6 Howse v. Webster, Yelv. 103; Helier v. Casebert, 1 Lev. 127. But query, whether this distinction between entry and non-entry in favor of the latter now obtains. See Williams v. Bosanquet, 1 Br. & B. 238; Nation v. Tozer, 1 C. M. & R. 176.
7 Boulton v. Canon, 1 Freem. 337; Jevens v. Harridge, 1 Saund. 1, note 1; Hope v. Bague, 3 East, 2; Helier v. Casebert, 1 Lev. 127; Lyddall v. Dunlapp, 1 Wils. 4; Bailiffs of Ipswich v. Martin, Cro. Jac. 411.
§ 356. Upon the death of the husband, no debts contracted by the wife while she was single, and remaining due at his death, survive against.the executor and administrator;4 and if the wife die before the husband, he is not liable on her debts contracted while she was single, beyond her assets in his hands, as her executor or administrator.5 But he is not liable on account of any fortune which he may have received with her.6
§ 357. An executor or administrator is never liable on the contracts of his testator or intestate beyond the assets that come to his hands, and any personal liability which he may incur results from his own contract, as we shall see.
§ 358. Actions founded in tort, on which the deceased would have been personally liable, if living, do not, by the common law, survive against the executor or administrator.7 Yet, although the matter be founded in tort, if it be of such a nature that it can be treated as a breach of implied contract, the executor will be liable in an action on the contract.8 Thus, although trespass will not lie against the executor for a wrongful taking and detention of a horse by the deceased, yet the executor may be sued for the use and hire of the horse, treating the whole matter as one of implied contract.1 Again, actions on torts survive against the executor by statute, whenever the personal property of the deceased is thereby injured.2
1 Billinghurst v. Speerman, 1 Salk. 297; Buckley v. Pirk, 1 Salk. 317.
3 1 Roll. Abr. 603 (S.), pl. 9; Fruen v. Porter, 1 Sid. 379; 2 Williams on Executors, pt. 4, B. 2, ch. 1, § 2, p. 1246; Nation v. Tozer, 1 C. M. & R. 176.
4 2 Williams on Executors, pt. 4, B. 2, ch. 1, § 2, p. 1255; Woodman v. Chapman, 1 Camp. 189.'
5 Ibid.; Heard v. Stanford, Cas. t. Talb. 173; s. c. 3 P. Wms. 409.
6 Went. Off. Ex. 369 (14th ed.).
7 Wheatley v. Lane, 1 Saund. 216, n. 1; Went. Off. Ex. 255; Anon., Dyer, 271 a; Hambly v. Trott, 1 Cowp. 375; Perkinson v. Gilford, Cro. Car. 540; Pitts v. Hale, 3 Mass. 321; Mellen v. Baldwin, 4 Mass. 480; Wilbur v. Gilmore, 21 Pick. 250.
8 Hambly v. Trott, 1 Cowp. 375; Powell v. Layton, 2 Bos. & Pul. N. R. 370; Le Mason v. Dixon, W. Jones, 173.
§ 359. In the next place, as to the liability of an executor or administrator upon his own contracts and acts. An executor or administrator is never liable on the contracts of the testator, as we have seen, beyond the assets which come to his hands. He may, however, after the death of the testator or intestate, make contracts upon which he will render himself personally responsible, and these will now form a subject for consideration.3
§ 360. If an executor make a contract, or promise as executor, and not on a new consideration, but on a consideration moving to the testator, he does not thereby render himself personally liable, but only liable in the character of executor, and judgment will only be given against him de bonis testatoris; and on a count alleging a promise " as executor" the executor will be no further charged than on a promise by the testator.4
§ 361. But if the executor make a promise on a new consideration, not already existing, but moving to himself, he will be personally liable thereupon.5 Thus, if he promise to pay a debt of the testator's, in consideration of forbearance of the creditor to institute a suit, he will render himself personally liable.6 So, also, if the executor promise to pay a debt of the testator at a future day, he makes the debt his own.1 So, also, money lent to the executor is a sufficient consideration to make him individually liable.2 But the mere possession of assets does not seem to be a sufficient consideration.3 And a fortiori a promise by an administrator or executor to pay the debt of the testator or intestate where there were no assets would be nudum pactum.4
1 Hambly v. Trott, 1 Cowp. 375.
2 Stat. 4 Edw. III. ch. 7; Jenney v. Jenney, 14 Mass. 231; Badlam v. Tucker, 1 Pick. 389; Holmes v. Moore, 5.Pick. 257.
3 Executors, etc, who employ an attorney are personally liable for his services. Mygatt v. Wilcox, 45 N. Y. 306 (1871); Bowman v. Tallman, 2 Rob. (N. Y.) 385.
4 Dowse v. Coxe, 3 Bing. 20; Powell v. Graham, 7 Taunt. 581; Ashby v. Ashby, 7 B. & C. 444; Segar v. Atkinson, 1 H. Bl. 102.
5 Hamilton v. Incledon, 4 Bro. P. C. 4; Childs v. Monins, 5 Moore, 282; s. c, 2 Br. & B. 460; Reech v. Kennegal, 1 Ves. 126.
6 Goring v. Goring, Yelv. 11 (Amer. ed.); Johnson v. Whitchcott, 1 Roll. Abr. 24, tit. Action sur Case (V.) pl. 33; Chambers v. Lever-sage, Cro. Eliz. 644; Davis v. Reyner, 2 Lev. 3; 1 Ventr. 120; Deeks v. Strutt, 5 T. R. 690; Scott v. Stevens, 1 Sid. 89; Bradly v. Heath, 3 Sim. 543; Reech v. Kennegal, 1 Ves. 126.
§ 362. It is enacted by the statute of frauds that " no action shall be brought whereby to charge an executor or administrator, upon any special promise, to answer damages out of his own estate, 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." 5 The memorandum required by this section of the statute of frauds should set forth distinctly both the promise and the consideration, either in express terms, or by reference to something extrinsic, by which it may be rendered certain. It is not, however, necessary that the consideration should be stated expressly, provided there manifestly appear to be a sufficient consideration.6 Whether or not it was performed is a matter of evidence.7