
    William M. Robinson vs. Garret Lane.
    While an executor is not liable in this state beyond the amount of assets of the deceased, yet he may, by his own act, if in writing and for a good consideration, become personally responsible for his testator’s debt.
    Therefore, where a creditor of an estate took a note from the executor in settlement of his claim against the estate, on which note the executor wrote, “ For value received I assign this note to L., (the creditor,) and waive demand and notice, and warrant the consideration for which it was given, but as to the solvency or insolvency of the makers to he without recourse : ” it was held, that the executor was personally liable for any breach of this guaranty ; his undertaking was in writing, and the giving up the note by the creditor formed a sufficient consideration.
    In a suit, therefore, upon such guaranty, it could make no difference whelher these were assets of the estate of the testator or not; the executor’s liability was direct, and did not depend upon that contingency.
    It would, however, be competent to show, that the claim held by the creditor in the first place, was not a valid claim against the estate, for though prima facie, the consideration would be regarded valid, yet it might be impeached by proof; and if shown to be invalid, the undertaking of the executor would be without consideration and not binding.
    In an action against the guarantor of a note, the record of the judgment against the makers is competent evidence of the fact of the rendition of such judgment, and especially is this the case, if notice of the pendency of the suit has been given to the guarantor.
    In an action against the guarantor of the consideration of an assigned note, the record of a suit against the maker of the note was read, which exhibited a judgment for the defendant therein : it was held competent to show, by parol,'whether the judgment was upon the merits of the case ; whether it was rendered because of a want or failure of consideration.
    A bill of exceptions, however, taken upon the trial of the suit against the maker embodying the proof, would not be competent evidence; the witnesses themselves would be required, as the other party would be entitled, to cross-examine them.
    
      Where a guarantor of a note guaranteed only the consideration of the note, hut not the solvency of the makers, he could only be held liable in a suit on his guaranty, for such an amount as might have been made out of the makers, had judgment been rendered against them.
    In error from the circuit court of Hinds county; Hon. George Coalter, judge.
    Garret Lane sued Rachel Robinson, executrix of Wm. M. Robinson, on his guaranty of the following note:
    “$1,213. One day after date we, or either of ns, promise to pay Wm. M. Robinson, or order, twelve hundred and thirteen dollars, for value received, this 20th April, 1840.
    “ (Signed) ■ Samuel Thomas,
    “J. H. Thomas.”
    The guaranty is in these words indorsed on said note:
    “ For value received I assign this note to G. Lane, and waive demand and notice, and warrant the consideration for which it was given; but as to the solvency or insolvency of the makers of this note to be without recourse. 22d June, 1844.
    “(Signed,) W. M. Robinson.”
    The declaration states that suit was brought in Rankin county against the makers, S. and J. H. Thomas, and verdict and judgment rendered for the defendants; that said verdict and judgment are still in full force, and that they were rendered upon full proof made by the defendants of a total want or failure of consideration; it further states, that both before and after suit was brought, as aforesaid', in Rankin county, the said defendant in this case, as executrix aforesaid, had due notice of the proceedings against said S. and J. H. Thomas, and" had permission to aid in enforcing their liability as makers of said note. /
    
