
    Miner Stebbins versus Samuel Smith.
    A promise to pay a debt of a testator, by an executor who has given a bond to the judge of probate to pay the testator’s debts and legacies, is not within the statute of frauds, for the bond is an admission of assets.
    Giving up securities against the testator’s estate, is a «efficient consideration for such a promise.
    
      It seems that the creditor’s remedy on the bond is extinguished by such discharge of his demands.
    Where one of two executors, who had given such a bond, promised to pay the sum due to a creditor, and gave his negotiable note therefor, and the creditor then gave, up his securities against the testator’s estate, and afterwards the' note was avoided for usury, it was keld9 that the creditor might maintain an action on the paroi promise of the executor.
    Assumpsit for money paid, on insimul computassent, and other money counts.
    At the trial, before Morton J., the plaintiff proved, that the defendant and Alexander Smith were residuary legatees and executors of Jonathan Smith ; that on the 13th of April, 1820, they gave a bond to the judge of probate to pay the debts and legacies of the deceased; that on the 22d of Janu ary, 1821, the plaintiff and defendant made an examination of all the plaintiff’s demands against the estate of the de ceased, and found due 1186 dollars, which the defendant agreed to pay, and for which he then gave a negotiable note for 1286 dollars, payable on demand with interest; that the plaintiff then discharged his accounts and gave up his notes ; that the sum of 1186 dollars was made up of one note against the deceased and Alexander Smith as surety, given to Seth and Enoch Smith for 651 dollars, one note signed by Alexander Smith and the deceased as surety, given to Rodney Day for about 100 dollars, one or two other small notes, and fne plaintiff’s account against the deceased. It was admitted that the defendant received some estate by devise from the deceased, and that the note for 1286 dollars, after having been partly paid, had been avoided by the defendant on account of usury. It was proved that before this adjustment between the plaintiff and defendant, the plaintiff had, at the request of Alexander Smith, paid to Seth and Enoch Smith he amount due on their note, and they had assigned it to him.
    
      Sept. 29th.
    Upon this evidence it was contended, that the defendant was not liable in this action, because the promise made by him was void for want of a sufficient consideration, or, if not void, that giving the note for 1286 dollars ,was a payment and discharge of the debt. But the jury were instructed, that the promise was valid and sufficient to support the action, and that the above mentioned note, being entirely void, was not payment of the debt. The jury returned a verdict for the plaintiff accordingly. If the instructions were wrong, a new trial was to be granted ; otherwise judgment was to be rendered upon the verdict.
    
      J. H. Jlshmun, for the defendant.
    The discharge of the plaintiff’s demands against the testator, and his taking the defendant’s note, constituted but one transaction ; and the note having been avoided for usury, the plaintiff can maintain no action on the defendant’s promise. In Robinson v. Bland, 2 Burr. 1077, a distinction is made between the contract of lending money to play with, and the security taken for its repayment, the security alone being held to be void ; but that distinction, does not apply in the case of usury.
    The defendant’s promise was without consideration. There was no forbearance, nothing advanced, nor any disadvantage on the part of the plaintiff, and no benefit to the defendant.
    The promise is, to pay a debt of the testator out of the executor’s own funds, and not being in writing, is void by the statute of frauds.
    
      Bliss and Bliss junior, contra.
    
    The defendant, upon a computation of the plaintiff’s demands against the testator, promised to pay him 1186 dollars. If this was a valid promise, what was done afterwards in regard to the defendant’s note is immaterial. The plaintiff insists that it was valid. At the request of one of the executors, he paid a note of the testator, and the defendant agreed to remunerate him. By giving bond to pay the debts of the testator, the defendant acknowledged assets, and became personally liable on the plaintiff’s demands against thb testator, before the promise was made. The plaintiff discharged those demands, upon the defendant’s making the promise, and thereby gave up also his remedy on the bond. From this statement, it is manifest that the promise was an original undertaking, and so not within the statute of frauds, and that it was founded on a sufficient consideration. Jackson v. Rayner, 12 Johns. R. 291; Com. Dig. Action upon the case upon Assumpsit, B. 3; Thacher v. Dinsmore, 5 Mass. R. 299; Cabot v. Haskins, 3 Pick. 93; Packard v. Richardson, 17 Mass. R. 140; Colt v. Root, ibid. 229; 2 Metcalf’s Starkie on Ev. 596, and cases there cited; Fell on Guar. 30, 31 ; 3 Bos. & Pul. 249, note; 1 Saund. 211, note 2; Elting v. Vanderlyn, 4 Johns. R. 237.
    The note having been avoided for usury, the plaintiff may have recourse to the preceding promise, and the insimul computassent. Johnson v. Johnson, 11 Mass. R. 359; Swartwout v. Payne, 19 Johns. R. 294; 2 Stark. Ev. 123.
    
      E. H. Mills, in reply, did not deny that upon the note’s being avoided, the original claim revived, but he said that claim was against the estate of the testator ; and an action did not lie against the defendant alone and personally, but against him jointly with his co-executor, in their capacity of executors. Oliver v. Smith Tr. 5 Mass. R. 183. By the com putation of the plaintiff’s demands, it was admitted that a certain sum was due from the testator’s estate, not that any thing was due from the defendant, and the plaintiff cannot resort U the defendant on an implied promise to pay the debt of the testator. _ _
    
      May term, 1827, at Springfield.
    
   Wilde J.

_ _ delivered the opinion of the Court. It appears by the report of the case, that only two questions of law were raised at the trial: — 1. Whether the consideration proved, were sufficient to support the promise ; — 2. And if so, whether the note subsequently given amounted to payment, and discharged the promise.

That the note was given subsequently to the promise de • dared on, seems to be sufficiently proved, and we consider the fact as established by the verdict. It was not questioned at the trial; on the contrary, the defendant then contended that the note, being negotiable, discharged the promise, and was a payment of the balance now claimed. And t would have been, but for the avoidance of it by the defendant. That this avoidance lets the plaintiff into his previously existing demand against the defendant, is proved by the case of Johnson v. Johnson, 11 Mass. R. 359.

As to the question of consideration, it appears that the plaintiff discharged his accounts and gave up his notes against the estate of the deceased; which the defendant was bound to pay, having given bond to pay debts and legacies without returning an inventory. This is a sufficient consideration, whether the plaintiff’s security on the bond were extinguishe 1 or not. There seems, however, to be no doubt that the plaintiff’s remedy on the bond was extinguished by the discharge of the debt.

The suggestion that the promise is void by the statute of frauds is clearly unfounded. It is not a promise by an executor “ to answer damages out of his own estate for the bond given to the judge of probate is an admission of sufficient assets, which the defendant is estopped to deny.

Judgment according to verdict. 
      
       See Edgell v. Stanford, 6 Vermont R. 551; Rice v. Welling, 5 Wendell, 595; Hughes v. Wheeler, 8 Cowen, 77; Hammond v. Hoppings 13 Wendell, 505; Fugate v. Ferguson, 1 Blackford, 366; Turner v. Calvert, 12 Serg. & Rawle, 46; Ramsdell v. Soule, 12 Pick. 128.
     
      
       See 2 Stark. Ev. (5th Amer, ed.) 346, n. (2).
     