Buchanan, Ch. J.,
delivered the opinion of the Court.
There are three bills of exceptions, upon which this case is brought before this tribunal.
The suit is an action of Trover, by the appellee as administrator de bonis non, of the estate of William Haslett, with the will annexed, for certain goods and chattels which belonged to William Haslett, his testator, and were left unadministered by Ann Haslett, deceased, whom in his will he constituted his executrix.
The second exception was abandoned in the argument, by the counsel for the appellant, and clearly could not be sustained. The prayer assumes the fact that the. appellee was a purchaser, at a sale by the appellant, as executor of Ann Haslett, of a part of the property belonging, to the estate of William Haslett, and in controversy in this suit, (though [505]*505without stating what part of the property in controversy,) and upon that assumption, asks the opinion of the Court to the jury, that the appellee is not competent to deny the legality of the sale, nor entitled to recover the value of the property so assumed to have been bought.
Now besides, that whether there had been such a purchase or not by the appellee, was a matter proper to be left to the jury, the fact assumed does not appear in this part of the cause. There is no evidence connected with this bill of exception, that the appellee ever purchased any part of the property in controversy, or any goods that belonged to the estate of William Haslett, and the Court could not have done otherwise than reject the prayer, even if the fact assumed, had it been proved, would have justified such a direction. But if, in point of fact, the appellee did in November, 1814, purchase at a public sale by the appellant as executor of Ann Haslett, a part of the property, for which this suit was brought, it by no means follows that he should not for that reason, be permitted to deny the propriety, or legality of that sale, nor entitled to recover quo ad the properly so sold. He was not then the administrator de bonis non of the estate of William Haslett — his letters of administration were not issued until the 21st July, 1821, more than six years afterwards; and there is no proof in the record, that he knew any part of the goods sold to have been the pro» perty of William Haslett, if in truth they were, or that he intended in any manner to intermeddle with that estate. He did no wrong himself, and did nothing to lead the appellant into any error, nor was there a semblance even of any management or collusion between them. He was as a mere stranger, and had the same right to purchase at a public auction, that any other had; and there is no reason why the appellant, who sold the goods as the executor of Ann Haslett, and received the fruits of that sale, should be protected against a recovery of the value, in an action of trover by the appellee, who afterwards became the administrator de bonis non of Willian Haslett, by the mere fact, [506]*506that he was himself the purchaser, under circumstances calculated to induce the belief that they belonged to the estate of Ann Haslett. It is of no consequence who was the purchaser. The appellant wrongfully taking and selling the goods, became answerable for their value; to which the appellee, on obtaining his letters of administration, became entitled, as the legal representative of William Haslett, and it is not a case within the principle, upon which Whitehall vs. Squire was determined in Carth. 104, where the plaintiff having received from the defendant, a horse that belonged to the intestate for services performed about the funeral of the intestate, at defendant’s request, afterwards administered on the intestate’s estate, and brought an action of trover against the defendant, for the value of the horse so received by him before he administered; it was decided by-two judges against Holt, that he was not entitled to recover, because he was a particeps criminis, in the very act of wrong complained of, the intermeddling with the estate, and receiving a part of it in discharge of a claim, from the hands of one, having no authority to deliver it. There is no pretence of any such intermeddling by the appellee here.
The third exception rests upon the legal effect of letters of administration with the will annexed, of the goods and chattels of William Haslett, granted in the State of Delaware to the appellant. By the testamentary system of this State, the manner in which assets are to be distributed is prescribed, and the administrator is to give bond and security, and render an account of his administration in the Orphans Court. And it is the settled and well known law of the State, that letters testamentary, or of administration granted in another State, give no authority to sue, or to administer assets here. Our Courts can take no notice of letters testamentary, or of administration granted abroad ; and the same law prevails generally in this country, and it is also the law of England. If that be the case, and we can take no notice of the letters of administration granted to the appel[507]*507lant in the State of Delaware, how can they have the effect to make legal and valid, any possession taken, or sale made of the property of William Ilaslell by the appellant, and to exempt him from liability in an action by the rightful administrators. So far as concerns his liability in this suit they are as blank paper, and cannot legalize acts otherwise tortious; it is as if he had no letters, and could not therefore rightfully take possession of, and sell the property of William Haslelt; hut in doing so without any authority known to the laws of the State, was a wrong doer, and cannot protect himself under cover of that, which gave him no authority to act. Moreover, for aught appearing in this exception, the appellant did not take possession of, and sell the property, under any supposed authority derived from the Delaware letters of administration; on the contrary, the proof as set out in the record is, that he took possession of the property in controversy and sold it, as the executor of Ann Haslelt, which he could not do under letters of administration upon the estate of William Haslelt. The Court therefore did right in refusing to direct the jury as prayed; “that the,possession, and sale so proved, of the property in dispute by the appellant, was so far legal and valid, as not to render him liable in this action to the appellee. ”
We come now to the consideration of the first exception, which presents the only remaining question in the cause to be disposed of, and that is, whether under the evidence stated in this bill of exception, (out of which we cannot look to the testimony contained in any other exception, and not connected with this) the appellant was entitled to have recouped in damages, the payments made by him to John lies-lip, who was a creditor of William Haslelt. This being an action of Irover by the rightful administrator for the value of the goods mentioned in the declaration.
