
    NOVEMBER TERM, 1844.
    William Montgomery, et al. v. William H. Dillingham.
    Where a party defendant pleads several pleas, to which demurrers are sustained, and afterwards pleads a further plea subject to demurrer, but upon which the plaintiff takes issue, and both parties agree that under this plea the defendant might give in evidence any special matter that might constitute a defence; held, that the judgment of the Court below, sustaining the demurrers to the first pleas, even if erroneous, was not error to the prejudice of the defendant.
    The statute of this State, making bonds, bills single, &c. assignable by indorsement, and authorizing the assignee to sue in his own name, does not require the indorsement of a bond to be under seal; the right to sue will pass by a mere parol indorsement. ->
    Where an obligor in a bond, who is the principal, applies to the holder and urges him not to sue, and promises if he does not that he will pay the debt in a given time, and the holder thereupon does not sue; held, that the surety was not thereby discharged.
    Where several persons are sued as joint obligors in a bond, and a bill of discovery is filed against one of them, and is answered; held, that the answer of the defendant, making admissions, was competent testimony to go to the jury against his co-defendants, co-obligors in the bond, even though they stood in the light of his sureties.
    The admission of a joint maker of a note is evidence against his co-makers in a 1 suit against them all, especially where there is no severance in pleading.
    Where an obligor jn a bond is applied to by a person about to trade for it, to give information whether he is liable upon it, and upon such application responds that he is liable, and will pay the amount due upon the bond to the assignee, and the assignee thereupon trades for the bond; held, that even though the consideration of the bond as between the obligor and obligee had wholly failed, the obligor would be bound to .the assignee, such assurances being a waiver of any special defence.
    The assignment of a bond conditioned to make title, the obligor having a good title, conveys an equitable right which would be a sufficient consideration for a note or bill single.
    A mere voluntary promise to forbear, on a renewed assurance that the party will pay that which he is already bound to pay, where there is no other new consideration, is a nude ¡¡act.
    
    Where forbearance to sue is the consideration of the contract, the suit should be brought on that consideration, and not the original indebtedness.
    In error from the Circuit Court of Amite county.
    William H. Dillingham sued William Montgomery and William Jenkins in the Court below, in an action of debt upon a bill single, or promissory note under seal, for the sum of five thousand dollars. The plaintiff, in his bill, claimed title through one William M. Taylor, by indorsement. The following is a copy of the instrument sued on, artd the indorsement thereon, to wit : —
    
