Ball v. . Felton ( 1858 )

The action is assumpsit, on a special promise, and was tried on the general issue. The case was: The plaintiff and Thos. B. Long, were partners in trade, and in November, 1855, the plaintiff sold his share to Long, and the latter covenanted that he would pay all the debts of the firm, and would repay to Ball all sums he, Ball, should be compelled to pay for, or on account of, the firm. Long died intestate in the autumn of 1856, and the defendant became his administrator, and soon afterwards the plaintiff informed the defendant, that he intended to file a bill in the court of equity, to enjoin the defendant from applying the assets of the intestate to any other purpose until the copartnership debts were paid; and the defendant, thereupon, requested the plaintiff not to file the bill, and promised the plaintiff, that if he would not do so, he would confess judgments for a part of the partnership debts to the amount of $2000, and pay the same, and the plaintiff assented thereto. In pursuance of the agreement, the plaintiff and the defendant, as administrator, confessed judgments to creditors of the firm, to the amount of $2000, and executions issued therefor; but the defendant refused to pay any part, alleging that he had no assets, and the plaintiff paid the whole, and brought this action. Thereon, the Court held that the plaintiff could not maintain the action by reason of his higher remedy on the covenant, and plaintiff was nonsuited and appealed. The only point before the Court, is that on which his Honor gave his opinion on the trial. On that, we think clearly, there is error. An action on the covenant would have been against the defendant as administrator, and the damages would have been satisfied out of the assets of the estate. The present action is on the special promise by the defendant, and charges him personally or de bonis propriis. Thus the two actions are in different rights, and, therefore, one does not merge in the other. Judgment reversed, and a venire de novo.

PER CURIAM, Judgment reversed.