June 29. * [ 37 ] The Court will compel a Plain. tiff to elect in the term after the trial, on what count he will enter up a verdict taken generally. A moral obli consideration pay. settled to her se à bond for re executors, of money advanced at her request, on se curity of that bond, to her son-in-law. Afband's decease, she wrote, promising that her ter her hus LEE v. MUGGERIDGE and Another, Executors of MARY TH HIS was an action of assumpsit, brought in consequence of Grant M. R. having dismissed a bill filed by the same Plaintiff against the same Defendants to obtain payment of the bond hereinafter mentioned, but with liberty for the Plaintiff to bring such action at law as he might be advised. 1 Ves. & Beames, 118. The Plaintiff declared in this Court, gation is a good that before the making the bond thereinafter mentioned, for a promise to on 21st Nov. 1789, at London, &c., by indenture between A feme covert, John Muggeridge, 1., Mary, the deceased, by her then name having an estate of Mary Hiller, 2., and John Reynolds, clerk, and Stephen parate use, gave Reynolds, 3., after reciting that the said Mary was seised of payment by her and in, or well entitled unto the fee-simple in possession of a certain messuage, and that she was entitled to the sums of 30001.4 per cent. bank annuities, and 2000l. 5 per cent. bank annuities, and 20007. 3 per cent. South Sea annuities, and other debts, monies, and effects; that a marriage was about to be had between John Muggeridge and Mary, and that the same sums had been transferred into and were then standing in the names of John* and Stephen Reynolds, the said messuage, and all the rents, issues, and profits thereunto belonging, and all the estate and interest of Mary therein, were by such indenture granted and released by the said Mary to the said of the testatrix. trustees, their heirs and assigns, to hold the same to them and their heirs, to the use of Mary, her heirs and assigns, until the marriage, and afterwards to the use of the trustees, their heirs and assigns, during the joint lives of John Muggeridge and Mary Hiller, upon trust to pay and apply the rents, &c. thereof to Mary Hiller, or to such person or persons as she should from time to time, by any note or writing under her hand, direct and appoint to receive the same, during the joint lives of husband and wife, for her sole and separate use, exclusive of her husband, and not subject or liable to his debts, controul, or engagements, and the receipt of her, or of such person as she should so direct or appoint to receive the same, should, notwithstanding her coverture, be a good discharge executors should settle the bond. Held that assumpsit will lay against the executors on this promise for for the same; and after the decease of J. Muggeridge, in case Mary Hiller should survive him, to the use of her and her heirs and assigns for ever; but in case she should die in his lifetime, then to the use of such person, and for such estates, and subject to such limitations, &c., and annual or other charges, &c.; and in such sort, manner, and form, as Mary by will, or by any writing in the nature of or purporting to be her will, by her signed and published as therein mentioned, should direct, limit, or appoint; and, in default of, until, and in compliment of such direction, &c., and as and when the several estates, &c., thereby limited, &c., should cease and determine, to the use of Hannah Hiller, daughter of Mary, in fee; and a power of leasing the same premises, in the manner therein mentioned, was given to the trustees; and the indenture also contained a clause, whereby the trustees were empowered to sell the messuage in manner therein mentioned, and that the monies arising from such sale should be placed out and invested at interest in the public funds, or on government or real securities, in the names of the trustees, and the survivor of them, and the heirs, &c., of such survivor, to stand and be possessed thereof, and of the annual interest thereof, upon trust for such person as should have been entitled to the hereditaments, and the rents thereof, if the same had not been sold and it was thereby declared, that the trustees should stand possessed and interested in the sums of stock so transferred into their names, in trust for Mary Hiller until the marriage, and after the same, upon trust to pay her the interest, &c., thereof during the joint lives of herself and J. Muggeridge, for her sole and separate use, exclusive of J. Muggeridge, and not to be subject to his debts, controul, or engagements; and her receipts for the same were to be a sufficient discharge for the same to the trustees, notwithstanding her coverture; and from and after the husband's death, in case she should survive him, then upon trust for her, her executors, administrators, and assigns; but in case she should die in the husband's lifetime, upon trust at all times after her decease, to assign and transfer the several and respective funds to such persons, in such shares, and to and for such intents, &c., and subject to such powers, &c. as Mary Hil ler, notwithstanding her coverture, by will, or by any writing in the nature of, or purporting to be her will, to be executed and attested as therein mentioned, should declare, limit, direct, or appoint; and, in default thereof, upon trust to pay, transfer, 1813. LEE v. MUGGE RIDGE. [ 38 ] 1813. LEE บ. MUGGE RIDGE. [ 39 ] [ 401 transfer, and assign the same unto Hannah Hiller, her executors, &c., for her and their own proper use and benefit; and that the intended marriage afterwards took effect between the said J. Muggeridge and Mary, and that after such marriage had, and during the respective lives of John and Mary, to wit, on 14th August 1799, at London, Mary, by her certain writing obligatory, sealed with her seal, acknowledged herself to be held and firmly bound to the plaintiff in the penal sum of 40007., under a condition thereto subscribed, whereby, after reciting that J. Hiller, son-in-law of the said Mary, had applied to her to advance and lend him the sum of 19997. 19s., which not being convenient to her to do, she had applied to the plaintiff to advance the same; to which he had consented, on having her bond as above written, and had accordingly advanced to J. Hiller, before the sealing and delivery thereof, the sum of 500l., and had also advanced and lent to him by good bills, to Joseph Hiller's satisfaction, the further sum of 14991. 19s., making in the whole 19997. 