witness was not certain whether it was «ink or some other substance which adhered to the paper — that the witness touched it with his pen-knife to ascertain what it was, and it came off — the mark of it being yet visible or nearly so on the paper; and that the said mark was precisely similar to the mark at the end of the h, in the word March, on the check of 22d March, 1819, for two thousand five hundred dollars,” which was objected to,.objection overruled, and testimony admitted; which formed the fourth bill of exceptions. ■ •
      John Schmidt, the witness mentioned in the third bill of exceptions, as to the check in question said, “I would not undertake to say whether that be a traced or fair hand; I should suppose it a slow hand; I would consider it a stiff hand. It would be necessary for me to compare it with other writing to ascertain whether it is a traced hand or not; I am not acquainted with the hand-writing of Mr. Jacobs.”

      William White was not sworn at all.
    The plaintiffs then offered to prove by Christian Brubaker, that in the winter or spring of 1819, as executor of one Kyser, he sold a plantation to Samuel Jacobs, for four thousand dollars, payable on the 1st April, 1819; that witness wanted money to loan to his brother, and went to Mr. Jacobs and got in advance one thousand dollars, on the 22d March, 1819, by a check on the Office of Discount and Deposit at Lancaster, here shewn, and erroneously dated 21st March, 1819; that soon after that, Mr. Jacobs got sick, and witness never saw him again; witness went to his house or office, on the 1st April, 1819, but found him so sick that he did not see him; the balance of the money due witness, was paid in cash by William Coleman, after Mr. Jacobs’ death,” — which evidence was objected to by the defendant, the objection overruled by the court, and testimony admitted, which formed' the fifth bill of exceptions.

    The plaintiffs having closed their testimony, the counsel for the defendants before they proceeded to open their case, moved the court to withdraw from the consideration of the jury, the six checks given in evidence, on the ground that they had not been legally identified; and to overrule all the evidence given on the part of the plaintiffs, except that contained in the first twelve lines of the Judges notes of Mr. Ogilby’s testimony, Which the court refused to do, and which formed the sixth bill of exceptions.

    The defendants to maintain the issues on their part, now oiler after the evidence already given, the inventory exhibited on the 22d May, 1819, by Wm. and James Coleman, executors of Samuel Jacobs, deceased, to the Register of the county of Lebanon, and also the administration account of the said executors, exhibited 1st December, 1820, and finally passed and confirmed on 3d January, 1821, and in connection with those, a receipt and acquittance from Jacob M. Haldeman and Richard T. Jacobs, administrators de bonis non then appointed, bearing date 3d January, 1821, the said receipt and acquittance having been given by the said administrators de bonis non to the aforesaid executors,” to which the plaintiffs objected, the court sustained the objection, which formed the sevetith bill of exceptions.

    The defendants’ testimony being closed; the plaintiffs made the following offer “The defendants having given 5,n evidence by Mr
      Ogilby, that the chedj of two thousand live hundred dollars, was paid to a hoy; the plaintiiis now offer to prove that Chrisbiaji Brubaker sent his check of one thousand dollars, dated 21st March, 1819, to the bank, by a boy out of Ober and Kline's stove — that the hoy who went to the hank for the money was about 12 or 14 years of age, who returned in a few minutes and brought the money with him,” to which the defendant objected, the objection was overruled, and testimony admitted, which formed the eighth bill of exceptions.

    The testimony being closed, the defendant propounded to the court, the following points, upon which they were requested to charge the jury.
    1. That after probate of the will and a grant of letters of administration, an executor is the only legal representative of the testator, for the purpose of settling his estate. That in the settlement of the personal estate, at least, his powers arc limited only by the laws of the land, or by an express restriction in the will. That he may collect debts and pay creditors, settle or compound- for outstanding accounts, and that so far as regards the debtors and creditors, the settlement is final and conclusive, and can never he enquired into or overhauled by any succeeding executor or administrator de bonis non.

      2. That an administrator de bonis non is confined by his very appointment, to the administration, of such portion of the estate, as was unadministered by his predecessors.
    3. That as it is an uncontradicted proof, that W. Coleman, one of the executors duly appointed of Samuel Jacobs, deceased, did on the 5th June, 1819, settle the accounts of his testator with the office of Discount and Deposit at Lancaster, and approved, of its correctness; and at that time received and took into his possession all the checks then remaining in the said office; including, the one dated 22d March, 1819, the subject-matter of this suit; and as he on 2d July following, after full knowledge of the suspicions entertained by some of the heirs as to the genuineness of the above mentioned check, drew by his check of 2d July, 1819, in the name of Wm. Coleman, executor of Samuel Jacobs, deceased, the whole balance then due to his testator by the said office, viz: two thousand .five hundred eighty-seven dollars and sixty-nine cents: and afterwards deposited the same to the credit of Wm. and James Coleman, executors of Samuel Jacobs, deceased1; that this was such- a settlement as must completely protect the present defendants.
    4. That as it is in express proof, by the letter of administrations de bonis non given in evidence by the plaintiffs, that subsequently to the 2d of July, 1819, the date of the settlement with the office of Discount and Deposit as sSt forth in the preceding point, Wm. and James Coleman, executors of Samuel Jacobs, deceased, settled their administration account on the said estate, and that the same was approved of by the orphans? court of the county of Lebanon, before they were discharged from their trust as executors aforesaid; and as the said account remains until this day in full force and unappealed from, that this is such an administration of this part of the assets, as must entirely prevent the present plaintiffs from recovering in this suit.
    5. That as the money, the subject matter of the present suit, was voluntarily settled for, and paid by the executors of Samuel Jacobsf deceased, to the present defendants,- and by them received without any fraud or unfair practice, it could never be recovered even by the executors^ themselves, and a fortiori not by the administrators de bonis non.

    6. That it is well settled as a general rule of evidence, that the best evidence the nature of the case will admit of, must be produced; and as it is in proof that William Coleman, to whom Joseph Ogilby the witness, delivered the checks, was present, attending the trial of this cause; and as the plaintiffs have not thought proper to call him to prove the identity of the six checks read in evidence to the jury, and particularly the check of 22d March, 1819, for two thousand five hundred dollars, now alleged to be counterfeit, and to recover the amount of which, with interest, this suit is brought; the plaintiffs therefore cannot recover’, and the jury must find for the defendants.

