
    [Chambersburg,
    October 17, 1823.]
    LANDIS against URIE and another Executors of DELANCEY.
    IN ERROR.
    Declaration in assumpsit against executors, stating that the testator covenanted, if he died first, that the plaintiff should have a certain portion of his estate, that such portion came to defendants hands after his death, and that they promised as executors, to deliver it to plaintiff'. Held, that sealed articles of agreement between the plaintiff and testator, by which the latter entered into the covenants stated in the narr, were not evidence.
    This was á writ of error to the Court of Common Pleas of Perry county.
    
      Catharine Landis, the plaintiff below, and plaintiff in error, declared against John Urie and Daniel Bloom, executors of Francis Delaneey deceased, in assumpsit, and the defendants pleaded non assumpserunt and payment, and issues were joined. The declaration stated, in the first count, that the said Francis, in his life time, to wit, on the 20th day of May, in the year 1788, at the county aforesaid, by deed executed on the day and year aforesaid, in consideration of marriage, which was intended to be had, and solemnized between the said Catharine and the said Francis, and in order that a competent jointure might be made and provided for the said Catharine, then and there did covenant, promise, and agree, to and with the said Catharine, that if he, the said Francis Delaneey, should die before the said Catharine, that then the said Catharine should have, hold, and possess, the one full third part of the personal estate, of which he, the said Francis should die possessed, and that the said Catharine should have one riding mare, and two cows, over and above the said one full third part of the personal éstate aforesaid: whereof, the said Daniel and John, ,as executors aforesaid, afterwards, to wit, on the 17th day of November, in the year of our lord 1811, at the county aforesaid, had notice; that the said Catharine, relying on the covenant and promise of the said Francis, did suffer the said marriage to be solemnized, and had between her the said Catharine, and him, the said Francis, and did enter into the holy bonds of matrimony, with the said Francis, and that she the said Catharine, did survive the said Francis, and the said Jacob and Catharine further. in fact say, that the said Francis Delaneey, by his said last will and testament, did therein appoint the said John- TJrie and Daniel Bloom, executors, as by the said will recorded, in the register’s office in the county aforesaid, fully appears: and the said Catharine avers, that the said John Urie and Daniel Bloom, the persons appointed executors in the said will, on the 16th day of November, in the year of our lord, 1811, at the county aforesaid, took upon themselves, the burden of the execution of the said will, and became the executors thereof, and that they, the said John and Daniel afterwards, to wit, on the 17th day of November, in the year of our lord 1811, at the county aforesaid, received into their hands and possession, good and chattels, and effects of the said Francis Delaneey, not only' sufficient to pay the debts and funeral expenses of the said Francis, but also fully to satisfy the provisions, herein before mentioned made by the said Francis, for the benefit of the said Catharine; by reason whereof, they, the said. John and Daniel, as executors, as aforesaid, on the day'and year last aforesaid,, at the county aforesaid, became liable to deliver unto the said Catharine, the said one full third part of the personal estate pf the said Francis, and one riding mare and two cows, over and above the said one full third part of the personal estate aforesaid; ancf so being liable, they, the said John and Daniel, as executors as aforesaid, then and there in consideration thereof, undertook and faithfully promised the said Catharine, that they, the said John and 
      Daniel, as executors as aforesaid, would well and faithfully deliver, unto the said Catharine, the said one full third part of the personal estate of which the said Francis died possessed, and one riding mare and two cows, over and above the one full third part aforesaid, when they should be thereto lawfully required. Nevertheless, &c.
    The second count was for money had and received by the defendants as executors, to the use of the plaintiff: and the third count averred a receipt of the said goods, which were the property of the plaintiff, by the defendants as executors, and in consideration thereof, a promise to pay the plaintiff as much as they were reasonably worth.
    On the trial, (he plaintiff offered to give in evidence an indenture, executed the 20th May, 1788, between the said F. Delancey of the first part, George Garling of the second part, and Catharine Garling, (now Catharine Landis,) whereby in consideration of a marriage intended to be shortly had and solemnized between the said F?'ancis Delancey and the said Catharine Garling, and sundry goods, viz: one feather bed, one chest with clothing to be had and received by the said F. Delancey as a marriage portion, with the said C. Garling, and that a complete jointure might be provided for the said C. Garling, in case the said marriage should take effect, and for the settling and assuring the messuages, lands, tenements, and hereditaments thereinafter mentioned, to and for the uses thereinafter mentioned, to and for the several uses, intents and purposes thereafter limited and declared, pursuant to the agreement made upon the contract of the said intended marriage, the said F. Delancey granted, &c. to the said George Garling, in his actual possession, one full third part of that plantation whereon the said F. Delancey then lived, adjoining land of D. Groves, &c. to hold to the use and behoof of the said F. Delancey and his heirs, until the said marriage between him and the said C. Gar-ling, -his intended wife, should be had and solemnized, and from .and after the solemnization thereof, to the use and behoof of the said F. Delancey and his assigns, during his natural life, and from and after the decease of him, the said F. Delancey, to the use and behoof of the said C, Garling, his said intended wife, and her assigns, during her natural life, and from and after the decease of the said F. Delancey and C. Garling, his said intended wife, and the survivor of them, to the use or behoof of the heirs of the body of the said G. Garling by the said F. Delancey, her intended husband, lawfully begotten, and for want of such heirs, to the use of and disposal of her, the said C. Garling, her heirs and assigns for ever. And further, the said F. Delancey thereby covenanted, &c. to and with the said Catharine, his intended wife, that if he, the said F. Delancey, should die before the said Catharine, that then the said Catharine, should have, hold, and possess, one full third part of all the personal estate of which the said Francis should die possessed, and that the said Catharine should have over and above the one full third of the personal estate of the said Francis, at his decease aforesaid, one riding mare and two cows.
    This evidence was objected to by the defendants,- and overruled by the court, and the plaintiff took a bill of exception.
    
