1 N.C. 249 | N.C. | 1818
That an action will lie against an adminig* irator or execptor, upon a promise to pay in consideration of assets, seems pretty clear from the following cases : Trewinian v. Howell,
Where an action is brought against an pxecytor or administrator upon his promise to pay a debt, if he has assets, the promise will bind him de bonis pro* priis ; and though in the declaration assets must be aver* red, vet proof of the promise is so far evidence of assets, as to place the want of them, to be proven by the executor or administrator. As the assets are the consideration which make the promise binding, whenever it shall be ghown by the Defendant that there are none subject to the
I can see no analogy between the case of a promise to pay a debt of inferior degree, and the actual payment s for in the former, there is only an undertaking ; but in the latter, the thing is done, and it is not in the power of the executor to recover it back,
The case is, that Troy was indebted to the Plaintiff and died, having appointed H. W. Harrington his executor, to whose hands sufficient assets came to pay the Plaintiff's debt 5 and that H. W. Harrington having assets as aforesaid, promised the Plaintiff in consideration thereof, to pay the said debt; that he after-wards died, leaving the Defendant his executrix. This action is brought against the Defendant, as executrix of H.W. Harrington, to subject his estate upon his promise. The Defendant pleaded non assumpsh, upon which issue was joined and a verdict for the Plaintiff. A motion is now made in arrest of judgment, because there was no consideration for this pi-omise.
I always considered it as a point perfectly settled, that the promise of an executor, having assets at the time of the promis , to pay his testator’s debts, was valid.
The consideration may, therefore, be said to consist of the ’strongest moral obligation, as well as a legal liability. The only case relied on to contradict this reasoning, and the strong current of authorities for the Plaintiff, is that of Ram v. Hughes.
In Bane's case, Lord Coke is express that an executor can only shew, upon the trial, that he had no assets at the time of the promise. The short note of Cleverly v Brett, cited in Pearson v. Henry
Cro Eliz 91.
Cowp. 84.
Cowp. 289 1. Ves. 125.
5 Term 690.
9 Coke 94.
5 Term 8, 1818
Cra. Eliz. 91.
1 Ves. 126.
9 Co. 94
7 T. R. 350
Cowp. 291.
5 T. R. O.