#### *Braxton, Adm’r &c. v. Harrison’s Ex’ors.

April Term, 1854,

Richmond.

i. Bonds—Assignment—Subrogation—Case at Bar.—W. administrator of G, assigns the bond of T to the executors of H, in discharge of a debt due from G to H. The executors of H sue T, and recover a judgment upon the bond; and he thereupon enjoins it on the ground that G was indebted to him for a legacy left by R, of whom G had been executor: And this injunction is afterwards perpetuated. Heed: That the executors of H are entitled to he substituted to the rights of T against G’s estate; and are not confined to their remedy upon the assignment of W.

3. Injunction—Consent to Perpetuation—Case at Bar. — In this injunction suit the executors of H and W and the administrator *de bonis non*of G, are parties, and they consent to the decree perpetuating the injunction; and also to a decree directing the executor of W, and the administrator *de bonis non,*to settle their accounts of administration upon S’s estate. Heed:

1. Same—Same—Decree between Co-defendants.*— That it is a case in which there may he a decree between co-defendants in favor of the executors of H against G’s estate.

2. Same — Same—Account.—That to ascertain whether there were assets of G’s estate to pay the debt, the court might direct the accounts.

3. Same—Same—Same.—If the propriety of a decree against the assets of G’s estate was otherwise doubtful, the consent of the representatives of W and G clearly authorized it.

3. Same—Same—Binding—Case at Bar.—Though upon a hearing it might have been improper to perpetuate the injunction, yet the administrator *de bonis non*of G having consented to the decree; and all the parties appearing to have acted in good faith-, the executors of H are not thereby deprived of their remedy over against G's estate in the hands of a subsequent administrator *de bonis non*of G.

4. Same—Same—Case at Bar.—Ten years after the perpetuation of the injunction, the second administrator *de bonis non*of G entered into an agreement under seal, with the executors of H, to pay the debt out of the assets of G’s estate, when they should he received; and the executors agreed to wait with him twelve months, and to release their costs in the injunction suit, and dismiss it as far as they were concerned. But the administrator was not to he hound personally; and the executors were at liberty, if the money was not paid at the end of the year, to cancel the agreement, and proceed to enforce any of their existing legal reme- • dies. The administrator did not collect assets *within the year; and the executors after-wards sued upon this agreement. Heed:

1. Same—Same—Statute of Limitations—Case at Bar. —That though the right of the executors of H to proceed against G’s estate accrued when the injunction was perpetuated, yet the pendency of the injunction suit carried on for their benefit, *29prevented the running- of the statute of limitalions against them.

3. Executors and Administrators—Promise to Pay Debts Out of Estate.†—That although it is generally true, that an executor or administrator cannot create a new cause of action against the estate, yet lie may make a valid promise to pay a debt not harred by the statute of limitations, out of the assets of the estate, upon which a suit may be maintained.

3. Same—Same—Consideration.—That there was a sufficient consideration in this case to sustain the agreement made by the administrator *de bonis non of*G; and suit could be maintained upon it by the executors of H. a gainst the administrator tor satisfaction out of the assets.

4. Equity Practice- -Marshaling Assets—Case at Bar. —That it was proper to sue in equity to have an account of or marshaling of assets; and this especially as the agreement being under seal, it was doubtful whether an action at law could be maintained upon it.

The following statement of the case is made by Judge Moncure:

In 1810, Benjamin Harrison being a creditor to a large amount of the estate of Philip *Is.*Grymes, Robert West, the administrator of Grymes, paid the debt by an assignment-of bonds taken at the sale of the personal estate; and in the settlement of the administration account the estate was credited with the amount of the bonds, and debited with the amount of the debt. Among the bonds assigned was one of Morgan Tomkies. In due time after this bond became due in October 1810, Harrison’s executors brought suit upon it, and obtained judgment in October 1812. A forthcoming bond was given, on which judgment was obtained in May 1813. In October following, Tomkies enjoined the judgment in the Superior court of chancery at Williams-burg; stating in his bill, that as administrator of Catharine Wyatt and guardian of her only child, he had become entitled to a legacy of three "'hundred pounds, given to her by her father John Robinson, of whom Grymes was executor; that no part of the legacy had been paid, though considerable estate of Robinson had come to the hands of Grymes. That he, Tomkies, had instituted a suit which was then pending in said court, for the recovery of the legacy. That he had been induced to become a purcháser at the sale of Grymes’ estate, and to become bound for the purchases of his ward at the sale, by the promise of West not to transfer the bond until the claim for the legacy should be ascertained ; and by an understanding- with him that the amount of the bond, or so much of it as might be necessary, should be set off against the legacy, or the balance which might be ascertained in the said suit to be due thereon ; and that West, in violation of his said promise and agreement, had assigned the bond to Harrison’s executors, who had recovered judgment and sued out execution thereon; and praying for an injunction of the judgment until the report of the commissioner in the suit brought for the recovery of the legacy as aforesaid, and for general relief. Harrison’s executors, and West, administrator of Grymes, were made defendants. In April 1814, Harrison’s executors filed their answer, stating that their testator was a creditor by bond of Grymes for a considerable amount; that one of them attended the sale for the purpose of obtaining payment; that the negroes were sold on credit, and nothing better could be done than to receive bonds executed by purchasers at the sale to the amount of the debt; and that he accordingly received by assignment from West, administrator as aforesaid, several bonds, among which was that of Tomkies. They profess ignorance of the facts staled in the. bill on which the complainant’s claim to relief was founded. In June following, West, administrator of Grymes, filed his answer, positively denying all the grounds of equity "'contained in the bill, and expressing a belief that nothing was due on account of the legacy. In October following, a motion was made to dissolve the injunction. But the court overruled the motion, and ordered that unless the parties were satisfied with a certain report mentioned in the order, and would consent to a copy of that report being evidence in the case subject to exceptions, a commissioner should take an account of Grymes’ administration of Robinson’s estate, and ascertain the balance due on the said legacy, and. make report to the court. In September 1815, the death of the plaintiff Tomkies was suggested, and a scire facias awarded to revive the suit in the name of his executor. In June 1818, the suit was revived by-consent in the name of Robins, administrator of the plaintiff, against George West, executor of Robert West, who was admin*30istrator of Grymes, who was executor of Robinson, and George Healy, administrator of Grymes; and thereupon the cause coming on by consent to be heard on the bill, answers, exhibits and depositions, the defendants consenting that a copy of the accounts filed in the case of Chowning & wife v. West, adm’r of Grymes, settling the transactions of Grymes on the estate of Robinson, might be taken as the account in the case; the court, on consideration thereof, and with the consent of the parties, perpetuated the injunction ; and, with the like consent, decreed that the defendant George West should settle the administration account of his intestate on the estate of Grymes, and the defendant Healy should settle his administration account on the same estate, before a commissioner of the court, who was directed to state, settle and report the same. Sundry proceedings were afterwards had without effect, to compel George West to settle the account directed to be settled by him as aforesaid. From a report filed in the case it appears that his reason for failing to do so *was, that the vouchers relative to Robert West’s administration of Grymes’ estate were in the hands of Commissioner Eadd for a settlement of the account in another case, and could not be given up until he had reported on them. In JUI3- 1823, the suit was transferred to the Superior court of chancery for the Richmond district. In April 1827, George West being dead, and Healy no longer administrator of Grymes, a scire facias was awarded to revive tb'e suit against Price Perkins, administrator de bonis non of Robert West, and Carter Braxton, administrator de bonis non of Grymes.