      Alexander and Metzger, for the plaintiff in error,
    now argued, that the evidence was admissible, the sealed instrument being only inducement to the defendants promise, and the plaintiff having an election, in case of a promise by the executors, to bring assumpsit on that promise, or to resort to covenant on the articles. In Moses v. M'Farlan, 2 Burr, 1010, though there was a special agreement, the plaintiff was allowed to recover in assumpsit for money had and received, and it was held to be the same thing, whether the plaintiff recovered on the agreement, or on the equity of the defendant’s refunding the money. In many instances, a party may elect as to different remedies for the same wrong; as covenant or debt for rent, 2 Bac. Ab. 67, waste or covenant, after the expiration of the term. 1 Bac. Ab. 98. 2 Bl. Rep. 1111. In cases of partnership by sealed articles, after an account stated, and balance struck, assumpsit lies. 2 Bac. Ab. 67, 257. Deeds which are only inducement to the promise, may be read in evidence. 4 Dall, 429. In Beach v. Lee, 2 Dall. 257, an action was brought against the husband after the death of his wife, on his express assumption to pay a debt on a bond given by his wife dum sola, he having received considerable, property by his wife, and the bond was admitted in evidence, and the plaintiff recovered. Assets have been held a sufficient consideration for a promise by executors to pay a legacy, and the judgment is to be de bonis proprius, Clark v. Herring, 5 Binn. 33. 4 Dall. 147. And the widow may sue in assumpsit for -the undisposed residue of the personal estate. Wilson v. Wilson, 3 Binn. 557. 8 Mass. 340, Appleton v. Crowninsheld. 12 Johns. 227.
    It is well established, that general indebitatus assumpsit lies' after services have been performed under a special contract. 2 Binn. 4. If an executor promise to pay a debt barred by the statute, it is a new promise raised on the footing of the old, and he' is liable de bonis testatoris.
    
    
      Hamilton and Carothers, contra,
    contended, that the articles were not evidence in this action, the only remedy of the plaintiff being in an action on the articles themselves. Though one bound by specialty promises to pay it, yet it still remains a specialty, and assumpsit never lies on a promise by deed. 1 Chitt. Plead. 95. 1 Com. Dig. 145. 12 Vin. Ab. 199, In an action of assumpsit, a sealed note cannot be given in evidence. January v. Goodman, 1 Dall. 208. So, in an anonymous case, Cowp. 128, A. had judgment against B. for 10, which, with costs, amounted to 17, which 17 B. promised to pay, in consideration that A. would stay the execution; it was held, that assumpsit did not lie, because the whole, debt and costs, are. a debt by judgment. Lord Mansfield said, “ it was a new species of action — an attempt to turn a judgment into a debt by simple contract.” In Cro. Eliz. 67, it is said to have been adjudged, that when one assumeth .to another, that if he can show him an obligation in which he was bound to him, he would pay him, and he did show the obligation, that no action lies on this assumpsit, which was afterwards affirmed by the justices. These cases show, that a promise to pay a security of a higher nature, such as a specialty or judgment, is no foundation for an action of assumpsit; but the party must resort to the remedy on the instrument or record itself. But there is a further objection to this evidence: that the promise, if made, was without consideration. The executors stood in the place of the testator, and were bound as executors by the articles: but they could not be made personally liable: yet if liable at all, though declared against as executors, they must be liable personally. The case of executors being liable personally for a distributive share in their hands is different, for there no action lay on any obligation by which the testator was bound. In 8. Johns, 121, the narr was on a promissory note, by which the defendant as administrator of A. promised to pay 61 dollars to B. for value received by A., and on demurrer, there was judgment for defendant, the court holding that it was nudum factum.
   The -opinion of the court was delivered by

Duncan, J.