      7. That the belief of the three witnesses, Joseph Ogilby, John Elder and George Beckel, as to the identity of the check of 22d March,-1819, is not evidence, that it is- the same check that was paid by Joseph Ogilby; the plaintiffs must prove the actual fact of identity, and not having done so, they cannot recover in this suit.
    8. That mere belief is no evidence, except from necessity; and when the party has it in his power to prove the actual fact, he must do so, and nothing short of that is evidence. — And wherever there is an allegation of forgery, as in this case, it is indispensably necessary to prove the identity of the thing alleged to be forget); and as the plaintiffs (if the fact were so,) had it in their power to prove that this was the identical check paid by Mr. Ogilby, and have not so proved, they have failed to maintain their action and the verdict must be in favor of the defendants.
    9. That the opinion and belief of witnesses, in regard to the genuineness of writing, must be founded upon the impression made upon their minds by the hand-writing itself; and opinion or belief founded not upon this, but upon extrinsic circumstances,is prima facia evidence of- the genuineness of the instrument in question.
    •WILMAM JENKINS,
    JOHN R. MONTGOMERY.

      Charge of tub Court. — This is an action on the case, brought by the administrators de bonis non, of Samuel Jacobs, deceased, against the Bank of Pennsylvania, to recover from that institution, two thousand live hundred dollars, which the plaintiffs allege was improperly credited to the bank, in the deposit account of tho deceased, on'a check which I hey allege is forged, dated on tho 22d March, 1819, for that sum.
    £ Administrators de bonis non, are administrators after the first administrators or executors of a deceased have died, or have been discharged by the proper authority from their trust. Their office is to administer the goods and chattels of the deceased, which have not been administered by the first administrator or executor; and one of the questions that arise in this cause, of which the court will give you their opinion presently, is, whether the money in question lias been administered upon by William and James Coleman, who were the executors of the will of the deceased.
    1st. point. The executors of a deceased are, during their continuance in office, the only representatives of the deceased, in relation to his personal properly, and in the discharge of their trust in settliug and managing the personal estate, their power is limited only by the law and the will of the testator, whom they represent. Thpy may collect debts, pay creditors, and settle and compound for outstanding accounts. In this case the defendants contend, that the executors on the 5ih of June, 1819, made a settlement of the account between the estate of Samuel Jacobs, deceased, and the hank; and that on the 2d of July, afterward;;, they recognized the settlement, by drawing from the bank the balance due on the books of the institution, and depositing it to their credit as executors. That in the settlement there was comprised, as one of the items of credit to the bank, the sum of two thousand live hundred dollars, which the hank had paid on the check' of the 22d March, now alleged to he forged. The plainliils deny that this was a final settlement of the accounts between the bank and the estate, and allege that no examination of the items took place by the executors who made it, and contend that it amounts to no more than receiving on their part, from the hank, what appeared due on its books. Whether the executors, or any one of them, did examine the account and approve of il, and make a final settlement, is a matter of fact for your consideration. If they did not make a final settlement with the hank, hut only received from the institution what appeared to be due on its books, then, if the check in question he a forgery, and ¡Le hank has taken credit for u, and has not paid it to the execuUnr>~ the two Ihoiu.ind five 1 mud ml dollars in question, are a part ol'lhe estate of the dacra.vd, which wee net administered upon by ‘h*1 cxccidox'A and mav be teem crou in (his action.

      A settlement made by an executor, between the estate of the testator and one who is indebted to it, is so far final and conclusive upon the subsequent administrator de bonis non, who is appointed after the executor resigns or dies, that he cannot overturn it, unless he can shew, by clear and satisfactory evidence, that there was a* mistake in such settlement, or some fraud practised on the executor, by which such debtor obtained a credit against the estate, to which he was not in law or justice entitled. If he can so make out such mistake-or fraud, the administrator de bonis non, may recover the amount of such mistake, as goods of the deceased which have not been administered by the .executor. To apply this rule to the present case. If the jury are satisfied, that the check in question of the 22d.of March 1819, for two thousand five hundred dollars, is the same check for which the b.ank, in the settlement -with the executors got a credit of that sum; if they are also satisfied that the check is a forged paper, and that in the settlement, the executors of Samuel Jacobs supposed it to be genuine, and under that mistake on their part, it was credited to the bank; then the two thousand five hundred dollars, in the check mentioned, may be recovered by the present plaintiffs, as so much of the estate of the deceased Samuel Jacobs, which did not come to the hands of his executors, and was not administered by them.
    2d point. The administrator de bonis non, is confined by his appointment, to the administration of such portions of the estate, as were unadministered by his predecessor.
    3d point. In answer to the third point, the court say — whether the facts be as they are stated in this point, the jury must judge— but taking them to be all true, as they are stated, it does not follow, as an unconditional conclusion of law, that the plaintiffs cannot recover. If such fraud or mistake happened in the settlement, if one wa3 made, as. the court has mentioned, .and the jury are satisfied of the identity of the check in question — that it is forged, and that it was credited in the settlement by the executors under a mistaken idea that it is genuine, as the court has already said, the plaintiffs may recover.
    If the jury be of opinion, that the executors did, on the 5th of June, 1819, make a settlement of the account between the estate and the bank, and that afterwards, on the 2d of July, 1819, and after they had their attention drawn to the subject, by being informed of the suspicions of some of the heirs that the check in question ‘was a forgery, they confirmed it — they will take it into consideration, together with the lapse of time from July, 1819 before, the bringing of this suit, when they come to make up their opinion on the question, whether the check of 22d March, 1819, is a forgery or not.

