
    Mollet against Fonsera.
    Foreign Attachment.
    Saturday, December 19.
    RULE to shew cause of action, and why the attachment should not be dissolved.
    _ The Court foreign attachment, because the plaintiff’s affidavit stated, fe^an?, in" ^plaintiff would for-months, promised to pays without aver-^forbear.
    
      Meredith, for the plaintiff,
    produced the affidavit of John Le Mesurier Smith, of Madeira, agent of the plaintiff, who swore, that the defendant was indebted to the plaintiff, in the sum of 2 lili. 5s. id., sterling, and upwards; that the late George C. Smith, being at the time of his death, indebted to the plaintiff, and the defendant having married his widow, , , ,. . . - o -i.-n-. and taken upon him the administration, &c., the plaintiii’s account was stated and exhibited to him, and by him examined, adjusted, and acknowledged to be correct; in which account there was a balance due to the plaintiff, of 21111. 5s. Id., sterling, which the defendant, in consideration of the plaintiff’s forbearing to press the payment thereof for six months from the 14th February, 1817, promised to pay to the plaintiff, after the said six months, with interest at five per cent.
    The action was against the defendant personally, and not as administrator. To shew that a forbearance of suit against an txecutoi, is a good consideration to charge him personally without assets, and that assets are a sufficient consideration to charge an executor de bonis propriis on his own promise, Mr. Meredith cited, 3 Bac. Ab. 90. Executor and Administrator, Cro. Jac. 47. 9 Co. 94. Baines’ case. Roll. Ab. 921. 2 Leo. 3.' Vent. 120. 5 Binn. 33. 36. Tol. on Exr’s. 363. Cro. Eliz. 91. 1 Vez. 125, 126. Cozvp. 289. 293. 1 Sid. 89. 1 Lev. 71. 1 Roll. Rep. 27. 1 Saund. 210. note 1. 211. note 2. 2 Saund. 136, 137. C. note 2. 1 Com. Dig. 96. Cro. Eliz. 455. 665. 703. 758. 804.- 4 Dali. 226. 2 Binn. 509. 2 Jo/ms. 243. 4 Johns. 237.
    He contended also, that the same strictness was not necessary in an affidavit, on which to ground an attachment, that was required in an affidavit to hold to bail; for which he cited, 1 Dali. 154. 158. 160.
    
    Binney, for the defendant,
    conceded that it was not necessary to allege assets in the declaration, and that a promise, in consideration of forbearance, is prima facie evidence of assets ; but denied, that without assets, such a promise would bind an executor. There must be benefit on one side, or injury on the other, to give effect to a promise. Forbearance, where originally there was no cause of action, forms no consideration for a promise. The responsibility of an executor is commensurate only with assets. A promise therefore by an executor, without assets, to pay in consideration of ■ forbearance, is nudum pactum, because, there was originally no cause of action against him. A married woman gives her note as sole, and after the death of her husband, in consideration of forbearance of suit, promises to pay. This, is nudum pactum, Lloyd v. Lea.
      
       A husband, after the death of his wife, who was executrix of A, promises payment of a debt of A, in consideration of forbearance of suit; held to be nudum pactum, because he was not liable to an action, after his wife’s death, Smith v. Johns.
    
    But the affidavit itself is defective. It states, that the defendant, in consideration of the plaintiff’s forbearing to press him, promised; but it is not said, that the plaintiff didforbear. For aught that appears, he may have brought a suit. There is no reason why an affidavit in a foreign attachment should not be as strict as one to procure bail.
    
      
       l Sir. 94.
    
    
      
      
        Cro..Tac.257.
      
    
   Per Curiam.

The affidavit is not sufficient. It states ¡no cause of action. The defendant’s promise to pay was in consideration, that th.e plaintiff would forbear for six months, and it is not averred, that he did forbear.

Attachment dissolved.  