In this state of the case of Tomkies v. West, an agreement of compromise was entered into between John F. May, acting for the surviving executor of Harrison, and Braxton. Mr. May, it seems, had been retained by Harrison’s executor to prosecute the suit after its removal to Richmond; and in December 1826 wrote a letter to Braxton, stating his views of the case, and of the liability both of West’s and Grymes’ estates to Harrison, and proposing, as Harrison’s executor was old and averse to trouble and litigation, that bond with security should be given for the payment of the debt at some future time, when it might be expected that it could in a legal course be recovered. This letter commenced a negotiation which terminated in the agreement aforesaid, bearing date the 31st of January 1828. That agreement, which is under the hands and seals of the parties, states that they had compromised the matters in difference between Grymes’ administrator and Harrison’s executor in the suit of Tomkies v. West, in which they were both parties; by which compromise it was agreed that Braxton, or his successor, should pay to Harrison’s executor the amount of the original judgment against Tomkies on his bond assigned to Harrison’s executors as aforesaid, out of the assets of Grymes, so soon as *Braxton should have a sufficiency to pay the same in his hands. That he should have twelve months in which to make such payment; that, upon its being made, George E. and William B. Harrison, legatees of Benjamin Harrison, would execute a bond with good security, to refund to Braxton the amount so paid, provided any debt of superior dignity should be legally established against Grymes’ estate, and. there should not be assets sufficient for the payment thereof; that after such payment Harrison’s executor would renounce all costs of the suit of Tomkies v. West, and give a discharge for the same, and, as far as he was concerned in the suit, enter a dismissal thereof; that if the said debt should not be fully paid at the termination of the stipulated period, Harrison’s executor should be at liberty to resort to any legal means for the recovery thereof; and that nothing contained in the agreement should be construed to bind Braxton in any other capacity than that of representative of Grymes. At the foot of the agreement is a memoranda signed by Braxton, by which it was further agreed that if Harrison’s executor should at the end of six months see fit to cancel the agreement, he might do so upon requiring Braxton to cancel the duplicate thereof in his possession.

In November 1828, Braxton wrote a letter to George E. Harrison, in answer to one received from him, in which letter this language is used: “In answer, I have to remark that the arrangement made between Mr. May and myself, relative to the debt due from Mr. Grymes’ estate to your father, was done with the intent to end a perplexed and disagreeable law suit. On my part, as the present representative of Mr. Grymes, I was fully convinced of the justness of the claim, and wished for no other litigation. -At the time this arrangement was entered into, I expected to obtain an immediate decree in favor of Mr. Grymes’ ^estate against one of the former administrators for a considerable amount. Under this expectation, I only wanted time to enable me to realize the money arising from that claim.” The writer then states that his expectation had been disappointed; and after referring to' other sources of payment, including Mr. Grymes’ land, which he says he would sell and pay the debt if he could, he uses this language: ‘ ‘Had the decree been obtained in January last, you should have had the money beefore this. Whenever the money is made, the debt to your father’s estate shall be forthwith settled.”

In October 1829, Braxton wrote another letter to Harrison, in which this language is used: “I expect a decree at the next chancery term for the Richmond district, against the preceding administrator on Mr. Grymes’ estaté, and his securities, who are very ample, for a very large amount, between sixteen and seventeen thousand dollars. There are other very large claims due the estate of Mr. Grymes; but these are the first thati expect will be tangible. *31Now, out of the first money collected you will be wholly, or for the greater part of your claim, satisfied.”—‘‘The compromise between Judge May and myself terminated a source of litigation that would have consumed as much time and expense as any one with which I have become acquainted, considering the number and distance of the various parties. That compromise bound the parties to settle on specified terms, and if they did not do so in twelve months, then the representatives of your father’s estate were to be at liberty to pursue their original remedy. Now, I hardly imagine that it would possibly be expected a suit of the complex nature of the one that the compromise ended could be matured, sooner than the expectations I have mentioned will be realized. I hope, however, 3'ottr necessities may not press you before pa3rment can be made. *The personal estate of Mr. G. in m37 hands is very inconsiderable. If a judgment was now had, before satisfaction of it could be obtained it would be necessary to bring a suit to subject the lands of Mr. G.”

Braxton having fathed to pay the debt to Harrison’s executor, the latter, in April 1833, in conjunction with George 15. and William B. Harrison, sons and distributees of Benjamin Harrison, filed their bill in the Circuit court of Middlesex, for the purpose of enforcing the execution of the agreement aforesaid; setting out the material facts in relation to the agreement, and the debt for the payment of which it was entered into; charging that personal estate of Go-mes to a considerable amount had come to the hands of Braxton as his administrator; that a large amount of real estate was then held by Braxton and wife in her right as sole heir and devisee of Güines; that the estate of Gimmes, both real and personal, was bound for the payment of the said debt, of which no part had been paid, and that the said George and William B. Harrison were then entitled to the whole of the said debt by the consent of Harrison’s executor; making Braxton, administrator de bonis non with the will annexed of Grymes, and Braxton and wife defendants to the bill; and praying for suitable relief. The agreement and said two letters of Braxton were filed as exhibits. And a bond was executed by the said George E. and William B. Harrison and a surety, in the terms prescribed by the agreement, and filed with the bill.

In July 1833, Braxton as administrator, and also for himself and wife, filed an answer. He sets out the substance of the letter received by lr'm from Mr. May in December 1826; sa3's that at no time prior to the agreement had he ever examined the suit of Tomkies v. West, nor did he at the time of the agreement have any knowledge of that suit derived from any other source than the letter; and that, entertaining no doubt '"'that the facts of the case were truly stated by Mr. May, and that his opinion as to the law' arising on the facts was sound and correct, he consented to execute, and did execute, the agreement. He says that according to his understanding of the agreement, if the debt should not be paid in twelve months from its date, Harrison’s executor was to be at liberty to resort to any legal means for the recovery of the debt which he might have used if the agreement had never been made: in other words, might go on with the suit of Tomkies v. West. And he insists, that w'ithout any further enquiry this suit ought to be dismissed, and the plaintiffs turned over to that suit for any relief to which they might be entitled. But if that course should not be taken, he says the court will have to determine how far he was bound, anterior to the agreement, as the representative of Gr3'mes’ estate: in other words, whether the plaintiffs have any equitable claim against that estate. He then sets out the facts in regard to the assignment of Tomkies’ bond, the proceedings at law upon it, and the proceedings in the injunction suit; and insists thjit when Harrison’s executors delivered up to West, as administrator of Grymes, the evidence of debt v'hich they held, and gave a receipt in full for the debt, the estate of Grymes became entirel3' exonerated. The claim henceforth was a claim on the bond against the obligors ; or, if it could not be collected of them by due diligence, on the contract of assignment against West individually, and not a» administrator of Grymes; as no administrator can make any new contract binding' upon bis decedent’s estate. He further insists that it is manifest from the record in the suit of Tomkies v. W’est, that the injunction never would have been perpetuated, if the executors of Harrison had not consented to it. He then says that since March 1830 he has discovered most material testimony in the record of a suit in the *County court of Middlesex, *in*which Wyatt and wife were plaintiffs, and Grymes, executor of Robinson, defendant, commenced in 1797, and abated by the death of Gn-mes in 1803; which suit was brought for the recovery of the same legacy claimed by Tomkies in the injunction suit. The tendency of that testimony is to show that Wyatt had given Philip Samson an order on Grymes for the legacy, and that Samson had received the amount of it, in whole or in part. Other matters are stated in the answer, but need not be here further referred to. The letler of May to Braxton was filed as an exhibit.