19s.; then the condition of the same was, that if the heirs, executors, or administrators of Mary did and should, within six months after her decease, pay unto the plaintiff, &c. the full sum of 1999. 19s., together with interest for the same at the rate of 51. per cent. per annum, or so much of the principal or interest thereof as J. Hiller should have omitted to pay, (it being agreed that he should regularly pay the interest thereof to the plaintiff half-yearly, as the same should become due,) then the said bond to be void: and the plaintiff averred that he did advance to J. Hiller, before the delivery of such bond, 5007.; and did also in Mary's lifetime, and before the making her promise and undertaking next mentioned, advance and lend to J. Hiller, by good bills, to his satisfaction, divers other large sums, amounting in the whole to 14997. 19s., making in the whole 19997. 19s., whereof Mary had notice, and that Joseph omitted to pay any part of the principal, and paid interest thereon only up to 1st July 1801; he then averred the death of J. Muggeridge afterwards, and before the promise of Mary next mentioned, that she survived him, and that the principal sum of 19997. 19s., so lent by the plaintiff to J. Hiller, and for securing the repayment of which and interest, Mary so made and delivered the aforesaid writing obligatory, and all interest thereon from 1st July 1801, being and remaining wholly unpaid; and Mary having full knowledge and notice of the premises, she afterwards, and after the death of her husband husband J. Muggeridge, and whilst she was sole, and a widow, to wit, on the 11th of July 1804, at London, &c. in consideration of the premises, undertook to the plaintiff that the bond, (that is to say,) the principal money and interest secured by the bond, should be settled, (that is to say,) paid by her executors; and the plaintiff further averred that Mary afterwards, to wit, on 28th April 1811, at London, &c. died, having first duly made and published her last will and testament in writing, and thereby, after devising the messuage to the defendant Nathaniel Muggeridge in fee, and after giving several legacies as therein particularly mentioned, gave and bequeathed, subject to such legacies and to the payment of her just debts, funeral and testamentary expences, all the residue of her estate and effects, real and personal, to the defendant, Nathaniel Muggeridge, and thereby appointed the two defendants executors thereof, who afterwards duly proved the same, and took upon themselves the burthen of the execution thereof; and the plaintiff further averred, that the said principal money, and interest from the time aforesaid, at the time of the death of Mary was, and still was wholly unpaid, and that divers goods, chattels, and effects, rights, and credits, which were of Mary the deceased at the time of her death, more than sufficient to satisfy the principal and interest, and all the other just debts of Mary, had come to and been in the hands of the defendants, as executors, to be administered; and that the defendants, as such executors, afterwards, and after the expiration of six months from the death of the said Mary, to wit, on 1st November 1811, at London, &c. had notice of all and singular the premises, and were then requested by the plaintiff to settle the bond, (that is to to say) to pay the principal money, and interest so omitted to be paid by J. Hiller, according to the form and effect of such promise and undertaking of Mary in her lifetime so by her made but that they, not regarding such promise and undertaking of Mary, did not nor would, when so requested, or at any time since, settle such bond, or pay the principal and interest, and the same remained wholly unpaid. There was another count, omitting the statement of the settlement, and stating the bond to be given in consideration of the loan made to Joseph Hiller, and the death of John Muggeridge the husband, and the survivorship and subsequent promise, will, and decease of Mary, probate, the possession of assets, notice, request, and refusal of the executors. The third count stated a promise made by the deceased while she 1813. LEE v. MUGGE RIDGE.. [ 41 ] was 1813. LEE v. MUG GERIDGE. [ 42 ] was sole and a widow, in consideration of money before then advanced to Joseph Hiller at her request, her subsequent will and death, and probate, the possession of assets, notice, request, and refusal to pay by the executors. There were other counts, varying the statement, and counts upon an account stated with the deceased. The defendant pleaded the general issue. Upon the trial of the cause at the sittings after Hilary term 1813, at Guildhall, before Gibbs J., the transaction was proved as stated in the first count: so far as related to the settlement, loan, and bond, a letter was proved, written by the deceased during her widowhood, addressed to the plaintiff, stating "that it was not in her power to pay the bond off, her time here was but short, and that would be settled by her executors." The jury found a verdict for the plaintiff, which at the time of the trial was entered generally upon the whole declaration. Shepherd, Serjt., in Easter term last, moved that the plaintiff might be compelled to enter his verdict upon one count only. Per Curiam. It is hard upon a counsel to be compelled to elect at nisi prius, in the hurry of the cause, upon what count he will take his verdict, but he ought afterwards to make an election. Lens, Serjt., for the plaintiff, electing the first count, Shepherd moved in arrest of judgment, on the ground that no sufficient consideration was shewn for the promise of the deceased. The Court granted a rule nisi. Lens and Best, Serjts., in this term shewed cause. They admitted that when the deceased gave the bond, being covert, she had no power thereby to bind herself; but contended, that notwithstanding that the promise which, after she was liberated from all restriction, she gave in confirmation of the bond, was obligatory on her. The same payment which was recited to be the consideration of the bond, is a sufficient consideration for the subsequent promise. This differs nothing from the case of infancy, and the many other cases which subsist in the English law, where though a party is not compellable to make a promise, yet if he does make it, the promise shall be compulsory on him. In certain cases where the law destroys the remedy, as in the case of the statute of limitations, a subsequent promise, operating by the old consideration, will revive the remedy. So, if an estate be devised for payment of debts, the law will not intend that it is exclusively for the payment of such |