      “ ‡5000.00. On or before the first day of January, one thousand eight hundred and forty-one, we, or either of us, promise to pay W. M. Taylor, or order, five thousand dollars, for value received of him ; as witness our hands and seals, April 8th, 1S39.
    “ William Montgomery, (seal).
    “ Attest, Jas.' Jenkins, / (seal).
    “S. R. Davis. William Jenkins. (seal).”
    Indorsed, “Pay the within to William H. Dillingham, and I am holden, as indorser, without demand and notice.
    “ Wm. M. Taylor.”
    To this declaration the defendants pleaded, 1st. JVon assumpsit; 2d. Payment. They subsequently obtained leave to amend their pleadings, and they pleaded, 1st. Nil debet; 2d. Payment; 3d. That the bill single sued on had been executed by the defendant to the said W. M. Taylor, in consideration that he would convey to defendant the legal interest in a certain bond, payable to Stephen H. Strong, in the penal sum of $2617,60, executed by the trustees of school lands, in township 3, range 3, east, dated the 2d day of January, 1836 ; to which bond, there was a condition, that whereas the said trustees had leased to said Strong the sixteenth section in said township, for $2.04¿ per acre, if they made the proper conveyance thereto to said Strong, his heirs or assigns, by lease for ninety-nine years, the obligation should be void, otherwise in full force ; and that Taylor failed to assign the bond, or have the conveyance made; 4th. That the defendants had paid $2000 of the sum sued for, and as to the remaining $3000, they pleaded the same as their third plea.
    The plaintiff took issue upon the plea of payment, and demurred to the others for various causes, which it is not deemed necessary to set out. The Court sustained the demurrer, and entered judgment of respondeas ouster ; when the defendants pleaded non est factum, without verifying it by oath; whereupon the counsel for plaintiff and defendants accompanied this plea with the following agreement: “ It is agreed, that under the above issue the defendants may give in evidence any special matter which would constitute a defence to the action, if well, strictly, and correctly pleaded, and that the plaintiff may give in evidence any special matter which would be available to him, if the same were correctly and technically set forth and relied on in a replication.”
    The bill single had on it', at the time of suit, a credit of about $1500. The case was submitted to a jury, who found for the plaintiff in the sum of $4052.48. The defendants moved for a new trial, which was refused.
    The facts disclosed on the trial were, in substance, as disclosed in the bill of exceptions taken to the overruling the motion for a new trial, as follow : after the reading the bill single and its in-dorsement, the plaintiff closed his case. Dudley W. Bonds proved for the defendant, that $3000 of the bill single was .agreed to be given for W. M. Taylor’s interest in the said sixteenth section of land referred to in the pleadings. John G. Robinson proved, that W. M. Taylor stated to him, that the bill single was given in consideration that Taylor should make, and deliver to said Montgomery, a deed to the said lands, and also should deliver to him the bond of said trustees to said Strong, assigned by said Strong’s administrators to said Reuben Taylor, and by said Reuben Taylor to said W. M. Taylor. The bonds and assignments were then read to the jury, in substance as given above.
    The order of the Probate Court of Amite county, authorizing the administrators of Strong to sell his interest in the land conveyed by the bond, was also read to the jury by the defendants, who here closed their case.
    S. R. Davis, on the part of the plaintiff, who was subscribing witness to the bond, then proved the consideration of the whole as above. The plaintiff then read to the jury the answer of the defendant Montgomery to a bill of discovery, filed against him by the plaintiffs, in which bill for discovery the plaintiff, among other things, alleged, that the defendant had urged him not to sue, and that, if he would not, he would pay the debt out of the crop of 1841, and that the plaintiff forebore to sue until April, 1841; in the answer to this bill for discovery, defendant Montgomery admitted that he wrote the following letter to the plaintiff: —
    “ Oakland Grove, April 14,1840.
    “ Mr. Dillingham, — Sir : By the request of Mr. Taylor, I drop you a line, to inform you that the note which he holds on me is just, as it stands, with a credit on it, on the back of the note, and yet subject to another credit, of eighty-nine dollars and fifty cents ; and that I consider the note good against me for the amount it calls for when due ; and further, I expect to make satisfactory arrangements with the holder of the note when it falls due. Yours, &c.,
    ,‘£ William Montgomery.”
    He also admitted that the plaintiff had informed him of his purchase, and that he had expressed himself to the plaintiff as satisfied. He admitted that he had promised to apply the crop of 1841 to the payment of the note ; that after the note became due, he asked the plaintiff not to sue, and then made the promise about the crop of 1841 ; and that the plaintiff refrained bringing suit until April, 1842; and that the above letter was written with .reference to the note sued on ; — but that all these promises were made in the belief that Taylor had performed the consideration for which the note was given, which the respondent believed had not been done.
    Upon this testimony, the Court instructed the jury : —
    1st. An assignment of a bond of a person having title, conditioned to make title to land, and a delivery of possession of the same land, conveys an equitable right.
    2d. If the jury, in the case believe that the trustees of school lands had title, and made their bond conditioned to make title to Stephen H. Strong, whose administrators assigned to Reuben H. Taylor, who assigned to Wm. M. Taylor, who assigned to defendant Montgomery; and that possession of the land accompanied the assignment, the bond and assignment, and delivery of possession, would constitute an equitable title, which would be a good and valuable consideration for the bill single sued on.
    3d. If the defendant Montgomery is principal in the bill sued on, and after the making the bill single sued on, he induced the plaintiff to purchase the same, by assuring him that it was good as it stood, except to certain credits indorsed thereon, that he considered it good against him, and that he expected to make satisfactory arrangements with the holder when it fell due, he is estopped from setting up a want or failure of consideration as a defence to the action.
    4th. If, after the bill single sued on in this case became due, the defendant Montgomery, being the principal debtor therein in 1841, requested the said plaintiff not to sue on the same in the year 1841, and promised, in consideration that plaintiff would forbear to sue in 1841, he would pay it to plaintiff, and the plaintiff, in pursuance thereof, did forbear and refrain from suing on the same, such forbearance constitutes a good consideration as between the plaintiff and defendants, and the jury ought to find for the plaintiff.
    5th. The assignment of an equitable title to land, is a good consideration for a bill single or promissory note.
    These instructions were excepted to, and a writ of error presented.
    The errors assigned are: —
    1. In sustaining the demurrer to defendants’ pleas.
    2. In not applying the demurrer to the declaration.
    3. In the instructions given to the jury.
    4. In rendering judgment as in assumpsit.
    5. In refusing to grant a new trial: — 1st. For the reasons above given ; 2d. Because the suit should have been in the name of Taylor, use of Dillingham ; 3d. The assignment of Taylor not being under seal, nil debet was a good plea ; 4th. The evidence showed a failure of consideration ; 5th. The statements of Montgomery could not bind the sureties ; 6th. The contract with Montgomery for delay discharges the sureties ; 7th. The action not being sustained against Jenkins, the joint judgment was erroneous. '
    
