coke b William bane case hill James if a executrix in consideration of  forbearance promise to pay the debt of a testator on a certain day or to  assign her interest in a term of year of which she be possess as executrix as  a security for the payment of the debt she shall be charge general in a action  of assumpsit bring on this promise and the plaintiff need not aver in his  declaration that she have asset at the time of the promise SC cro James jenk  cent more roll Rep cro car Termin Hilar James king rot in banc king William  bane bring a action on the case upon a assumpsit against Edward pain and mary  his wife and declare that whereas William Havert be indebt to the plaintiff in  which the plaintiff have lend he and that the say William Havert make his will  and thereof make the say mary executrix and die and that the say mary take  upon her the charge of the say will and that she be possess as executrix of a  interest of a term for diverse year yet to come of certain garden and of a  bowlingalley in Moorfield in the parish of saint Leonard in Shoreditch in the  county of Middlesex the say mary June year James perceive that the say William  bane will sue her for nonpayment of the say debt in consideration that the say  William bane at the request of the say mary non is troublesome or to follow  eagerly the same Mariam pro prd l send defer well et loosing ind usque holiday  Sti michaelis tunc neighbor sequen assume to pay the say debt at the say Feast  of saint Michael or otherwise eaden maria adtunc et ibidem appointed vellet  eiden William bane pro freedom from care svan in she part pro solution prd l  totum interest termini a year prd c in default of payment of the say l and  aver that the plaintiff do not molest or sue her c and that at the say feast  the defendant coke a do not pay or make assignment of the say interest and  afterward the say mary marry the say Edward pain the defendant plead non  assump and it be find against they to the damage of c upon which a a general  judgement be give against Edward pain and his wife know that the plaintiff  shall recover against they his damage upon which judgement the defendant bring  a writ of error in the exchequerchamber by the stat of Elizabeth c and the  principal error assign be because the plaintiff have not aver that the  executrix have asset in her hand at the time of the assump make of the good of  the decease amount a roll before a Cr Elizabeth coke report b er p to the  value of the say debt and if she have not asset then it be naked bargain for  there be no consideration to charge her nor to bind her to her promise and  eastern rather because she shall by this promise be charge general and not  only of the good of the decease and therefore in regard the assumpsit charge  herself and transfer the charge of her as executor in another right to herself  as for her proper debt in respect of her promise reason require that there  ought to be some good consideration thereof which can be if she have not asset  but it be resolve by all the justice of the common plea and baron of the  exchequer that the declaration be good enough for it shall be intend prima  fancy that she have b asset and therefore in debt against a executor or  against the heir the plaintiff shall never aver in his declaration that they  have asset for the law presume that prima fancy for the law presume that the  testator or ancestor will not leave a great charge upon his executor or heir  than be leaves benefit to discharge it and the consideration in the case at  bar be good for it be as much as if a c stranger have say to the plaintiff  forbear your debt and do not sue the defendant till Michaelmas and at the say  feast I will pay you your debt that be a good consideration although it can be  any benefit to he who make the promise yet because it be a damage to the  creditor to forbear his suit and duty it be a good consideration and as in the  same case he who make the promise for another shall be charge general upon his  own promise so when one be executor and make such a promise the debt be due by  he in right of his executorship and the promise be make in his own right and  therefore without question he shall be charge in a action bring upon his  promise d general and yet the money which he pay in satisfaction of the debt  of the testator shall be allow he as parcel of his account as executor for his  promise extend to pay the debt with which he be Chargeable as executor but I  conceive if the truth of the case be that in the case at bar there have not be  e any debt or if there have be a debt and the executrix coke b have nothing in  her hand at the time of the promise she may have give it in evidence and  thereupon have be help for then in truth there be not any consideration for to  forbear the debt where none be or with which she be not Chargeable be not any  benefit to the defendant nor damage to the plaintiff also the case at bar be  strong because the defendant promise either to pay the money or to assign the  interest of the lease which she have as executrix for it be in her election to  do which of they she will and so note the principal point resolve by both  court a b hut roll before b Plowd b Brownl Cr James Cr Elizabeth Doct pl Cr  James Bulst c Cr Elizabeth Yelv hetl e d Cr Elizabeth Cr James e roll hut Doct  pl a to make a executor personal liable on a promise to pay the debt of his  testator a consideration must be allege in the declaration as of asset come to  his hand ban v Hugh brown pearl case Edward Tomlins or of forbearance fish v  Richardson cro James SC Yelv bind v pain cro James or a admission of asset  must be imply in the promise beech v Kennegal I Ves where the consideration be  forbearance want of asset be no defence spade v Barker palm and if plead the  plaintiff on demurrer be entitle to judgement Davis v Beyner lev SC vent gore  v gore Yelv roll ab action sur case v roll ab trial f Toller law of executor  the opinion of coke in the text above be clear incorrect for want of asset can  be a defence in any case where the executor be sue on his personal liability  but where there be no other consideration for the promise than asset in hand  by the statute of fraud car c a executor or administrator be not personal  liable upon any special promise to answer damage out of his own estate unless  the agreement or some memorandum or note thereof shall be in write and sign by  the party to be charge therewith or by some other person thereunto by he  lawful authorize Vid the case connect with this subject and upon the  construction of the Act car collect in the note to forth v Stanton sand and  barber v fox sand b and in selwyn law of nisi prius title assumpsit coke  report a er p