      4th point. In answer to the fourth point the court say — -That the recitals in the letters of administration de bonis non, given in evidence by the plaintiffs, must be taken to be true. They show that before the granting of them, the executors had settled their account, as stated in this point. The presumption of law is, that the account, so settled by the executors, contained a full and perfect account of all the assets of the deceased, which had come to-their hands at the time they were discharged from their trust, and. that it was duly settled and approved by the proper authority. Whether the settling of the administration account by the executors, as stated in this point, was an administration of the part of the assets of the deceased, now in question in this suit, depends- on-the fact, whether the two thousand five hundred dollars, mentioned!' in the check in questipn, had previously to that time, come to the hands of the executors. If they had received the money in question from the bank, the plaintiffs could not recover in this suit,, whether they charged themselves with it in their administration account or not. If they charged themselves with it in their administration account, settled by them, they have administered on it, ' and the plaintiffs cannot recQver, whether they have received it of the bank or not. If they neither received it from the bank, non charged themselves with it in their account, then the settling of an account as mentioned in this point, would not be an administration on this part of the assets of the deceased, and the plaintiff is not, on that account, prevented from recovering.
    5th point. In answer to the fifth point the court say — Where money is paid by one man to another in such circumstances, that the party who receives it may, in good faith and conscience retain it. But when a bank has credit allowed to it in a settlement with-.an individual, for a check it has previously paid out, this is no payment by the individual to the bank, whether the check be genuine or forged. If it be a genuine check, the bank of course cannot be called on again for the money — if it be forged it can,.
    Gth point. To the sixth point the court say — In a prosecution for a forgery of a bank note, it is necessary for the prosecutor to show, either that there is some particular mark on the paper charged to be forged, by which it can be identified, or he must produce every person who has had the custody of it since it was: passed by the prisoner, to make out the identity. But the-court is of opinion, this strictness is not necessary in civil cases; in criminal cases the prosecutor is himself a witness, and therefore can form a link in the chain of proof of identity — but in civil cases .the plaintiff cannot be examined, and therefore if it were necessary to produce as a witness in court, every person who has had custody of the paper, when it had come to the hands of the plaintiff, the identity could not be made out, except in cases where some particular mark had been put on it. Secondary evidence is such a3 indicates, that there is better evidence behind, in the power of the party, which he declines to produce. Whether William Coleman could have identified the cheek in question better than the witnesses who have been examined, is entirely contingent —they bad passed out of his hands into the hands of the plaintiff. The court is therefore of opinion, that the pLdntiffiwere not bound to produce William Coleman, to prove the identity of the check in question. Whether they be the same checks which were by the ■ bank delivered by William Coleman, is a matter of fact, which must be submitted to the jury.
    7th point. In answer to the seventh point the court say — Merc belief of a witness unacquainted with the matter touching what is to be examined, is certainly no evidence. The witnesses who speak on the subject of the identity of the check of the 22d March, 1819, are the cashier of the hank, J. Ogilby, and George Beckel, who was at the time a clerk in the institution; both of whom had seen it in bank, and John Elder, who had seen it while it was in the custody of William Coleman. You have heard what these witnesses have said on the subject The fact that the check given in evidence of the 22d March, 1819, is the same, or whether the hank had the twro thousand five hundred dollars in question in this suit, is an important one in this cause, and before the plaintiffs can recover, they must make it out by clear and satisfactory evidence. If the evidence before you, satisfies your minds of the fact, that the check given in evidence is the same check, you may find it without anymore positive proof: If you are not satisfied of this fact, your verdict ought to be for the defendants.
    8th point. The court have already in substance answered this point. The court have submitted to you, the question of fact in relation to the identity of this check of 22d March 1819, as well as of the other checks. It is for you to judge, whether the evidence gives you entire satisfaction or not. , If it does not, you ought to. find for the defendants; if it does, then you will find the fact of the identity, as the court have referred it to you.
    9th point. The opinion of a witness in regard to the genuineness of a writing, must he founded on impressions made on his mind by hand-writing itself. When a witness is called who knows the hand - 'writing of the person whose name is alleged to be' forged, and he is of opinion, without referring to facts extrinsic of the writing, thatit is a genuine paper, his evidence must go to the jury a3 prima facia evidence of the genuineness of the paper. If such a witness cannot say, on examining it, whether it is genuine or not, without recurring to extrinsic meto in relation to it, it proves cither Unit it is the hand of the person who purports to have written it, or that it is so good an imitation, that it is very difficult to discriminate between it and the genuine writing of the person. /
    Finally, the case submitted to your consideration is an important ■ one, not only on account of the amount in controversy, but on account of the nature of the facts which you are to determine. The plaintiffs allege, that the chock in question, of the 22d March, 1819, is the same check on which the hank paid out the two thousand five hundred dollars, for which the suit is brought; and •that it is a forgery. If they have made out these facts by evidence which satisfies your minds, they can recover; hut if they have failed in proving either of them, to your satisfaction, they cannot recover.
    In this court the following errors were assigned:
    1. The court erred in admitting in evidence, the checks objected to by the defendant’s counsel, and enumerated in, and made the subject of the first bill of exceptions.
    2. The court erred in permitting the plaintiffs to give in evidence, the matters contained in, and made the subject of the second hill of exceptions.'
    3. The court erred in permitting the plaintiffs to give in evidence, that part of the offer marked in italic letter, and recited in, and made the subject of the third bill of exceptions.
    4. The court erred in permitting the plaintiffs to give in evidence, the matters contained in, and made the subject of the fourth bill of exceptions.
    5. The court erred in permitting the plaintiffs to give in evidence, the matters contained in, and made the subject of the fifth bill of exceptions.
    6. The court erred in over-ruling the motion made by the counsel of the defendants, and contained in, and made the subject of the sixth bill of exceptions.
    7. The court erred in refusing to allow the defendants to give in evidence the matters contained in, and made the subject of the seventh hill of exceptions..
    8. The court erred in admitting in evidence, on the part of the plaintiffs, the matters contained in, and made the subject of the eighth hill of exceptions.
    9. The court erred in their answers to the first, third, fourth fifth, sixth, seventh and eighth points, proposed by the counsel for the defendants.
    10. There is a misjoinder of counts in tho declaration, and the general verdict rendered thereon is erroneous.
    11. The declaration sets forth no cause of action on the part of the plaintiffs.

      Montgomery and Jenkins, for plaintiff in error.
    1st bill. Mr. Ogilby having parted with the possession of the checks, and they having passed into the hands of several persons afterwards, his testimony was not sufficient so to identify the checks, as to make them competent evidence to go to the jury. If a witness who identifies a forged paper has parted with the possession of it for a time, the person into whose possession it was put by him, must be called. Commonwealth v. Kinnison, 4 Mass Rep. 646.

