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CHAP. III. herself to give a security which may have the effect of

Sect. II.

inducing forbearance, and which purports to bind her individually, is it competent for her to say, 'You must prove assets'? To my mind, the act of giving such a security supersedes the necessity of an investigation as to there being assets. It seems to me that the words 'value received by my late husband' do not make the proof of assets necessary; and I go still further, and say that it was not competent for her to show that there were no assets."

An executor giving such a promissory note will be liable out of his own estate, although the testator's estate was insolvent at the time the note was given, of which fact he was ignorant. (a)

Where, however, an executrix gave an acceptance for a debt, due from her testator, taking an engagement from the drawer to renew the bill from time to time until · sufficient effects were received from the estate of the testator, it was held that this meant sufficient effects in the ordinary course of administration, and that she had not precluded herself from first applying assets to pay £3,000 to trustees for her own use, in discharge of a bond given by her husband before marriage to that effect, before she paid the acceptance. (b)

If executors endorse a bill, it is immaterial whether they endorse it as executors or not. If they endorse it at all they are liable personally, and not as executors, for their endorsement would not give them a cause of action against the effects of the testator. (c)

(a) Lucas v. Williams, 3

Giff. 150.

(b) Bowerbank v. Monteiro, 4 Taunt. 844.

(c) King v. Thom, 1 T. R. 489, per Buller, J.

An action lies against an executor to recover a specific chattel bequeathed after his assent to the bequest. (a)

CHAP. III.
Sect. II.

Action lies to

chattel;

So an action lies upon an express promise by an recover specific executor to pay a legacy in consideration of assets, (b) and an action for money had and received will lie upon admission by the executor that he had assets. (c)

Where it is sought to charge the executor, de bonis propriis, on a promise made on good consideration, it is not necessary to allege in pleading that he had assets. (d) In Bane's case (e) it was said that if there be no assets it shall be given in evidence. But this opinion has since been overruled. (f)

Where it is sought to charge the defendant in his character of executor, and the nature of the debt is such as necessarily makes him personally liable, the judgment will, nevertheless, be de bonis propriis.(g)

(a) Doe v. Guy, 3 East, 120. (b) Atkins v. Hill, Cowp. 284; Hawkes v. Saunders, ib. 289.

(c) Gorton v. Dyson, 1 Brod. & B. 219; and see Barnard v. Pumfrett, 5 My. & Cr. 63.

(d) Bane's Case, 9 Co. 94; Powell v. Graham, 7 Taunt.

580, 1 Moo. 305; Dowse v.

Coxe, 3 Bing. 20, 10 Moo.
272.

(e) 9 Co. 94.

(f) See 1 Wms. Saund. n. (1), 2 Wms. Exors. 7th ed. 1778, n. (c.)

(g) Powell v. Graham, 7 Taunt. 585; Wigley v. Ashton, 3 B. & Ald. 101; Corner v. Shew, 3 M. & W. 350.

or on promise in consideration of assets.

Not necessary to allege

assets.

CHAP. III.
Sect. III.

Section III.

Promise to answer for debt, default, or miscarriage of another.

Rights under

parol guaran

tee.

GUARANTEES.

No action shall be brought to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person.(a)

Where the fact that a guarantee has been given is admitted by the defendant paying money into court, proof that the guarantee was in writing need not be given.(b)

If money is paid on the faith of a parol guarantee it cannot be recovered. (c) Although no action can be brought on a parol guarantee, it appears that the courts can exercise a summary jurisdiction over one of their officers who has given such a guarantee, as attorney. Thus, where an action having been commenced in the Court of Common Pleas, and judgment obtained; Greaves, an attorney of the Court of King's Bench, but not an attorney of the Common Pleas, who was attorney for the defendant, proposed to compromise the action, and agreed verbally to give his two promissory notes for the debt and costs, payable at six and nine months, in consideration of the plaintiff staying proceedings, and this was accepted by the plaintiff, but Greaves afterwards declined to give the

(a) As to convenient form of guarantee see Sm. Merch. Law, 8th ed. 454.

Peake, 20; and see Prec. in Ch. 208, 374.

(c) Griffith v. Young, 12 East, (b) Middleton V. Brewer, 513; Shaw v. Woodcock, 7 B.