      J.. M. Smiley, for plaintiff in error.
    1st. For the plaintiffs in error it is contended that the Court below erred in sustaining the demurrer to their pleas. It is admitted that non est factum is the proper plea to an action of debt on a deed or specialty. But here we do not deny the execution of the bill single, but deny plaintiffs’ right of action thereon, traverse the in-dorsement, and for this purpose nil debet is the proper plea. The assignment of Taylor to the plaintiff below, laid the foundation of his right of action ; and where the deed is only inducement to the action, and matter of fact the foundation of it, nil 'debet is a good plea, as in debt for rent due on an indenture of lease, for an escape or devastavit. 1 Chitty, Plead. 517. The pleas setting up failure of consideration are deemed unobjectionable^
    2d. The Court below should have applied the demurrer to plaintiffs’ declaration, because the assignment of the bill single by Taylor to plaintiff below, does not appear on its face to have been for á valuable consideration ; and not being under seal, conveyed only an equitable right, as mere delivery would do. The suit therefore should have been in the name of Taylor for the use of Dilling-ham. Our statute, making bills single assignable (How. & Hutch, page 373, section 12), did not change the legal meaning of the word assignment ; but was intended to give to holders a right of action in their own name, when the bill single was assigned according to the then existing law, and the evidence of such assignment appeared by indorsement on the instrument itself. It .is a familiar rule of law, that the assignment of an instrument must be of equal dignity- with the instrument assigned. Perkins v. Brown, 1 Mass. Rep. 117; Wood v. Partridge, 11 Mass. Rep. 488 ; Cutts, JLdm'r. v. Perkins, 12 Mass. Rep. 206; 1 Chitty, Plead. 1, n. (2).
    3d. The Court below erred in refusing a new trial, because the evidence shows a failure of consideration for which the bill single was executed, as to the sum of $3000, the price of the 16th section of land in township 3, of range 3, east. 1st. Because the order of the Probate Court of Amite county, granting leave to the administrators, with the will annexed, of Stephen Ii. Strong, to sell said 16th section, was void for want of jurisdiction. It does not appear that citation or publication was made as required by, law. 9 Cowen, 227 ; Borden v. Fitch, 15 Johns. 141 ; Mills v. Martint 19 Johns. 33 ; 10 Peters, 161 ; 11 Wendell, 632 ; 4 Peters, 474 ; 3 J. J. Marshall, 105 ; Stewart’s Ala. Rep. 335 ; Leiois Campbell, etal. v. Brown, et al., decided April, 1842, by this Court. 2d. Because the bond for titles from the trustees of school lands to Strong, is a mere chose in action, and not saleable, especially without an arder of Court. The order for the sale of the land gave the administrators of Strong no right to assign the bond for titles, and' their assignment of the bond for titles was without consideration, without authority of law, and' a fraud upon the heirs of Strong, and void, and consequently all the subsequent assignments are void. 3d. W. M. Taylor warranted to Montgomery as full and ample power to enforce compliance with said bond, as existed in Strong, and for the above reasons there is a breach of this warranty. 4th. Because the assignment of Reuben Taylor to W. M. Taylor, and his assignment of the said bond to Montgomery, are void for uncertainty and vagueness.
    The plaintiff below seems to have abandoned the legal positions in the case, and to have sought to establish his action on an equitable basis. He filed his> petition for discovery, and discloses the facts, that Montgomery was principal maker of the bill single, and Jenkins only security; that while plaintiff below was negotiating for the bill single, Montgomery acknowledged that he considered the bill single good against him ; that after the bill single fell due, Montgomery promised to pay the same; that plaintiff below contracted with Montgomery, principal maker of .the bill single, not to sue thereon during the year 1841, in consideration that the crop of 1841 should be applied to the payment of the bill single; and that Jenkins, the security, was ignorant of all these statements and arrangements between plaintiff and Montgomery. CJpon these facts, the plaintiff below contended that the defendants below were estopped from setting up any failure of consideration of the bill single.
    We may safely admit that the acts of Montgomery were sufficient to estop him in equity from setting up a failure of consideration ; but we deny that Jenkins, the security, was thereby estopped! The acts or the answer of one defendant cannot bind his co-defendant-without his consent or privity. The facts disclosed in the petition for discovery, show such dealings between the plaintiff below and defendant Montgomery, without the knowledge of the security, as will in equity discharge the security.
    If a creditor, by an agreement with the principal debtor, enlarges the time of payment, without the consent of the surety, the latter is thereby discharged. 3 Merivale’s Rep. 272; 10 Johns. 591; 2 Bro. C. C. 579 ; 17 Johns. 389 ; 2 Vesey, jr. 540 ; 2 Paige, 499 ; 2 Bro. 0. C. 579 ; 4 Yesey, jr. 824 ; Theobald, title Extinguishment of Suretyship.
    In the case of Newell & Pierce v. Hamer, et al., 4 How. this Court adopts the principle laid down in Jllcock v. Hill, 4 Leigh, 622, that to constitute an agreement for extending the time of payment which shall be sufficient to discharge the surely, four things are ne'cessary: 1st. A consideration, for without it a promise to indulge is not binding. 2d. A promise to indulge. 3d. The promise should not be altogether indefinite.' 4th. That the surety has not assented. All these requirements concur in the case before us. If there is any doubt, it is in relation to the consideration for the indulgence. The plaintiff below alleges, on oath, in his petition for discovery, that the indulgence was given on a consideration, and asks the Court to instruct the jury that that consideration is good. The plaintiff below should bp estopped from denying the consideration for the indulgence, by his oath, sustained by the judgment of the Court below.
    The consideration for the agreement for extending the time of payment, was sufficient to discharge Jenkins, the surety, or the fourth instruction of the Court to the jury was erroneous. On this position alone a new trial should have been granted.
    The disclosures of the petition for discovery, and Montgomery’s answer, show no equity in favor of plaintiff below; he took the bill single in payment of a debt due from the payee of the bill single, and retained the obligation of the payee by the indorsement; the transaction was therefore merely increasing security; Dillingham was therefore not injured by the statement of Montgomery, and cannot claim damages.
    The instructions of the Court below to the jury were calculated to mislead the jury, were inapplicable to the case, and contrary to law.
    The fourth instruction would sanction gross usury; the facts contained in it could not be given in evidence under plaintiff’s declaration, and could only tend to the perversion of justice.
    For the above reasons we expect a reversal of the judgment and venire de novo. '
    
