
    *Taliaferro v. Robb and al. Ex’rs of Gilchrist.
    [April Term, 1800.]
    Declaration — insufficient Averment. — What an insufficient averment in a declaration.
    Assumpsit — Consideration.—What a sufficient consideration to support an assumpsit.
    Same — Same—Case at Bar. — A executor of B, writes to C, a creditor of B, that as soon as he is able to dispose of his crops he will pay the claim, or will let him have any property In his possession at a moderate valuation, this will not bind A In his own right without an averment of assets, or a forbearance to sue, or of some other consideration.
    The executors of Robert Gilchrist brought an action on the case in the District Court against Taliaferro, and declared for this to wit, “That whereas John Taliaferro deceased, in his life-time, to wit, on the 17th day of June 1787, by his certain writing obligatory sealed with his seal, did acknowledge himself to be held and firmly bound unto James Robb in the sum of three hundred and thirty pounds fourteen shillings and four pence, conditioned to pay the sum of ^165. 7. 2. on or before the first day of January then next ensuing, which said writing obligatory was afterwards assigned by the said James Robb to the said Robert Gilchrist, and the said John Talia-ferro departed this life without discharging the said debt, and the said John Taliaferro junior sued out administration on his estate, and so having the administration made a'certain note or letter in writing addressed to the said Robert Gilchrist, which said letter is in the words and figures following, “Sir, I received your letter and am sorry that it is not in my power to discharge my fathers bond in your possession, nor can I, as the uncertainty of collection is so great, fix on any final adjustment with punctuality, I have by me a considerable quantity of Indian corn and the expectation of a fine crop of wheat, so soon as I shall be able to dispose of either of these crops you may rely on the payment of a great part, if not the whole of your claim, or should any other property in my possession suit you, I will readily accommodate you with it at a' moderate valuation, hoping that you will take into consideration the difficulty of the times, I am Sir your obedient ^servant. John Taliaferro jr. Hays 16th January’ 1790.” And the said plaintiffs aver that the bond above mentioned and to the court now produced was then in the possession of the said Robert, and that no other bond of the said John Taliaferro’s deceased, was at that time in his possession; and they moreover aver, that the said John Taliaferro was after-wards able to sell his crop of Indian corn and wheat, by reason of all which premises the said John Taliaferro jr. became liable to pay to the said Robert Gilchrist all or a great part of the money due on said bond, and being so liable, he the said John Taliaferro jr. afterwards to wit, on the day of 1790 in consideration thereof undertook and then and there faithfully promised to pay the same to the said Robert Gilchrist whenever he should be thereto afterwards required. Yet the said John Taliaferro jr. although often required hath not yet paid all or any part of said bond to the said Robert Gilchrist in his life-time or to the said executors or either of them since his death, but hitherto to pay the same hath refused, and still doth refuse to the damage of the said plaintiffs ¿£240., and therefore they’ bring suit &c. ”
    Plea non assumpsit and issue. Verdict for the plaintiff for £217. 14. 5. The defendant moved1 to arrest the judgment for the following reasons. “Por that the only evidence given in the said cause is the letter recited in the plaintiffs declaration, and no legal consideration to found an as-sumpsit on the part of the defendant'either to the plaintiffs testator, or to the said plaintiff is stated, as appears in the said declaration.” The District Court gave judgment in favour of the plaintiffs; and the defendant appealed to this court.
    Wickham for the appellant.
    This is a new attempt to charge an executor, out of his own estate. The letter is in the usual stile of a letter *from an executor to a creditor of the testators estate; and there is nothing to shew, that he meant to bind himself personally. No part of it contains any actual assumpsit in his own right; for as to the propositions, concerning the sale of the corn and the event of the crop, they at most only mean, that he would apply as much of his own money’ as the amount of the assets, which probably would not, so speedily, have commanded money. But if more was thereby intended, they were offers which do not appear to have been accepted; and therefore are not obligatory. Ror if an executor offers to pay a debt, it does not oblige him, unless there be some new consideration; as forbearance, or assets, or something else of that kind. But, here, there does not appear to have been any new consideration, at all: for it is not alleged, in the declaration, that there was a forbearance in consequence of the offers; or that the defendant had assets sufficient to pay.; or any qther consideration to support the promise, which was therefore a mere nudum pactum. But the averment is wholly insufficient, both as to the sum and the proportion of the crop, for which the defendant was liable. Ror the declaration does not state the sum certainly, or the amount and proportion of the crop, for which the defendant was liable; but the averment is, only, that the defendant was liable for the whole or a great part; and the assumpsit, which is in the words of the averment, is just as uncertain; and therefore void.