      2d bill. Although the witness had seen the testator, Mr. Jacobs, write, and knew his hand-writing, yet he was permitted to answer the question, not predicated upon his knowledge, but upon the comparison of the hand-writing in the check in question,-with other checks admitted to be genuine.. A comparison of hand-writing is never allowed, except in corroboration of testimony derived from knowledge of the hand-writing. It is never admitted of itself, to destroy, but to support other testimony. Morris’ Peake’s Ev. 154. Jackson ex deems v. Vaudusen, 5 Johns..Rep, 144. Vickroy V. Skelly, 14¡,Serg. Sf Rawle, 372. Decosia v. Pirn, Appendix to Peake’s Ev. 42.
    3d and 4th bills. The testimony admitted was, that of an expert in judging of handwriting. This point is new in Pennsylvania, and that very circumstance is a strong argument against the necessity of adopting such a rule of evidence. The ordinary ties which induce many witnesses to speak the- truth, will not operate upon the mind of ah expert — if he falsifies he need not fear detection; for he does not speak of facts, but his own opinion. It would be dangerous to create such a class of witnesses, who would be operated upon by their own fancied ingenuity or dexterity in detection. The doctrine is repudiated in 2 Stark. Ev. G58.
    5th bill. Circumstances unconnected with the paper- alleged to be forged, is incompetent evidence. Morris’ Peake 154.
    6th bill. It is competent for the court to withdraw illegal evidence from the consideration of the jury — and that the evidence was illegal, is argued in the foregoing bills.
    7th bill. It had appeared in evidence, that at the time the inventory was taken, Mr. Haldeman, one of the present plaintiffs, who is also one of the heirs, was present, and saw the balance struck in the testator’s bank-book, predicated upon the allowance of the amount of this check to the bank — and the testimony offered and rejected by the court, was for the purpose of establishing the fact, that he had acquiesced in that settlement, by permitting the administration account of the executors to be settled; without objection; predicated, as to that párt of the administration, upon the settlement made by Mr. Coleman, with the bank several years before, ' which ought to have had a powerful influence upon the jury.
    8th bill. The testimony was not rebutting.

      9th bill. (To the charge of the court.)
    1st, 2d, 3d, and 4th points. The duties of an administrator dc bonis non, are limited to the management of such goods of the testator or intestate, as have not been administered by the executor or previous administrator, or mixed with his own; and therefore the subject matter of this suit having been acted upon and settled by the executor, the administrator de bonis non, has no power over it. 3Bac. Ab. 19. Grout v. Chamberlain, 4 Mass. 611. .If the executor erred in that settlement, the heirs may look to ,him to correct that error as it respects their interest. Allen v. Irwin, 1 Serg. ■Sp Rawlc, 549. The act of an executor is conclusive upon all persons interested in the estate. Jacob v. Harwood, 2 Fes. 267. Nugent v. Giffard, 1 Atk Rep. 463. Moore’s Cases, 494. In Pack-man’s case, 6 Coke 19, it is decided that the act of an executor, although fraudulent, is binding against the second administrator, but it is otherwise as to creditors. If there had been collusion between the bank and William Coleman, the executor, or if it had been a mere gift by the latter to the former; the heirs or legatees may pursue the fund into the hands of the bank, but there is no necessity for the interference of the administrator de bonis non, for the fund has already been passed upon, administered, by the personal legal representative of the estate. Pet-re v. Clark, 11 Serg. <jRawle, 377. Shiner 143. Com. Dig. 271. title Administrator. 2 Eq. Ca. Ab. 424. If an executor settles a claim of the estate, and takes from the debtor his note for a balance due, the administrator de bonis non, can never recover that balance from the executor or his representative. Wankfard v. V/ankfard. 2 Salk. 306. 2 Fentris, 562. Fernon, 173. Upon the settlement between the bank and the executor, taking the mistake for granted, the bank had and received the money for the use of the executor, and on this gound, the administrator de bonis non, cannot recover.
    ' 5th point. When the settlement took place between the executor and the bank, each party had a full knowledge of all the' facts; and upon that knowledge the executor exercised his discretion and allowed this check to be credited to the bank; and the matter thus rested for four years and upwards, by which the bank was lulled into security, and all hope of detecting the forger and saving itself was gone when this suit was brought;— may not the defendant, under these circumstances ex equo et bono, now refuse to pay the money. On this point were cited Levy v. The Bank of the U. States. 1 Bin. 27. Morris v. Turin 1 Dal. 147. Rapalge v. Emory, 2 Dal. 51. Money cannot be recovered from a defendant, which good conscience does not require him to refund. Willing v. Peters, 12 Serg. dp Rawlc, 177. Dicchman v. Northampton Bank, 1 Rawlc, 54. '

      Gth, 7th, 8th and Oth points — have been argued in the first, Second and third hills of exception.
    There is a misjoinder of counts in the declaration. The promise to pay is the subject matter of the action, upon which the right to ■recover must depend — the first count lays the promise to have been made by the defendant to Samuel Jacobs, in his life lime — the second lays it to have been made to his administrators, the present plaintiffs, in 1823. Such counts cannot he joined. 2 Savnd, 117. Bonnet v. Verdeen, 2 Ld. Iiaym. 841. 1 Arch. Frac. 59 — 60. 2 Bonn’a Prac. 397. In all cases of promises made to, or by an executor or administrator, after the death of the testator or intestate, the action is personal, and therefore different from an action upon a promise by, or to the testator where the action must he in the representative character. Grier v. 1 fusion, 8 Serg. Sf Rawlc, 402. Wolfersbagar v. Bucher 10 Serg. ¿y Rcrnlc, 11-13. The misjoinder is not cured by the verdict. Slrucckcrv. Grant, 16 Serg. 4' Rascle, 237.
    Suppose the verdict to have been for the defendant, what would he fhe judgment thereon as respects costs? On the first count the judgment for costs would have been against the estate: — On the .second, it would have been against the- administrators personally.

