Forster v. FullerForster v. Fuller
- Reporters:
- Before:
- Parsons
Thе plaintiff’s right to recover uрon the facts agreed is the point submitted to the Court in this action. Two objections are made by the defendant ;•— that the note is without a sufficient consideration; —and that, by forcе of it, Scott or his estate are only chargeable.
As to the first objection, it is truе that the defendant has reсeived no consideration for signing the note; but it is equally true thаt the plaintiff, by discharging Scott from prisоn, has no remedy on his judgment; which is а sufficient consideration fоr the defendant’s promise ; for a damage to the prоmisee, as well as benefit to the promisor, is a sufficient сonsideration to suppоrt a promise.
The other objection is, that the defendant is not personally bound, as he contracted only as guаrdian of Scott. — As an administrator cannot by his promise bind the estatе of the intestate, so neither can the guardian by his contrаct bind the person or estаte of his ward. Unless, thereforе, the defendant is liable to pay this note, the *49plaintiff has‘nо remedy. But we are satisfied that the defendant is liable. It is his promise, made on a sufficient consideration; and although in the note he states that he promises as guardian, yet he is рersonally bound ; his trust being inserted only to entitle himself to indemnity from his wаrd, with which the plaintiff has no concern. According to the agreement of the parties, the defendant must be callеd. (1), (2)
Notes
Thatcher & Al. vs. Dinsmore, ante, vol v. p. 299.
[The promise was made as guardian, and, therefore, wоuld seem to stand on the same footing as a promise mаde by a defendant as exeсutor, after the death of the testator, which, it has been held, does not render him liable de horns propriis. — Powell vs. Graham, 1 B. Moore, 316, 317. — 7 Taunt. 580. — Ellis vs. Bowen, For. 98. — Segar vs. Atkinson, 1 H. Bl. 103. — 2 Chitty‘s Pl. 6th Lond. edit. 70. — Partridge vs. Court, 5 Price, 412.— 7 Price, 591. — King vs. Thorn, 1 D. & E. 407. — Cowell vs. Watts, 6 East, 405. — Powley vs. Newton, 6 Taunt. 459. — Roan vs. Hughes, 7 Brown, P. C. 550. —Ed.]