
    Collins’s Adm’x v. Row.
    February, 1839,
    Richmond.
    (Absent Brookjk, .1.)
    Assumpsit — Promise of Executor — Evidence. — In assumpsit against an executor, in his individual character, for the price of goods sold and delivered to him for the use of his testator’s widow and legatees, upon evidence being given of such sale and delivery, of a promise by the defendant to pay for the goods out of his testator’s estate, and of assets sufficient for that purpose, the plaintiff may recover although the promise was not in writing.
    In the county court of King and Queen, the administratrix of Thomas Collins declared in assumpsit against Francis Row, otherwise called Francis Row executor of George X). Shackelford that, in consideration that Collins had, in his lifetime, at the request of the defendant, sold and delivered to him divers goods, wares and merchandise, for the use and benefit of the widow and legatees of his testator, the defendant promised Collins in his lifetime to pay him the price of the goods &c. when thereto required. At the trial upon the plea of non assumpsit, the plaintiff having given evidence of the sale and delivery of the goods to the defendant for the use of widow and legatees, of a promise by the defendant to pay for them out of his testator’s estate, and of assets ^'sufficient for the purpose in the defendant’s hands, — the defendant thereupon moved the court to instruct the jury, “that if they believed, from the evidence, that the promise of the defendant was that the goods should be paid for out of the estate of his testator, and not out of his own estate, he was not bound by such promise unless the same was in writing.” The court refused to give the instruction; and the defendant excepted. The jury found a verdict for the plaintiff for 121 dollars 23 cents damages, with interest &c. and the court rendered judgment thereon, for the damages and interests so found, and the costs of suit.
    Upon a supersedeas to that judgment, the superior court reversed the same with costs, and remanded the cause to the county court, with directions “to give the instruction prayed by the defendant on the former trial, if the plaintiff should give evidence of goods &c. delivered to the family of George D. Shackelford, or of the value or amount of assets of said Shackelford which came to the hands of the defendant his executor.”
    On the petition of Collins’s administratrix, this court awarded a supersedeas to the judgment of the superior court.
    Johnson, for the plaintiff ih error.
    Claiborne, for the defendant in error.
   PER CURIAM.

Judgment of superior court reversed, and that of county court affirmed.

The 1st section of the act to prevent frauds and perjuries, 1 Rev. Code, ch. 101, p. 372, enacts, “that no action shall be brought whereby to charge any executor or administrator upon any special promise to answer any debt or damages out of his own estate, or whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person, unless the promise upon which such action shall be brought, or some memorandum or note thereof, shall be in writing.”  