      Porter and Elmaker, for defendant in error.
    1st. hill. The identity of flic checks was a matter of fact for the jury, and the court could not have withheld them on the ground, that siifficicnt evidence had not been given to satisfy the jury that they were the same which the executor had received out of hank. The checks had been in the possession of the plaintiffs in this suit, who could not have been examined. The Commomrealth v. Khinison, 4 Mass, 646, is a criminal case, wherein strictness is required, and is not applicable to this principle involved in a civil suit. It was alleged by the plaintiffs that the check of the 22d March, 1819, in question, was made in the hank, by tracing the hand-writing of Mr. Jacobs from the other checks, hence the im ■ portanco of letting all the checks go to the jury.
    2d bill.'jThe evidence offered, and to which exception was taken, was not matter of opinion derived from a comparison of hand-writing; but was the judgment of the witness, predicated upon his knowledge of the hand-writing of Mr. Jacobs, aided by a comparison of the alleged forgery with genuine sky.natures: being a much ■ stronger and more satisfactory kind of evidence than knowledge without the aid of a refreshed memory. The case of Vickroy v. Kelly, 14 Sergt. 4- Rawle 872, is that a comparison of hand-writing alone, is not evidence in case of a public officer, from which the inference is strong, that if connected, asm this case, with actual knowledge of the hand-writing, it is good evidence. On this paint, were cited Farmers’ Bank v- V/lúlykAl. 30 freer. 4 P.oKc. 110..
      Homer v. Wallis, 11 Mass- 309. But what rendered the-evidence-peculiarly proper, was that we alleged that the check in question was traced from the other checks.
    3d bill. A person who is an expert may be permitted to testify whether a writing is a traced hand or original and genuine. Lodge-v. Piper, 11 Serg. Ramie, 333. Hubly v. Vanhorn, 7 Serg.. Ramie, 185. But even if the court of common pleas should have been in error in the admission of this evidence; under the circumstances this court will not reverse the judgment on that ground, for no evidence was given by the plaintiffs in pursuance of their offer, by which the defendant was prejudiced.
    4th bill. The evidence offered was merely to shew the original state of the check of the 21st March, 1819, from which as to the word “ March,” wej alleged the check in controversy was traced.
    5th bill. It would be strange, indeed, if no evidence dehors the paper alleged to be forged, would be competent to prove the-forgery. Other evidence may be absolutely conclusive, such as-proof that the person whose name is alleged to be forged, was sick,, had his arm broken, was out of the county or was under some other disability; and the circumstance of evidence being clear and' satisfactory upon the point of inquiry, is a good reason to conclude that it is legal.
    7th bill. This evidence was irrelevant — there is no mention-made, either in the inventory or administration account of the check in question or the money in the bank of Pennsylvania — the inventory was made on the 22d June, 1819, and the settlement with the bank not until the 2d July following. The evidence would have had a tendency to embarrass, rather than to elucidate the case.
    8th bilk If it was important for the defendant to give in evidence, by Mr. Ogilhy, that the check in question was paid to a boy; it was equally important for the plaintiffs to prove that Mr. Ogilhy was mistaken, that it was another check, in favour of another person, that was paid to a boy; which was the evidence offered and given.
    9th bill. (To the charge of the court.)
    As to the duties of an administrator de bonis non, were cited the Stat. 17 Chas. II. which is in force in Pennsylvania. Turner v. Davies, 2 Saun. 149. 3 Bac. Ab. 20. When an executor actually administers a fund or part of the assetts of the estate, the administrator de bonis non would afterwards have nothing to do with it; but the money now claimed by the plaintiffs never was administered by the executors; on the contrary, they disclaimed having any thing to do with it, “ unless the heirs would furnish them proof to establish their right to recover it,” which was not done. Certainly, if the heirs had furnished that proof to the executors- at any time before they went out of office, they could have maintained the action, and if the right of action existed in the executors when they went out of office, it survives to the administrators de bonis non. An executor; having in his possession a bond due to his testator, demands the amount from the obligor, who produces the receipt of the obligee in full, with which the executor is satisfied, and so expresses himself: can it be, that, after, the death or resignation of the executor, the administrator de bonis non, upon the discovery that the recipt is a forgery, cannot sustain a suit upon the bondl That case and the one before the court seem to be parallel as respects this point. If then the facts turn out to be such, as that the money is recoverable from the bank, who but the administrator de bonis non can sustain the action 1 — not the heirs, for if the estate should turn out to be insolvent they should not have the money — and not the creditors, for it could not be determined which of them would be entitled. If this suit is not rightly brought, it follows that the estate of Mr. Jacobs is entitled to the money, and has no remedy to recover it.
    10th error. The money recovered upon either of the counts in the declaration would be assets of the estate; ‘they are therefore rightly joined. Malin v.Bull, 13 Serg. Ramie, 441. Stevens v. Gregg, 10 Serg. Ramie, 234. Strohecker v. Grant, 16 Serg. Sf Ramie, 237,
   The opinion of the court was delivered by

Smith, J.