    
      Montgomery and Boyd, for defendant in error.
    As to the first point there can be no doubt. Nil debet is not a proper plea to an action on a specialty, as has been recognized by the best writers for centuries ; and the position taken by plaintiffs’ counsel is still further wrong than the common position, for the defendant, by statute, is prohibited from denying the execution of the indorsement, except by plea supported by affidavit. How. & Hutch. 532, 595.
    The bond sued on in this case was the foundation of the action, and not the inducement; if the indorser had been sued alone, the bond would then have been the inducement, and the indorsement the foundation. Such is the distinction.
    2d. To the second point taken we will merely reply, that the statute referred to makes bonds assignable by indorsement merely. The term indorsement is technical, and needs no explanation.
    3d. To the third point, the evidence does not show that the bill single was given as the price of a school section in part, but that the consideration for $3000 of the bill was the agreement on the part of Taylor, to assign to Montgomery a bond made by the trustees of school section to S. H. Strong, which was done. The defendant knew all about this bond for title, and contracted for it under a firm belief he was getting the means of acquiring title to the land mentioned, and there is no fraud shown on the part of Taylor. The bond was a mere chose in action, or a lease for years. If treated as a chose in action the administrator had an unquestionable right to assign it in the course of administration, and as no proof was adduced, it most be presumed it was assigned in the course of administration. If we consider it as a lease the same rule prevails, it was but a chattel real, and went to the administrator, not the heir. The strict proceedings contended for by plaintiff are only necessary to divest the title of the heir. When the heir has no interest, except in the surplus, the administrator, by the Common Law, became absolute owner, and by our statutes has full power to sell on an order of the Probate Court without giving notice to any person whatever.
    The assignment of the bond by Taylor to Montgomery does not contain any warranty of power to enforce compliance, but only a declaration of power. And besides, there is no evidence of a breach of warranty, if such it can be considered, as there has never been an effort by Montgomery to coerce a lease according to the terms of the bond.
    