The proof as stated is, that the goods belonged to William Haslelt the testator of the appellee; and after his death were taken by the appellant and converted to his use. That William Haslett died indebted to John Heslip, in the sum
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Buchanan, Ch. J.,
delivered the opinion of the Court.
There are three bills of exceptions, upon which this case is brought before this tribunal.
The suit is an action of Trover, by the appellee as administrator de bonis non, of the estate of William Haslett, with the will annexed, for certain goods and chattels which belonged to William Haslett, his testator, and were left unadministered by Ann Haslett, deceased, whom in his will he constituted his executrix.
The second exception was abandoned in the argument, by the counsel for the appellant, and clearly could not be sustained. The prayer assumes the fact that the. appellee was a purchaser, at a sale by the appellant, as executor of Ann Haslett, of a part of the property belonging, to the estate of William Haslett, and in controversy in this suit, (though [505]*505without stating what part of the property in controversy,) and upon that assumption, asks the opinion of the Court to the jury, that the appellee is not competent to deny the legality of the sale, nor entitled to recover the value of the property so assumed to have been bought.
Now besides, that whether there had been such a purchase or not by the appellee, was a matter proper to be left to the jury, the fact assumed does not appear in this part of the cause. There is no evidence connected with this bill of exception, that the appellee ever purchased any part of the property in controversy, or any goods that belonged to the estate of William Haslett, and the Court could not have done otherwise than reject the prayer, even if the fact assumed, had it been proved, would have justified such a direction. But if, in point of fact, the appellee did in November, 1814, purchase at a public sale by the appellant as executor of Ann Haslett, a part of the property, for which this suit was brought, it by no means follows that he should not for that reason, be permitted to deny the propriety, or legality of that sale, nor entitled to recover quo ad the properly so sold. He was not then the administrator de bonis non of the estate of William Haslett — his letters of administration were not issued until the 21st July, 1821, more than six years afterwards; and there is no proof in the record, that he knew any part of the goods sold to have been the pro» perty of William Haslett, if in truth they were, or that he intended in any manner to intermeddle with that estate. He did no wrong himself, and did nothing to lead the appellant into any error, nor was there a semblance even of any management or collusion between them. He was as a mere stranger, and had the same right to purchase at a public auction, that any other had; and there is no reason why the appellant, who sold the goods as the executor of Ann Haslett, and received the fruits of that sale, should be protected against a recovery of the value, in an action of trover by the appellee, who afterwards became the administrator de bonis non of Willian Haslett, by the mere fact, [506]*506that he was himself the purchaser, under circumstances calculated to induce the belief that they belonged to the estate of Ann Haslett. It is of no consequence who was the purchaser. The appellant wrongfully taking and selling the goods, became answerable for their value; to which the appellee, on obtaining his letters of administration, became entitled, as the legal representative of William Haslett, and it is not a case within the principle, upon which Whitehall vs. Squire was determined in Carth. 104, where the plaintiff having received from the defendant, a horse that belonged to the intestate for services performed about the funeral of the intestate, at defendant’s request, afterwards administered on the intestate’s estate, and brought an action of trover against the defendant, for the value of the horse so received by him before he administered; it was decided by-two judges against Holt, that he was not entitled to recover, because he was a particeps criminis, in the very act of wrong complained of, the intermeddling with the estate, and receiving a part of it in discharge of a claim, from the hands of one, having no authority to deliver it. There is no pretence of any such intermeddling by the appellee here.