The defendants in error, who were plaintiffs below, brought an action of assumpsit, for money had'and received, against the plaintiffs in error. The cause was tried on the pleas of nonassumpsit, and payment with leave to-give the special matters in evidence. On the trial, various bills of exceptions were taken by the defendants, to the admission and rejection of testimony, and to the charge of the court. It became necessary to decide whether a certain paper, purporting to be a check, on the office of discount and deposit for two thousand five hundred dollars, dated the 22d of March, 1819, signed “Samuel Jacobs,” payable to himself or bearer, and which was actually paid at the office, was a genuine check or not. The defendants in error alleged that this paper was a forgery, and to prove their allegation, it was necessary to establish its identity; or, in other words, that the paper offered in evidence was the same which was received and paid in bank. Mr. Ogilby, cashier of the bank, declares that the bank paid the check to a little boy, on the 29th March, 1819. Op Thursday, the 25th of March, 1819, in the afternoon, Samuel Jacobs was violently attacked with á cramp in his stomach, took to his room, and did not leave it, until he was a corpse — he died on the 14th of April, 1819. On the 5th of June following, William Coleman, one of the executors of Samuel Jacobs, deceased, took his bank-book to the bank to .ascertain the balance due him; the cashier settled the book, and returned it to him, together with this and other checks. "These checks were afterwards given to Jacob M. Haldeman, and ■by him to others. After the plaintiffs had proved, by Mr. Ogilby the cashier, Samuel Jacobs’ hank-book, the various entries of credits in it, (enumerated all in the state of the case,) the settlement made in it on the 5th of June, 1819, and that he, the cashier, presumed the checks produced to be the same checks he had given up to William Coleman, that he knew nothing to the contrary, but believed the checks to be the same, and that he had filled up the one of the 1st of March, 1819, for two thousand dollars, at the counter of the bank — they offered to read to the jury the above stated entries in the bank-book and the checks aforesaid. To this offer, so far as respected the reading of the checks to the jury, the defendant’s counsel objected. The court overruled the objection, and permitted the whole to be read — and this forms the first bill of exceptions. It is contended, that the papers admitted, had not been sufficiently identified, that the question was whether the check was a forged one or not, and that therefore it could not be read to the jury, unless all. were called in whose hands it had been, nor unless the witness had marked the check before he had parted with it. It is true the question was whether the check was forged, but that question was for the jury, and therefore the evidence offered was clearly admissible to establish the point of indentity, which was involved in it. Whether it was satisfactory and sufficient for'that purpose, it was for the jury to decide; but being relevant, the court could not do otherwise than refer it to. them, with the check, in order that they might exercise their judgments upon that point, as well as upon the principal' question. We are of opinion, that the evidence was sufficient to entitle the plaintiffs to read the checks to the jury. After the plaintiff’s had read to the jury, the several checks, six in number, including the check alleged to have been forged; and had proved by John Forster, that he had seen Samuel Jacobs write frequently — draw checks in bank; that from the opportunity which had been given to him to examine this check, (having looked again at all the six checks,) he believed no part of it to be in the hand-writing of Samuel Jacobs, and also, that he had been in. the habit of corresponding for many years with him on business — and had proved by Henry Alward, that he had seen the late Samuel Jacobs write, and that from the knowledge he had of his hand-writing, and taking every part of the check, he would say it was not his hand, and taking the whole check as it appeared,' date, filling up, and signature, he would say it was not his hand-writing — and had proved by Joseph Wallace, that he had often seen Samuel Jacobs write, had dealt with him during the years 1812, 1813 and 1814, and received many letters from him, and seen him sign receipts for money paid, and that from his knowledge of the hand-writing of Samuel Jacobs, (and after looking at the check of 22d of March, 1819,) taking the whole of it together, he believed it not genuine; the plaintiffs offered to ask Mr. Forster, “ from your knowledge of the hand-writing of Samuel Jacobs, and from comparing the check of March 22d, 1819, with those parts of the check of January 20th, January 21st, February 4th, March the 1st, and March 21st, 1819, which you have stated to be in his hand-writing, what is your opinion and belief as to the signature and body of the check of March 22d, 1819, being in the hand-writing of Samuel Jacobs.” To the offer so made, the defendant’s counsel objected, but the court allowed the question to be put, and this on the second bill of exceptions, is assigned for error. The question was properly allowed to be asked, according to the opinion of this court, in the case of the Farmers’ Bank of Lancaster v. Whitehill, 10 Serg. & Rawle, 110, in which it was decided, that comparison of hand-writing was admissible in evidence in civil cases, where it was in corroboration of other evidence, which tended strongly to support the fact in dispute. Three witnesses, Mr. Forster being one, had declared the check not to be the hand-writing of Samuel Jacobs; the proposed offer was not to establish solely from comparison of hands, that the check was a forgery, but in confirmation of other testimony already received, strongly tending to the same point, to show that the signature and body of the check of the 22d March, 1819, was not the hand-writing of Samuel Jacobs. Under such circumstances then, I apprehend, it was competent evidence to go to the jury, and after the opinion and belief of the witness was known,- for him to compare the contested signature with other writings admitted to be genuine. It would seem to me, that where a witness has seen the person write, and declares he knows his writing, he may compare it with writings, which he has seen the person write, or which are admitted he wrote, and he may give his opinion and belief on the comparison, at least such testimony, may go to the jury, who, and they only, are to compare and decide whether the witness is correct or not as to the writing in controversy. The court * below then were right in permitting the question to be asked.

I come to the third bill of exceptions. After the court had allowed the check to be thus compared with other genuine checks, .and the jury to hear the opinion and belief of Mr. Forster in rela- ' tion to it, the counsel for the plaintiffs proposed to go a step further, and to prove “ that John Eberman is, and has been cashier of the Farmer’s Bank of Lancaster for twelve years — that William White was cashier of the Lancaster Bank for seven years, prior to October, 1824 — that John Schmidt is, and has been cashier of the York Bank for ten years; and that the said Eberman, White and Schmidt are, and have been, for the said number, of years, experienced and skilled in the examination of bank notes, checks and other writings, with a view, and for the purpose of detecting forgeries, and that in their opinion and belief, the part of the check of March 22d, 1819, which is in writing, is written in an imitated •character or traced hand.” And this the court admitted them to prove, though objected to by the defendant’s counsel. It was, in fact, permitting experts, as they are called, who never saw Mr. Jacobs write, from their professed knowledge or skill in hand-writing, to prove solely, from comparison, whether what purported to be ■the hand-writing of Mr. Jacobs in the disputed check was counterfeit or not. This cannot lawfully be done. It would have been •error had the witnesses actually proved what was proposed to be proved by them. This opinion is fortified by the decision in Lodge and another v. Phipher and Lloyd, 11 Serg, & Rawle, 333. The question there was, whether a receipt in the name of Reuben Haines was forged or not; it was alleged to have been forged by a certain William Shaw, deceased. The court below permitted Israel Pleasants, on the ground of his being an expert in the examination of writings, to give his opinion, whether the receipt, and the papers proved to have been written by Shaw, were the same hand-writing. This, says the late Chief Justice, was giving very great weighty to matter of opinion, greater, I think, than it was entitled to, for Pleasants did not pretend to know any thing of the hand-writing*of Haines or Shaw, nor did he form any opinion, but from the naked comparison of hands. The judgment was therefore reversed. The case under consideration, up to the timé of' this offer, had been placed before the jury on the evidence of those who could legally give some direct testimony, and on legal proof by comparison of this check with the others. But if witnesses were to be called in, and asked'on oath, what conclusions they would draw, it would, in fact, be adding so many men to the jury, in other words,'it would be permitting others to advise the jury what verdict they should render; it would not be trying the cause by twelve men returned by the sheriff drawn and sworn, but by them, together with as many others, as a party could find, who would swear that the evidence was or was not satisfactory to their minds. It appears, however, that when the witnesses were examined, they could not, and did not prove what was proposed; for Eberman testified, that from the appearance of the check, he would not say that it was imitated; and Schmidt that he would not undertake to say, whether it was a fair or á traced hand. White was not called. So that it is evident the defendants suffered no injury from this decision of the District Court. Now in Allen v. Rostain, 11 Serg. & Rawle, 362. It is said to be a general and well known principle, that one shall not assign that for error,, from which he has suffered no injury, for the administration of justice is not promoted by reversing a judgmént for an error by which no injury has been sustained. However improper, therefore, the proposed testimony would have been, yet not being given, the opinion of the court below, as to its admissibility, -cannot foe assigned for error; nor can the judgment on this ground foe reversed.

