
    Deming v. Norton.
    Where one undertakes to pay the debt of another, in case of failure, if the creditor afterwards grants forbearance to the debtor, it exonerates the promise.
    The declaration set forth — That one William Warner, of New Canaan, in the state of New York, was indebted to the plaintiff, in the sum of £54 14s. by promissory note: TM ’m tes, ^ te,-covery of said debt, when the defendant interposed, and proposed to become surety for the payment thereof, if the plaintiff would not commence his suit; and that the defendant, in consideration of the plaintiff’s forbearing to sue said Warner, then entered into an engagement, by him written, and subscribed on the back of said note, in these words: — “I, the subscriber, do obligate myself to pay the within sum of money, if it cannot be recovered of the within named William Warner.” — That the plaintiff, some time after, finding said Warner to be in failing circumstances, commenced bis suit upon said note, before tbe Supreme Court of tbe state of New York, obtained judgment and execution; but that said Warner bad become a bankrupt, and nothing could be obtained.
    On tbe special pleadings, tbe issue joined, and found by tbe jury, was — “ That after tbe defendant bad entered into tbe engagement mentioned in tbe declaration, viz. in July or August, 1783, tbe plaintiff did receive a borse of said William Warner, on a special agreement and condition, that be should suspend tbe collection of said note, for tbe space of two months then next following; and thereby did exonerate tbe defendant from tbe payment of tbe same.”
    Tbe plaintiff moved in arrest, principally on tbe ground, that tbe issue was immaterial.— And,
   By the whole Court.

By tbe terms of tbe promise, it was incumbent on tbe plaintiff to use proper and legal endeavors to recover tbe money of Warner, before tbe defendant could be liable; — but it appears by tbe verdict, that tbe plaintiff, for a valuable consideration, agreed to give further time of payment to Warner, and thereby took tbe risk of Warner’s ability to pay upon himself, which legally exonerated tbe defendant from bis engagement.— Therefore, tbe issue found by tbe jury was material, and the only material point in tbe pleadings.

So judgment was for tbe defendant.  