In July 1846, the deposition of May was returned and filed b3’ the plaintiffs. He makes'the following, among other statements: “There had been some communications, perhaps verbal as well as written, between Mr. Braxton and myself ; and some time after them Mr. B. met me in this city, and we examined together the chancery papers in the old suit of Tomkies v. West, and finally entered into the agreement manifested by that paper. I recollect the circumstances of our having the papers before us, because at that time I discovered, first, according to my present recollection, *32that the decree perpetuating the injunction purported to have been made by the consent of Harrison’s executors as well as Grymes’ executor, which Mr. Braxton and myself both concluded to have been a mistake in the draft of the note for a decree.”—“The papers in that suit were certainly before us at the time that agreement was entered into, and the subject of the consent order was then mentioned in our conversation; and my recollection is that Mr. Braxton and myelf examined the papers, on at least two different days during his then visit to Richmond before we entered into the agreement. ’ ’

In June 1847, the cause coming on to be heard in the Superior court of chaneery for the Richmond circuit, *(to which it had been transferred,) on the bill, &c., and upon the original record of the case of Tomkies v. West, pending in the same court, including the record of the case of Wyatt & wife v. Robinson’s ex’or, filed therein as an exhibit on the 28th of January 1831, the court was of opinion, and decided, that the estate of Grymes was justly indebted to the estate of Harrison in the sum of one thousand and seventy-seven dollars and twenty cents, with interest from the 11th of October 1810 till paid, and nine dollars and fifty-one cents costs, according to the stipulations of the agreement aforesaid. But as no decree could be rendered for the payment of the monejr without a settlement of the accounts of Braxton as administrator of Grymes, the court decreed, that unless the defendant Braxton should admit assets in his hands of the estate of Grymes sufficient to satisfy the said claim, then the said defendant should render, before one of the commissioners of the court, an account of his administration of the said estate. And the said commissioner was directed to ascertain and report to the court what real estate and its value was left by Grymes at his death and passed to his heirs or devisees.

Robinson, for the appellant:

It is probable that Harrison was a creditor of Philip L. Grj'mes. This debt West the administrator of Grymes paid, took a receipt for the payment, and has received a credit for it in his administration of Grymes’ estate. The debt was then discharged; and if any liability exists on that account, it must arise out of a new contract. This debt of Harrison was paid in part by the assignment by West to Harrison’s executors of the bond of Tomkies; and any existing liability to Harrison’s executors must arise out of that assignment. If Harrison’s executors used due diligence to recover the money from Tomkies and fathed, then West was ^liable on his assignment. Harrison’s executors did sue Tomkies, and obtain a judgment against him, which he then enjoined on the ground that as administrator of Wyatt he held a claim against Grymes’ estate. To this suit Harrison’s executors and West were parties; and the injunction was perpetuated by their consent. This result, it is most obvious from an inspection of the record, could not have occurred but by the consent of Harrison’s executors; and therefore they might have obtained their money from Tomkies. And if West’s consent bound him, still Grymes’ estate should not have been subjected; and as West was only liable as assignor, the action against him was barred in five years, and in fact no action was ever instituted against him. Nor could the decree for an account in that cause have the effect to prevent the bar of the statute; because there could be no decree upon that bill between codefendants. 2 Rob. Pr. 397-8; Yerby v. Grigsby, 9 Leigh 387; Crawford v. McDaniel, 1 Rob. R. 448; Eccleston v. Lord Skelmersdale, 1 Beav. R. 396, 17 Eng. Ch. R. 396; Goodwin v. Clewley, 2 Beav. R. 30, 17 Eng. Ch. R. 30.

When the decree perpetuating the injunction was made, Harrison’s executors should have been left to their action on the assignment. This right of action arose in 1818, more than nine years before the suit was revived against Braxton as representative of Grymes; and it was then irregularly revived, because in fact there was no case to revive. Tomkies had obtained all he asked, and he could not amend a bill to set up a claim of Harrison’s executors against Grymes’ estate.

Such was the condition of things as to Braxton and Grymes’ estate when May wrote his letter to Braxton; a letter which, whatever was the purpose of the writer, did mislead Braxton; and he was misled when he executed the agreement, as is plainly shown both on the face of the agreement and the letters filed. We *do not insist that the action of May was fraudulent; but parties coming into equity for relief, the court must apply to them the principles applicable to other cases of the specific execution of contract. For these principles the court is referred to 2 Rob. Pr. 169, 170; 1 Story’s Equ. Jur. § 750. Certainly equity will not execute an agreement where there is neither a meritorious nor valuable consideration; nor will it even aid a defective conveyance. Darlington v. McCoole, 1 Leigh 36. Here, though this agreement is called a compromise, yet it is all on one side, and is without consideration. The whole amount of the claim of Harrison’s executors is their judgment against Tomkies, and that is to be paid in full. As to the.costs, they were not coming to Harrison’s executors, but to Tomkies, and the executors had no control over them. But moreover, the agreement expresses on its face, that Braxton did not bind himself further than he was bound before. Is this then a contract which a court of equity will enforce? There must be mutuality in the contract, and for that reason the contracts of infants will not be enforced even at their suit. Flight v. Bolland, 3 Cond. Eng. Ch. R. 675. Does anybody imagine that an action at law could be maintained against Braxton upon this agreement, in hiso individual character? And if not, cer*33tainly an action could not be maintained upon it against him as administrator. If an action against him as administrator could be maintained, then probably there might be a bill to enforce it, and for an account of assets. But if such an action cannot be maintained upon it, then there cannot be a bill in equity founded upon it.

In fact, the bill in this case is not based upon the agreement, but upon the case as it existed before the agreement was made. The plaintiffs claim as assignees and upon the doctrine of subrogation. The. first ground cannot be good against Grymes’ estate if not *good against the assignor West: And we have already shown that the statute bars the claim against him. Then as to the right of subrogation. The bond due to Harrison has been paid, and paid out of Grymes’ estate. Whatever right exists must arise as before said, out of the assignment. When that right is barred, any right arising out of it must be at an end. But if Harrison’s executors are entitled to be subrogated to West, they can only have the same rights which West has against Grymes’ estate. But West has no such right, because he assented to the decree perpetuating the injunction; or if he had any, certainly he was only entitled to a credit in his account of administration for the amount.

Irving, for the appellees:

I take it to be clear law, that where a bond is assigned as the bond in this case was, and it is not a valid bond, it is no payment, but there is a failure of consideration, and the assignee has a right to come back upon his debtor upon the foot of his original debt. In such a. case the assignment of the bond is not a payment.

