
    Ichabod Russell et al. vs. Asa W. Babcock.
    An agreement to delay the collection of an execution against one is a sufficient consideration for a promise by another to pay the amount thereof.
    Such promise, although not in writing; is not within the statute of frauds.
    This was an action of assumpsit, declaring specially on a pro- ■ mise of the defendant to pay tire debt of another upon the consideration of forbearance. The facts sufficiently appear in the opinion of the Court. The action was defaulted, which default was to be taken off, if in the opinion of the Court the action could bo maintained.
    The case was argued in writing by Gutting, for the defendant, and by W. P. Fessenden, for the plaintiffs.
    
      Cutting, cited Rob. on Frauds, Tit. Contracts; Skelton v. Brewster, 8 Johns. R. 376 ; Simpson v. Fatten, 4 Johns. R. 422; and Slingerland v. Morse, 7 Johns. R. 463.
    
      Fessenden, cited Roberts on Frauds, 232; Cabot v. Maskins, 3 Pick. 93; Lawes on Assumpsit, 57; 1 Saund. 211, a; and Elting v. Vanderlyn, 4 Johns. R. 237.
   After a continuance, for advisement, tlie opinion of the Court was drawn up by

Emery J.

The defendant’s counsel contends, that the undertaking of tbe defendant was collateral; and though it is somewhat difficult frequently to distinguish between an original and a collateral promise, yet he considers tlie rule to be, that where the original debt is not discharged by the subsequent promise, it is a collateral undertaking only, and to be binding, should he in writing.

In this case there was no note or memorandum in writing signed by the defendant. Tlie suit is upon a promise of the defendant to pay the debt of another upon tlie consideration of forbearance, as set fortb in tbe plaintiffs’ declaration. The plaintiffs at June term, 1833, recovered judgment against one Sprague for $101,10 debt, and $22,10 costs, on which execution issued June 18, 1833, and it was fully proved by the attorney of the plaintiffs in the suit against Sprague, that about the time judgment was rendered in that suit, he met the defendant, who told him he was to pay it, and if the witness would keep the execution and not give it out, he would pay it. He subsequently repeated the promise. Confiding in the promise the attorney kept the execution and had never delivered it out. In Sept. 1833, the defendant said the amount was greater than Sprague had represented, but lie would see Sprague, and have it settled immediately, and afterward said, three or four times, he would pay the whole; but in Aug. or Sept. 1834, before tlie suit, he said lie would not pay the whole judgment. After this suit, be said he should lose nothing, as Sprague had made him secure, but had given him directions not to pay the whole. On this state of facts, no one can regret to find, as we do, that the engagement of the defendant is to be deemed an original undertaking on consideration of forbearance, most liberally extended to pay the debt of Sprague.

Such a promise need not be in writing.

Actual damage, or a suspension or forbearance of right, or possibility of loss occasioned to one to whom the promise is made, constitute a sufficient consideration to give validity to the promise. It is not essential that any actual benefit should accrue to the party undertaking. 3 Pick. 93, Cabot v. Haskins.

The default is to stand, and judgment must he for the plaintiff.  