#### HENRY HILL vs. STEPHEN DOUGHTY.

Where one had a claim against three distributees, on account of assets received from an intestate’s estate, and they jointly promised, verbally, that they would pay the debt; Held, that this promise was void under our Statute, being only oral, because each of the defendants was liable separately in proportion to the assets ho had received, and by this promise each made himself responsible ior the liability of the others.

Appeal from the Superior Court of Law of Beaufort .County, at the Spring Term 1850, his Honor Judge Bailey presiding.

The action is assumpsit, and non-assumpsit pleaded; and it was decided upon the following case agreed :

In May 1829, Thomas Doughty was appointed the guardian of John Doughty, an infant, and gave bond with George Hill as a surety. Thomas Doughty died in 1830, intestate, leaving three infant children, the two defendants and a daughter, who were his next of kin. William E. Smaw was appointed the guardian of the infants in 1835, and in 1S38 he was also appointed the administrator de bonis non of Thomas Doughty, and received assets of his intestate. When the defendants came of age Smaw settled with each of them, and paid to each his share of the estate, without taking any refunding bond. In 1847, John Doughty brought suit on the guardian bond of Thomas Doughty against Smaw, as his administrator, and against Henry Hill, the present plaintiff, as the executor of George Hill, who was then dead ; and the damages were assessed to $ 100 for a balance due to the ward, and judgment endorsed accordingly, A fieri facias-wan *196issued thereon in September 1849, and on the first day of ])ocember following, the present plaintiff paid the same. He had before that time settled his accounts as executor and paid to sundry legatees all the estate, except such parís as. were given to him by the will, which he retained as his own legacy. At the time of the suit brought by John Doughty, Smaw and the sureties to his administrator's bond were insolvent, and have been ever since.' — ■ While the execution was in the sheriff’s hands, the attorney of the plaintiff, Hill, informed the present defendants, “ that he had been instructed to commence proceedings, to subject them to the payment of the amount recovered, upon the ground that it was a claim against their father’s estate and they had his property and the defendants then promised the attorney, that if he would not commence proceedings against them and run them to costs, they would pay the execution at or before its return ; and the attorney informed the plaintiff thereof, and was instructed not to commence any proceedings against the defendants, until after the return of the execution. The defendants did not say expressly, that each of them would pay a part of the demand, though they re" marked, that their sister was equally liable, and they said, they would make her pay her proportion. Both of the defendants, however, when together, told the attorney, as aforesaid, that “ they would pay the judgment and execution.”

it was agreed, that, if the opinion of the Court should be for the plaintiff, he should have judgment for $124 and the costs : and that, if the Court should be of a contrary, opinion, there should be judgment as of non suit. Judgment was given for the plaintiff accordingly, and the defendants appealed.

J. H< Bryan and J. W. Bryan, for the plaintiff

])onnell, for the defendant.

*197Ruffin, C. J.

Several objections were taken at the bar to the recovery: but it is sufficient to consider one of them, as the Court deems that fatal. Supposing, then, that the action is properly brought in the individual capacity of the plaintiff, and also that the promise is to be deemed joint and not construed with reference to the previous several liabilities of the next of kin ; still the action will not lie, because the promise was not in writing.— The argument for the plaintiff is, that the defendants were bound in equity to exonerate the plaintiff from the payment of the judgment, or to reimburse to him what he might pay on it: and that such a liability willsuppoit an express promise to pay the money. Without saying how far next of kin may, on account of distributive shares received, be liable in equity to creditors upon the devasta-vit and insolvency of the administrator, and admitting such liability for the purposes of the present question, and also that an equitable liability will sustain an express promise at law, yet it will not follow, that this verbal promise by two of the next of kin will maintain this joint action against them. If an equitable liability be a good consideration, it is so as far only as the liability went; for even forbearance will notuphqld a promise to pay an unfounded demand. If, then, a Court of law can recognise an equitable liability as a consideration for a promise, it must follow, that the Court is obliged to. determine the extent of the liability, in order to ascertain, how far it is a sufficient consideration, and also whether the promise, founded on it, is such an one as may be oral or must be written — in other words, whether the equitable liability was that of the party promising, or of some other person. For the statute, which requires a promise to answer the debt of another to be in writing, must, of necessity, be construed to mean all debts, whether legal or equitable. Now, the liability to creditors of the defendants and their sister, as next of kin, was not joint, *198but arose, if at all, by reason of that portion of the assets of their father, which came to their respective hands a~s their several shares of the estate. Each was therefore liable for only an equal proportion of the money ; at all events, in the first instance, and while the others were able to pay their parts, which is not questioned here.— Hence, it is obvious, if one of the defendants had verbally promised to pay the whole of this demand, that the promise would not have been binding, under the statute of frauds, beyond his own one third: for, beyond that,the liability was not his own, but that of another. It seems clear, that an undertaking by the defendants in a joint form to pay the whole debt cannot alter the rule of law or the legal effect of the promise as to each, in that re* spect. For, if two persons owe another separate debts, then joint oral promise to pay both debts, cannot sustain a joint action, since it is a promise by each to answer for another in respect to all but his own original debt.— Therefore the plaintiff cannot have judgment in this action : not against both defendants, as there is no valid ■joint promise : nor against the defendants separately, as the plaintiff cannot have judgment against one defendant for a part of, his demand, and against the other for the residue.

Per Curiam. Judgment reversed and judgment of non-suit.