« ForrigeFortsett »
"against Langdall, a feme administratrix, and declared, “ that the defendant, in consideration that he would for“ bear suit until she had taken out letters of administra~ tion, promised to pay money due to him by the intes"tate. After verdict and judgment for the plaintiff error " was brought to reverse the judgment; and exception " was taken that the plaintiff bad set forth no considera vi tion for the assumpsit in his declaration, for all that way " alleged was, that the plaintiff should forbear suit til “ the defendant had taken out letters of administration " which is no consideration at all, for the defendant wa
, not liable to be sued as administratrix until she had taker “out letters of administration. There was also a seconi “ objection : Roll, C. J. held the first a good exception “ for the defendant was not chargeable before letters ol “ administration taken forth, if she does not intermeddle “ with the goods of the intestate, and it doth not appea “ 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 of “ dains. Jerman, Nicholas, and Ask, Justices, to the “ same intent. Thereupon the rule was—reversetur nisi « but upon some objections on the other side to the wri “ 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 so " of the defendant did in his life-time owe to the plaints “81., and died intestate ; the plaintiff demanded the 8 « of the defendant, the mother of the intestate, whereupo " she promised, that if the plaintiff would stay till Michael *mus next, then she would pay it. On non-assumps < pleaded, and a verdict for the plaintiff, the defendar " moved in arrest of judgment that there was no cons " deration, and cited Morgan's case, 6 Car. to shew th: “ an assumpsit to pay a remediless debt, if the plainti “ will stay for it, is not good; and that there appeared a “person liable to pay the debt either plainly or by intend .« ment; and it did not appear what person the son was, C
“ that he either had or left any goods, and that the groun er of the action was the piety of the mother, andthat the ord “ nary is not chargeable unless goods come to his hand
« There was another objection as to the averment of the
mitted, that if no consideration appears upon the face of this declaration, the defendant must have judgment. The difference is very material between a special demurrer and a motion in arrest of judgment; for, 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 is nobody to be sued. Upon that short ground I think that the consideration bere stated is insufficient. I 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 agrcement 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 surcenses nothing if there be no one whoin 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
JONES was decided by that case, as it respects this, was, that it
versus is not necessary that the plaintiff should have been enti- ASHBURNHAU. tled 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 be 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 FOR THE DEFENDANT,
BURTON versus BURCHALL:Thursday, Feb. 9.
In assumpsit against a surriting partner, the administrator, bro
ther and next of kin of the deceased partner, is a good witness, for the plaintiff, to prove the contract. THIS was an action for goods sold and delivered to the Burton
defendant and one Harrison, deceased, whom the BURCHILL 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 next of kin, and administrator of the deceased, to prove the contract; when PARKE, for the defendant, objected, that he was an interested witness; for that, as
he was administrator, he would by his' testimony discharge the estate of the deceased from a part of the 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 on 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.
THE Court we
Peremptory Paper.--New Trials.
of 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 lo another, shall be entered in the peremptory paper, in the same order, and shall come on upon the second day of the terin, and so each subsequent day in regular succession.