As t® the error assigned in the fourth bill of exceptions; the plaintiffs offered to prove on' the trial the actual state of the check of the 21st of March, 1819, in the beginning of the year 1824— that at that time, in the word “March,” the letter “h” had a singular turn at the end of it, that it was then touched with a penknife to ascertain whether it was. ink or some other substance which adhered to it, and on this touch it came off, the mark of which being still visible on the paper; and that .the said mark was precisely similar to the mark at the end of the “h” in the word “ March,” on the check of the 22d of March, 1819, for two thousand dollars. In the admission of this proof I cannot perceive any error. These circumstances conduced to establish the forgery, and were therefore properly laid before the jury.

The fifth error assigned demands only a passing remark. The plaintiffs having given proof of Mr. Jacobs’ money concerns and payments, that he was a man of great accuracy in regard to his money, both as to receiving and paying it out, and that no traces could be found of having paid away this money, offered to prove by Christian Brubaker, that in the winter or spring of 1819, as executor of one Keyser, he sold a plantation to Samuel Jacobs for four thousand dollars, payable on the 1st of April, 1819, that the witness wanted money to loan to his brother, and went to Mr. Jacobs, and received, in advance, one thousand dollars, on the 22d of March, 1819, by a check on the same bank at Lancaster, offered to be shown, and erroneously dated the 21st of March, 1819; that soon after that Mr. Jacobs took sick, and witness never saw him again; that witness went to his house, on the 1st of April, 1819, but found him so sick that he did not see him, nor ask to see him, that the balance of the money due the witness was paid in cash by William Coleman after Mr. Jacobs’ death.” Why this was objected to, I am at a loss to conceive. It was evidence, even if it weighed but a feather, in the cause; when, however,-it is considered, that it was known Mr. Jacobs had bought from Christian Brubaker land for four .thousand dollars, to be paid on the 1st of April, 1819, and that he had actually paid him in advance one thousand dollars, on the 22d of March, by a check on the-same bank, it was reasonable to suppose in the absence of proof to the contrary, that he drew the check! of the 22d of. March, 1819, for two thousand five hundred dollars, for the balance of Brubaker's claim, or in order to be prepared to pay him the residue of the four thousand dollars on the 1st of April following, according to their contract, and that; therefore, the money might have been drawn by himself for-this purpose. Now to do away all idea of the kind, the plaintiffs offered to prove, that the balance of the purchase. money was not paid by Mr. Jacobs, but by Mr. William Coleman, after Mr. Jacobs’ death, and that although Mr.. Brubaker had called at the office of Mr. Jacobs for it, on the 1st of April, .yet he did not then receive it, on account of Mr. Jacobs' sickness, and consequent inability to transact business. Viewing the testimony in this light, I think it was correctly admitted.'

The sixth error has, I think, been abandoned, If not, as it is a mere repetition of all the previous alleged errors, on which the court had passed their opinion, and brings up no new matter, it need not again be considered.

I proceed then to the consideration of the seventh error. After the plaintiffs had rested their cause, the defendants, on their part, proved by Joseph Ogilby', that on the 29th March, 1819, a check, (the one in question,) drawn by Samuel Jacobs, dated the 22d of March, 1819, payable to-himself or bearer, for two thousand five hundred dollars, was presented by a boy, and paid by Mr. Ogilby to him at the bank; and that on the 5th of June following, William Coleman brought Mr. Jacobs' bank-book to the bank, and had the balance due to him struck, or settled by Mr. Ogilby, who returned Mr. Coleman the checks set down in it; that on the 2d of July next after, Mr. Coleman brought the bank-book and checks to the bank, and told.Mr. Ogilby some of Mr. Jacobs' heirs doubted the check of two thousand five hundred dollars, and thought it- not genuine, that he thereupon examined it carefully, thought it was Mr. Jacobs' hand-writing, and still thought so; that Mr. Coleman was of the same opinion, and said the heirs wished him to bring suit against the bank, to recover the money, but that he would not do it, unless they could produce some proof to him; — rthat Mr. Coleman took the book and .checks and w«nt away — that on the same 2d of July, the balance to the credit of Samuel Jacobs was two thousand five hundred and eighty-seven dollars and sixty-nine cents, that on that day tliey settled the book, and transferred the. balance to the account of William and James Coleman, as executors of Samuel Jacobs, deceased. The defendants also gave in evidence the correspondence between Thomas Elder, on behalf of the heirs, and the officers of the bank, commencing on the 20th of February, and ending on the 25th of July, 1821; and then offered, after the evidence already stated, the inventory, exhibited on the 22d of May, 1819, by William and James Coleman, executors of Samuel Jacobs,. deceased, to the Register of the county of Lebanon, and also the administration account of the same executors, exhibited the 1st of December, 1820, and finally passed and confirmed on the 3d of January, 1821, and in connection with them a receipt and acquittance from Jacob M. Haldeman and Richard T. Jacobs, administrators de bonis non, then appointed, bearing date the 3d of January, 1821, the said receipt and acquittance having been given by the said administrators be bonis non to the aforesaid executors, as appeared by the same papera; to all which the plain tills counsel objected, and were sustained in their objection by the court, who overruled the said' testimony thus offered. The defendants in error contend, that these- papers, being wholly irrelevant to the matter in issue, and only calculated to embarrass the cause, the court were right in rejecting them. In this I agree with them, for neither to the court below, nor to this court has any the least relevancy been shown. It cannot be pretended, that any of the papers show on their face, that the two thousand five hundred dollars were included, or mentioned in them, nor can any thing, relative to the bank, or this money be shown from the most minute examination of them. The plaintiffs in error, admit themselves, that the two thousand five hundred dollars, were not included in the inventory, administration account, or receipt, as their whole defence was rested on the ground that William Coleman, the executor did not receive the two thousand five hundred dollars from the bank, but allowed that sum to the bank on the settlement of the bank-book on the 5th of June, 1819. Again the third and fifth points put to the court by the plaintiffs in error aver distinctly, that the two thousand five hundred dollars were not received by William Coleman, and the fifth point says, that the money “ was voluntarily settled for and paid by the executors, of Samuel Jacobs, deceased, to the present defendants.” How then, on the defendants own grounds, could the- two thousand five hundred dollars have been included in the inventory, administration account, or receipt? The receipt is merely a receipt for so much as was in the executor’s hands. If it be said, that these papers were evidence to show that the executors had settled an account of some kind, my answer is, that this was shown fully, and admitted by the plaintiffs below, by the*letters of administration de bonis non, given in evidence by them, The recitals in those letters of administration - must be taken to be true, and show that the executors had settled an account that this account had bee?i approved by the proper court, and that they had been duly, dismissed. And this appears fully front the fourth point put by the defendants below to the court. Indeed the answer of the court to the defendant’s .fourth point, is a complete answer to the 7th hill of exceptions, about the rejection of these papers. The court in'their answer say, “That the recitals, in the letters of administration de bonis non, given in evidence by the plaintiffs, must be taken to.be true. They show that before the granting of them, the executors had settled their account, as stated in this point. The presumption of law is, .that the account so settled by the executors, contained a full and perfect account of all the assets of the deceased, which had come to their hands.at the time' they were- discharged from their trust; and that it was duly settled and approved by the proper authority. Whether the settling of the administration account by . the executors, as stated in this point, was an administration of the part of the. assets of the deceased now in question in this suit, depends on .the fact whether ■the two thousand five hundred dollars mentioned in the check in question, had previously to that time come to tfie.hands of the executors. If they had received the money in question from the bank, the plaintiffs could not recover in this suit, whether .they charged -themselves with it in their administration account or not. If they charged themselves with it in iheir administration account settled by them, they have administered on it, and the plaintiffs cannot recover, whether they have received, it. of the bank or not. If they neither received it from .the bank, nor charged themselves with it in their account, then the settling of an account, as mentioned in this point, would not bé an administration on this part of the assets of the deceased, and the plaintiffs are not, 'on that account, prevented from recovering.” The acknowleged ground of defence, both in the court below, and in this court, shows that these papers could not' have been in any way material or relevant, and therefore, there- was no error hi rejecting them.