    On trial, plaintiff, having proved and read the note and indorsement thereon, offered a record from Rankin circuit court of G. Lane against S. and J. H. Thomas, founded on-said note. In that suitS. and J. H. Thomas pleaded non-assumpsit and payment; on trial there was a verdict and judgment for defendants. The bill of exceptions supplies the evidence and also the charges asked and given or refused by the court on that trial. They show that nothing but the question of consideration was controverted on that trial. Plaintiff moved for a new trial, which was refused.
    To the whole transcript defendant objected, that, 1st, No proof of notice of that suit to defendant; 2d, The record did not tend to prove any fact material to this cause; 3d, The issues and trial were on non-assumpsit and payment. She objected to the whole record except the process, pleadings, verdict, and judgment; to the bill of exceptions in said cause; to the court’s instructions. These objections were severally overruled and exceptions taken. Plaintiff then read the record except the affidavits therein copied, which being no part of the record, were omitted by consent of both parties.
    Tidence Lane testified for plaintiff, — He has been agent for G. Lane, who is a non-resident from previous to the date of the guaranty to the present time. Having the note and guaranty in his possession, he has frequently demanded payment of defendant. Both before and after the suit was brought in Rankin, he has requested the defendant to aid in prosecuting that suit. After it was brought, he notified her of its pendency, and requested her aid. After the-verdict and judgment, he offered her the use of the plaintiff’s name to prosecute a writ of error, and had often offered to compromise with her; all of which things she declined. Before suit was brought against the Thomases, he tried to get her own attorney to sue for plaintiff, but he declined because it might involve Robinson’s estate; witness then procured G. T. Swan to bring suit.; witness was present during the trial of the suit, he was a witness summoned for defendants. No other question was involved in that trial but the consideration of the note, no evidence was given for defendants but such as went to impeach that; that question only was controverted before the jury, and on it -they found for the defendants.
    On defendant’s examination, stated, —The note was assigned and the guaranty given by Robinson, in part payment of an account made out to Samuel Thomas and J. T. Lane, against the estate of A. G. Moore, of whom W. M. Robinson was executor, for $1984, duly probated, which account G. Lane claimed by assignment from Samuel Thomas. In addition to the note Robinson paid Lane $245, which two were in discharge of said account, and accordingly on the 22d June, 1844, it was receipted by G. Lane to Robinson, executor of Moore, for $1667, in full of said account. This agreement was made thus: By agreement between Robinson and T. Lane, agent of G. Lane, the matters of the account for $1984 had been submitted to arbitrators, while they were considering of their award, but before it was made, Lane and Robinson made said agreement and withdrew the submission.
    Defendant then offered to prove, by the witness, the insolvency of Moore’s estate at the time of this agreement; also to prove what was the consideration of the note of S. and J. H. Thomas; also that the account settled as aforesaid was no valid claim against the estate of Moore, all of which were objected to by plaintiff, and excluded by the court, and exceptions taken by defendant.
    The instructions given for plaintiff are,
    1. The record from the Rankin circuit court is admissible as evidence of all the matters ascertained by that suit.
    2. The plaintiff was not bound to prosecute an appeal or writ of error from the judgment in Ranldn, before commencing this suit, after having offered to defendant the use of his name to prosecute the same with power to control it.
    3. The record given in evidence, in the absence of all proof of .fraud or collusion, is competent evidence if the defendant had notice of said suit, and was requested to aid therein; and until reversed, conclusive evidence of the finding of the jury and the judgment of the court.
    4. Any knowledge by defendant within eighteen months from the expiration of the notice for the presentment of claims to her as executrix, of the existence of the claim sued on, is sufficient to bind her; a positive presentment and demand were not necessary.
    
      The court gave all the instructions asked by defendant except two, which are as follows:
    If, upon a verbal contract for the sale of lands, the vendee executes his note to vendor, and enters into possession of such lands under such contract,- and make valuable improvements thereon, the vendee may, upon due payment, compel the vendor to make title to such land.
    There is no evidence before the jury, that Robinson credited himself as executor of Moore’s estate, in his reports to the probate court, with $ 1667, indorsed on the account of Thomas and Lane against said estate.
    To the giving and refusing the foregoing instructions exceptions were taken.
    The jury found for the plaintiff.
    A new trial was asked for, because; 1. The verdict is contrary to law and evidence; 2. Court erred in giving and refusing instructions; 3. Court erred in admitting plaintiff’s and excluding defendant’s evidence. The application was overruled and exceptions taken, and this writ of error sued.
    
      George L. Potter, and T. J. F. A. R. Wharton, for appellants,
    contended,
    1. There was no consideration for the contract sued on. Rann v. Hughes, 7 Term R. 350, note a; Forth v. Stanton, 1 Saund. R. 210; 2 Lomax, Ex’rs, 278. The executor is only liable, as such, notwithstanding the promise, and liable only to the extent of assets. Byrd v. Holloioay, 6 S. & M. 199; 1 Saund. R. 210, n. 1; 2 Lomax, Ex’rs, 273, 274. '
    2. In this case, plaintiff in error offered to prove that the account, in payment of which the note was transferred, was not a claim or liability against the estate of Moore; but the court refused to permit such proof. This was manifest error, for a promise to pay- an unfounded claim is not binding. Stone v. Wythipoll, Cro. Eliz. 126; Lloyd v. Lee, 1 Stra. 94.
    3. The court also refused to permit proof of the insolvency of the estate of Moore, at the date of the guaranty; such proof was, obviously, admissible, as it went to the question of consideration or no consideration.
    4.. The transcript of suit against the makers of the note was improperly.admitted as evidence. Admit that it would have been admissible under a different state of pleadings, it was clearly inadmissible, in view of the averments of the declaration, which declare that the verdict for the defendants in that suit was upon their “ pleas,” and the transcript shows pleas of non assumpsit and payment. The averment is, in substance, that those defendants were discharged upon the matter of payment, as well as other matters; and it is plain that, under such allegations, the transcript was not evidence for any purpose.
    5. It was manifest error to admit the bill of exceptions as evidence; that was no part of the record for any purpose, except for the purpose of review in the appellate court. It could not be used in another suit, even as against the parties to that record. 2. Phil. Ev. (Cowen & Hill) 181, 182.
    6. So, as to the instructions contained in that transcript; they were improperly admitted. Under no circumstances would any part of the record have been evidence, except the process, pleadings and judgment, and then only to prove the fact of a judgment for those defendants.
    
