¶1That an action will lie against an administrator or executor upon a promise to pay in consideration of assets seems pretty clear from the following cases: Trewiniah v. Howell, Cro. Eliz., 91; Atkinsv. Hill, Cowp., 284; Hawkes v. Saunders, Cowp., 289; 1 Ves., 125. It is true, the cases cited from Cowper are cases of legacies sued for, and although they have been much shaken, if not overruled, by Dicks v. Street, 5 Term, 690, the principle of decision in the latter case was upon a different ground from that now before the Court. Two out of three of the judges held that an action would not lie at common law for a legacy, because courts of law had no power to compel a husband, who (680) sued for his wife's legacy, to make a settlement upon her; but a court of equity had. Not any of the reasoning in that case applies to debts which an executor or administrator promises to pay in consideration of assets. If they have money in hand, there is no reason why they should not pay; if they have property, which they use diligence in converting into money, and some accident happen to it not within their control; or if, in the meantime, they have notice of debts of higher dignity, they ought to be at liberty to show these things in their defense. See Coke, in WilliamBane's case, 9 Coke, 94. The promise, as was said by Lord Mansfield inCleverly v. Brett and another, executors, 5 Term 8, note, eases the creditor from proving assets, and throws the onus on the other side. I think there ought to be a judgment for the plaintiff. *485
¶2Where an action is brought against an executor or administrator upon his promise to pay a debt, if he has assets the promise will bind him de bonispropriis; and though in the declaration assets must be averred, yet proof of the promise is so far evidence of assets as to place the want of them to be proven by the executor or administrator. As the assets are the consideration which make the promise binding, whenever it shall be shown by the defendant that there are none subject to the plaintiff's demand, the promise is then nudum pactum, and will not support an action; and this the executor or administrator may do by any evidence which would protect him against the plaintiff if the action had been brought against the defendantas executor or administrator: as by payment without notice to inferior debts or those of equal dignity, or judgments, or by showing debts of higher dignity, or the like. As this case appears to be a promise with assets, I think there should be judgment for the plaintiff. But I cannot assent to the opinion that the promise by the executor or administrator has any other effect than as regards the form of the action, and that thisformal promise makes him personally liable only because he was before liable as executor or administrator.
¶3I can see no analogy between the case of a promise to pay a debt of inferior degree and the actual payment; for in the former there is only anundertaking; but in the latter the thing is done, and it is not in the power of the executor to recover it back. (681)