The heavy costs accumulated by a protracted litigation, have made tills suit very important to the parties; and though the two items for funeral charges amount together to but ten shillings, yet whether the Defendant be liable to pay them, depends upon principles which are not to be understood without some research. I must own that the argument, which has been able on both sides, has presented the subject in many lights which were new to me $ and, together with my own reflections, has produced an opinion altogether-different from what I have ever entertained on the subject. Notwithstanding the reasons drawn from propriety and decency, tending to shew the Defendant’s liability, the only enquiry I have permitted myself to make, is, what is the Law ? My enquiries have ended in believing that it is in favor of the Defendant.
Of the two classes of contracts, express and implied# this cannot belong to the former, since there was no debt owing from the intestate, and no engagement entered into by him. Does it belong to the latter ? It is said that it does, because the Defendant was subject to a legal liability to pay this debt, and that, in every such cáse, the law implies a promise. His liability is inferred from the language in which the duty of an executor or admin*402istrator is stated in the elementary books, with regard to the payment of debts. “ Funeral expenses, according to the degree or quality of the deceased, are to be allowed of the goods before any debt or duty whatsoever, for that is opus phm et caritatis ” — (3 Inst. 22.) “ He must observe the rules of priority in the payment of the debts; otherwise, on deficiency of assets, if he pays those of a lower degree, first, lie must answer those of a higher out of his own estate, and first he may pay all funeral charges.” — (2 Bl. 511.) li The expenses attending the funeral shall he allowed in preference to all debts and charges.’—(Toller 191.) These writers, and all others, I believe, make a distinction between debts and funeral expenses : this position is warranted by them, that if the administrator or executor pays debts of inferior dignity in preference to those of a superior dignity, of which he has notice, he shall be liable to the latter de bonis pro-priis. Funeral expenses are not a debt, but properly a charge upon the estate; and if the executor voluntarily pays them, he shall be allowed such payment before all others, because it is a work of charity and piety.
I know of no case, where an administrator is liable in his representative character, on any contract not made by the intestate; for if he is sued on a contract made by himself, though relative to the estate of the intestate, the suit must be in his own right. Declaring on an insimul computassent against an administrator, as such, is not an exception to the rule, for that raises no new debt, but is merely an acknowledgment of the old one. lie is liable as far as ho has assets, for the debts, covenants, and contracts of his intestate, .although the cause of action accrue not till after the death, as, on a bond or note which became due after that event; but there the duty is created by the intestate. But if the duty arise afte¿‘ the death of the intestate, the administrator js liable in. his prívale capacity. For rent in arrear in the. testator’s lifetime, his representative is liable in that character, *403¿nd can be sued only in the detinet, and may plead, fully administered; whereas, for the subsequent rent, he is personally liable. — (Comyn’s Digest, “ Administration,” 1‘4, B.) So if he promise to pay a debt, in consideration of forbearance or of assets, he must be sued in bis individual character; the law guarding with caution its principle, that if an administrator is liable beyond the assets, it must be by his own act, sustained by a proper consideration.
But, admitting for the present, that there is a legal liability on the Defendant, and that the Law therefore implies a promise, (which I shall presently shew not to be the case,) it may be asked, what has made the Defendant a debtor to the Plaintiff on these charges ? The Defendant’s intestate was not buried by the Plaintiff, or at her expense, and besides the sheet and pillow, there must have been other articles suitable to the sphere and condition in which Dr. Hooker had lived, and which doubtless were furnished before the state of the assets was ascertained. Every individual Who furnished any one article has the same right to sue with the Plaintiff, and to demand payment from the Defendant in preference to creditors. A man is legally liable to pay his own debts, and the Law implies a promise to his creditor that he will do so ; but if another, voluntarily and unasked, pays the debt, the Law does not imply a promise to him. In such case, assumpsit will not lie with-, out an express promise to repay it, for the debtor may have a set-off, or some good reason to resist the payment, and another person shall not pay it for him, whether he will or not. It is true, that if a party derives benefit from the consideration, it will bo evidence to the' Jury of a previous request $ as if a man pays money or buys goods for another, without his knowledge or his request, and he afterwards agree to the payment or receive the goods. But in this case, there is no reason to believe that the articles charged were furnished with the *404knowledge of the Defendant, of course his assent cannot be implied. The principle, that as the charge accrued subsequent to the death of the intestate, the Defendant is not liable in his representative character, is, as I conceive, fortified by a case I have met with since the argument, wherein it is laid down, "that an executor is not liable to pay for funeral expenses, unless he contracts for it”—Aston v. Sherman’s ex’r, (Holt’s Rep. 309.) The case is quoted with apparent approbation, by 1 Com. on Contr. 529, who states the reason of the decision to be, that such a charge, if sustainable against an executor, would make him liable de bonis propriis. In other words, as neither debt nor duty was created by the testator, if the right to sue the executor, as such, were admitted, it would follow, that he would be liable to pay for funeral charges, whether he had assets or not f but as the law will not so charge him without his own act and consent, it gives no remedy to a party voluntarily performing the service. As on this ground I am satisfied there ought to be a new trial, I have thought it unnecessary to give an opinion on any other points raised in the argument.