There is nothing in the record of Tomkies v. Haxall which shows negligence in the prosecution of the claim by Harrison’s executors against Tomkies. The counsel for the appellant has argued the cause without reference to the fact that Grymes’ administrator was a party in that cause, and a party consenting to the perpetuation of the injunction in that cause. And it cannot be successfully maintained, that when the assignor and assignee are united in the defence, and the assignor assents to the defeat of the claim, the assignee shall be precluded from his remedy against him. But in fact there was no proof in the cause which would have authorized the dissolution of the injunction. There was proof that Wyatt’s legacy due from Grymes had *been assigned to Tomkies, and there was no proof that it had been paid. The old case of Tomkies v. Grymes was not discovered for twelve years after the consent decree. There is no proof that its existence was known to Harrison’s executors ; and it was not even known to Braxton when he filed his first answer in the case of Tomkies v. Haxall.

But it is insisted that the statute of limitations bars the claim of Harrison’s executors ; and this because there could be no decree between codefendants in Tomkies against Haxall. The authorities cited byr the counsel on the other side are against him. The whole question in controversy in that case was, whether the bond of Tomkies assigned by West to Harrison’s executors was due. In this question the interest of Harrison’s executors and Grymes’ administrator was the same; and when it was held that the bond was not due, everything was ascertained which was necessary to entitle Harrison’s executors to a decree over against Grymes’ administrator.

But the present suit is upon the agreement between May on behalf of Harrison’s executors and Braxton. This agreement is under seal, and relates to a matter of which Braxton was fully informed. If, therefore, the case of Tomkies v. Haxall is at an end, and the claim arising out of it is barred by the statute, Grymes’ estate is bound by this new agreement, because it admits the debt as still due. But it is said there is no mutuality in the contract. Braxton only bound himself to pay what he admitted to be due out of the assets of the estate. He obtained a delay of twelve months, which he deemed of material advantage to him, and was discharged from the costs of the suit; and he settled a protracted controversy.

It is argued that we claim through West, and that he is not entitled to recover against Grymes’ estate: And this is the vice of the argument on the other side. *We do not claim through West. We say that the bond of Tomkies not being a valid debt, the assignment of that bond to Harrison’s executors was nota payment ; but that so much of our original debt due by bond, is a still subsisting debt, which we are entitled to have paid out of the estate of Grymes the debtor.

Robinson, for the appellant, in reply:

It is argued by the counsel for the appellees, that the debt due from Grymes to Harrison had never been paid. It has been taken in receipted as paid, and the administrator of Grymes has been allowed a credit for its payment. It was paid in part by Morgan Tomkies’ bond; and whatever rights the plaintiffs have in this case must arise out of that contract of assignment. They may have taken it without recourse, and in that case they must certainly lose it. It is, therefore, this contract which is the origin of their rights. It may be that in the case of a forged bond the payment might be treated as a nullity; but here was a valid bond, proved to be so by the judgment upon it. When then West passed this bond to Harrison’s executors, he passed to them value. But if it is said it was a forged bond, or that it was subject to setoff, then this is to be proved. Here West in his answer says a part of this setoff, and he believes all of it, had been paid. Then is it enough for Harrison’s executors to consent to the decree, and to use it to prove their claim against Grymes’ estate.

If any question of law is settled, it is *34settled law that Harrison’s executors have no claim upon the foundation of the original debt. Thacher v. Dinsmore, 5 Mass. R. 299; Bank of St. Albans v. Gilliland, 23 Wend. R. 311; Shore v. Shore, 22 Eng. Ch. R. 378. If there had been a surety in the original bond, could his liability be revived ? This subject is well treated in *Wiseman v. Lyman, 7 Mass. R. 286. Then when West transferred Tomkies’ bond in discharge of Grymes’ debt, the remedy of Harrison’s executors is upon his undertaking whether express or implied upon the transfer. In a transfer of a forged note there is an implied warranty of its genuineness; but there is no such warranty that the parties are solvent. Edmunds v. Digges, 1 Gratt. 359. If, therefore, West had paid the amount in bank notes, Harrison’s executors would have had no remedy either upon thS original bond or the notes. And in Mays v. Callison, 6 Leigh 230, it is said that it might be submitted to the jury whether upon all the facts there was a warranty that the bond had not been paid: That was an action by an assignee against his assignor. The liabilities of an assignor are stated in Turneys v. Hunt, 8 B. Monr. 401. In all such cases, where the bond assigned is a valid instrument, as was the bond in this case, the question of the assignor’s liability resolves itself into a question of due diligence; and upon that question there can be no doubt in this case, unless the injunction concludes it; which it does not. McClung v. Arbuckle, 6 Munf. 315. It is clear that if due diligence had been used the injunction would not have been perpetuated: For certainly West had a right to enforce the payment by Tomkies of his bond. White v. Banister, 1 Wash. 165; Pulliam v. Winston, 5 Leigh 324. This would have been the case if West had sued Tomkies; and the case is still stronger when the suit is by an assignee; as-no equity could be set up against the bond unless there had been notice of it before the assignment. Here there was no such equity; for West denies expressly the equity set up in the bill; and there was no proof of it in the cause. Then it was the fault of Harrison’s executors that the injunction was perpetuated; and they therefore can have no equity to compel Grymes’ estate to pay the debt.

*There is but one answer to this argument: That is, that Grymes owed Tomkies. This is necessary to their recovery, and they must prove it. The proofs we think ought to satisfy the court that Tomkies had no valid claim against Grymes’ estate; but whether or not this be so, Harrison’s executors do not prove that he had. They attempt to obviate this objection by the concurrent consent of West’s and Grymes’ administrators. But this does not excuse Harrison’s executors, unless they show that Grymes’ estate has not been injured by the perpetuation of the injunction.

But if Harrison’s executors had a right to recover from Grymes’ estate the amount of Tomkies’ bond, that recovery was to be had either in the suit of Tomkies v. Haxall, or by a new action. If they could not recover in that suit, then their claim was barred after five years from the perpetuation of the injunction. If they could have recovered in that suit, then this suit was improperly instituted: And this objection is distinctly taken in the answer of Braxton. This conclusion is inevitable if the case of Heywood v. Covington, 4 Leigh 373, is to be respected.

But the agreement between May acting for Harrison’s executors and Braxton is relied on to sustain this claim. If this new agreement is to alter the rights and liabilities of the parties, then Braxton was misled. The letters show that he derived his information from May. There was, moreover, no consideration for the agreement. It is said Braxton obtained a year’s indulgence. But this is no consideration. Forbearance to an executor is onljr a consideration where he binds himself; and this he expressly declined to do. There were in fact no assets in his hands at the time; and if there were assets, it was not the interest of the estate that indulgence should be given. As to the dismissal of the suit, that was not within the control of Harrison’s *executors; and in fact it is not yet dismissed: And the same maybe said of the costs.

It is argued that the agreement and letters dispense with the proof of due diligence, and that the debt was just. It would be most unjust that these papers should have this effect. Braxton knew the facts or he did not. If he did not, then he could not be bound. If he did know, a court of equity will not permitan executor to injure the estate by his admissions. Since the statute, Code, p. 548, § 6, his admissions could not affect Grymes’ estate. According to the weight of authority, no executor can preclude the estate from setting up any defence by his admissions. Thompson v. Peter, 12 Wheat. R. 565; Tullock v. Dunn, 21 Eng. C. L. 478; Scholey v. Walton, 12 Mees. & Welsh. 510; Fritz v. Thomas, 1 Whart. R. 66; Reynolds v. Hamilton, 7 Watts’ R. 420. If the claim was not just without the agreement and letters, it is not just with them. This agreement then gives no strength to the plaintiffs’ claim either to the right or to the remedy; and therefore the bill should be dismissed.

