« ForrigeFortsett »
i80t. « against Langdall, a feme administratrix, and declared, Jonfs "that the defendant t in consideration that he would forvenu! „ bear sujt unt;i sne nad taken out letters of administra"tion, promised to pay money due to him by the mtes"tate. After verdict and judgment for the plaintiff error "was brought to reverse the judgmeut; and exception '* was taken that the plaintiff had set forth no considera'* tion for the assumpsit in his declaration, for all that was "alleged was, that the plaintiff" should forbear suit till "the defendant had taken out letters of administration, * which is no consideration at all, for the defendant was "not liable to be sued as administratrix until she had taken "out letters of administration. There was also a second "objection: Roll, C.J. held the first a good exception, *' for the defendant was not chargeable before letters of "administration taken forth, if she does not intermeddle *' with the goods of the intestate, and it doth not appear "here that she did ; neither is the defendant compellable "to take forth letters of administration, for they may be "granted to the next of kin, according as the statute or"dains. Jerman, Nicholas, and Ask, Justices, to the "same intent. Thereupon the rule was—revertetur ntai; u but upon some objections on the other side to the writ "of error and return, it was adjourned." This is to be met by the case of Hume v. Hinton, in the same book, 304. There the plaintiff declared, that whereas " the son ** of the defendant did in his life-time owe to the plaintiff "8l., and died intestate; the plaintiff demanded the 81. "of the defendant, the mother of the intestate, whereupon "she promised, that if the plaintiff would stay till Michael~" mas next, then she. would pay it. On non-assumpsit /' pleaded, and a Verdiet for the plaintiff, the defendant "moved in arrest of judgment that there was no consi"deration, and cited Morgan's case, 6 Car. to shew that "an assumpsit to pay a remediless debt, if the plaintiff "will Stay for it, is not good; and that there appeared no "person liable to pay the debt either plainly or by intend^ *' ment; and it did not appear what person the son was, or "that he either had or left any goods, and that the ground »'f oftneaction was the piety of the mother, and that the ordi*' nary is not chargeable unless goods come to his hands. "There was another objection as to the averment of the i804. "performance of the consideration, as stated in the j0flrs "breach, which was said to be not sufficiently certain. tersu» "The court, upon the first point, held, that the considera- ,Hlu"l>,i "tion was good; for it is that the plaintiff shall forbear to "soe, generally, which goes to all the world, and it is not "only to forbear such a particular person, but to forbear "to sue for the money, and this forbearance may be a pre"jodice to the party, and a loss in not suing till that time. "—Roll, C.J. observed,' that if the breach were not well "assigned, the verdict would not help it. And after hear> "wgtbe counsel on another day as to that point, judgment was given for the plaintiff', because both the con"(deration and the averment were held good.' It is said lliere is no difference between that case and the present, tot I conceive that there is a material difference in its being after verdict; so that many things might be presumed there which cannot, in this case, upon a special demurrer. Nowastothe case of Quick v. Coppkstone; in that case the promise was made through fear of being arrested, and it if «o»tated in the declaration; and Hyde, C. J. held, " that "a forbearance to sue one who fears to be sued is a good "consideration; and he cited a case in the Common Pleas, "when he sate there, where a woman who feared that the "dead body of her son would be arrested for debt, pro"raised, in consideration of forbearance, to pay; and it "was adjudged against her, though she was neither exe"furor nor administrator. But the other Judges doubted "of.this." And I think it would be bad even after verdict, for it appears vitious upon the face of it. Such a means of «ftorting a promise is not to be endured. It is impossible to look upon that as a good promise which is made in consideration, that a person will forbear to do a violent and unlawful act; that he will forbear to do a violent injury to the feelings of all the relations of thedeceased. In the present case, the consideration stated confers no benefit on the one party, and causes no apparent detriment to the other; the consideration is therefore defective, and the declaration is bad."
Geose, J. "It must be admitted, and indeed is ad1804. mitted, that if no consideration appears upon the face of JoNFS this declaration, the defendant must have judgment. The versus difference is very material between a special demurrer and a motion in arrest ot judgment; tor, in the latter, every thing is to be presumed in favour of the plaintiff". I admit, that if there is any loss to the plaintiff", that alone is a sufficient consideration for an assumpsit; and that forbearance to sue may be a good consideration; but it is a perversion of terms to say, that there is any forbearance to sue unless there is somebody to be sued. Here there js nobody to be sued. Upon that short ground I think that the consideration here stated is insufficient. 1 will not go over the cases which his lordship has examined, but I agree with him as to the answers that have been given to them."