The third exception rests upon the legal effect of letters of administration with the will annexed, of the goods and chattels of William Haslett, granted in the State of Delaware to the appellant. By the testamentary system of this State, the manner in which assets are to be distributed is prescribed, and the administrator is to give bond and security, and render an account of his administration in the Orphans Court. And it is the settled and well known law of the State, that letters testamentary, or of administration granted in another State, give no authority to sue, or to administer assets here. Our Courts can take no notice of letters testamentary, or of administration granted abroad ; and the same law prevails generally in this country, and it is also the law of England. If that be the case, and we can take no notice of the letters of administration granted to the appel[507]*507lant in the State of Delaware, how can they have the effect to make legal and valid, any possession taken, or sale made of the property of William Ilaslell by the appellant, and to exempt him from liability in an action by the rightful administrators. So far as concerns his liability in this suit they are as blank paper, and cannot legalize acts otherwise tortious; it is as if he had no letters, and could not therefore rightfully take possession of, and sell the property of William Haslelt; hut in doing so without any authority known to the laws of the State, was a wrong doer, and cannot protect himself under cover of that, which gave him no authority to act. Moreover, for aught appearing in this exception, the appellant did not take possession of, and sell the property, under any supposed authority derived from the Delaware letters of administration; on the contrary, the proof as set out in the record is, that he took possession of the property in controversy and sold it, as the executor of Ann Haslelt, which he could not do under letters of administration upon the estate of William Haslelt. The Court therefore did right in refusing to direct the jury as prayed; “that the,possession, and sale so proved, of the property in dispute by the appellant, was so far legal and valid, as not to render him liable in this action to the appellee. ”
We come now to the consideration of the first exception, which presents the only remaining question in the cause to be disposed of, and that is, whether under the evidence stated in this bill of exception, (out of which we cannot look to the testimony contained in any other exception, and not connected with this) the appellant was entitled to have recouped in damages, the payments made by him to John lies-lip, who was a creditor of William Haslelt. This being an action of Irover by the rightful administrator for the value of the goods mentioned in the declaration.
The proof as stated is, that the goods belonged to William Haslelt the testator of the appellee; and after his death were taken by the appellant and converted to his use. That William Haslett died indebted to John Heslip, in the sum [508]*508of §1261 40; that Ann Haslett, executrix of William, Haslett, on the 4th May, 1814, gave to John Heslip, her two . promissory notes endorsed by John W. Glenn Co. in whose favor they were drawn, one for §612 85, payable, six months after date, and the other for §648 55, payable eighteen months .after date, making together the sum of §1261 40, the amount of his account against William Haslett; at the foot of which account, he wrote a receipt for the notes so given him, which is in these words: “received of Mrs. Ann Haslett, executrix of William W. Haslett, two promissory notes signed by herself, and endorsed by John W. Glenn & Co. in payment of the above account.” That afterwards and before the institution of this suit, the appel lant, as executor of Ann Haslett, paid to John Heslip, the amount of each of those notes. For these payments he claimed to be allowed at the trial, out of the value of the property in dispute, which the Court refused to permit, on the ground that the notes given by Ann Haslett, and received by John Heslip for the amount of his claim againsi William Haslett, extinguished that debt, and made him the creditor of Ann Haslett for the amount of his notes, with no remaining claim against the estate of William Haslett.
The first enquiry then to which our attention is directed? is as to the legal effect, and operation of the acceptance by John Heslip of the notes of Ann Haslett, so given and received by him. And in the absence of all evidence upon the subject, except the receipt of John Heslip, at the bottom of his account, we think it clear, that his acceptance of Ann Haslett’s notes did not extiñguish his claim against the estate of William Haslett. The general rule is, that the acceptance of a security or undertaking of equal degree, is of itself no extinguishment of the former debt. Thus the acceptance by a creditor from his debtor of his promissory note, for an antecedent simple contract debt, does not extinguish the original debt, (both being of equal degree in the eye of the law) if it remains in the hands of the creditor unpaid, and he can produce it to be cancelled, [509]*509or show it to be lost. But be will not be suffered to recover on the original cause of action, unless he can show the note to have been lost, or produces it at the trial to be cancelled. So too, the acceptance by a creditor of a note, or bill of a third person, for a pre-existing debt, is no payment or extinguishment of such debt, unless the creditor parts with it, or is guilty of laches in not presenting it for payment in due time. Kearslake vs. Morgan, 5 Term. Rep. 513. Puckford vs. Maxwell, 6 Term. Rep. 52. Bishop vs. Rowe, 3 Maul. and Sewl. 362. Swinyard vs. Bowes, 5 Ib. 62. Burdick vs. Green, 15 Johns. Rep. 247. Ins. Co. vs. Smith, 6 Harr. and Johns. 166, or unless in either of the cases put, there is an express agreement by the creditors to receive it absolutely as payment, and to run the risk of its being paid. In which case it is to be taken, as an extinguishment, or payment of the precedent debt, whether the note or bill be afterwards paid or not. Clark vs. Mundal, Salk Rep. 124. 7 Term. Rep. 60. Tobey vs. Barber, 5 Johns. Rep. 68. Johnson vs. Weed, 9 Ib. 310.