*

See Glenn v. Clark, 21 Gratt. 35, and *foot-note.*

†

Executors and Administrators - Promise to Pay Debt Oat of Estate. -The proposition laid down in the principal case, that an executor or administrator cannot create a new cause of action against the estate, yet he may make a valid promise to pay a debt not barred by the statute of limitations, out of the assets of the estate, upon which a suit may be maintained, is approved in Switzer v. Noffsinger, 82 Va. 524.

See also, Seig v. Acord, 21 Gratt. 365, and note; Smith v. Pattie, 81 Va. 654; Code 1873, ch. 146, sec. 11.

And in Boyd v. Oglesby, 23 Gratt. 684, it is said that the administrator or executor may make settlements ami compromises with creditors, and give them confessions of j udgments, citing *Braxton*v. *Harrison, 11*Gratt. 54; Wheatley v. Martin, 6 Leigh 62, 71.

See monographic mofe oa “Executors and Administrators.”

Death of Executor—Administrator d. b. n.—Revival of Saits.—In Jones v. Reid, 12 W. Va. 369. it is said: “When the executor died, the cause was properly revived against the administrator *de bonis non,*because there was no other party, who could possibly represent the estate of William O. Reid, deceased, and defend it against the claim of plaintiff. Sheldon *et al.*v. Armstead’s Adm’r *et al.,*7 Gratt. 264; *Braxton v. Harrison, 11 Gratt. 30.”*

See monographic *note*on “Executors and Administrators.”

MONCURE, J.,

after stating the case, proceeded:

It was contended by the counsel for the appellants in this case, that conceding that the bond of Tomkies was assigned by West to Harrison’s executors in payment of a debt due by Grymes to them, and that they used due diligence to recover the amount of the bond, but fathed to do so by reason of its being satisfied by a debt due by Grymes to Tomkies; still they would have no claim to relief, even in equity, against Grymes’ estate; and would have to rely alone on the recourse which his contract of assignment *35might give them against West individual^.

It will be a sufficient answer to the above proposition to say, that if the bond of Tomkies was satisfied *by a debt due by Grymes to Tomkies, it was a debt of the highest dignity; being due by Grymes, who was executor of John Robinson, to Tomkies, as assignee of a legacy given by said Robinson to his daughter Mrs. Wyatt. This debt was not charged to the estate of Grymes in the administration account of West; and having, in effect, been paid by Harrison’s executors, they are entitled to be substituted in equity to the place of the creditor, and to have the debt, to the extent to which they a.re entitled to it, paid out of the estate of Grymes.

It was further contended, that if Harrison’s executors could have had any recourse against the estate of Grymes for the amount of Tomkies’ bond, it could only have been on the terms of using due diligence to collect the bond; and that they did not use due diligence, in as much as they consented to the decree perpetuating the injunction of the judgment on the bond, without which consent the injunction would not have been perpetuated.

It is not pretended that there^ was any want of diligence on the part of Harrison’s executors, except in giving their consent to the decree of perpetuation. They seem to have been prompt, not only in asserting their claim against Grymes’ estate on the day of sale, but in suing on the bond of Tomkies shortly after it became due, and obtaining a judgment at law, and then a judgment oil a forthcoming bond, when "they were enjoined from further proceedings. They promptly filed their answer to the bill of injunction, and moved to dissolve it; but their motion was overruled, and an account was ordered. Afterwards, by consent of parties, the cause came on to be heard, the same account settled in another case was taken as the account in the injunction suit, and the injunction was dissolved. Whether it would have been dissolved but for such consent, it is impossible to say, and unnecessar3' to ^decide. There was filed with the bill an affidavit of Wyatt, the only child and distributee at law of the legatee Mrs. Wj’att, sustaining its allegation; to the reading of which affidavit as evidence no exception was taken. The record of the suit of Wyatt & wife v. Grymes, in the County court of Middlesex, was not an exhibit in the injunction suit, and had not then been discovered. It is true the answer of West denied the equity of the bill, and was sustained in part by a deposition. In the condition in which the case was, the injunction should, I think, have been dissolved. But the court did not think so, and overruled the motion for that purpose, and ordered the account. This was an indication of the opinion of the court, that if upon taking the account, Grymes should be found to owe as much on account of the legacy as the amount of the judgment, the injunction should be perpetuated. And when afterwards the same account was I taken in another suit of another legatee of ' Robinson, and it was thereby ascertained that Grymes had received ample estate of Robinson to pay all his legacies, the representatives of West and of Gr3up.es, who were defendants in the injunction suit, doubtless wishing to save the trouble and expense of retaking the same account, and believing that there was at least as much due on the legacy to Mrs. Wyatt as was equal to the amount of the judgment against Tomkies, consented to the perpetuation of the injunction. There was nothing then in the case to show that any part^of the legacy had been paid. West had said in his answer that he had a voucher for the payment of one hundred pounds, and that it was probable nothing was due on account of the legacy; but there was no proof to •sustain these allegations.

And when the cause came on to be heard, it presented but one difficulty; and that was in regard to the right of Tomkies to have his bond set off against *the legacy. So far as Grymes’ estate was concerned, it was simpljr a question whether so much of the legacy as was equal to the amount of the bond should be paid to Harrison’s executors or some other person. If the injunction should be perpeluated, it would be due to Harrison’s executors: If dissolved, to Tomkies, or some other person. It was, therefore, of no consequence to Grymes’ estate whether it was perpetuated or dissolved. It was desirable o f course to end the litigation; and it could oest be ended by a consent decree; to which, it ' seems from the record, the consent of Harrison’s executors was obtained. The representatives of West and of Grymes seem, therefore, to have acted in good faith in consenting to the decree. Certainly there is nothing to impugn the good faith of Harrison’s executors in giving their consent, if in fact they did give it; as must be taken to be the fact, since it so appears by the record. They might lose, but could not gain, by giving their consent. By doing so, they gave up all claim against Tomkies, and consented to retain 011I3' their recourse against Grymes’ estate. They could safely do this if they chose, with the consent of the representatives of West and of Grymes. An assignee may safely be governed by the instructions of the assignor in the management of the assigned claim: and ordinarily he could not disregard them without endangering his recourse against the assignor. When an obligor in an assigned bond enjoins a judgment on the bond on the ground of some equity existing between himself and the assignor, the assignee is generally ignorant of the facts, and leaves them to be litigated between the obligor and assignor. He has a right to ! require strict proof of the facts, because he | has a right to enforce the bond if due, as •well as to have his recourse against the ! assignor. But he may, if he choose, waive the former right and retain the latter, if the assignor admit the ground of *36equity and consent xto a decree of perpetuation. The consent of the assignee to the decree has no other effect than as a waiver of his right to proceed further on the bond, and cannot affect his recourse against the assignor, who also consented. Nothing would be plainer than this in a case in which an assignor is acting in his own tight, and there can be no difference in a case in which he is acting as administrator; supposing him to act in good faith, or that the assignee has no notice or reason to believe that he is acting otherwise. An administrator has an undoubted right to confess a judgment, or consent to a decree, if he believes that the interest of the estate he represents requires it. Whether, therefore, the injunction would have been perpetuated or not without the consent of Harrison’s executors, yet as West’s and Grymes’ representatives also consented, and as all parties seem to have acted in good faith in the matter, Harrison’s executors did not thereby forfeit their recourse against the estate of Grymes, but became entitled, by the perpetuation of the injunction, to demand of that estate the amount of the judgment against Tomkies.

