
    Jacob Eggart ads. Ex’ors. H. Barnstine.
    St is not necessary to the validity of apromise to pay the debt of another, thaj the party to be charged, should derive a benefit. If it be a damage to the other party,or asuspension, or forbearance ofhrs right, it is sufficient Or if the contract imports-a ber.efitto the person for whom the thing is <o be done; or delay in the collection of a debt; or a temporary discharge from a ca. sa.
    
    By the act of 181.'5, the common law is altered, and a plaintiff may discharge a defendant in custody on a ca. sa. for a time, with his consent, without impairing his rights, and may retake him.
    Tried at Charleston i» January Term, 1824, before Mr. Justice Richardson.
    This was an action of assumpsit on the following promise, viz:
    “ I undertake and promise to pay the plaintiff the amount of the within execution, with interest and costs, on condition that the defendant have indulgence for two weeks from this date, May 22d 1822.” Jacob Eggart.
    The plaintiff produced in evidence a ca. sa. in the case of Barnstine vs. Schwach, on which was endorsed the above promise, and the following consent, viz: “ I consent to my' release in this case under the act of assembly passed in 1815, authorizing creditors holding the bodies of their debtors in execution to discharge them without impairing the binding efficacy of their judgments. 20th Feb. 1822. “ F. Schwach,” . witness, Th. P. Harvey. Plaintiff proved by the testimony of his attorney Mr. White-, that F. Schwach had been taken by that execution and on his subscribing the above consent had been discharged by the following order, viz: “ Charleston 20th February 1822. The sheriff will discharge FredericJc Schwach for sixty days on payment of sheriffs fees. Henry Barnstine.” That some time after the expiration of sixty days, he was about again to take the body of the said Schwach when the defendant entered into the agreement first mentioned. That no steps had been since pursued to .secure the payment of the debt by Schwach, and no .process whatever issued against his person or property. On being cross-examined, Mr. White stated that the contract was not made with the plaintiff but with himself the attorney at law, and he stated that the plaintiff had either authorized him to make such agreement or did not object to it.
    When the testimony closed, defendant moved for a non suit, which was refused.
    A motion was. now made for a nonsuit or new trial on the grounds.
    1st. That the promise in this case was made without a legal consideration, and,- therefore, not the subject of an action at law, it being nudum pactum.
    
    2nd. That the consent to be discharged and the discharge being for sixty days only, the defendant having been allowed to remain out ofjail after the expiration of sixty days, operated as a new discharge without his assént and discharged the debt.
    
      Argued, 22d February 1825.
    
      Pepoon, for the moton,
    Contended that the discharge of the defendant Schwach, was no discharge of the debt. The discharge must be final to constitute a sufficient consideration. (Roberts on Frauds 208. Fell on Mer. Guar-. 16. lb. 277 ) Two weeks indulgence only; here is she pretended considera-lion. If the plaintiff has a right to recover from tho deícnuí ant, he may also recover from Schwach. Forbearance to issue execution, is not a sufficient consideration. (Com. Dig. Tit. Consideration, B. (1.) Forbearing to sue might effect the rights of a party in a different manner from forbearing execution. This was simply a promise to forbear to use his power of arresting the defendant, Schwach.
   Johnson J.

There is- obviously nothing illegal is this contract; and the only question growing out of the first ground of the motion is, whether there was a sufficient consideration to charge the defendant.? Every promise that is made without a consideration is nudum -pactum; and it follows, as a necessary consequence, that to make them obligatory, there must bo a sufficient legal consideration. It is not, however, necessary to their validity that the party to be charged by them should derive a benefit: if it be a damage to the other party, or a suspension or forbearance of his right, it is sufficient, (3 Burr: 1663, 1 Taunt. 523.) And so if the contract imports a benefit to the person for whom the thing is to be done. (1. D. 8f E. IQ.) Assuming for the present that the plaintiff could legal!}' have arrested Schwach on the caz sa: at the time the contract was entered into, it will be found that both of these ingredients entered into the consideration., It was to the damage of the plaintiff. He was to be delayed in the collection of his debt. Schwach might have escaped, and his remedy against him might have been lost. It imparted a benefit to Schwach for whom the thing was tp be done. He was for the time discharged from the arrest and detention of his person. In support of this ground, it has been urged that to make forbearance or indulgence a good consideration, it must be total and not partial or temporary. This position is at war with those before laid down. The plaintiff was to sustain a damage and Schwach was to derive a benefit and the liability of the defendant attached. It is opposed too by numerous authorities. In 1 Roll,27 15, iti$ laid down that to discharge a man arrested “for a little while*? is a good consideration. Forbearance of a suit for “a certain (fmc'” is also good and the reason given is that it is a present benefit to the defendant. (Vide Cro:Eliz: 387.643. 768.848.)

J. B. White, contra.

By the common lav/ the discharge of a defendant arrested on a ca: sai was a satisfaction of the judgment, raid the second ground of the motion is founded on the idea that in as muchas the plaintiff did not retake Schwach at the expiration of the sixty days, the time limited by the discharge, he could not legally do so afterwards and, therefore., She defendant’s undertaking was without any consideration. 3fit bo conceeded that the plaintiff could not have again arrested Schwach on the ca: sa: this conclusion would inevitably follow; but the act of 1815, has altered the common law in Shis respect. By it, the plaintiff may discharge a defendant in custody on a ca: sa: for a time, with his consent, without impairing any ofhis rights and he may retake him. And if the construction contended for should prevail, it would follow that he could not do so, except the precise moment when the time limited had expired. He could not act before without violating the discharge; and according to the doctrine, he could not act afterwards, so that a defendant would have it in his power, by keeping out of the way, only for a moment, to discharge his debt. But ifthe discharge and the assent of Schwach is put on the fooling of a contract, and it imposed on the plain-riff the necessity of retaking him immediately at the expiration of the time limited, it must likewise impose on him, for the same reasons, the obligation of returning to custody at the same time; and if he should fail to do so, on the principle that no one shall take advantage of his own wrong, the plaintiff might have retaken him at a subsequent time; and such is obviously the plain interpretation of the act. A different construction would make it a snare to entrap the innocent and unwary.

The motion is discharged,

Pepoon for the motion. 
      
       se note A in Appendix.
     