& C. 73.

bills; it was held, that as the undertaking was given by the party in his character of attorney, in that character the Court might compel him to perform it. (a)

There must be a sufficient consideration, such as forbearance, for a promise to pay the debt of another as well as for any other promise, otherwise it will not be binding though reduced into writing. As when A has sold and delivered goods to B, and afterwards C promises A in writing to pay for them, this promise is a mere nudum pactum and void, because it was so at the common law, and the statute makes no alteration.(b) But if C had requested A to forbear to sue B for the debt, and A had forborne accordingly, that was a good consideration at the common law to support such promise, (c) and is good since the statute if the promise be in writing. (d)

CHAP. III.

Sect. III.

Must be con

sideration for

the promise.

and not move

directly

between
parties.

It is not necessary that there should be a consideration Consideration directly moving between the persons giving and receiving the guarantee. It is enough if the person for whom the guarantor becomes surety has benefit, or the person to whom the guarantee is given suffer inconvenience as an inducement to the surety to become guarantee for the

(a) In re Greaves, 1 C. & J. 374 n. (a); 5 Dowl. 187; see also Evans v. Duncombe, 1 C. & J. 372; Senior v. Butt, Hil. T. 1827 K. B.; and Payne v. Johnson, Trin. T. 1787 Exch. there cited.

(b) Sadler v. Hawkes, 1 Rol. Abr. 27 Pl. 49; Forth v. Stanton, 1 Wms. Saund. 227; Barrell v. Trussell, 4 Taunt. 117; French V. French, 2 Man. & Gr.

644; Boyd v. Moyle, 2 C. B.
844; Saunders v. Wakefield, 4
B. & Ald. 595; Pillans v. Van
Mierop, 3 Burr. 1663; West-
head v. Sproson, 30 L. J. Ex.
265; see also ante, p. 68.

(c) Sadler v. Hawkes, 1 Rol.
Abr. 27, pl. 49.

(d) King v. Wilson, Str. 873; Fish v. Hutchinson, Bull. N. P. 281, 2 Wils. 94.

CHAP. III. principal debtor.(a) Forbearance of suit is, as we have seen(b) a sufficient consideration.(c)

Sect. III.

Consideration

must be new,

The promise must be made on a new consideration; a

past considera- past, or executed consideration, is bad.(d)

tion bad.

What is sufficient

But a promise on a future or executory consideration is good, although an existing debt is guaranteed against. consideration. Thus where the defendant gave the following note to the plaintiff which he dated and signed: "I hereby guarantee the present account of Miss H M due to R T S and Co., (the plaintiffs) of £112 4s. 4d., and what she may contract from this date to the 30th September next;" it was held that there was a sufficient consideration.(e) So also the consideration was held to be sufficient on the following guarantee: "In consideration of your agreeing to supply S with goods upon credit, in the way of your trade (the amount to be in your own discretion), I hereby guarantee you the due and regular payment of such sum or sums as he may now, or at any time, and from time to time hereafter, owe to you; my liability under this guarantee is to be limited to principal sun in running account of £100."(ƒ)

(a) Morley v. Boothby, 3 Bing. 113, per Best, C.J.; and see Ex parte Minet, 14 Ves. 189; Pillans v. Van Mierop, 3 Burr. 1663.

(b) Ante, p. 68.

(c) See further Oldershaw v.
King, 2 H. & N. 399, 517;
Wynne v. Hughes, 21 W. R. 628.

(d) Hunt v. Bate, Dyer, 272a;
Payne v. Wilson, 7 B. & C. 423;
Thomas v. Williams, 10 B. &
C. 664; Tomlinson v. Gell, 6
A. & E. 564, 1 N. & P. 588;

Eastwood v. Kenyon, 11 A. & E. 438; 3 P. & D. 276; French v. French, 2 Man. & Gr. 644; Johnston v. Nicholls, 1 C. B. 251; Broom v. Batchelor, 1 H. & N. 255.

(e) Russell v. Moseley, 6 Moo. 521; 3 Brod, & B. 211.

(f) White v. Woodward, 5 C. B. 810; and see Stead v. Liddard, 1 Bing. 196; Coe v. Duffield, 7 Moo. 252; Chapman v. Sutton, 2 C. B. 634; Boyd v. Moyle, 2 C. B. 644.

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