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Suits brought against

any suit that shall be commenced or instituted, against him, in said capacity, within the term of twelve months, an executor or admi next after his taking upon him that trust, unless the year from the time

same shall be instituted for the recovery of a demand that will not be affected by the insolvency of the estate, or the suit shall be instituted for the purpose of ascertaining a claim that is not contested. And all suits brought within one year as aforesaid, (except for the purposes aforesaid) shall be continued at the plaintiff's expense until that term, from the time the executor or administrator gave bond in the probate court for the faithful discharge of his trust, shall be fully expired.

2. Formerly, an executor or administrator, in regard to any action brought against him in that capacity, was entitled, on motion, to a continuance of such action until the next term.

nistrator within one

of his giving bond in the probate court, to be continued.

Stat. 1783, c. 59, sec. 3.

Stat. 1788, c. 66, sec. 8.

But now it is provided, that no executor or administrator, against whom any suit shall be commenced, after the expiration of one year from the time of his undertaking executors and admi that trust, shall be entitled to a continuance of course, but shall be held to assign some good cause therefor, before he shall be allowed a continuance.

All actions brought against an executor or administrator, before the estate is rendered insolvent, shall be continued until it appears whether the estate is insolvent or not.

Suits brought against nistrators, after the year, not to be continued, without cause.

Stat. 1784, c. 2.

Blossom v. Goodwin.

It has been decided that an executor who, after action brought, represents the estate of the deceased to be in- 1 Mas. Rep. 502. solvent is not, by the act last above quoted, entitled to a continuance of course, pending the commission of insol

vency.

been represented as

It is also provided, that whenever any executor or administrator shall neglect to exhibit and settle his account Stat. 1794, c. 5. of administration with the judge of probate, where the Where an estate has estate has been represented insolvent, and commissioners insolvent, and the exehave reported to the judge a list of claims, within six months after such report shall be made to the judge, or

cutor or administrator

has neglected to settle

his account with the judge of probate ; in

such case a creditor

within such further time as the judge of probate shall may commence a suit think proper to allow therefor, under his hand and seal,

in the same manner

as if the estate had not

been represented in- So that by such refusal or neglect, the judge cannot pro

solvent.

! Commonwealth v. Bliss,

1 Mas. Rep. 32.

Commonwealth v.
Elliot,

2 Mas. Rep. 372.

Commonwealth v.
Millard,

1 Mas. Rep. 6.

portion the estate among the creditors; any creditor to such estate may commence and prosecute any action, or prosecute any action already commenced, and depending for his demand against such executor or administrator, and the court before whom such action may be depending, shall and may proceed to hear and determine the same, and to give judgment therein, and award execution thereon, in the same manner as if such estate had not been represented insolvent.

V. Of continuing indictments, by reason of the pendency of a civil action for the same cause; or by reason of the absence of a witness.

1. Where there is an indictment, and also a civil action pending for the same cause, the court will continue the indictment, until the trial of the action.

2. But this rule holds only where the party injured is to be used as a witness for the government, upon the trial of the indictment; for where there was an indictment for an assault and battery, and a civil action was also pending for the same cause, the court refused to grant a continuance; because the plaintiff in the action was not intended to be used as a witness for the govern

ment.

3. In a criminal case, the court will not put off the trial on account of the absence of a witness believed by the defendant to be material, if such witness do not reside within the jurisdiction of the court; for the court cannot compel him to attend.

TITLE XXXVII.

CONTRACTS AFFECTED BY THE STATUTE
OF FRAUDS.

THERE

HERE are certain contracts, upon which no action can be sustained, unless they be in writing, and signed by the party to be charged therewith, or by his agent duly authorized.

It is provided,

1. That no action shall be maintained upon any con- Stat. 1783, c. 37, s. 2. tract or sale of lands, tenements, or hereditaments, or Contracts for the sale any interest in or concerning the same, unless the agree- of lands, etc. ment upon which such action shall be brought, or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.

tors.

To answer for the

2. So also, no action shall be brought, whereby to charge Ibid. 1788, c. 16, s. 1. an executor or administrator, upon any special promise, Contracts by execu to answer damages out of his own estate; or whereby to tors and administracharge the defendant, upon any special promise, to answer for the debt, default or misdoings of another person, or to charge any person upon any agreement made debt of another. upon consideration of marriage, or upon any agree. In consideration of ment that is not to be performed within the space of one year, from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party, to be charged therewith, or some other person thereunto by him lawfully authorized.

3. So also, no contract for the sale of goods, wares or merchandise, for the price of ten pounds or more, shall be allowed to be good, except the purchaser shall accept part of the goods so sold, and actually receive the same,

marriage.

Not to be performed within a year.

Ibid. s. 2.

Contracts for the sale

of

goods, etc. for the price of ten pounds

or more.

Rand and al. Ex. of

bella Hughes, Adm.

of John Hughes.

7 T. R. 350, n. quoted in Selw. 732.

or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents, thereunto lawfully authorized.

These provisions are copied from an English statute, called THE STATUTE of FRAUDS, 29 Car. 2. The construction which the statute of frauds has received in the English courts will therefore be noticed under the following heads.

1. Of promises by executors and administrators.

2. Of contracts for the sale of lands, &c.

3. Of promises to answer for the debt &c. of a third person.

4. Of agreements in consideration of marriage.

5. Of contracts not to be performed within one year from the time of the making thereof.

6. Of contracts for the sale of goods, &c. for the price of ten pounds, or more.

I. Of promises by executors and administrators.

No action shall be brought whereby to charge an execu tor or administrator, to answer damages out of his own estate, unless, &c.

That

It was stated in the declaration in this cause, that disMary Hughes v. Isa putes had arisen between the testatrix and the intestate, which had been referred to arbitration; that the arbitrators awarded, that the intestate should pay to the testatrix a certain sum of money on a day appointed. afterwards the intestate died, possessed of effects suffi cient to pay the sum awarded; that at the time of the death of the testatrix, the sum awarded remained unpaid, by reason of which, the defendant, as administratix, became liable to pay to the plaintiffs, as executors, the said sum, and being so liable, the defendant (not saying as administratrix) in consideration thereof, promised to pay the same. Pleas 1. Non assumpsit. 2. Plene

administravit. 3. An outstanding debt on bond, and plene administravit præter. The replication took issue on all the pleas. Verdict for the plaintiff on the first issue; and damages assessed: on the other issues, for the defendant. The plaintiffs entered judgment for the damages assessed and costs, against the defendant generally.

On a writ of error in the exhequer chamber, it was assigned for error, that the defendant was impleaded as administratrix of the intestate, yet judgment was given against her generally, and without any regard to her having goods of the intestate in her hands to be administered. The court of exchequer chamber reversed the judgment. Upon a writ of error from this judgment, in the house of lords, the following question was put to the judges: Whether sufficient matter appeared upon the declaration to warrant, after verdict, the judgment entered up against the defendant in error of her personal capacity.

Skynner, C. B. delivered the unanimous opinion of the judges, 1. That there was not a sufficient consideration to support this demand, as a personal demand against the defendant; inasmuch as the defendant did not derive any advantage from the promise; for it was a promise generally to pay upon request, what she was liable to pay upon request in another right; and the promise was not founded on any consideration of forbearance or the like, which might have supported it. 2. That the promise not being founded on any consideration, the circumstances of its being in writing, (which might be presumed after verdict) would not assist the case; for by the law of England, an agreement merely written, and not being a specialty, required a consideration. 3. That the statute of frauds had not taken away the necessity of a consideration; for that statute was made for the relief of personal representatives, and did not intend to charge them further than by common law they were chargeable.

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