June, 1830.

#### Francis Williams, ex’r. of William Mosby, v. Nathan Chaffin.

From Surry.

The consideration of a promise by an executor to pay the debt of his testator, is his liability, and as that depends upon his having assets, if he has none, the promise is void.

But if such a promise is founded upon any other consideration, as a benefit to the executor, or an injury to the creditor, it is binding.

But the inconvenience or injury to the creditor, must be the result of express stipulation, not in consequence of a reliance upon the promise.

Therefore, where an executor not having assets, promised to pay the debt of his testator, and in reliance upon that promise, the creditor neglected to prosecute his claim, held that he had no right to i'ecover.

Assumpsit for the breach of an express promise.— The Defendant pleaded the general issue, and on the trial before his Honor Judge Daniee, the case was— that the Plaintiff’s testator was surety for one- William Chaffin, in a bond to one Dalton, for 700 dollars — that William Chaffin was dead, and the Defendant had taken out letters of administration upon his estate — that a suit had been commenced in the County Court on the bond, and the Plaintiff’s testator wished a judgment to be taken against the Defendant, as administrator of the principal debtor, as well as against himself, but the Defendant refused — that when the judgment was entered up, the Defendant said to the Plaintiff’s testator, “ that there “ was enough assets of his intestate in his hands to pay <{ the debt, and that he, Mosby, should not suffer, as the “ debt should he paid, either out of the assets, on out of <f his, the Defendant’s pocket.” He added “ you and I understand one another.”

Judgment being rendered against Mosby alone, the Defendant, two days afterwards, prayed an appeal, the bond for which was executed by the Plaintiff’s testator. *334and was signed by the Defendant and another, at the request of the Defendant, as sureties.

The judgment was affirmed in the Superior Court, and ^.|ie Plaintiff’s testator had discharged the whole of it. At the time of his promise, the Defendant had fully administered all the assets of his intestate which liad come to his hands, and since then had received no other.

In file Court below, it was contended for the Plaintiff, 1st, that he had a right to recover the whole debt upon the promise of the Defendant j and 2d, that tiie Plaintiff’s intestate was injured by the appeal, as in consequence thereof he had an additional amount of costs to pay, and also was prevented from taking steps against the Defendant to subject him, as administrator, to the amount of the debt. Iiis Honor informed the Jury, that if the Plaintiff’s testator had been injured, or put to inconvenience, or delayed from proceeding against the Defendant, as administrator, by the promise of the Defendant, he was entitled to recover in this action. That if the Defendant had no assets of his intestate at the time of making the promise, then so much of the consideration of that promise which depended upon his having assets failed, and the Plaintiff would be entitled to damages only to the extent of the injury he liad sustained in consequence of the appeal, and of the delay incident thereto.

A verdict was returned for the Plaintiff, for the costs of the Superior Court.

Upon a rule for a new trial, his Honor expressed himself dissatisfied with the verdict, as he thought the Plaintiff had recovered too much; but as the Defendant acquiesced in the finding, the rule was discharged, and the Plaintiff appealed.

No Counsel appeared for the Plaintiff.

The Attorney General & Badger, for the Defendant, submitted the case without argument.