A word as to the eighth bill of exceptions will suffice. The defendants had' proved by Mr. Ogilby, that the check of two thousand five hundred dollars had been, paid by him to a boy or young lad — the plaintiffs offered, (and as I understand it, in order to show that Mr. Ogilby was, or might be mistaken, in his recollection as to this,) to prove that Christian Brubaker■ gave his check for one thousand dollars, dated, (though erroneously,) the 21st of March, instead of the 22d of March, 1819, to his son, Benjamin Brubaker, who came to Lancaster to draw the money sometime the latter end of March or beginning of April, 1819, and when he came to Lan - caster, he thought there might be some difficulty in getting the money at bank, and therefore went to Ober fy Kline!$ store, and requested Mr. Mine to' send a boy, (then about twelve or fourteen years of age,) to the bank for the money, who returned in a few minutes with the one thousand dollars, the amount of the check. As thp evidence was intended to sliow a mistake in the recollection @f Mr. Ogilby,t or to correct the. mistake, if any, it was properly offered; nor was there any error in receiving it for-that purpose. •

Having thus disposed of all the errors assigned respecting the admission and rejection of evidence, I, will proceed to consider the ■errors-assigned in' the answers.of the court to the points-proposed h)1- the counsel for the< defendants. These were nine in number, and the court were requested’ to reduce their answers to writing and file them of record. This the court did, and in my opitiion, answered fully and very satisfactorily, each and every point. The first,, second and third points, all relate to one subject, to wit), on-whom the settlement of the. estate of persons dying testate or intestate devolves, and also whether an administrator de bonis non, is confined to the administration of that portion of the estate which was left unadministered by his predecessors. The court below-answered that the settlement of such estates belongs to,,and devolves on the executors, and the administrator de1 bonis non,, is confined to. the estate unadministered by them. I subscribe .'entirely to the correctness of the answers of these three points. If an executor settles an account between the .decedent and a third person, and then introduces it into his administration account, the administrator de bonis non has nothing to do w;ith the transaction, because,, the executor having once received' a credit' for it, '(or if he he charged with it,) it is to be considered'as belonging to that portion of the estate which has been administered by him; but if on the other hand, the executor has omitted to make such settlement, or left it out of his administration account for any. cause, then the-other may, indeed must, proceed to collect or pay, in other words, administer the claim or demand. If William Coleman and his co-executor administered the two thousand five hundred dollars, then the administrators, de bonis non, could not interfere with, nor touch the matter.. And so, I understand, the court below stated the law to the jury; at the same time leaving the facts arising on the evidence on these points, entirely to the decision of' the jury. In this there was no error. '

In considering the Seventh bill of exceptions I have already said, that the answer of the court to the fourth point was correct, and it was therefore only necessary to declare, that there is no cause for reversing the judgment on this ground.

The answer of the court to the fifth point was correct. It is . true where money is paid to one, without fraud or unfair practices, the party who receives it, may in good faith and conscience retain it, although he could not have recovered it by law. The law is so-laid down in innumerable cases; but here there was no such payment to the bank as has been stated, in considering the seventh bill of exceptions. The bank could not enforce against Mr. Jacobs the payment of this check, and as it was not actually paid to the bank, nor according to the opinion of the jury, who had to decide the fact, allowed in any settlement, to the bank, I think the bank cannot, in equity and good conscience, retain the money, and that this case does not come within the decisions cited by the counsel for the plaintiffs In error.

The sixth, seventh and eighth answers have been considered and declared not to be erroneous. They need not again be considered. This then disposes of all objections made to the charge of the court. One more error remains to be adverted to. It is contended that there is a misjoinder of counts in the declaration filed in the cause, and that the general verdict rendered thereon is, therefore, erroneous. The first count lays the indebtedness to the testator Samuel Jacobs, and a promise to him, in his life-time, to pay him the sum of money. The second count lays the indebtedness to the administrators, and the promise to the administrators to pay them, &c. There is a general judgment on both counts. I should not be disposed to reverse the judgment on this ground, after a full and fair trial on the merits, unless it were clearly required by some principle of undoubted applicability; but there is no such principle; on the contrary, this court, in the case of Stevens v. Gregg’s Administratrix, 10 Serg. & Rawle, 234, has in fact, decided that counts like these may be joined, and has given the true guide in the following plain and intelligible direction, that “ wherever the funds to which the money and the costs are to be applied, or out of which the costs are to be paid are the same, and the money when recovered, would be assets, then the counts may be joined.” See 16 Serg. & Rawle, 242, to the same point. In this case the money, if recovered on either count, is assets, the plaintiffs look for nothing in their own individual right, but declare in their representative character, and the counts may, therefore, be legally joined. The judgment must, in the opinion of a majority of the court, be affirmed.

Judgment affirmed.