The expression, u in payment of the above account ” at the end of John Heslip’s receipt for Ann HaslelVs notes are the only words used, that can be supposed to have any tendency to show that he had agreed to receive them in full and absolute discharge of his prior debt, and to take upon himself, the risk of their being paid, or not; which is the agreement necessary to be proved, to give to his acceptance of them, the effect to extinguish the pre-existing debt, (the notes having never passed from his hands until taken up by the appellant) and for that purpose his receipt is relied upon. But it would be going very far to say, that the mere use oí the words, u in payment of the above account,” furnishes proof of such an agreement. It could be but an inference, and that stronger than the words will bear, or the character of such transactions justify. If there had been any such agreement, the presumption is, (if presumption can be indulged in) that it would have been [510]*510stated in the receipt. The very negotiation upon the subject would have indicated the expediency of its being so stated. And in the absence of any such statement, are we at liberty to infer it? And infer it from what? Not from that, which (in the ordinary use of the terms) naturally points to such an agreement, and which if unexplained, would admit oí no other fair inference; but from that, which looking to the character of such transactions, may well be understood to have been intended, as an acknowledgment only, that the notes were given for, and on account of the precedent claim against the estate of William, Haslett; to show what was the consideration of the notes, and to furnish Ann Haslett the executrix, with a necessary document in the settlement of her accounts; not an acknowledgment that the original debt was absolutely paid, nor of an agreement to take the notes in absolute payment, and to discharge the estate of William Haslett from all further liability ; but only that the notes when paid, should he in discharge of the original debt, showing on what account they were given, and to prevent a recovery on both causes of action.
This would seem to be the fair understanding of the receipt, no motive appearing to induce John Iieslip, to take the notes in full and absolute payment, and to discharge the estate of William Haslett. And it is believed to be in accordance with the usual understanding of such receipts, creditors not being presumed when they take the notes of third persons, on account of precedent debts, to intend to receive them in absolute payment,' and extinguishment of such debts; but only sub modo, that is, in the event of their being paid, unless otherwise expressed in the receipts, and we are not without judicial decisions in consonance with this view of the subject.
In Keaslake vs. Morgan, 5 Term. Rep. 513, it was conceded, that a promissory note of a third person accepted, and received by a creditor, “ for, and on account of a debt due him,” was not of itself an extinguishment of that debt. [511]*511And what is a receipt of a note in payment of a debt, more than a receipt for, and on account of a debt. Money reed ved for, and on account of a debt, is received in payment of it.
In Puckford vs. Maxwell, 6 Term. Rep. 52, where the plaintiff had accepted a bill in part payment of his debt, Ld. Kenyon said, “if the bill which is given in payment, do not turn out to he productive, it is not that which it purports to be, and which the party receiving it, expects it to be, and therefore we may consider it as a nullity, and act as if no such bill had been given.” There the fact of a note being given in payment, was held not to be an extinguishment of the debt. And what is this receipt more than an acknowledgment, or evidence of the same fact, that the notes were given in payment.
The same principle has been followed out in the Courts of New York. In Tobey vs. Barber, 5 Johns. Rep. 68, there was a receipt by a landlord to his tenant in these words, “received of Ralph Barber §163 on account of the within lease, and in full for the second, and third quarters rent.” It turned out in evidence that the sum of § 163, mentioned in the receipt was made up in part of money paid by tlie defendant to the plaintiff, and in part of a note of a third person given to the plaintiff, and it was decided, that there was no evidence that the plaintiff agreed to run the risk of the solvency of the maker of the note, and to take the note in absolute payment, except by inference arising from the receipt, which was not enough to establish such a positive agreement. There was a receipt in full purporting to be for cash, which might have afforded some ground for supposing that the plaintiff intended to treat the note as cash, and to put it on the same footing with the money received, which as far as it went, was a discharge of so much of the rent. It is a stronger case than this.
In Johnson vs. Weed, and another, 9 Johns. Rep. 310, where the plaintiff having sold goods to the defendants, received the note of a third person for the amount, and gave [512]*512the defendants a bill of the goods, with a receipt in full at the bottom, it was held that the terms of the receipt were not decisive, and it might be understood, consistently with the words of it, that the note was received in full, under the usual condition of its being a good note.