*335Ruffin, Judge,

after stating the case as above, pro-eeeded as follows: A promise by an executor to pay a debt, to a creditor of the testator is void, unless the exe-eufor have assets; for his liability to pay, which depends upon his having assets, is the consideration of the promise (Sleigheter v. Harrington, 2 Murp. 332). This is however, wlure the assets form the sole consideration, and the obligation to pay can never exceed the amount of the assets in the executor’s hands. The executor may however render himself personally liable for the testator’s debt, by a promise founded upon another adequate consideration, although he have no assets. As if he promise, in consideration of the creditor’s doing any other act, causing benefit to the promiser, or loss to the other' party. This act, which constitutes the consideration, is not required to appear to the Court, as adequate in point of value. The parties are the judges of that, and unless it be so grossly inadequate, as to show palpably that the whole contract is founded on a mistake all around, or that one has not a capacity to make a bargain, the stipulations will be enforced. An instance w here they will not be is given in the sale of a horse, for a penny for the first nail in his shoe, and doubling each time for the others. But with such exceptions, the rule is genera^ that an act to be done by one party to his own prejudice, or to the advantage, of the other, will support a promise by the latter. If I promise to give A íSlOOO if he will go to Philadelphia, I am bound to pay, though the compensation be enormous. If l agree with B, that if he will bring a suit and fail in it, I will pay the costs, or any other sum of money, it binds me; for it may be a prejudice to B to sue. If therefore in this case it had appeared, that the Defendant’s promise was, that if Mos-iy would appeal, he, the Defendant, would pay the debt, it would not be material, whether Chaffin had assets or not. There would be a sufficient consideration to support a promise, and the only question would be one of *336fact9 whether the promise, as made, extended to the debt or to tI,e costs on,y* ,lie i"'oraise expressly embraced the former, it must he enforced as to that, as well as the costs. For any consideration is sufficient to support the whole promise. But the Court would not strain the construction of what passed between the parties, so as to transfer an act done under atid in faith of a void promise, into a consideration for that promise, and thereby charge an innocent man to pay the debt of another. The Plaintiff in such case ought to prove, the agreement, including the consideration, very clearly. There ought to be no doubt about the extent of the contract, or of the inducement. Here the agreement of Chaffin to pay was, at the time of making, declared explicitly to be founded on the assets in his hands, and nothing else. There was no talk of an appeal, or of Moshy’s doing any thing else but what he was before bound to do, namely, paying the money to Dalton. It was an agreement to indemnify. It turned out afterwards, that Chaffin had then no assets. There was no delay on the, part of Moshy, nor other act stipulated for. It rested solely on the assets. How then lias Moshy been injured, or Chaffin benefited by any tiling he was, according to the contract, to do ? It is true, that Chaffin said they understood each other \ and if that means, that there had been a private agreement between them, that if Moshy would appeal, or join in an appeal, Chaffin would pay all, it might be; sufficient, But the inference is very remote and hard, and ought not to be drawn without apparent compulsion between parties situated like these. Nor was it so treated by the Counsel in the Court below. In opening the Plaintiff’s case, the appeal is not stated as the consideration upon which the promise was made, but as an inconvenience which Moshy sustained by acting on the promise previously made. In like manner was viewed the “ delay of Moshy, in taking steps against the administrator of William Chaffin.” This is a very distinct thing from these acts being the conside*337ration stipulated by Mosbij, upon which Chaffin pro-raised. If a party take my assumpsit without considc-ration, he cannot afterwards recover from me because he trusted to the promise, and will be incommoded if I do not perform it. it is void in law, and the party is bound to know it. If he acted on it, it was upon the faitli of my honor, and to that alone he must appeal. The law cannot help him.

Here the parties did in fact appeal, bnt no connection is proved between that transaction and the agreement Nothing is proved respecting it, nor any communication between the parties, after the time of the promise to the praying of the appeal, which was two days afterwards. Indeed the appeal, as prayed, was necessarily that of Mosbij, and as far as appears to us, Chaffin made no promise, not even as to the costs, upon that footing. That fact gave the Plaintiff no right, and his verdict is wrong for the small sum recovered by him, unless Chaf-fin’s promise was founded upon Mosby’s agreement to appeal. Every probability leads us to suppose, that Mosby having Chaffin’s undertaking to indemnify him, which he (though he ought not) thought good, made himself easy, and allowed Chaffin to manage the business in his name, to his own liking. If he has suffered loss, it is his own folly or misfortune; for he ought not to have gone on, without Chaffin’s promise, founded, not upon assets which he had not, but upon that act, to pay him whatever he should be compelled to pay in that suit.

I agree therefore with the Judge below, that the Plaintiff recovered more than he was in law entitled to.

Per Curiam. — -Let the judgment of the Court below be affirmed.