It was further contended, that the right of Harrison’s executors, if any, to have recourse against Grymes’ estate, accrued at the time of the perpetuation of the injunction in 1818, and could not be enforced in the injunction suit, but only by a new and independent suit; so that when the agreement of compromise was made in 1828, on which this suit was brought, the claim of Harrison’s executors was barred by the act of limitations.

It is true that the right of Harrison’s executors to have recourse against Grymes’ estate accrued at the time of the perpetuation of the injunction; but it is not, I think, true that such right could not be enforced in the injunction suit. I think the case came within the reason and operation of the rule, that “where a *case is made out between defendants by evidence arising from pleadings and proofs between plaintiffs and defendants, a court of equity has a right and often is bound to make a decree between the defendants.” See 2 Rob. Pr. 397, and the cases cited; Fox v. Taliaferro, 4 Munf. 243; Dades’ adm’r v. Madison, 5 Leigh 401. Though a suit be disposed of as to the plaintiff, it may be retained until proper accounts can be taken, in order to render to one of the defendants the relief to which he may be entitled against the other. Morris, &c. v. Terrell, 2 Rand. 6. A defendant may in some cases object to a decree against him in favor of his co-defendant, on the ground that there is no issue made up between them, and their peculiar matters of difference have not been ascertained and settled. But the party entitled to make such objection may certainly waive it, and consent to a decree against him; and it may often be his interest' to do so. In this case both West’s administrator and Grymes’ administrator (Healy) consented, not only to the perpetuation of the injunction, but to a decree, “that the defendant George West settle the transactions of his intestate on the estate of Philip H. Grymes, and that the defendant George Healy also settle his transactions on the estate of the said Philip B. Grymes, before one of the commissioners” of the court, who was directed to settle, state and report the same. This decree could only have been made on the admission of the administrators of West and Grymes, that the estate of Grymes was liable to Harrison’s executors for the amount of the enjoined judgment, and by a decree in- that suit, so soon as it could be ascertained, by a settlement of the accounts, that there were sufficient assets to meet the liability. It is a mistake to suppose that the injunction suit was brought, not only to enjoin the judgment, but also to recover the balance of the legacy claimed by Tomkies. A suit had been brought by *Tomkies for that legacy, and was pending when the injunction suit was brought. And the only object of the latter suit was to enjoin the judgment on the assigned bond until a decree could be obtained in the other suit, and to obtain relief to the extent of that judgment. When the injunction was perpetuated, Tomkies obtained all the relief which he sought, or to which he was entitled, in the injunction suit. Its further prosecution, therefore, could only have been for the benefit of Harrison’s executors. This suit was pending for the benefit of Harrison’s executors when the agreement of compromise was made in 1828, and their claim was not then barred by the act of limitations.

It was further contended, that the agreement of 1828 is of no effect: 1. Because an administrator can create no new cause of action, nor revive an old one, against his decedent’s estate. 2. Because the agreement was made on the mere representation of the counsel of Harrison’s executors, which, though not fraudulent, yet tended to mislead and did mislead the administrator of Grymes; and in ignorance of the fact that the decree of perpetuation was by their consent, and of the existence of the record of the suit of Wyatt & wife v. Grymes in Middlesex county court. 3. Because it was founded on no consideration, and was intended to give no new remedy to Harrison’s executors, in case it should not be performed by Braxton, but leave them to resort to such remedies as they had, if any, when the agreement was entered into.

As to the first objection, it is certainly true, as a general rule, that an administrator can create no new cause of action against his decedent’s estate. But he has all the powers which are necessary to a proper discharge of the duties of his office. He may make settlements and compromises with creditors of the estate, and give them confessions of judgment; and though he may thereby render himself liable for a devastavit, yet they will be entitled to the benefit of his acts, if they deal with him in good faith. He *37may submit to arbitration matters in dispute in respect of the personal estate, and render it liable for the performance of the award. 1 Lomax on Ex’ors 356. As was said by Judge Cabell in Wheatley v. Martin’s adm’r, 6 Leigh 62, 71, “It is competent to an executor or administrator to submit to arbitration any' controversy concerning the estate, whether the estate claims to be a debtor or creditor. This results, necessarily, from the full dominion which the law gives him over the assets, and the full discretion which it vests in him for the set1 lenient and liquidation of all claims due to or from the estate. And although a mere submission to arbitration will not bind the executor or administrator personally, to pay the sum awarded out of his own esiate, yet the award is binding on him in his fiduciary character, and consequently on the assets of the estate which he represents. Pearson v. Henry, 5 T. R. 6; Lyle v. Rodgers, 5 Wheat. R. 394.” An executor or administrator may be sued as such, on promises to pay a debt of the estate. A count, *on*an account stated by a defendant as executor respecting moneys due from the testator, or from the defendant as executor, may be supported, and joined with counts on promises by the testator. Chitty on Contr. 275; 1 Chitty’s Plead. 205; Secar v. Atkinson, 1 H. Bl. 102; 2 Saund. 117 e, note 2; Whitaker v. Whitaker, 6 John. R. 112; Carter v. Phelps’ adm’r, 8 Id. 343. This doctrine has been fully recognized in Virginia. Epes’ adm’r v. Dudley, adm’r, 5 Rand. 437; Bishop v. Harrison’s adm’r, 2 Leigh 532. In the latter case Judge Cabell said, “It is perfectly clear that in an action against an executor or administrator, such counts, ’ ’ that is, counts on promises by the executor as such, and counts on promises by the testator, “may be ^joined; and that that is the proper mode of declaring against executors or administrators to save the statute of limitations.” See also 2 Lomax on Ex’ors 419. Whether before the Code took effect, an executor or administrator might have revived a debt barred by' the act of limita lions, is a question which may admit of controversy, and about which there is some conflict of authority. The cases of Peck v. Botsford, 7 Conn. R. 172; Fritz v. Thomas, 1 Whart. R. 66; and possibly Thompson v. Peter, 12 Wheat. R. 565, decide or assume that he could not. In all these cases the debt had been long barred when the promise was made; and vague and loose admissions were relied on as evidence of a promise, which might not have been sufficient even if made by the party who owed the debt. The observations of the court should be taken in reference to the cases in which they were made. Chief Justice Marshall, in saying, in Thompson v. Peter, that “declarations against him,” the executor or administrator, “have never been held to take the promise of a testator or intestate out of the act; indeed the contrary has been held;” surely did not mean to say that an executor or administrator could not be sued on his 1 promise to pay' a debt of his testator or intestate not barred at the time of making the promise, and that such promise would riot prevent *the*operation of *the*act; for he knew that the law was well settled otherwise. He probably only intended to say that mere declarations, such as were proved in that case, and as contradistinguished from a promise of an executor, had never been held to take the promise of the testator out of the act. Chief Justice Gibson did not mean so say so in Fritz v. Thomas, for he had expressly said otherwise in Collins v. Weiser, 12 Serg. & Raw. 97, in which he held that an administratrix was liable as such on an implied promise for money paid, laid out and expended. His remarks in Fritz v. Thomas, in regard to *the danger of making an estate liable oil vague and indefinite admissions and promises of the executor or administrator, who is often ignorant of the transaction, are certainly very just; and courts and juries should be cautious in weighing the evidence of such admissions and promises. Admissions which would have been held sufficient to take a debt due by the person making them out of the statute, have been held insufficient for that purpose when made by an executor or administrator.

