Сн. 9. Art. 19. Stra. 1270, Hookin v. Quilter, cited Imp. M. Pr. 298; same case is in 1 Wils. 171, 172. 10 Mod. 254, Johnson v. Gardiner, in error. 5 Com. D. American Precedents, 159, in which the executor, as such, sues for rent in his own time, is on a lease made by the testator himself, and so the testator's contract is the ground of the action. § 34. But otherwise if no such contract, and the rent due in the executor's time may be sued for in his own right. An executrix sued for rent in one count due to the testator in his time, so the second count; and for other rent in her own time in a third count, and promise to pay her as executrix; and in a fourth count for the use and occupation of her own house, and had judgment by default. This reversed on error. "For per curiam, there being no verdict, we can presume nothing but that the fourth count is as it appears, in her own right, which cannot be joined with the others, and the damages are entire." And Imp. 298, Buller J., said, for rent due in the executor's time, "he need not declare as executor." In the fourth count she did not sue as executrix; and in Wilson's report, Dennison J. said, an executor may sue for rent in his own time, without naming himself executor, and if he names himself executor, it is surplusage; and he pays costs where it is for rent in his own time as executor." $35. The testator owed the plt. a debt, and the executor promised to pay it at a future day, and was sued as executor. Court held, that naming him executor was surplusage, for it appeared on the face of the record, the demand was in his own right against him. See 9 Co. 93; Cro. El. 91, 406; Hob. 188. 36. An action against an executor for rent due, part in 560-Allen his own time, and part in the testator's time, may be in the detinet only. But see the distinction in the next case. 76. Cro. El. 712, 6 T. R. 591, Gardner v. Bailee. 1 Cro. Car. Dorrel v. Collins. 10 Mod. 316. $37. If the administratrix occupy an estate leased to her intestate after his death, she is chargeable in her own right, if charged merely on account of use and occupation, and taking the profits, but as administratrix, if she hold on her intestate's contract in his lease to pay rent. The distinction is plain; in one case the administratrix continues in possession on the lease to, and contract with her intestate, and this is the ground of the action, and not any promise of her own. In the other, by reason of her own occupancy alone, and taking the profits, the law implies her personal promise to pay. 38. If B have a power of attorney from A, to act for her as executrix, B cannot accept a bill of exchange to bind A in her own right, though for a debt her testator owed. 39. If an administrator grant all his goods and chattels, a term he has as administrator does not pass; for it is not suum, but he has it in the right of the intestate. But if he have a lease in land as administrator, and has no other right or interest in it, the term he has as administrator passes, his intent is to pass it, but by general words it does not pass; but when he has only this interest, and grants all his right and interest in the land, his term necessarily passes or nothing does, and it is clear the parties meant something should pass. CH. 9. 1 H. Bl. 108, 114, Rose & wife v. Bow 40. In this case the court held that an executor cannot be charged as such for money had and received by him, or for money lent to him, or on an account stated, of money due from ler & al. exhim as such; all these charges make him personally liable. So ecutors. for rent on his own lease of land he has as executor. These points are clear, except as to the account stated. 554.-4 T. R. 616, An kerstein v. Clarke. kinson. $41. If a bond be made to husband and wife, administra- 5 Com. D. tors of A B, he alone may declare upon it, as on a bond to himself, for this is the legal effect. The bond to the wife is to the husband, and the bond to him is in his own right. $ 42, 43. Counts were on promises made by the intestate; 1 H. Bl. 102, the fourth stated, that after his death the deft., as administra- Secar v. Attrix, and the plt. accepted together" of money owing from the 2 Selw. 707. intestate, and in consideration of the intestate being found indebted," the deft., as administrator, promised to pay. Held, no misjoinder of action, that the deft. was charged as admistrator in all the counts, and that this was the common mode of declaring, to save the statute of limitations. And this seems to be the true principle, for though the admistrator liquidates and adjusts the debt, and thus there is pro formâ, an implied promise to pay the balance or foot, yet this insimul computasset is nothing more than an act to ascertain the amount of the debt due from the intestate's estate, not to vary it or to create a debt; but the real ground of the action is the debt the intestate did