    Warden contra.
    The letter contains a clear assumpsit; for it is as soon as the corn is sold, or the crop should come in; and When he speaks of difficulties, it is a plain solicitation, that Gilchrist would not distress him with a suit, and is tantamount to a request of forbearance, which was a good consideration. Pow. contr. 354. It was in fact a clear acknowledgment of his obligation to pay. Cowp. 289, is a strong authority in our favor; for the letter here amounted to an admission of assets; and that according to the case *in Cowper, was a good foundation for an assumpsit. The averment, in the declaration, is sufficient; for it is, in consideration of all the preceding matters, which had been stated, that the defendant is said to have assumed. Therefore if any’ of the uncertainties, insisted on by the opposite counsel, do in fact exist, they’ may be rejected as surplus-age, and the proper foundations of the as-sumpsit only relied on.
    Randolph on the .same side.
    There was probably other evidence in the cause, and after .verdict the Court will intend that every thing necessary to support the action was proved. No set words are necessary to constitute an assumpsit; but if the whole spirit of the agreement amounts to it, that is sufficient. The object of the letter plainly was, to obtain forbearance; and by assuring Gilchrist that the debt was ulti-rnately safe, to obtain it. Therefore, if there was any design at bottom it will not avail the defendant, who should be bound by the terms held out in the letter. The uncertainty of the time, when the corn would be sold, or the crop would be reaped, necessarily proves that he was soliciting-forbearance; because Gilchrist, in waiting for either, was inevitably to be delayed. But forbearance was itself a sufficient consideration, and therefore the promise was obligatory. The averment is sufficient. For the offer was accepted by the defendants waiting for, and betaking himself to the fund proposed, which rendered a more explicit averment unnecessary. But there was no occasion, for any particular consideration to be alleged, in the present case; because the assumpsit was in writing; which superseded the necessity of averring or proving any particular consideration. 3 Burr 1670. For where there is a written agreement, the defendant should shew that there was no consideration; and it is not necessary for the plaintiff to prove there was. If the executor acknowledges he has effects enough to pay, it is sufficient to support an assumpsit, Cowper 284; and here the letter was tantamount; for no *other inference could be drawn from it. The letter was written with a knowledge of the testators estate, and that is sufficient to oblige him; especially as it is in writing, 1 Vez. 124. The averment is in the terms of the contract; which is all that was requisite. For the certainty was to be made out in evidence; and, as before observed, it is to be presumed, that it was done, as the jury could not have found the verdict without.
    Wickham in reply.
    The last argument would support every declaration, however defective; and is expressly repugnant to Chichester v. Vass in this court; which established that the court can only infer what is made absolutely necessary to be proved by the declaration. The letter only amounted to an offer, and not to a promise. The forbearance should be stated, as general, or for a particular period. Pow. Contr. 354: but here neither is averred. The case in Cowper is of the first impression ; and carries the doctrine farther, than good sense warrants. Unless the contrary is expressly shewn, an executor is always considered, as promising in his fiduciary character.
    If the plaintiff proceeded on the idea of an admission of assets, he should have averred it. The uncertainties which I spoke of before, cannot be rejected as surplusage; and the truth is, there was no promise made. If the plaintiff had averred forbearance, assets, &c. we might have traversed it; but, as it is, we could not come prepared to controvert his evidence, on those points, which we could not foresee he would endeavour to establish. The plaintiff should have alleged the price the corn sold for, or the amount of the crop; for the averment, in the words of the letter is not enough; but he should, as he might have done, have alleged it with certainty. That the offer was in writing makes no difference; for the passage from Burr: is the solitary opinion of a single *judge, and a like position is to be found no where else. Pow. Contr. 334, shews that if you declare in an action on the case upon a note of hand, and do not allege a consideration it is nudum pactum. The case in 1 Vez. instead of being against us, is, in fact, for us; because it is there said that the defendant was liable in his 'fiduciary character.
    Cur. adv. vult.
    
      
      See monographic note on “Assumpsit" appended to Kennaird v. Jones, 9 Gratt. 183.
    
    
      
      1 Call's Reports p. 83.
    
   LYONS, Judge.

Delivered the resolution of the court, that, in order to render the defendant liable, it ought to have been averred, in the declaration, that the defendant had assets, or that the plaintiff forbore, or that there was some other consideration. But this having been omitted, that the judgment was erroneous, and to be reversed; and judgment on the verdict arrested, on account of the insufficiency of the declaration.  