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legal obligation to the performance of these agreements, since the statute has made them remediless. Substantively, they have no validity, but in this auxiliary light they are capable of giving validity to what would be incapable of standing alone against the claims of creditors or purchasers, provided the verbal promises proved, and the settlement made, discover a clear correspondence. In a case, indeed, in which there was a double infirmity in the promise made before marriage, the same effect was given to it. In Lavender v. Blackstone,(.c) a promise made by an infant on his marriage, to settle his estate when of age, was held a sufficient consideration to support the settlement after marriage made in pursuance of such promise. And in the late case of Dundass v. Dutens,(rf) the Chancellor was of opinion in favour of the settlement against the husband's creditors, notwithstanding it was urged at the bar, and admitted by the court, that a pa" rol agreement, previous to marriage, is absolutely void, and that a subsequent marriage is not a part execution of such an agreement to take it out of the statute of frauds and perjuries.
• r 201]
•PART V. L 1
On Promises by Executors and Administrators.
THE first branch of the 4th section of this statute enacts,
that no action shall be brought whereby to charge any executor
or administrator upon any special promise to answer damages out
of his own estate, unless the agreement upon which such action
shall be brought, or some memorandum or note thereof, shall be
in writing, and signed by the party to be charged therewith, or
some other person thereunto by him lawfully authorised.
It seems proper to premise, that to bring the party within the ^at^°brin''
protection of this provision of the statute, he must be actually in- within the
vested with the office, at the time of making; the promise: he P"516c1i0"
° r this provisi
can receive no benefit from it, by acquiring the office after the on of the sta
promise has been made by him; for which, if it were not clear h^e^been'1
enough upon the words of the statute, the case of Tomfinson v. actual executor or ad
(c) 2 Lev. 146. (i/) 1 Vex. jun. 196; and see Pitcairn v. Ogbourne wh"'^!^' ? Vez. 375; see also Shaw v. Jakeman, 4 East, 201. made the
pill(f) is an authority. As an immediate executor derives all his title from the will of the person he represents, and the interest and office are completely vested in him, at the instant of the testator's death, his promise is preventsd by this statute from binding him personally, though he makes it before probate, which is not the origin but the authentication of his title. But an administrator derives his office and interest from the ordinary, and, therefore, a verbal promise by a person, in virtue of his expectation of representing an intestate, is not invalidated by this clause of the 4th section; and though the grant of administration has relation to the time of the intestate's dealh,(/) such relation cannot, it is presumed, affect the application of the statute.
In an early part of this work, some comments were intro• [ 202 ] duced to show that the statute of frauds and perjuries, in *superadding the necessity of writing, to give an actionable effect to the promises therein specified, has given no positive virtue torthe writing itself, so as to make it a substitute for the consideration necessary to support the promise according to the ancient maxims of our municipal law. The judgment of C. B. Skinner, in the House of Lords, in the case of Rann v. Hughes,'£') was upon that occasion presented to the reader,(A) which arose upon a promise in writing, made by executors, and wherein the Chief Baron, in, very clear terms, made it appear, that this branch of the statute, being made for the relief of personal representatives, did not certainly intend to charge them further than by common law they were chargeable. To that judgment the reader is again referred as a satisfactory argument for this construction of the sta
, . . tute. The statute
has made no To the comments of the Chief Baron it may be added, that
Ui^lmode Jj? there not only exists as much necessity since the statute for »
pleading; consideration to support a promise, though made in writing, but
thoughlthe tne coilsideration a'so continues to be an essential part of the al
promise is in legations in the declaration in an action upon such promise. 1*ot
declaration6 statute 'las made no alteration in the method of pleading,
must still set either by addition or defalcation, so that as on the one hand the
consider*- consideration continues necessary to be stated agreeably to the
tion ;though rule at the common law, so on the other it is not held to be ne
cessarv to" ceSsal7 on account of the statute to show by the declaration that show that
the promise (e) Ambl 330. (/) 2 Roll Abr. 554. (g) 7T. K.350, N. (a.)
was in writ- 7 flro. P. C. 556, S. C. (A) Vid. supra p. 8, et sen. jng.
the promise was in writing; but it is left to evidence; which last mentioned point rests upon the general rule, distinguishing between the cases wherein a matter has its origin in an act of parliament, and is thereby required to be in writing, and where an act of parliament makes writing necessary to a matter existing at common law; in the latter of which cases, the thing need not be shown in pleading to be in writing, but in the former, it must be pleaded with all the circumstances required by the act.(i') Thus a will must *be pleaded to be in writing, upon the statute of » ^ ] Henry VIII. for by that statute the power of devising is in certain casesJlrst given, and it is by virtue of that act, consequentially enlarged by the statute of 12 Car. 2, that we now exercise the testamentary power over real estatc.(88a) The result is, that a
(/') 2 Salt. 519; and sec 3 Burr. 1890, per Yates Justice.
(88a) It has generally been holden, however, upon the several thoueh branches of the 4th section of the statute, that though a plaintiff need tne jeciafa. not in his declaration show any note in writing, but that it will be suf- lion need not ficient for him to produce it on the trial; yet that if such promise be stale.the
i i j . t / . . . , ., ... . . promise to
pleaded in bar ot another action, it must be alleged to be in writing, nave been in.
