
    
      Executor of L. Harrell vs. Gavin Witherspoon.
    Where an administrator contracted to buy a certain quantity of corn, the court held it immaterial whether he bought it for the estate or for his own use, and that he was liable individually upon such a contract, and that it need not be in writing, not being within the statute of frauds.
    Tried before judge Galllard, Darlington March term, 1826.
    The case was briefly this. Harrell bought from Thomson one hundred bushels of corn, for which he paid him; but the corn was not delivered before Thomson died. Wither-spoon administered on Thomson’s estate, and there were one hundred bushels of corn on Thomson’s plantation. Vv ither-spoon wanting corn, agreed to take it and pay for it.
    ■ Verdict for the plaintiff.
    Defendant appealed on the following grounds:
    That his honour mistook the law, when he charged the jury that the plaintiff’s demand was not within the statute of frauds, 29 Car. 2, c. 3, and, because the verdict was contrary to law.
    
      Ervin for the motion,
    Said this was a contract by the executor to pay the debt of the testator, and not being in writing was within the statute of frauds.
    • Evans, against the motion.
    The corn was bought by Witherspoon of Harrell. It was bought for himself. Thomson not complying with his contract, Witherspoon took the contract on himself; his being executor to Thomson, could not change the nature of the contract. An executor lias no power to contract a debt for an estate. It may be charged upon an estate, and in equity, the court will set up such debt against the estate; but at law a contract by an executor is always a personal debt. The statute of frauds has nothing to do with this case. See Fisher vs. Tucker, at the last equity court. M’Belh vs. Smith, Const. Rep. Tread. Ed. 476.
   Nott, J.

It might perhaps have been made a question whether the plaintiff had acquired such a right to the corn that he could have demanded a specific delivery of it, or whether it still remained- a part of the estate of Thomson, thereby making the plaintiff a creditor for the hundred dollars.

Ervin, for the motion.

Evans, contra.

But the defendant has raised no such question and we do not know, therefore, what the evidence on that point would have been. The defendant admitted that the plaintiff was entitled to recover the corn. He agreed to take it from him and to pay him a hundred dollars. It was not an agreement to pay the debt of the intestate out of his own estate but to pay a debt of his own for a valuable consideration moving immediately from the plaintiff to himself. It does not even appear that the corn was received for the benefit of the estate. I should conclude from the terms of the report that it was for his own individual use. It is however not material, the contract was his own and in his own right. It is not a caso therefore within the statute of frauds.

The motion is refused.  