      If Montgomery was not satisfied with the form of the assignment, he should have declined receiving it, but it appears he not only accepted the bond, but took possession of the land and still has it, and no one has interfered with him or threatened to do so.
    With regard to the arrangement to give further time to Montgomery, without the consent of Jenkins, the security. Admitting the case were as stated in defendant’s argument, there was no contract for delay to the prejudice of the security. An agreement for delay to prejudice security must be a valid and binding agreement for valuable consideration. Now a promise to pay a debt which is due at a future day, is no consideration ; it was only promising to do what he was already bound to do ; besides, there is nowhere any evidence that Dillingham agreed to wait any time at all ; an agreement not to sue is not an agreement to give time ; but there was not even an agreement not to sue.' All the evidence on this point will be seen in Dillingham’s bill of discovery, and only shows that Montgomery promised to pay out of his crop, if Dillingham would delay, but does not show any agreement or promise by Dillingham to delay, although, as a matter of fact, he did hold up the claim.
    Montgomery was clearly estopped from setting up failure of consideration against Dillingham by his conduct in relation to the bill before assignment, and his promise subsequent thereto. McMur-ran v. Soria-, et al. 4 How. Rep.-160.
    This case does not come within the rule in the case Newell & Pierce v. Hamer, et al. 1. Here there was no consideration. 2. There was no promise to indulge. 3. No time of indulgence was mentioned. It comes nearer the rule in the case Wade, et al. v. Stanton, et al. 4 How. Rep. 631.
   Mr. Chief Justice ShaRKey

delivered the opinion of the Court.

Dillingham as assignee instituted this action on a writing obligatory. The defendants pleaded 1st, nil debet; 2d, payment; 3d, a special plea, that the bill single was given for a leasehold interest, sold by the payee to the obligor, and also in consideration of a certain title bond given by the original lessors to Strong ; 4th, the last plea was substantially the same, both averring a failure of consideration. To the first, third, and fourth pleas, a demurrer was sustained, which is the first' error complained of. After the demurrer was sustained, the defendant pleaded non est factum, without an affidavit, and the plaintiff took issue. It was agreed that under this issue the defendant might give in evidence any special matter which would constitute a defence to the action if well pleaded. After this agreement, it cannot be necessary to decide the demurrer. It is either a waiver of all special pleading, or it is a good special plea reaching every defence. The object of a special plea is to open the door to the admission of evidence to defeat the action. This agreement performed that office as fully and effectually as a special plea or pleas could have done. The defendant therefore has been deprived of nothing. It is not the plea itself that constitutes the bar, but it is the evidence of its truth. He did introduce his evidence of the facts specially pleaded, and if it was error to sustain the demurrer, it was not an error to his prejudice.

• But it is argued, that the demurrer should have been extended to the declaration, because it does not aver that the assignment was made under seal, as it is said it should have been made to entitle the plaintiff to his action. We do not so understand the statute which makes bonds, bills single, promissory notes, &c. assignable by in-dorsement. We may proceed then to the merits of the motion for a new trial.

The first ground assigned in support of the motion for a new trial that we shall notice, is, that the Court improperly admitted the plaintiffs’ bill of discovery, and the answer of the defendant Montgomery, to go to the jury. The objection taken to this is, that the answer of Montgomery was. to operate against his co-defendant, Jenkins,, who was his surety. In chancery proceedings it is true, as a general rule, that the answer of one defendant is not evidence. against his co-defendants, though it is, like most general rules, subject to exceptions. It does not apply when they .are all partners in the same transaction, the partnership being otherwise proved. This rule 'applies when a liability is to grow out of the answer ; but where the joint liability is otherwise fixed, then there are many instances in which the answer of one defendant is evidence against another. This was a mere bill of discovery, in aid of a suit at law. The answer amounts to the confessions of the defendant, and such confessions would have been equally good if they could have been otherwise proven. Wherever the confessions of one party would be good against another, his answer may be used for the same purpose. Van Reimsdyk v. Kane, 1 Gallison, 635. In the case of Martin v. Root, 17 Mass. Rep. 222, the written admission of one joint maker of a promissory note was held to be evidence against his co-defendant, although the objection to it was based upon that footing. There, as here, it was used as rebutting evidence to avoid the defence set up. This answer is but the written admission of Montgomery. The acknowledgment of a debt barred by limitations, by one of several debtors, takes the case out of the statute as to all. 3 Pick. 291. The case of the assignees of Simonton v. Boucher et al. 2 Wash. C. C. Rep. 473, was an action on a bond against principal and sureties, and it was held that the confessions of the principal were admissible as evidence. If the statements or admissions of one defendant are admissible against others, they must have the same effect against them all. The effect of Montgomery’s admission tended to destroy the defence set up, by showing encouragement given by him to induce the plaintiff to take an assignment of the writing obligatory. Jenkins, it is true, is a surety, and entitled to stand upon the strict terms of his contract, but there was no enlargement of the obligation, or change in the terms of the contract; nothing which increases his risk. And they are looked upon as joint contractors in law, and no reason is perceived which should place Jenkins in a better situation than an ordinary joint maker of note, and in such cases we have seen that the admissions of one are good against the others. The statute of limitations is a valid defence, and that may be swept away from all the contractors by the admissions of one, and the case cited from 2 Wash. C. C. R. 473, is the case of an admission made by a principal in a bond, held to be admissible against the surety. It is to be remarked, too, that the consideration does not pass to the surety. The obligation of the principal is the inducement to him. When the principal waives a defence, he thereby admits the validity of the consideration. For these reasons we think the answer was proper to go to the jury. But especially was it so as the defendants had not severed in pleading.