owe, a debt due from his estate, (which may be insolvent, and not in a condition to pay five cents in a dollar,) and this is all the plt., the creditor, can be entitled to. And on what sound principle of law or equity can the debtor's administrator be personally liable to pay the whole out of his own estate, the effect of a suit and judgment against him in his own right, merely because he joins in the account, to liquidate and ascertain merely the exact amount of this debt his intestate owed, though not exactly liquidated, a mere ministerial act very fit and proper for the administrator, as such, to do. And as, in our law and practice at least, the administrator receives no compensation, but merely for his services, what consideration can he possibly be considered as receiving as the motive or ground to make this debt his own, to subject himself personally to a suit and judgment for it, and himself and estate to pay it as his own, or in his own right. In fact it is a part of the duty of an executor or administrator thus to adjust an account, and strange indeed must it be if for thus doing his duty he subjects his own estate to a debt. Сн. 9. Salk. 28, Love's case.- case, Buller's Hough. the same case. ART. 20. When one agrees to pay another's debts, how far assumpsit lies, and how far there must be a written promise. See Ch. 32, a. 7. $1. On a scire facias the officer took the debtor's goods in execution, and A. D. promised the officer to pay, if he would restore the goods. The consideration is good and sufficient, and an action of assumpsit lies against A. D., and 1 Ld. Raym. 357, Waters v. Glasson. §2. B owed A £42, and C in consideration A would accept him to be his debtor for £42, which the said B owed A, 12 Mod. 133, promised A to pay the same. C is liable. C was sued, and it was not alleged that B was discharged. Verdict for A, and it was adjudged that as the promise could not bind C, unless B was discharged, it was construed a mutual promise, to wit: that C promised A to pay the debt, and in consideration thereof A promised to discharge B; there does not appear to have been any objection made that C's promise was not in writing, though to pay B's debt, and A. D. 1697. las 384. Cowp. 460, 3. June 10, 1773, Henshaw gave his negotiable note to 463, Adney's Buckholme for £306 13s. payable in 5 months. July 1773, case-3 Dal- Henshaw wanted further credit of B, Adney applied for it, and B. declined giving it. Adney told him that Henshaw was a safe man, that he, Adney, for £1 10s. 7d. premium, would guarantee the payment of the said note, to which proposal B. agreed, and paid Adney the £1 10s. 7d., and delivered more goods to Henshaw. July 1773, Adney, in writing, prom sed B., "in consideration of £1 10s. 7d. received of J. B. I hereby make myself answerable for the due payment of said note." Mass. Act, June 20, 1788. September 8, 1773, Adney became a bankrupt. Henshaw did not pay the note when it became due, Nov. 10, 1773, but continued his trade till December 2, 1773, when he became a bankrupt. The court adjudged that the said Adney's said guarantee was collateral, to pay if Henshaw did not at the time, and so contingent, and no debt to B. till Henshaw failed to pay. One reason was the smallness of the sum, £1 10s. 7d. 66 4. By this act it is provided, that no action shall be brought whereby to charge the deft. upon any special promise to answer for the debt, default, or misdoings of another person" "unless the agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereto by him lawfully authorized." The ProProvince Act vince Act of 1692 was the same, and the Act of 29th of Charles 2d. is the same, the others being copied from that of Charles 2d. 1692. 5. In applying this provision, many nice questions have arisen when one promises for himself, or another. A, in consideration B would deliver him his household goods, and C would discharge B from execution, promised to pay C the amount of the execution: held, A's promise was original. 8 Johns. R. 376, Shelton v. Brewster; 2 East 325; see Ch. 32, a. 7, s. 2. Сн. 9. Art. 20. Nash. So liable to pay another's § 6. Tuack, the testator, sued one Johnson for assault and 1 Wils. 305, battery. The trial came on; Nash being in court, promised 307, Read v. if Tuack would not go on to trial, but withdraw his record, to 5 Mod. 205, pay him £50 and costs, equitably taxed. On this Tuack with- is a like case. drew his record and proceeded no further in the cause. Read, his executor, sued Nash on this promise; he pleaded never debt when promised, and 2d, the statute of frauds. To the second plea the promise there was a general demurrer, and the plea was held to be is on a new bad, for Johnson "owed no debt, the cause was not tried; tien, &c. he did not appear to be guilty of any default or miscarriage." 