The Defendant’s intestate was never debtor for the amount claimed by the Plaintiff for funeral expenses $ and if the Defendant is liable, he became so after the death of bis intestate, and if he became so after the death of the intestate, it was by the act of the Plaintiff, who furnished the articles for the funeral from her own mere motion, and not at the request of the Defendant 5 if so)' he ought to have been acquainted with that fact prior to the commencement of this suit, otherwise he will be subjected to costs without having been guilty of any default, or improper conduct. It is not like the case where the administrator is sued for a debt due by his intestate, of which, until suit is brought, he had no knowledge. In that case, his intestate might have been sued, and his death neither places the Plaintiff in a worse, nor *405the Defendant (his administrator) in a better situation than he himself stood in before his death. '
I entertain the opinion, that the counts in the declaration are properly joined, and that the amount due by the intestate, on a division of his father’s estate, is not assets in the hands of his administrator, and that the rule for a new trial should be made absolute.
This action is brought in part for a pillow and winding sheet furnished to bury the intestate of the Defendant, without his previous, request, subsequent promise, or Plaintiff’s giving notice of the .charge before action brought | and I am decidedly of opinion, that that part of the case cannot be supported j and I will examine the consideration, whether those acts, being done by a stranger, for no one, and at the request of no one, but for the purpose of interring the dead, are not in Law mere acts of charity and humanity, which ereate no debt or legal duty ; but I am satisfied by reason and analagous authority, that before an action can be sustained, notice must be given to the executor or administrator. Where one person officiously pays the debt of another, an action cannot be supported on such officious payment, (for no person can make another a debt- or without his consent;) but it maybe ac|mitted that the intestate dying at the house of the Plaintiff, and there being no administrator to bury the corpse, the act of the Plaintiff was not officious; but certainly notice of the performance of the duty must have preceded the suit, for until notice, the Defendant was not put in the wrong, and it would be contrary to all our notions of justice, to subject a person to an action and its consequences, without a wrong committed by tiie Defendant, or the person whom Le represents. The consequence of the doctrine contended for by the Plaintiff, would in such cases lead to this, that an administrator or executor, who was not on the spot, might be liable to many different persons; one might furnish the plank to make a coffin, another *406the nails or screws, another the lining, another the ropes, another the pillow, another the shroud, and so on, perhaps, to the number of twenty, and if one could support an action without notice, so might each onej but the Law is not so unjust. Where the liability of a person arises from an act of which he is not bound to take notice, or where the knowledge rests more peculiarly with the Plaintiff, there notice is necessary. An administrator or an executor is bound to know so far as to be liable to an action for the debts of the intestate or testator, for he is his privy, he represents him ; but the assignor of a negotiable note is not bound to take notice of the omission of the maker to pay the assignee upon demand;, he must have notice before suit; it must be laid and proven, because the omission to pay is more peculiarly known to the assignee, who has failed to get payment: so here the services are more peculiarly known to the person performing them, than to the administrator. For these reasons, I think the charge for funeral expenses cannot be sustained. I differ from the presiding Judge below, upon the question, whether the difference duo from the intestate, on the division of the negroes among the children of his father, is assets; in other words, whether the negroes allotted to him are assets to their full value, or with a deduction of that sum. I think it formed a charge upon the negroes to that amount. The charge was made by the commissioners, without the agency of the other children; their property, to the amount of the difference, was taken from them by men acting under the authority of the Law, and the Law would never take from them property, and give them •only the personal liability of the person to whom the more valuable lot was awarded; and the law which takes from them the possession of their property, gives them the most ample security ,* in fact, so much in value of the negroes, is theirs, and nothing but .the impossibility of dividing them, converts that property into a charge upon the negroes, together with a debt upon the child. *407for he takes them cum onere. Suppose the Sheriff standing by when the division is made, with an execution to the full amount of all that child’s property, and the moment the division is made, he levies on the negroes so allotted, and applies them to the discharge of the execution ; and if the opinion below is right, such, I think, would be tiie consequence. I think there is no misjoin-der of counts. It is perfectly settled, that you may join a count against an executor, charging him upon his promise as executor, that is, to pay out of the assets, with counts upon promises made by his testator; in eacli case., the executor is liable in his representative character, that is, out of the assets. It is true, the precedents furnish only cases where the testator gave birth to the obligation, or received the consideration of the promise, but the reason of the thing applies to ail obligations thrown upon the executor by virtue of his office ,• and if in this case the executor was liable to pay the funeral expenses out of the assets, without a precedent request or subsequent promise, or had specially promised to pay out of the assets, the judgment would be de bonis lestatoris ; ana although the testator could not have received the consideration of the promise in case of funeral expenses, yet in this view of the case, the executor is performing a duty in his character of executor, (to say the least,) which the Law tolerates by enabling him to retain for tiie expenses of them. As, therefore, the Plaintiff might liave made out such a case as would have supported the count, and if she had, the judgment would have been the same as in the other counts, 1 can seo no reason for arresting the judgment.