fendant, in consideration that the plaintiff would accept the defendant for his debtor, promised to pay it to the plaintiff, it was held that this was not a sufficient consideration to support the promise to charge the defendant de bonis propriis. (a) A promise by an executor to pay a debt of his testator in consideration that more goods are supplied by the creditor will make the executor liable, de bonis propriis, for both debts. (b) Where an attorney delivered up deeds to an executor, which he was not bound to do till his bill was paid, the deeds being of great use to the executor in several suits which he was then carrying on, it was held that there was a sufficient consideration to make the executor liable to the attorney's whole demand, whether there were assets or not. (c) And if the creditor is induced to hand over a security, given to him by the executor, to a third party, he will be entitled to recover against the third party. (d) If a creditor forbear to sue at the request of an executor, that is considered a sufficient consideration to charge the executor, whether he had assets or not at the time of the promise. (e) In Hawes v. Smith (f), Hale, C.J., said that though a bare accounting will not oblige an executor to pay, de bonis propriis, yet a promise in consideration of forbearance will. (a) Forth v. Stanton, 1 Wms. Saund. 210. (b) Wheeler v. Collier, Cro. Eliz, 406. (e) Hamilton v. Incledon, 4 Bro. P. C. 4. (d) Walker v. Taylor, 6 C. & P. 752. (e) Barber v. Fox, 2 Wms. Saund. 423 (n.) (f) 2 Lev. 122. CHAP. III. Sect. II. Forbearance to sue by creditor. CHAP. III. Sect. II. Where the plaintiff having a debt owing to him from the testator on a simple contract, the executor, in consideration the plaintiff would forbear to sue him until such a time, promised to pay, and the plaintiff averred that he did forbear accordingly, this was held to be a good promise; but it was said that if the heir had promised, on forbearance of the suit, to pay this debt, no assumpsit would have laid against him, because without consideration, the heir is not chargeable to any debt without specialty. (a) If a man declare, on a promise towards an administrator, that the intestate was in debt to him in £20 by obligation, and died, and the defendant being administrator in consideration of the promise and that the plaintiff would spare him till a certain time after, promised to pay him the debt, and avers that he spared him till such time, and that the defendant has not paid him, &c., although he did not say that he would spare him the debt, or to sue him, yet it shall be so intended, and for that it is a good consideration. (b) So if A (to whom the testator was indebted) comes to the executor and says that he intends to sue for the debt, on which the executor promises, in consideration that the plaintiff will forbear for a reasonable time, he will pay him, and A forbears for a reasonable time to sue him, that is a good consideration to charge the defendant in an action on the case out of his goods without assets, for by this promise it is intended, as well to forbear to sue the executor, as to forbear the debt, and forbearance of suit is a good (a) Fish v. Richardson, Yelv. 55; 56 S. C. nom. Fisher v. Richardson, Cro. Jac. 47. (b) Gardener v. Fenner, 1 Rol. Abr. 15 pl. 3; Chambers v. Leversage, Cro. Eliz. 644. consideration, without assets at the time of the promise. (a) If a surety pay the debt for the principal, who dies, and his executor promise the surety that if he will forbear to sue him for a certain time, that he will pay, that is a sufficient consideration to support the promise. (b) Forbearance to sue by the assignee of a debt is a sufficient consideration to support a promise by an executor to pay. (c) For it is sufficient in the case of any other debtor whom the assignee of the debtor forbears, at his request, to sue. (d) But forbearance to sue is not a consideration where there was no cause of action before the promise was made. Thus, where a married woman gave a promissory note as femme sole, and after her husband's death, and, in consideration of forbearance, promised to pay it, it was insisted in an action against her that she, being under coverture at the time of giving the note, it was voidable for that reason; yet, by her subsequent promise, when she was of ability to make a promise, she had made herself liable, and the forbearance was a new consideration; but Pratt, C.J., held the contrary, and that the note was not barely voidable but absolutely void, and that forbearance, where originally there was no cause of action, was no consideration to raise an (a) Johnson v. Whitchcott, 1 Rol. Abr. 24, pl. 33. (b) Scott v. Stevens, Sid. 89. (c) Pitt v. Bridgewater, Rol. Abr. 20, pl. 11; Hardr. 74; Russel v. Haddock, 1 Lev. 188. (d) 1 Wms. Exors. 7th ed. 782, citing Reynolds v. Prosser, Hardr. 71; Oble v. Dittlesfield, 1 Ventr. 153; and see also Forth v. Stanton, 1 Wms. Saund. 209 n. (1) CHAP. III, Sect. II. Must be cause of action when promise made. CHAP. III. assumpsit. But he said it might be otherwise where the consideration was but voidable. (a) Sect. II. Moral obliga tion. Time of forbearance. Promise to pay at a future time. A moral obligation may be a good consideration for a promise. Where a femme covert, having an estate settled to her separate use, gave a bond for repayment by her executors of money advanced at her request on security of that bond, to her son-in-law, and after her husband's death wrote, promising that her executors should settle the bond, it was held that assumpsit lay against the executors on their promise, (b) and it was pointed out that Loyd v. Lee, (c) and Barber v. Fox (d) proceeded on the ground that no good cause of action was shown on the pleadings. Forbearance for a reasonable time, (e) or for a certain time, (f) is a sufficient consideration. But forbearance for some time, (g) or for a little time, (h) is not. If an executor is indebted to J S in £100, and J S comes to demand the money, in this case the executor is chargeable only in respect of the assets; but if he expressly promise to pay the debt at a day to come, it is made his own debt, and it will have to be satisfied out of his own goods. (i) Thus, where B having died indebted to G for work and labour done, his executors CHAP. III. Sect. II. to prove assets signed the following memorandum on the back of G's account: Mr. G having consented to wait for the payment of the within account, we, as the executors of B, engage to pay Mr. G interest for the same at £5 per cent., until the same is settled;" it was held that they were personally liable to pay the debt and interest. (a) Again, where the executors, by a promis- Not necessary sory note given "as executors," jointly and severally of testator. promised to pay the same, "on demand with lawful interest;" it was held that they were personally liable, Dallas, C.J., saying, "The promise must depend, not on the words 'as executors,' but on the words of the whole instrument taken together. Take the words, 'on demand.' Suppose a demand had been made immediately, do not the executors, by subjecting themselves to such a demand, admit they have assets to satisfy it? If they meant to limit their liability, why did they not add to the words 'as executors' the words 'out of the estate of?' But they promise absolutely, and further add an engagement to pay interest. When, therefore, by the engagement to pay interest, they have induced the plaintiff to suspend his clear and admitted demand, by so doing they make the promise personal and individual.”(b) In Ridout v. Bristow, (c) a widow gave a promissory note "for value received by my late husband," and it was held that the note was valid on the face of it. Bayley, B., said:-"If an administratrix take upon (a) Bradley v. Heath, 3 Sim. 543. (b) Child v. Monins, 2 Brod. & Bing. 460, 5 Moo. 282; Barnard v. Pumfrett, 5 My. & Cr. 71; Norton v. Ellam, 2 M. & (c) 1 Cr. & J. 231. |