TOMLINSON V. GILL

Lord Hardwicke, Chancellor(reading the judgment of the court)

There are two Questions : 1st, On the right ; 2d, On the remedy. The bill is founded on an argument, which is not unusual where there is a contest about obtaining administration. It is not uncommon, upon such occasions, for the simple contract creditors to agree, that administration shall be granted to a specialty creditor, upon terms of his agreeing to pay the debts equally and pari passu. Such agreements are seldom put into writing.

I am of. opinion, this is not within the statute of frauds. It is not within the first branch of the-section ; for Gilt was not administrator at the time of making the promise ; and it is no answer to say, that he was administrator afterwards. It is not within the second branch of that clause : the modern determinations have made a distinction between a promise to pay the original debt, and on the foot of the original contract,and where it is on a new consideration. The distinction taken in Buckmire v. Darnell, 6 .Mod. 248; 1 Salk. ; 2 Lord Raym., is a very slight and cobweb distinction. The judges were much divided upon the question. I agree with the many.

Here is quite a new distinct consideration. Read v. Nash is strong to the purpose. [331] 2d Question. The plaintiff is proper for relief here for two reasons: 1st, He could not maintain an action at law, for the promise was made to the widow ; but he is proper here, for the promise was for the benefit of the creditors, and the widow is a trustee for them. 2dly, The bill is brought for an account, and that draws to it relief, like the common case of a bill to be paid out of assets. It was at first doubted whether the Court should go further than to take the account ; but it was afterwards settled, that the Court ought not to make two suits out of one, but give complete satisfaction on such a bill, by decreeing the debt to be paid. (See Jesus College v. Bloom, ante, p. 55.)

(1) See the authority of this case recognized by Lord Northington in Griffith v. Sheffield, 1 Eden, 77, and by Sir William Grant, Master of the Rolls, in Gregory v. Williams, 3 Mer. 590.

(2) Joint administration was accordingly taken out and the defendant, Robert Gill, with the widow, possessed himself of the estate of the intestate.—Defendant, Robert Gill, by his answer submitted to account for the estate received by bim.—Decree declared the creditors of the intestate intitled, in this court, to have the benefit of the contract entered into by the defendant Robert Gill, with the defendant Catherine Gilt, before taking out letters of administration, reference to take an account of debts of the intestate, and the estate received by the defendants, such personal estate to be applied in due course of administration, and in case the personal estate was not sufficient, then it is ordered that the defendant, Robert Gilt, do pay to the plaintiff, and the several other creditors of the said intestate. so much money as the personal estate should fall short to answer their several debts respectively, the consideration of costs reserved.