It is also insisted that the verdict was contrary to law and evidence. Whatever ground of defence the defendant may have had, is entirely swept away by the answer to the bill of discovery. It seems that the plaintiff expressed some unwillingness to take an assignment of the writing obligatory, unless he could be assured that there would be no difficulty about it. To obviate his objections, Montgomery wrote him a letter, and thereby informed him that the note was good against him for the amount it called for, subject to certain credits which are indorsed on it,.and he expected to make satisfactory arrangements with the holder when the note became due. In the answer, he admits the authenticity of this letter, and that he was duly notified of tile transfer, with which he expressed himself satisfied, and asked further indulgence, and promised to apply the crop of 1841 in payment. But he says that all these assurances and promises were made under a belief that Taylor, the payee, had performed his contract, but he then believed he had not done so. The law arising on this state of facts was fully considered and settled in the case of Hamer v. Johnson, 5 Howard, 698, which is strictly an analagous case. It was there held that similar assurances amounted to a waiver of any special defence, even the de-fence of fraud, and that ignorance of the facts, at the time the assurance was given, did not excuse the maker of a note. He was held bound to make good his promises to the assignee. This being the case then, the defendant’s defence, even if it had been established, which is by no means clear, amounted to nothing, and the verdict was correct both on the law and the evidence.

It is also said that a new trial should have been granted, because the Court erred in the instructions to the jury. The Court charged the jury at the r'equest of plaintiff’s counsel, 1st. That the assignment of a bond conditioned to make title, the obligor having a good title to land, conveys an equitable right which would be a sufficient consideration for a note or bill single. 2d. That if the jury believed the trustees (the original vendors) had title and made the bond to Strong, through whose administrator, by intermediate assignments, it cam.e to the hands of the plaintiff, who assigned to the defendant, and also gave him possession, — this constitutes a sufficient consideration for the note sued on. Doubtless these charges were correct. 3d. The third is, that if Montgomery was principal in the note, and induced the plaintiff to take an assignment by assurances that it was good and would be paid, he is estopped from setting up failure of consideration. This, too, was in accordance with law, as has been shown. ^4th. If after the bill single sued on became due, Montgomery requested the plaintiff not to sue in 1841, and promised, in consideration of such forbearance, that he would pay the note ; and if the plaintiff did forbear, such forbearance constitutes a good consideration between the plaintiffs and defendants, and they should find for the plaintiff. To this proposition we cannot assent; a mere voluntary promise to forbear, on a renewed assurance that the party will pay that which he is already-bound to pay, amounts to nothing. \ An agreement to forbear to sue on a new and independent consideration, might be sufficient to enable the party to recover that consideration ; but where there is no new consideration, such promise is a nude pact. In no possible shape could it strengthen the party’s right to recover on the bill single. If it constituted a good consideration, the plaintiff ought to have sued on that contract. It certainly was not the consideration of the bill single. It is difficult to see how this question could have been thought'of any importance ; but it was in evidence that a request of forbearance was made under a ■ promise that the crop of 1841 should be applied in payment, and it appeared also that the plaintiff did not sue. It is not for us' to say what influence it had on the jury. The plaintiff sought the charge, and he must abide by the consequences. It is sometimes dangerous to attempt to fortify at too many points.

The judgment must be reversed, and a new trial granted.  