Majority
p. 237Elting and others, Administrators of Elting, against Vanderlyn. NEW-YORK, May, 1809.
Headnote
a declaration pay"atbe°™ebt of ^ot^st’te 'tTt the promise was m writing. That is matter of evitrial, and after court^wili ^rep™ e,f^í bJ'^ wl'ltinS- Where one of several h?irs is sued on. his promise to pay the debt of plaintiff need the defendant or heA^bearance Io sue generally is a good consideration for a thed'ebtof anothCt"THIS was an action of assumpsit. The declaration stated, that one Zachariah Hoffman, now deceased, was, in his life-time, justly indebted to the intestate, in his lifetime, in divers sums of money, &c. that the intestate, i n his life-time, was about to sue the heirs of the said Hoffman, for the recovery of the sums so due to him; “ that thereupon the said Jacobus Vanderlyn, in consideration that the said i?. L Elting, (the intestate, i in his life-time, at the special instance and request of the defendant, wou l d forbear to prosecute the heirs of the said Z. Hoffman, of . . . which the defendant, in right of his wife, was one, he, the defendant, undertook and faithfully promised the intestate, in his life-time, and since, to wit, on the 1st May, 1807, at, &c. undertook and promised the plaintiff’s administrators to pay them the several sums of money so due and owing from the said Hoffman, in his life-time, to the said Elting, in his life-time, &c. that the said Elting, in his life-time, confiding in "the said promise, &c. did forbear to prosecute, &c. for two years and longer, and hitherto hath forborne to prosecute, &c. and that the plaintiffs, as administrators, since the death of Elting, have also forborne to prosecute,” &c. The defendant pleaded non assumpsit, and non assumpsit infra sex annos.
The cause was tried at the Ulster circuit," in September last, when the jury found a verdict for the plaintiffs.
A motion was made, at the last term, in arrest of judgment, on the following grounds :
1. Because the promise of the defendant was for the benefit of the heirs of Hoffman generally, and so within the statute of frauds.
p. 2381. The statute[7] which makes heirs liable on simple contracts, and specialties, for the debts of their ancestors, makes them jointly responsible. It is a contract, and as such must be joint. The defendant could only be answerable for his proportion of the debt, as one of the heirs. His promise, therefore, to pay the whole, was a promise to pay the debts of the other heirs ; it is a parol undertaking for the debt of another, and so within the statute of frauds. 2. In every case, the plaintiff ought to allege in his deduration sufficient to entitle him to recover. The plaintiffs ought to have alleged that the defendant was heir and had assets by descent; for though the ancestor may have given a bond, or been indebted, it does not follow that the heir is liable, unless he has assets by descent.[8] As the defendant was not impleaded as heir, he could not plead rims per descent. 3. A forbearance generally, without specifying any time, is not a sufficient consideration to support an assumpsit. In Lettwich v. Hussey, and Philips v. Sackford,[3] it was decided, that a promise to forbear indefinitely, was not a good consideration. There must be some certain time limited.[4] At least, the forbearance should be for a reasonable time.[5] It is true, that where there is any lien lost, or benefit conferred by the forbearance, this will be a good consideration for the promise.[6] 1. The declaration need not state that the promise was in writing ; that fact must appear in evidence at the trial. If such a promise be stated, as, if in writing, would be valid under the statute, the court, after
2. Because the plaintiffs ought to have averred in their declaration, that the defendant, as one of the heirs, had received assets from the ancestor.
3. Because a promise to pay, in consideration of an indefinite forbearance, is void.
Hawkins, for the defendant.
Sudam, contra.
p. 239Verdict, will intend that it was proved to have been in writing, and the judgment cannot be arrested on that ground. 2. The plaintiffs do not charge the defendant as heir; it was not necessary, therefore, to allege that he had assets by descent. The action is founded on the promise of the defendant to pay the debt of the heirs. Under our statute, heirs are liable for the simple contracts of their ancestors, though not so in England. Where the declaration is against an executor or heir, on his own promise to pay, assets need not be alleged; for if there is a sufficient consideration, or the promise be valid, he is liable whether there be assets or not.[7] 3. The cases cited from Cro. Eliz. have been overruled by subsequent decisions; and, particularly, in the case of Mapes v. Sidney,[8] where it was laid down, that a forbearance to sue generally was a good consideration for a promise. If it appear that the plaintiff did forbear a reasonable time, it will be sufficient. By forbearing to sue, the plaintiff suffers a damage.
delivered the opinion of the court. 1. There is no pretence for bringing the promise within the statute of frauds. Whether the promise was in writing" or not, need not appear in the declaration. That is matter of evidence only; and after verdict, we must presume that it was in writing. Forbearance to sue is a sufficient consideration for a promise to pay the debt of another. (1 Saund. 211. a. note.)
2. The defendant is not sued as heir, but on a promise to pay the debt of the heirs, and the question of assets does not, therefore, arise. Heirs, under our statute, are liable for the simple contract debts of their ancestor.
3. The consideration of forbearance generally is sufficient, without setting forth a specific time. There was, in fact, a total forbearance for a long time, which brings the
p. 240
case within that of Mapes v. Sidney. (Cro. Jac. 683.) The court are of opinion, that the motion must be denied.
Motion denied»