#### Henry Sleigheter, v. Rosanna Harrington, executrix of Henry W. Harrington, dec’d.

om Cumbciland.

JSx’rs. and Adm'rs. The promise of an executor, having assets at the time of the promise, that he will pay a *debt*of his testator is valid ; such promise "makes the debt personal, and assumpsit will lie on it.

This was an action of assumpsit, in which the Plaintiff declared that the Defendant’s testator, being executor of the last will of Robert Troy, dec’d. and having assets in bis hands, and the said Robert Troy, being at his death indebted to the Plaintiff, in consideration thereof, promised in writing, to pay to the Plaintiff the said debt- and it was submitted to this Court, whether upon this declaration, the Plaintiff was entitled to judgment against the Defendant, to be satisfied out of the estate of her testator in her hands.

Ruffin', Judge

The case is, that Troy was indebted to the Plaintiff and died, having appointed Henry W. Harrington, his executor *;*to whose bands sufficient assets came to pay the Plaintiff’s debt ,* and that Harrington, liaving assets, promised the Plaintiff, in consideration thereof to pay the said debt. That he afterwards died, leaving the Defendant his executrix. This action is brought against the Defendant as executrix, to subject her testator’s estate upon the said promise. The Defendant pleaded *non*assumpsit, and issue being joined, a verdict was found for the Piainüff. A motion is now made in arrest of judgment, because there was no consideration for this promise. I always considered it as a point well settled, that the promise of an executor, having assets at the time of the promise, to pay his testator’s debt, ■was valid. Upon looking into the authorities, we find many cases wherein it lias been expressly decided, besides numerous sayings to (he same effect in elementary books, *(a)***Such a promise is enforced and supported b.y *333the consideration of the executor’s liability as executor, to pay the Plaintiffs demand. He is liable by reason of the assets *;*and therefore the having' of assets, is indis-perisible in such a case. When E speak of assets, as relates to the subject, I mean such estate of the testator, as would at that time, be liable to the debt of the .creditor in a suit at law. If, for example, the creditor be so by simple contract, the assets in the hands of the executor necessary to support the assumpsit of the executor, must he such as the creditor would be entitled to recover, ifhe were then sueing' the executor in his representative capa* city, for It is debt. The executor is the men holder, as it were, of money, which is in justice and conscience, the money of another person. The consideration may therefore be said to consist, of the strongest morai obligation, as well as legal liability. The only case relied on to contradict this reasoning1, and the strong current of authorities for the Plaintiff, is that of Rann *v.*Hughes. (b) But in that case there was no averment of assets. It is said, indeed, that Hughes died possessed of sufficient effects *;*hut it is not alleged that they ever came to the Defendant’s hands, much less that he had them at the time of his promise. The note of the case in Term Reports, seems to me to be a confused one3 but its accuracy in •this respect, is evinced by what fell from Lord Mansfield in Hawks and wife *v.*Saunders; (d) where he men* íions and comments on this circumstance.

It has been contended that the Defendant would have been at liberty, upon the trial, to shew, that her testator, after his promise, applied the assets to other debts of t:ie testator Troy, and thereby became excused from the payment of this debt. If his promise were good at ail, it made the debt personal. There is no half way ground *;*Harrington must be considered as liable only in his representative capacity, if he be allowed to shew the state of the assets subsequent to the time of his promise. But *334when we say, that by Ills promise, he became *personally*we |ose sia-ht of tiie assets altogether, except so , , far as regards their situation at the time the promise was-ma{je> j„ tfiat respect, we are obliged to examine into them, for the purpose of ascertaining whether the promise was *then*good, or a *nudum pactum.*If he *then*had assets, the promise is good, and lie becomes personally liable. It appears to me, that settles the other *point;*for whenever one becomes *personally*bound for the debt of another, (no matter how,) it'becomes *his'own debt,*and must be paid out of *his own estate.*/Nothing but actual satisfaction, or other matter which would discharge him from *any other of his own personal debts,*will discharge him from this. In Barn’s case, (e) Lord Coke is express, that an executor' can only shew upon the day of trial, that he had no assets *at the time*of the promise. The short note, of Cleverly *v.*Brett, cited in Pearson v. Henry, (f) relates as well as the principal case, to the question of assets, on' the plea *otplene*administravit"in a suit against the executor as such *;*which is totally different from this. There the question is what assets the Defendant had at the time of the plea pleaded ; and does not regard the personal liability of the Defendant at all.

íIAXtjQ, Judge

That an action will lie against an ad-; itiinistrator or executor upon a promise to pay in consideration of assets, seems clear from divers cases, *(g)***It is true that the cases cited from Cowper, were cases of legacies sued for ; and although they have been much shaken, if not overruled, in the case of Dicks *v.*Street. (h) The principle of the decision in this last case, rested upon a different ground from that now before the Court. Two of three of the judges hold, that an action would not lie at common law for a legacy, because courts of law had no power to compel a husband, who sued for his wife’s' *335legacy, to make a settlement upon her ; whereas a court of equity had such power. The l’easoning in that case does not apply to debts which an executor or administrator promises to pay in consideration of assets. If they have money in iiand, there is no reason, why they should not pay. If they hav.e property, which they are diligently converting’ into money, and some accident happen to it, not within their control j or, if in the mean time, they have notice of debts of higher dignity, they ought to bg at liberty to shew these things in their defence, (a) The promise, as was said by Lord Mansfield, (b) only eases the creditor from proving assets, and throws the *onus*o.n the other side. Judgment for the Plaintiff,

(a)

**Cro. Eliz. 91. *1*Ves. 126. 9 Co. 94

(b)

*7*Term Rep. 350,

(d)

 Cowp. 291.

(e)

 9 Co. 94.

(f)

 5 Term Rep. 6.

(g)

 Cro. Eliz. 91. Cowp. 284, 289. 1 Ves. 125.

(h)

 5 Term 690.

(a)

 9 Co. 94.

(b)

 5 Term Rep. 8.