so as that it may appear to be a contract on which an action will lie. writing, if
Thus in a case which took place a very few years after the statute was such promise
is pleaded bv
passed,^ lne plaintiff declared an indebitatus assumpsit for 2(V. for tl,£ defendmeat, drink, washing, and lodging, for the defendant's wife, provided ant, the plea for her at the request of the defendant ; the defendant pleaded, that ?ho^]?*^ow after the making of the promise, Sec. and before the exhibiting of the ^een m yfjUi plaintiff's bill, it was agreed between the plaintiff and defendant, and ing. one J. B. his son, that the plaintiff should deliver to the defendant divers clothes of the defendant's wife, then in the plaintiff's custody, and that the plaintiff should accept the said J. B. the son, for her debtor for 9/. to be paid as soon as the said J. B. should receive his pay due from his majesty to him as lieutenant of the ship, called, &c. in full satisfaction and discharge of the premises in the declaration mentioned, and averred, that the plaintiff at the same time did deliver to the defendant the said clothes, and that she accepted the said J. B. the son for her debtor forthe said9/. and that the said son agreed to pay the same accordingly; and that the said J. B. afterwards, and as soon as he received his pay as aforesaid, viz. on such a day, was ready, and offered to pay the 9/. and the plaintiff refused to receive it, et hoe par am, &c. to which plea the plaintiff demurred, and judgment was given for the
+ Elizabeth Case v. James Barber, Sir Thorn. Raym. 450
* promise, to charge an executor personally, and in his own right, so as to make him liable to pay out of his own property, must not only be in writing, but founded upon a sufficient consideration in law, which authentication by writing must be proved by the production of the writing itself, and which consideration must be both proved and stated.
plaintiff for two re asone: 1. Because it did not appear that there was any consideration for the promise on the son's part: 2. Admitting that there viai a consideration, yet, that by the statute of frauds and perjuries, the agreement ought to be in writing, or the plaintiff could have no remedy thereon ; and though upon such an agreement the plaintiff need not set forth the agreement to be in writing, yet when the defendant pleads such an agreement in bar, he must plead it so that it may appear to the court, that an action will lie upon it, for he shall not take away the plaintiff's present action, and not give him another upon the agreement pleaded.
The case of Villers v. Handley, in the Common Pleas,.f proceeded upon the same doctrine upon the 3d section of the statute, which enacts, that no leases, estates, or interests, either of freehold, or terms of years, or any uncertain interest not being copyhold or customary interest, of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments, shall be assigned, granted, or surrendered, unless it be by deed, or note, in writing, signed by the party so assigning, granting, or surrendering the same, or their agents thereunto lawfully authorised by writing, or by act or operation of law. The action was debt upon a bond for 52/. 16V against the heir of the obligor; the defendant confessed the bond and debt, but pleaded that he had nothing by descent, but a small cottage in T. except a reversion after a term of 500 years, commencing the 16th of October, 1746, then to come, and unexpired, and hoc paratus, &c to which plea there was a general demurrer; and for the plaintiff it was objected, that the plea was ill in substance, because it was not alleged therein, that the lease for 500 years was in writing, (according to the book, because it was not by <feerf, which seems to have proceeded upon a mistake of the law; and see the same book, page 20, Farmer on dem. Earl v. Rogers) and because, if the lease was not in writing, it was void by the statute of frauds and perjuries, and of this opinion was the court, (Clive and Bathurst, Justices, being present) and upon this point they gave judgment for the plaintiff.
l 2 Wils. 49.
•But in order to charge the executor or administrator de bonis propriis, it is not necessary to aver in the declaration that the defendant has assets, for if the promise be in writing, and supported by a consideration, as forbearance to prosecute at the request of the defendant,(89) the plaintiff, by acquiescing *in a possible «[ jog j
(89) In William Banes' case, 9 Rep. 93, b. it was clearly held, What alle
that the declaration was good enough, without saying that the defen- Rations ne
ccssnrv to be
dant had assets, for it shall be intended prima facie, that she had assets. ma(ie ;n tf,e But Coke said, that he conceived the truth to be, that if there had not pleadings in been any debt, or if there had been a debt, and the executrix had no- actions on thing in her hands at the time, she might have given it in evidence. But promise^'of this last position seems not to be law, according to the cases, see 1 Roll, executors ft Abr. 24, pi. 33, 2 Lev. 3. Davis v. Reyner, Yelv. 11. Goreing v. Gore- administra^ ing, 1 Vent. 120. Davis v. Wright, Cro. El. 91. Trewinian v. Howell, toTM" 1 Vez. 126. Reech v. Kennegae. But it seems clear enough that the executor must be liable, and that there must be an existing debt, otherwise there will be no consideration. An executor so closely represents the person of the testator, that if a man executes a bond, his executors are bound, though they are not named ; therefore, in a declaration against the executor upon the bond of the testator, it is not necessary to say, that the obligor bound himself and his executors ; but if the suit was against the heir, it would be a material allegation to say, that the ancestor bound himself and his heirs, and to prove that he did so in fact; for the heir is not bound by his ancestor's bond, unless he be expressly named. If, therefore, the declaration omits to state that the heir was bound, it is substantially defective ; and by the case of Barber v. Fox, 2 Saund. 136, it appears that this is such a defect as a verdict cannot cure; for unless it be shown upon the pleadings, that the heir was bound, there will appear to have been no consideration ibr his promise, and so no sufficient cause of action. Thus also, if the heir promise to pay a simple contract debt of the ancestor, no action will lie upon this promise, inasmuch as it is without consideration, for the heir is not chargeable upon such debts of his ancestor. Cro. James, 47, Fish *. Richardson. But if an executor promise to pay, in consideration of a consent only by an assignee of a debt not to sue, the promise stands upon a sufficient consideration, 1 Roll. Abr. 20, pi. 11. And so doubtless I conceive the heir, under the same circumstances, will be liable, if the debt be founded upon a specialty.
In Forth v. Stanton, 1 Saund. 210, there was no allegation of any undertaking to forbear on the part of the assignees; which case was thus.—Plaintiff declared that the defendant's testator was indebted to A, who, after the testator's death, assigned the debt to the plaintiff and appointed him to receive it to his own use; and that the defendant,