The foundation of this action is a sealed instrument. The contract is a specialty. The party’s remedy is on that instrument. In á course of administration it is a debt of a higher grade than simple promise or assumption. This is an action against the defendants in error in their representative character, and not in their private capacities. Their liability to the plaintiff and their promise is by them as executors. The judgment would be de bonis testatoris, and not de bonis propriis. There' is no consideration moving from the plaintiff to the defendants. There is no injury to the plaintiff, or disadvantage, nor any benefit to the defendants. There is ño promise by a third person to discharge the obligation, for it is a promise not changing the debt, ñor giving á new debtor.' It creates no new responsibility. It is distinguishable from Clark v. Herring, 6 Binn, which lays the promise by the executor not as executor, but a personal promise of the execütor in consideration of assets, in which the judgment was de bonis propriis; but where the promise is laid to be by the defendant, executor as aforesaid, in such case a promise' made by the testator, may be joined in a separate count, because the judgment in both cases would be the same. Perry v. Boileau, decided at the last session of this court, at Pittsburg, and this is the hinge on which this c[üestioñ turns. For did the assumption create a£ new responsibility, the action could be supported; but the promise here is laid by the executors as aforesaid. Their plea of non aé* sumpserunt is, that they did not promise as executors. They might have pleaded plene adrninistraverunt, and the judgment would be de bonis testatoris. Whitaker v. Whitaker, 8 Johns. 112. So that in fact, this action is on the sealed instrument of the testator, is against the executors as executors. The promise néither changes the nature of the debt, nor gives any new responsibility; the declaration, pleas, and judgment, demonstrate this. In the case of Clark v. Herring, there is a general dictum of Mr. Justice Yeates, that where one is bound in an obligation, and after-wards promises to pay the money, assumpsit will lie on this promise.” The authorities to which the learned judge refers are, Cro. Eliz. 240, and Cro.- Car. 343. As a general position, I cannot assent to thi§, unless there is a new consideration, as forbearance, and the verdease in Cro. Car. takes this distinction, and .the law is well settled, that if the obligor in a bond, without any new consideration, promises to pay the money, assumpsit will no£ Jie, but the obligee must still pursue his remedy by action of debt, for a naked assumption made by a man to pay his own bond, cannot change a specialty into a simple contract; the promise made by a third person would be sufficient. Cowp. 129.

The action for use and occupation lies on a parol demise, or agreement, for a certain rent, not being by deéd, but that remedy is given by statute, 11 G. 2 c. 19, s. 14. and even before the statute, when there was no stipulation for any express sum, that action was maintainable. Mason v. Welland Skinn. 238. 3 Mod. 73, and in Lev. 179, it was decided, that assumpsit will lie on an express promise to pay rent, where there is no deed. So where,the obligor of a respondentia bond by indorsement thereon, agreed to pay it to any assignee, it was determined that the assignee might bring assumpsit. Fenner v. Meares, 2 Bl. Rep. 1269. So, on a bond not assigned according to the act of assembly, a promise by the obligor to pay the assignee, would support assumpsit, because there is introduced a third person, who has no cause of action in his own name; the contract to pay him is by parol.

The Court of Common Pleas properly rejected the bond. In no stage of the cause could it be evidence on a declaration framed as this was. There was neither new consideration, nor responsibility. It is that which an executor would do when called on. I will pay you this debt out of the assets of my testator.” This cannot change the nature of the debt, and sink a bond or judgment into simple contract.

The promise by these defendants as executors left the contract just as it found it. They entered into no new contract. The undertaking between the plaintiff and their testator was by deed, on which covenant must be brought. The general issue is non assumpserunt, which denies that they took upon them to pay that with which they are charged in the declaration. This action does not charge them with any debt: for if a man on a simple contract was charged with a debt, he would discharge it by law wager, and for this reason it was, recourse was had to the action of assumpsit. That charges a person with damages for not performing that promise on which the plaintiff depended, and this being a charge that supposes a deceit or injury, there was no law wager allowed. But upon an assumpsit, framed on no new consideration, introducing no responsibility of a third person, the covenant under hand and seal was no evidence. There was no new consideration, the introduction of no new promisor; for the executors’promise was merely representative: there was no benefit to the promisors: there was no detriment to the promisee, which is the definition of the consideration necessary to support an action of assumpsit. The judgment is, therefore, affirmed.

Judgment affirmed.  