
    Barnard v. Norton.
    This was an action upon an assumpsit, to pay the debt of another, in case of failure.
    The substance of the declaration was - — That one William Warner, of New Canaan, in the county of Albany, was indebted to the plaintiff, in the shm of £21 5s. lawful money, by note, bearing date the 21st day of September, A. D. 1781. On the 25th day of February, 1782, the plaintiff was about to attach the estate of said Warner, then in Hartford, for the security of his debt; when the defendant, in order to induce the plaintiff to stay the collection of his debt, and to permit said Warner to pass with his property undisturbed, into the state of New York, did undertake and engage to pay said'* debt, in case Warner should not do it; and did accordingly write and subscribe on the note, in manner following, viz. “ I acknowledge myself holden for the within sum of money, if it cannot be obtained of the within named William Warner.” — • That in consideration thereof the plaintiff permitted Warner to depart with his goods out of this state, and at the ■ special instance and request of the defendant, did not commence any suit on said note, until said Warner began to fail in his circumstances: That in the month of October, 1783, ■be brought bis action on tbe not© against Warner, and on tbe 7 th of February, 1784, recovered judgment before tbe Supreme Court of tbe state of New York; but that Warner bad become a bankrupt, and taken benefit of .an act of bankruptcy; wherefore nothing could be obtained of said Warner by said judgment: And that tbe defendant bad received full notice thereof, whereby be became bable, etc.
    Tbe defendant pleaded — That at tbe time of making tbe promise, and for more than one year and an half afterwards, said Warner was a person in affluent and solvent circumstances, possessing a larga real and personal estate, much more than sufficient to satisfy tbe plaintiff’s note; and the plaintiff did not, from tbe tibie of making sffid promise, until more than a year and an half afterwards, attempt any recovery of said note from said Warner.
    To this there was a demurrer, and joinder in demurrer — And,
   By the whole Court.

Tbe plea is insufficient; —it contains no denial or avoidance, -of tbe principal facts alleged «in tbe declaration. It is averred in tbe declaration, that tbe plaintiff neglected to recover bis debt of Warner until Warner bad become insolvent, on tbe request of tbe defendant, and on bis promise to pay it in case it could not be recovered of Warner; and tbe plaintiff’s forbearance to sue-Warner was tbe consideration on which tbe defendant’s promise was made; and as it does not appear that any particular time of forbearance was agreed on by tbe parties, or that tbe defendant afterwards requested tbe plaintiff to pursue bis remedy against Warner until be became insolvent; -therefore, Warner’s abibty to pay tbe débt, must be supposed to have been at tbe risk of tbe defendant, during tbe whole time of forbearance.  