10 Johns. R. He never was liable to the particular debt, damages, or costs. The true difference is between an original and a collateral promise; the first is out of the statute; the latter is not, where it is to pay the debt of another, already contracted. Judgment for the plt. Cited 1 Phil. Evid. 351, 362. considera 412, 414. of the U. S. 7. An action does not lie against a foreign consul, on a 3 Dallas 384, bill of exchange, drawn in his official character, on his gov- Sup. Court ernment, because when the holder takes the bill, he knows it is not drawn on the consul's own private credit, but solely on that of his government, and that he, in the affair, acts only as representative of that government. inson. 2 Selw. 735. 8. Assumpsit for that the plt. had sued one A. B. for a 2 Wils. 94, certain debt, and the deft. in consideration the plt. would stay Fish v. Hutchhis action against A. B., promised to pay said A. B's. debt. On demurrer the case was held to be within the statute of frauds; for here the deft. promised to pay the subsisting debt af another; nor was this case like the case of Nash above, in that no debt existed. § 9. One Taylor owed the plt. Williams £45 for rent of a s Wils. 308, house, and becoming insolvent, made a bill of sale of the goods in Williams v. said house to the deft. Leaper, in trust for Taylor's creditors. Leaper Imp. M. P. While the deft, was in possession of the goods on the premi- 164 ses, the plt., the landlord, came to distrain for the rent, (the goods being liable,) whereupon the deft. in consideration the plt. would not distrain the goods, promised to pay him the £45. On this promise the action was brought, and judgment was given for the plt. For the court held there was not a promise to pay the debt of another; the goods were debtor and liable; and the deft. was as bailiff to the landlord. It was a new contract; the deft. had an interest; and the plt. gave up his right 7 Johns. R. 463, 465. Сн. 9. to distrain the goods; and this was a good consideration, and Art. 20. the deft's. promise was a new one. But still was it not a promise to pay Taylor's debt, the debt of another, and so within the statute? The idea the goods were debtor, and so the deft. only promised to pay the debt they owed, is perhaps too refined. In fact the goods were not absolutely debtor, they were but as a pledge. The plt. had only a lien on them, while upon the premises, and he was under no obligation to resort to it. The £45 was clearly Taylor's debt by contract, which fixed the rent and the amount; and whatever lien on goods or collateral security, the plt., the landlord, might have, still this was Taylor's debt, the debt of another, the deft. by his promise engaged to pay, but not in writing. And this case was very much like that of Fish v. Hutchinson. In each case there was a good consideration, but in neither a promise in writing. 2 Selw. 741. But Lord Eldon has observed that to hold the deft. the debt must be his own, or there must be a note in writing, but there may be an exception, as "if a person obtain possession of goods, on which the landlord has a right to distrain for rent, and he promises to pay the rent, though it is clearly the debt of another, yet a note in writing is not necessary." 1 Mass, R. 208, Brown v. Austin, in error. 10. In this case Aaron Brown engaged to collect evidence in the case of a contested election of a member of Congress, and summoned Austin to appear and give evidence, and for his pay and expenses as a witness, he sued Brown. And judgment finally for Brown, for he acted as a public agent, and contracted for another, the government, and so not personally liable. Also Austin well knew in what manner Brown acted. 2 Ld. Raym. 11. It is a general rule that the declaration in these cases 1085.-Imp. need not state the promise was in writing; but the promise in M. P 164.- writing must be in evidence. But the declaration must state a consideration for the deft's. guaranty of another's debt. 4 Johns. R. 280; Baily & al. v. Freeman. 4 Johns. R. 237, Elting v. Vanderlyn. 2 T. R. 80, Matson & al. v.Wharam.Imp. M. P. 165. Cited 12. The general rule is, if the person for whose use the goods are furnished be liable at all, as a real debtor for them, then he contracts a debt, and any other promise by a third person to pay that debt, is in its nature collateral, and must be 2 Selw. 735; in writing, or it is void by the statute of frauds and perjuries: and generally the question is, what is the debt of another. Cited Frauds 208, 1 Phil. Evid. 360; 8 Johns. R. 37. 209, 210. and Rob erts on Christian's notes on Bl. Com. 13. January 1785, the deft., Wharam, requested the plts. to supply one Couthard with groceries. The plts. did not know C., the deft. replied, if you do not know him you know me, and I will see you paid. The plts. sent goods to C., and made him debtor for them in their books. They applied to C. for payment, and then to the deft, Judgment for the deft., |