      D. Shelton, for defendant in error.
    1. Notice of an action pending, and request to aid therein given to one who is privy in interest, or bound to indemnify, will make the judgment evidence against him; and he cannot afterwards upon a suit for the indemnity controvert the facts determined by the verdict and judgment. 6 John. R. 159; 7 lb. 168; 13 lb. 226; 19 lb. 294; 4 Mass. R. 349; 3 T. R. 374; 4 Dallas, 436; Phil. Ev. 227. See also 4 How. R. 249, and 1 John. R. 517; 7 How. Rep. 337; 3 Phil. Ev. 804-810.
    2. I admit, fully, the principle that a note or other parol promise, given by an administrator, for no other consideration than the value received by the decedent in his lifetime, is void for want of consideration, and no action can be sustained on it, either against the administrator as such, or personally. 8 John. R. 120; 17 lb. 304; Byrd v. Holloway, 6 S.'"& M. 203; 1 Man. & Ry. 420; 7 Barn. & Cress. 542.
    But such note or other written promise will not be void, although given for or in discharge of a debt of the decedent, or a distributive share, if the promise be founded on any new consideration whatever in law deemed valuable. 3 S. & M. 435; Bayiey on B. 542; 1 Saund. R. 210, n. 1. Hence forbearance to proceed for the recovery of the debt or legacy. Chit. Cont. 83; 5 T. R. 693; 7 lb. 350; 1 Saund. 210, n. 1; 2 lb. 136, 137, b. Assets in hand at the time of promise, for they are a fund for that purpose, and a sufficient consideration. 3 S. & M. 435. The indorsement of a bill or note. 1 T. R. 489; Bayiey on B. 14, n. 54, p. 132; 2 Saund. R. 136, n. 2; 2 lb. 137, n., 137 a, b\ 2 Brod. & Bing. 460; Bayiey on B. 76, n. 53.
    Now, a consideration may arise by reason of any benefit resulting to the promisor, or to a third person, at his request, or on the promisee’s sustaining any loss or inconvenience, or suspending, forbearing (or discharging) any legal or equitable right or remedy at the instance of the promisor. Chit. Cont. 7-10; 1 Com. Dig. 294.
    Under the foregoing rule, there are several considerations, any one of which would support the guaranty.
    1. The discharge by receipt in full of the decedent’s debt to Lane, and the absolute release of any cause of action against Robinson as executor on said debt.
    2. The postponement of suit against Robinson until after trial and judgment in the suit against S. and J. Thomas,, although on the original demand the right of action had already accrued.
    For the discharge of a debt of a third person, or the forbearance, and giving him time for the payment of it, is a sufficient consideration to sustain a written promise, or any other lawful act of plaintiff, for the benefit of a third person, done at the request or by the procurement of defendant, as a sufficient consideration to sustain the promise. Chit. Cont. 8, 9; 1 Caines, R. 45; 1 Taunt. 523; 1 Com. Dig. 296, B. 3; 1 T. R. 76; 3 Mass. R. 1; 4 Green 1. 552 ; 4 John. R. 237.
    Thus, an agreement by the payee of a promissory note not to sue the maker for one year, is a sufficient consideration to support a third person’s guaranty of its payment. 6 Con. R. 81.
    3. It was a compromise of a debt against him as executor for $1984 then due, in consideration of the payment of $245 cash, and the assignment and guaranty of the note sued on by Robinson, both of which, including interest, amounted to only $1667, and an agreed withdrawal of the original demand from arbitration, for which it was then submitted.
    Admit the claim to have been doubtful, the compromise of doubtful rights and claims is a sufficient consideration to support a promise. 6 Munf. 406; 1 Ves. 444; 5 Barn. & Aid. 117; 4 B. & C. 525.
    4. It was a new and distinct agreement, by which Robinson, in consideration of his release as executor from a claim for a larger debt, transferred a smaller one against a third party, and personally guaranteed the genuineness of the transferred debt. The agreement had reciprocity, Lane yielding his claim to a larger.
    , But -it will doubtless be said that the defendant offered to prove that the claim of Lane against Moore’s estate was not a valid one. That question cannot be litigated in this suit. It is precisely what was compromised and settled by the new agreement; Robinson having compromised (even a doubtful claim) at two thirds or three quarters of its amount, and for even that much assigned the note of a third person; he only guarantying its genuineness, cannot, when by suit we demand of him to make good his guaranty, set up his original pretence of the invalidity of the compromised demand, and thus get the benefit of the compromise, if it be found that the compromised claim was valid, and get clear of the compromise, if it was invalid.
    5. There is nothing in the objections raised to the whole record from Rankin. Its materiality is very apparent. The required notice to the defendant is proved by Lane, and the bill of exceptions and Lane’s evidence show that the verdict and judgment were on the question of consideration only.
    6. There is nothing in the objections to parts of the record. A record, when offered in evidence, must be given as a full record, and not by detached parts of it. If, for want of notice, or because the defendant was not a party, he is not bound by parts of that record, instructions to that effect might be asked.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action, brought in the circuit court of Hinds, by the defendant, against the plaintiff in error. It was founded on the following guaranty: “For value received, I assign this note to G. Lane, and waive demand and notice, and warrant the consideration for which it was given, but as to the solvency or insolvency of the makers, to be without recourse.”