In Tullock v. Dunn, 21 Eng. C. L. R. 478, Chief Justice Abbott said, “As against an executor, an acknowledgment merely is not sufficient to take a case out of the statute, there must be an express promise.” 2 Lomax on Ex’ors 418. But that an executor or administrator might be sued as such on his promise to pay a debt of his testator or intestate not barred at the time of making the promise, is too well settled to admit of controversy. In this case, when the agreement was made there was, as I have attempted to show, a debt due by Grymes’ estate to Harrison’s executors, not barred by the act of limitations, but in a course of continued prosecution from the instant of the accrual of the cause of action. By the decree perpetuating the injunction and directing a settlement of the administration of Gryunes’ estate, that estate was rendered liable, in whosesoever hands it might come, for the claim of Harrison’s executors. A judgment against an administrator, even though it be confessed by him, may be revived against an administrator de bonis non. A suit may be brought against the latter on a promise made by the former to pay a debt of his intestate. Bishop v. Harrison’s adm’r, 2 Leigh 532. “It is clearly competent to an executor,” says Judge Cabell in that case, “by his promise to pay a debt of the testator, to exempt the case from the operation of the statute of limitations; audit is no devastavit *in him to do so. If the executor die or be removed before he has paid the debt, it still remains a debt due from the testator; and the obligation to pay it devolves on the administrator de bonis non, who comes in the place of the executor, and is the representative of the testator.” *38When, therefore, Healy, by whose consent the decree had been rendered, was removed from the administration, and Braxton was appointed administrator de bonis non, Harrison’s executors had a right to have the suit revived against the latter, and accordingly sued out a scire facias for the purpose. In this state of things Braxton, who was suing Healy and his securities for the assets in his hands, and was expecting soon to recover them, and who also, in right of his wife, was sole residuary devisee and legatee of Grymes, agreed, on certain terms, to pay the debt to Harrison’s executors out of the a.ssets when recovered. I think the agreement is clearly binding upon him as administrator of Grymes, unless it is invalid on the second and third objections made to it, or either of them.

As to the second objection, that the agreement was made on the mere representation of the counsel of Harrison’s executors, and in ignorance of the fact that the decree of perpetuation was made by their consent, and of the existence of the record of the suit of Wyatt & wife v. Grymes. May, the counsel of Harrison’s executors, was guilty of no fraud or misrepresentation, and Braxton was not taken by surprise, in making the agreement. After the suit of Tomkies v. West had been removed from Williamsburg to Richmond, May was retained to prosecute it as counsel for Harrison’s executors. He examined the case, and wrote to Braxton in December 1826, stating his views of it, and proposing an agreement, saying that his client was “old and averse to trouble and litigation.” The agreement was accordingly made about a year thereafter. *In the letter, nothing was said about the consent of Harrison’s executors to the decree of perpetuation. I have attempted to show that such consent, given without fraud, which is not imputed to them, did not affect their right to recourse against Grymes’ estate. It is probable that May had not adverted to the fact, or did not deem it material, when he wrote the letter. But the fact was known to Braxton before he entered into the agreement, as is proved in May’s deposition. Braxton had ample time and opportunity to make himself acquainted with all the facts. He appears to have done so, at least so far as to examine the record in Tomkies v. West, which was the only source from which May professed to derive his information. May proves that Braxton and himself examined the papers, on at least two different days, before they entered into the agreement.

In Braxton’s letters to Harrison, written in November 1828 and October 1829, nearly one and two years after the date of the agreement, the former expresses his satisfaction therewith, and his desire and intention to perform it on his part. It is needless to enquire how far the record of the suit of Wyatt & wife v. Gimmes tends to show that the legacy or any part of it had been paid by Grymes in his lifetime, or what would have been its effect, had a copy of it been filed as evidence in the suit of Tomkies v. West when the consent decree was rendered. When that record was discovered by Braxton, more than ten years had elapsed since the decree of perpetuation, and several years since the date of the agreement; and it was then too late to give it any effect on either. It would have been too late to affect the agreement, even if it had been a compromise of a doubtful claim. The compromise of a doubtful title, when procured without such deceit as would vitiate any other contract, concludes the parties, though ignorant of the extent of their *rights. Per Gibson, chief justice, in Hoge v. Hoge, 1 Watts’ R. 163, 216. As was said by the master of the rolls in Pickering v. Pickering, 2 Beav. R. 31, 17 Eng. Ch. R. 31, “When parties whose rights are questionable have equal knowledge of facts, and equal means of ascertaining what their rights really are, and they fairly endeavor to settle their respective claims among themselves, every court feels disposed to support the conclusions or agreements to which they may fairly come at the time, and that, notwithstanding the subsequent discovery of common error.”

As to the third and last objection, that the agreement was founded on no consideration, and was intended to give no new remedy to Harrison’s executors in case it should not be performed by Braxton, but leave them to resort to such remedies as they had, if any, when the agreement was entered into. If, at the date of the agreement, Grymes’ estate was already liable to Harrison’s executors for the amount of the judgment against Tomkies, as I have before endeavored to show, then the existence of that liability was of itself a sufficient consideration for the agreement; it being in effect an account stated by an administrator of a debt due by his testator, and a promise to pay the amount out of the assets; which, we have seen, is a good cause of action against an administrator in his representative character. But even if that liability had been doubtful, it was at least a subject of controversy in a pending suit at the time the agreement was entered into, and was a good consideration for a compromise. “There can be no doubt that the resignation of a colorable claim, conflicting with that of another person, and the settlement of the dispute between the parties without suit, constitute a good consideration;” and ‘ ‘in these cases, inequality of consideration does not, of itself, form any objection.” Chitty on Contr. 26. But it is said there was in effect no consideration *in this case, the promise being to pay the entire debt claimed by Harrison’s executors. The promise, it will be observed, was not to pay the debt out of the proper estate of Braxton, but out of the assets of his testator when enough for the purpose should come to his hands. And, out of abundant caution, it was further expressly declared in the agreement that nothing therein contained should be construed to bind the administrator of Grymes *39in any other than his representative capacity. What -would be a reasonable compromise for the administrator to make on account of his testator’s estate, was a question which depended upon all the circumstances. If Harrison’s executors had confidence in their claim, they could not be expected to give much, if any of it, up; or to do more for the sake of ending litigation than give a little more time for payment; especially as the security of the debt was not to be increased. And if Grymes’ administrator had good reason to apprehend that the whole debt would be recovered of his testator’s estate (and he saj's in one of his letters that when he entered into the agreement he was fully convinced of the justness of the claim), he might well be willing to end the litigation by agreeing to pay the debt in a limited time, and out of the assets when in hand. Such a compromise, under such circumstances, could not be said to be without a sufficient consideration to sustain it. If, under such circumstances, Grymes’ administrator had confessed a decree when assets for the whole amount of the debt, the decree would have bound the estate; and there is at least as much reason in its being bound by his agreement to pay the debt when assets and after a limited period. Harrison’s executors had obtained a decree in the suit of Tomkies v. West for the settlement of Iiealy’s administration account on Grymes’ estate. Healy had been removed and Braxton appointed administrator in his place; and the suit *had been revived ag'ainst the latter. Braxton was prosecuting a suit, and expecting very soon to obtain a decree, against Healy and his sureties, for a large amount of the assets of Grymes. He was fully convinced of the justness of the claim of Harrison’s executors, and wished to end the litigation in Tomkies v. West, and to have sufficient time to obtain his expected decree, and realize the amount, or at least enough to pay the claim.