. Lawrence, J. "This case comes before us on a special demurrer; and there is a material difference between such a case, which points out particularly the informality of the declaration, in not specifying some one liable to be sued, and those which arise only upon motion in arrest of judgment. The argument in support of this demurrer is, that there must be somebody liable to be sued by the plaintiff' in order to lay a ground for the forbearance, which is stated as the consideration of the promise. Now there would be no such person to be sued, if the debtor died without leaving effects to answer for the debt; and, in this case, it does not appear that he left any. Suppose he had been illegitimate, and there was no person to administer to him, the crown would have been entitled to his effects. I cannot but say that I agree with what has been urged by the defendant's counsel, that if an agreement not to sue A. is not a foundation for a promise unless A. is liable, so a promise in consideration of forbearance generally, as to all persons in the world, is not good unless there be some person in the world who is liable to be sued. In the former case, if he promise not to sue A., and A. is not liable to be sued, it is no consideration because he surceases nothing; so here, he surceases nothing if there be no one whom he can sue. The rule slated by Mr.
Justice Yates has been pressed a great deal; but that is 1804
by no means against the present decision; for all that •
was decided by that case, as it respects this, was, that it «r*" is not necessary that the plaintiff should have been enti- AsBBOBNUiH. tied to sue the defendant originally ; but that it would be sufficient, if he might have sued another person, and, in order to obtain the promise of the defendant, gave up his claim against that person."
Le Blanc, J. of the same opinion. "In all the cases which decide that a general forbearance of suit is a good consideration, it must be understood with the limitation, that it is not a good consideration, unless it appears, or can be intended, that some person is liable to he sued. Here it is pointed out by the demurrer, that no person appears to have been liable to be sued, for the debt which is said to have been forborne. Here, therefore, is no suspension of a right by the plaintiff; and, upon the general current of authorities, notwithstanding the cases that have been cited to the contrary, it appears that this is not a good consideration for an assumpsit."
Judgment Foe The Defendant.
Burton versus Uurchall.—Thursday, Feb. 9.
assumpsit against a sun ning partner, the administrator, brother and next of kin of the deceased partner, is a good witness, for the plaintiff', to prove the contract.
"pHIS was an action for goods sold and delivered to the Bu»to»
defendant and one Harrison, deceased, whom the Borchalu defendant had survived. The defendant was a physician, and only a sleeping partner, and the contract was made ostensively with the deceased alone. Upon the trial at the last assizes for. York, the plaintiff's counsel called the brother, who was also ne$tof kin, and administrator of the deceased, to prove the contract; when Parke, for the defendant, objected, that he was an interested witness; for th.it, as
tso*- he was administrator, he would by his testimony disBi'rton charge the estate or the deceased from a part of the Btuuu debt, and increase his own share of his effects, under the statute of distributions. The learned Judge overruled the objection; and there was a verdict for the plaintiff'.
Parke, in Michaelmas term, moved for a new trial, a rule to shew cause was granted, and it was shortly argued this term.
But By The Court. "All the liability to be thrown upon the estate of the deceased, even as a partner, seems to have been introduced by the evidence of this witness. By this he makes himself liable, as administrator, for one half of the debt, which he would not have been, but for his evidence 6n this trial; he seems, therefore, to have had a directly contrary interest; such as to have rather made him refrain from giving evidence at all."
Rule For A New Trial Discharged.
Peremptory Paper.—New Trials.
R»«cia 'J'HE Court were put to great difficulty by the pressure (MMAixi- 0f business, at the end of this term, on account of the number of rules for new trials, which had stood over from the last term, so that, for the two or three last days in this term, they would hear only one counsel on each side; many cases stood over for Easter term, by consent of the parties, that they might be more fully heard; and in order to avoid the like difficulty in future,
It Was Ordered, that the rules for new trials which stand over from one term to another, shall be entered in the peremptory paper, in the same order, and shall come on upon the second day of the term, and so each subsequent day in regular succession.