The declaration alleged that suit had been brought against the makers, and that no recovery was had, for the reason that there was no consideration for the note. The defence set up, was, first, that the assignment and guaranty were made by Robinson, in consideration of a debt due from the estate of A. G. Moore, deceased, of which he was the executor, and that there were no assets of the estate. Second, that the account against the estate of Moore, for which the assignment and guaranty were made, was not a just claim against the estate, and so the consideration of the guaranty had failed. Other questions arose in the progress of the trial, which it will be necessary to notice also.

In this state, an executor is not liable beyond the amount of assets of the deceased. Pickett v. Banks, 11 S. & M. 445. All which the law exacts of him is a faithful administration of the estate; but then by his own act, and by his own direct undertaking, he may become personally responsible. 2 Lomax, Ex’rs, 274 - 277. Such undertaking, however, must be in writing, and moreover be founded on a good consideration. Byrd v. Holloway, 6 S. & M. 203. In this case, both these requisites concur. It was in writing, and the plaintiff gave up a claim which he held against the estate of Moore. It was a fair exchange of credits, the substitution of the note assigned with the original guaranty of Robinson, for the liability of the estate. Whether the arrangement turned out to be a good one for the defendant, is not for us to inquire. Lane gave up his claim against the estate of Moore, with the assent and agreement of the executor, and he cannot now be restored to it. This is a sufficient consideration.

On the trial, the transcript of the record of the suit against the makers of the assigned note, was offered in evidence and objected to. It was in proof that notice of this suit was given to the plaintiff in error, during its pendency. The record was certainly admissible to prove that such judgment had been rendered. This was especially the case, as notice of the pendency of the action was given to Mrs. Robinson, the executrix. Kip v. Brigham, 6 John. 159. The notice was all which the law requires; if she failed afterwards to join in the defence, the fault was her own.

But whether the judgment was upon the merits of the case, whether the same point was in issue in that case as in this, was of necessity a matter of inquiry in this suit; and in such inquiry parol evidence was admissible. 1 Greenl. Ev. 598, 604.

As the verdict in the suit against the makers was general, and as it did not therefore appear from the record whether it was rendered, because of a want or failure of consideration, that fact was open to proof by parol. Evidence to that point was therefore properly admitted. But the bill of exceptions was not proper testimonjq for the reason that the witnesses, whose testimony is therein embodied, are competent in this suit, and the other party is entitled to cross-examine them. 2 Phil. Ev. n. 181, 182.

The proof offered by the defendant of the insolvency of Moore’s estate, and of the want of assets, was properly rejected. He had bound himself personally for its payment, upon an apparently good consideration, and his liability did not thenceforward depend upon the fact of assets or no assets.

But whether the consideration which induced the promise was a valid .claim against the estate, is a different question. The consideration of every note and of every guaranty may be inquired into, as between the original parties. The presumption •is usually in favor of the consideration, when the party acknowledges in the instrument the receipt of value; but still that is only

prima facie, and it is admissible to impeach it by proof. Jerome v. Whitney, 7 Johns. 321.

The defendant here offered to prove that the claim against the estate for which he gave the guaranty, was not valid, but the court rejected the testimony. This was erroneous. If the claim against the estate cannot be sustained, the undertaking of the executor was without consideration, and is not binding.

One other point only need be noticed. The extent of the defendant’s liability, if judgment should ultimately be rendered against her. If the makers of the note are solvent, then the measure of damages would be the amount of the note. If they were not, then only the amount which might have been made of them if the plaintiff Lane had succeeded in the suit against them. Any other construction would make Robinson a guarantor of their solvency, when he protected himself in the assignment against such a result.

The charges given on either side need not be dwelt on. It will be readily seen how far they agree with this opinion, and in another trial they must be made to conform hereto.

For the errors above pointed out, the judgment will be reversed, and new trial granted.  