Page:Harvard Law Review Volume 10.djvu/284

258 258 HARVARD LAW REVIEW. No doubt, in the vast majority of cases, the consideration is at the same time a benefit to the promisor, and also a loss or detri- ment to the promisee, and in that case the consideration is re- ceived from the promisee; but is loss to the promisee always absolutely essential? What '* thing is given or done " by a pecuniary legatee, that enables him to recover at law upon the express promise of the executor to pay the legacy, (where he has received sufficient assets therefor,) as held by Lord Mansfield and the other judges of the King's Bench in Atkyns v. HilP and Hawkes v. Saunders,^ and by the Supreme Court of Pennsylvania in Clark v. Herring?^ The cases in Cowper seem to have been approved by the Supreme Judicial Court of Massachusetts in Swazey v. Little,* although a statute in that State made it unnecessary to rest the decision on the common law rule. They are not overruled, as sometimes thought, by Decks v. Strutt,^ since the only question there was whether a promise to pay a legac}^ would be implied against the executor merely from the receipt of sufficient assets and a part payment of the legacy; not whether an express promise would be valid. See Doe v. Guy.^ Why can a creditor of a deceased person recover on the written special promise or note of an executor or administrator to pay the debt of the deceased if he has received sufficient assets from the estate so to do, as so frequently held in the authorities?^ Is there any loss to the promisee in such cases? In Reech v. Kannegal,^ it was held that " at law if an executor promises to pay a debt due from the testator, a consideration must be alleged, as, of assets come to his hands, or of forbearance, or if admission of assets is implied by the promise." No doubt, for- bearance by a creditor to sue, or to take out administration, if he had a right so to do, would be one good consideration for the note of the executor, devisee, or widow, as in Templeton v. Bas- com^ and Carpenter v. Page.^^ But is that the only consideration 1 Cowper, 283 (1775). ■* 7 Pick. 299 (1828). 2 lb. 289. ^ 5 T. R. 690. 8 5 Binney, 33 {1812). 6 ^ East, 120. ' 2 Wms. Ex. 1673; Sch. on Ex., § 255; Daniel on Neg. Ins., § 263; Trewinian v. Howell, Cro. Eliz. 91 (1588) ; Faxon v. Dyson, i Cranch C. C. 441 {1807) ; Sleighter v. Harrington, 2 Murphy (N. C), 332 (1818) ; Childs v. Monies, Brod. & King. 460 (1821) ; 5 Moore, 282; Bank of Troy v. Topping, 13 Wend. 557 (1835) ; Thompson v. Maugh, 3 Iowa, 342 (1852). 8 I Ves. Sr. 126. * 33 Vt. 132. "^^ 144 Mass. 315,