And in Putnam vs. Lewis, adm’r of Lewis, 8 Johns. Rep. 389, where the plaintiff having a demand against the estate of the defendant’s intestate, received the defendant’s promissory note for the amount, and gave him a receipt in these terms, “ received of George R. Lewis, $53 96, it being in full of all demands which I have against the estate of Eber Lewis, deceased,” itwas decided that the note was no payment of the debt. That case and this, are nearly identical, and if there be a difference, that is the strongest case. There can be no real distinction betwéen a receipt in full of all demands, and a receipt in payment of all demands. In both cases the notes were given by the representatives of the deceased, for debts due from the deceased, and the only difference is, that in this, the receipt is for the notes themselves, and in that case the receipt was for the money, specifying the amount, and so far at least, treating'the note, (which was all that was in fact received) as money.
To give to the acceptance of a note the effect of án absolute payment, or extinguishment of a debt, a contract that it should be so, must be shown; an express agreement to receive it as payment, and to run the risk of its being paid, which is not sufficiently done by the receipt in this case, to justify us in saying that the claim ,of John Heslip against the estate of William Haslett, was extinguished by his acceptance of Ann Haslett’s notes.
Considering then, the claim of John Heslip as not extinguished until the notes of Ann Haslett were paid, but his right of action only suspended during the period allowed for the payment of the notes, was the appellant who made the payment, entitled to have them recouped in damages.
It has been suggested by the counsel for the appellee, that it is incumbent on the appellant to entitle himself to the [513]*513allowance he claims, to show the solvency of the estate ol William Haslett. No question appears to have been raised in the Court below upon that subject, and it will be considered here as if there was no deficiency, indeed it is not suggested, nor does there appear to be any deficiency; treating it then, as a case clear of all question relative to the sufficiency of assets, if it was a suit by a creditor of William Haslett, there could be no doubt, on the plea oí plene administravit, that he would he entitled to an allowance for the payments made to John Heslip, if they are to he taken as payments of John Heslip’s claim against the estate of William Haslett.
There are acts of intermeddling, such as locking up the goods of a deceased person for safe keeping, which will not charge a man as executor of his own wrong; but the taking the goods of an intestate by a stranger, and using or selling them, and in general any intermeddling with them, will as respects creditors, make him an executor de son lorl, and chargeable with the debts of the deceased, so far as assets come to his hands. But as against creditors he is justified, in paying the debts of the deceased; and if sued by a creditor he may plead plene adminisiravit, and will be allowed all payments made of just debts, to any other creditors in equal or a superior degree, or in the due course of administration; though he cannot, in any case, retain any part of the goods of the deceased in satisfaction of a debt due fo himself. There is, however, a difference between a suit by a creditor, against an executor de son tori, and one by a. rightful executor or administrator. If the action by the latter be trover for the goods of the deceased, the defendant cannot plead payment of debts to the value, or that he has given the goods in satisfaction of the debts. But on the general issue pleaded, he may give in evidence such payments, and they will be recouped in damages, if they be such as the plaintiff would have been bound to make, or in the language of some of the books, made in due course of administration. Carth. 101. Bull N. P. 48. 3 Blk. Com [514]*514507. Mountford vs. Gibson, 4 East. Rep. 441. Toll. L. Ex’rs, 363, 364. Parker vs. Kelt, 12 Mod. 471.
What then is this ease? We have already said, and attempted to show, that the acceptance of John Heslip, of the notes by Ann Haslett, was not a payment or extinguishment of his claim, against the estate of William Haslett, hut that the original debt continued, notwithstanding the receipt of those notes. Had Ann Haslett paid those notes, she would, by doing so, have discharged the original debt — and the payments having been made by the appellant as her executor, makes no difference. They were her notes, and he as her executor was bound to pay them, if assets sufficient came to his hands; and in paying them, he paid the original debt, on account of which they were given. It is not the payment of the notes, as the debts of Awn Haslett, on which his claim to recoupe, rests; but the payment of the original debt that remained in force, until discharged by him, with which the amount of the notes was identical. Where it is said that the payments to he recouped in damages, by an executor de son tort, in trover by a rightful executor or administrator, must be such as are made in the due course of administration, it is meant, such as the rightful executor or administrator would have been bound to make, as where the debts were just, and no deficiency of assets. And that is this case. The payment by the appellant of the claim of John Heslip, against the estate of William Haslett, was such as the appellee would have been bound to make, and we think he was entitled to have the amount recouped in damages.
The cases of Mountford, adm’r of Holland vs. Gibson, 4 East. 441, and Fiswick vs. Sewell, 4 Harr. and Johns. 399, referred to by the counsel for the appellee, are not like this.
We concur with the Court below, in the 2d and 3d exceptions, but dissent from the opinion expressed in the 1st, and therefore reverse the judgment.
JUDGMENT REVERSED AND FKOCEDENDO AWARDED.