In this state of things, the agreement was made, and the objects which Braxton seems to have had in view were thereby secured. It stipulated that Braxton should have at least twelve months for the payment of the debt, and then should only be bound to pay it as administrator, and out of the assets when received; that upon the payment of the money a bond of indemnity should be executed by Harrison’s legatees to Braxton; and Harrison’s executors would dismiss the suit of Tomkies v. West, as far as they were concerned, and relinquish the costs. That suit was, in effect, their suit after the decree of 1818, and the further prosecution of it was at their costs. Morris, *&c.*v. Terrell, 2 Rand. 6. They had a right, therefore, to stipulate for its dis-mission, even absolutely; and for the relinquishment of the costs. I think these stipulations constituted a sufficient legal consideration for the agreement on the part of Grymes’ administrator. The memorandum annexed to the agreement giving Harrison’s executors the right to cancel the agreement at the end of six months, upon requiring Braxton to cancel the duplicate thereof in his possession, does not alter the case. It is not pretended that the agreement was ever in fact canceled. On the contrary, it appears that it was not, and that for nearly two years thereafter, Harrison’s executors were urging, and Braxton was promising, a compliance therewith on his part. I also think that the agreement gives, and was intended *to give, a new remedy thereon to Harrison’s executors for the nonperformance thereof by Grymes’ administrator, and does not leave them to resort to their old, as their only, remedy. Being a valid agreement, a remedy thereon for a breach of it would seem to follow as a necessary consequence. An intention to preclude such a remedy, if it would not be wholly repugnant and void, ought at least to be plainly indicated, to have any legal effect. There is nothing in the agreement in question to indicate such an intention: though in reserving liberty to Harrison’s executors, in case of nonpayment of the debt at the termination of the period stipulated, to resort to any legal means for the recovery thereof, it was doubtless intended not to extinguish the old remedy, but to give them a right to resort to the old or new at their election. The stipulation that nothing contained in the agreement should be construed to bind the administrator in any other than his representative capacity, plainly assumes that it was intended to bind him in that.

It was further contended, that no action at law could be sustained upon the agreement; that in coming into a court of equity for relief, the plaintiffs must be subjected to those principles which are applicable to a suit for specific performance; and that according to them Harrison’s executors were not entitled to relief.

It is unnecessary to decide in this case, whether an action at law could have been sustained upon the agreement. If it could, the counsel for the appellant seemed to admit that a suit in equity might have been proper to obtain an account of the assets, and have them marshaled, if necessary. But conceding that it could not, that fact would seem to strengthen, rather than weaken, the right of Harrison’s executors to come into equity for relief. It was expressly declared by the agreement that the estate of Grymes should be *bound for the *debt, and not the*administrator personally: And if, by reason of the seals annexed to the agreement, the debt could not be recovered of the estate at law, surely a court of equity, which looks to substance and not form, ought, for that very cause if no other, to afford relief; unless there be something to prevent it, in the latter part of the proposition above stated. I do not think that there is. Whatever equity Grymes’ administrator may have against Tomkies, or even against West or Healy, he can have none against Harrison’s executors. They have acted in good faith, and ask for nothing to which they are not *40in conscience entitled. They are bona fide creditors of Grymes, whose estate is ample for the payment of the debt; and yet they have been endeavoring in vain to obtain payment, for nearly fifty years since the death of Grymes, and nearly twenty-five since the date of the agreement. They have performed their part of the agreement, so far as it was to be performed before the payment of the debt; and are ready to perform the residue upon such payment. And they now ask that it may be performed on the other side. I know of no principle of equity on which relief can be denied them.

Lastly, it was contended that if Harrison’s executors were entitled to obtain relief, for the breach of the agreement, by a further prosecution of the suit of Tomkies v. West, they could obtain it only in that way, and not by a new suit on the agreement; on the principle of the case of Heywood v. Covington’s heirs, 4 Leigh 373. I do not think that principle applies to this case. There, a suit was brought in the County court for a sale and partition of real estate of an intestate among his heirs. A sale was accordingly made under a decree in the suit; and the purchaser refused to complete his purchase. Pending the suit in the County court, the heirs brought a suit against the ^'purchaser in the Superior court for specific execution. This court decided that the Superior court could not entertain the bill pending the suit in the County court. There the sale was made, not by the heirs by an agreement in pais; but by a commissioner of the court; in effect by the court; in a pending cause. The purchaser, by buying under a decree, had subjected himself to the orders of the court in that cause: and the appropriate and only remedy against him, at least during the pendency of the cause, was by some proceeding therein. But here, the parties to a pending cause, or some of them, enter into an agreement out of court; the main object of which is, not to prosecute the suit further, but to put an end to it. And though liberty is reserved to Harrison’s executors, in a certain event, to resort to their original remedy, yet that was intended as a benefit to them, and not to deprive them of the right, at their election, to sue upon, the agreement. I think they had not only a right to bring such a suit, but that it was a more suitable remedy, under all the circumstances, than a further prosecution of the old suit of Tomkies v. West. By the terms of the agreement that suit is to be dismissed, and the costs of Harrison’s executors therein relinquished, when the debt is paid. The court below can provide for the performance of this part of the agreement, if necessary, in the final decree which may be made in this case.

Upon the whole, I think the decree is right, and ought to be affirmed.

SAMUELS, J., was of opinion that the decree should be reversed, and the bill dismissed without prejudice to the appellee’s remedy in the case of Tomkies’ adm’r v. West’s adm’r & others.

LEE, J., was of opinion that Har66 rison’s executors *were bound to show that it was proper to perpetuate the injunction in the case of Tomkies’ adm’r v. West’s adm’r & others. That their remedy was in that suit. That the statute of limitations applied to this case. That moreover the agreement between Braxton and May as the agent of Harrison’s executors, afforded no foundation for a suit; and if it did, the circumstances under which it was made forbade a court of equity to be active in its execution: There was no consideration for the agreement, as all the debt was to be paid, and Harrison’s executors could not release the costs of the plaintiff in Tomkies’ adm’r v. West’s adm’r & others.

ALLEN and DANIEL, Js., concurred in the opinion of Moncure, J.

Decree affirmed.