ance to sue on the part of the Plaintiff, which forbearance raises a sufficient consideration for the Defendants charging themselves. It has been expressly decided, that if an executor promises to pay the debt at a future day, it becomes his own debt, to be discharged out of his own estate. Goring v. Goring (a), Trewinnian v. Howell (b), 2 Wms. Saund. 137. b. Vaughan Serjt., contrà. The executors are not personally liable, because they expressly promise as executors, not in their own right; and there is no sufficient consideration for a promise in their own right. The circumstance of the promise having been made in writing, does not alter the case; for the statute of frauds, in enacting that an executor shall not be personally charged, except by his own writing, has not enacted that even by such writing, he shall be charged in cases where he would not have been liable at common law. Rann v. Hughes (c). The promise to pay at a future day should, in order to charge the executor, be express, and not merely deducible by inference. Taddy, in reply, was stopped by the Court. DALLAS C. J. It has been urged that the Defendants cannot be personally liable, because this is only a promise to pay as executors. Whether or not the promise be such, must depend not on those words alone, but on the words of the whole instrument taken together; and what are they? "As executors to the late Thomas Taylor, of Ringwould, we severally and jointly promise to pay to Mr. Nathaniel Childs the sum of 2001. on demand, with lawful interest for the same." Take first the words "on demand:" suppose a demand had been made immediately; do not the executors by subjecting themselves to such a demand, admit they have assets to satisfy it? If they meant to limit their liability, why did they not add to the words as executors, the words "out of the estate of Thomas Taylor." But they promise absolutely, and further add an engagement to pay interest; when, therefore, by the engagement to pay interest they have induced the Plaintiff to suspend his clear and admitted demand, by so doing they make the promise personal and individual. The plea further says, they have fully administered, so they may have done at the time of plea pleaded; but they do not say they had no assets at the time the note was given. If executors were not liable on such a promise, they would be enabled, by making such a promise, to defraud any individual among their testator's creditors. This too is a promise, which, from the circumstance of interest being added, necessarily imports a payment at a future day, and an executor promising to pay a debt at a future day, makes the debt his own. PARK J. concurred. BURROUGH J. The plea is inapplicable to the Count. The insertion of the words "as executors" cannot alter the case, if, on the whole instrument, the parties appear liable. That is clearly the case in the present instance; for, by promising to pay on demand, the Defendants admit assets; and, by promising interest, they show in effect that the debt was to be paid at a future day; as they could not charge the estate of the testator with interest, they must pay it out of their own pockets. RICHARDSON J. We must look at the whole instrument, not confining ourselves to the words "as executors;" Kk 2 and 1821. CHILDS บ. MONINS. 1821. CHILDS บ. MONINS. and from the whole instrument it appears that the Defen- (a) 1 T. R. 691. (b) 7 T. R. 453. Feb. 12. If the defeas ance on a warrant of attor NICHOLL V. BROMLEY. THE defeasance of the warrant of attorney in this case was as follows, "The within warrant of attorney is ney state that given by the within-named W. Bromley, to secure the it is given to payment of the snm of 1000l. on demand, and in case secure the payment of a sum default shall be made, then judgment may be entered up hereon, and execution issue for the said sum of 1000%. default shall be or so much thereof as shall be then due, together with all costs," &c. The Plaintiff's attorney waited on the Dejudgment to be fendant to induce him to settle matters amicably, which entered up and on demand, and, in case made, then executionissue, attempt having failed, he issued execution the next day. an actual de mand must be made; and a proposal to settle amicably does not amount to such a demand. Onslow Serjt. having obtained a rule to set aside this judgment, Vaughan Serjt. shewed cause against the rule, and argued, that the expression " payment on demand" was only formal, as in a bond, and that the process of law was was of itself a sufficient demand. At all events, the attempt to settle amicably amounted to an actual demand. But the Court thought it appeared from the stipulation, that execution should not issue till default had been made, that an actual demand was intended by the parties, and that no demand was shewn to have been made. 1821. NICHOLL v. BROMLEY. LEIGH v. SHepherd. THIS was an action of replevin upon a distress for and that them. The Plaintiff, by his plea in bar to the fifth avowry, denied the tenancy in manner and form, &c. By his first plea in bar to the seventh avowry and cognizance, he denied the tenancy in manner and form, &c. Kk 3 and Feb. 12. An avowry by one of several co-heirs in gavelkind in his own right, with bailiff of the a cognizance as other co-heirs, is sufficient, without aver ring an autho- co-heirs. from the other distrain for rent due to him and his companions without an actual authority from his com panions. 1821. LEIGH V. SHEPHERD. and by his second plea in bar to the same, he denied that the Defendant was the bailiff of the said Edward, Henry, and Frances E. M. Shepherd. By the special case, it appeared, that the estate was of gavelkind tenure; that John Brenchley, and others, held the same as tenants to one Mary Shepherd in her life time, at the yearly rent of 167.; that, on her death, the estate descended to the Defendant, and the said Edward, Henry, and Frances E. M. Shepherd, as co-heirs in gavelkind; that the tenancy continued; that one year's rent was due at the time of taking the distress; and, that the Defendant was not authorised by Henry Shepherd to distrain for him, but was authorised by the other co-heirs. The case was argued by Blossett Serjt. for the Plaintiff, and Taddy Serjt. for the avowant. Arguments for the Plaintiff. There is a great difference between the rights of co-parceners and joint-tenants, as well with respect to the power of distraining, as in other matters; and though one joint-tenant may distrain for the whole rent, and, without showing authority from his companions, avow for the whole, the present avowant being a co-parcener, has no such right. A joint-tenant may distrain and avow for the whole, because he has a unity of interest with his companion, and an entirety in the whole estate, "totum in communi, nihil separatim" (a), he is seised per my et per tout, and though, in form, he should avow in his own right, and as bailiff to his companions, it is not his character of bailiff, but his character of joint-tenant, that entitles him to distrain (b). But the unity and entirety of interest which alone entitle the joint-tenant to distrain without (a) Bracton, Lib. 5. tract. 5. c. 26. fo. 430. (b) Per Holt C. J., 5 Mod. 72., in Pullen v. Palmer. the |