Joseph Rann and another, - Plaintiffs; Isabella Hughes, - Defendant (in Error)
| Jurisdiction | England & Wales |
| Judgment Date | 14 May 1778 |
| Date | 14 May 1778 |
| Court | House of Lords |
English Reports Citation: 2 E.R. 18
House of Lords
Mew's Dig. iv. 97; vi. 1518. 6 Rul. Cas. 1. Sec 7. T. R. 350: 29 Car. II c. 3, s. 4.
Where an executor is sued upon a parol promise of paying the debt, it is sufficient to ground a judgment against the assets of the testator; but where by such promise it is attempted to charge the executor personally, and to ground judgment against his own effects, it must be proved be in writing, otherwise it is void.
[27] case 6.-joseph eann and another,-Plaintiffs; isabella hughes,- Defendant (in Error) [14th May 1778]. [Mew's Dig. iv. 97; vi. 1518. 6 Rul. Cos. 1. See 7. T. R. 350: 29 Car. II c. 3, s. 4.] [Where an executor is sued upon a parol promise of paying the debt, it is sufficient to ground a judgment against the assets of the testator; but where j -- -t, by such promise it is attempted to charge the executor personally, and to irbll 'v. s. of s.S ground judgment against his own effects, it must be proved to be in writing, I for colonies nthprwisp it is vnirl 1 I [J953] 2 Q.B. 482! otherwise it is void.J ! , i ** By the statute of frauds^ 29 C. 2. c. 3. 4. it is explicitly provided, " That no action shall be brought whereby to charge any executor or adminia- * Accordingly, on the 7th of July 1777, the court made an order, discharging the former order of the 18th of December 1771, and directing the monies which had been paid by the appellant in pursuance thereof, to bei paid back ajgain; after deducting thereout the costs of the suit. (Register, 1777. Lib. B. 1. 412.) 18 EANN V.. HUGHES [ 17 7 8] IV BROWN. trator upon any special promise, to answer damages out of his own estate," unless on an agreement or memorandum in writing. This case is not reported in any other book. Judgment of the Court of Exchequer Chamber (reversing the judgment Of K. B.) AFFIRMED.** The plaintiffs, in Hilary term 1774, brought their action against the defendant, in -which they declared as follows: viz. " Middlesex (to wit), John Rann clerk, and Arthur Taylor, executors of the last will and testament of Mary Hughes deceased, complain against Isabella Hughes, being in the custody of the marshal of the Marshalsea of our sovereign lord the king, before the king himself; for that whereas, on the llth day of June, in the year of Lord 1764, at Westminster, in the said county of Middlesex, divers disputes, differences, and controversies had arisen, and were then and there depending, between the said Mary Hughes in her lifetime, and one John Hughes; and thereupon, for the putting an end to the said disputes and differences, the said Mary Hughes in her life-time, and the said John Hughes on the same day and year aforesaid, at Westminster aforesaid, submitted themselves to stand to the award, order, arbitrament, final end and determination of Francis Wheler, of the Inner Temple, London, Esq. and Richard Geast, of Blythe Hall in the county of Warwick, Esq. arbitrators indifferently named, elected, and chosen, as well on the part and behalf of the said John Hughes, as the said Mary Hughes, to arbitrate, award, order, judge, and determine of and concerning the said disputes, differences, and controversies, so as the said award should be made in writing, ready to be delivered on or before the 29th day of September then next ensuing; and whereas, afterwards, and within the time in that behalf limited for the said Francis Wheler and Richard Geast to make their award concerning the premises as aforesaid, (to wit,) on the said 29th day of September, in the said year of our Lord 1764, the said Francis Wheler and Richard Geast in due manner made their award, older, and determination in writing, of and concerning the premises, so referred to them as aforesaid, then ready to be delivered to the said John Hughes, and Mary Hughes, and bearing date the same day and year last aforesaid, and thereby they the said Francis Wheler and Richard Geast did then and there, among other things, award and order, [28] that the said John Hughes, his heirs, executors, or administrators, should on or before the 25th day of March next ensuing the date of the said award, well and truly pay or cause to be paid unto the said Mary Hughes, her executors, administrators, or assigns, the sum of 983 Os. 2Jd. with interest for the same, after the rate of 4 by the hundred, by the year, from the day of the date of the sajd award; and the said...
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