
    Elisha Tileston versus Alpheus Nettleton.
    A promise by one person to pay for a dinner furnished for others, made while they are in the act of eating the dinner, is not binding without a note in writing, the dinner not having been originally provided at the request and on the credit of the person making the promise.
    A verbal promise by A, after the commencement of the dinner, in such case, to be responsible for the dinner, is not binding, even if the plaintiff furnished it under an expectation that A would pay for it, if A had previously done nothing to authorize such an expectation.
    A forbearance to collect the pay for the dinner from the persons who are eating it, though it might be a good consideration for a promise to pay for it by another person, yet it does not constitute such an original contract as would be valid without a note in writing.
    This was an action of assumpsit to recover the price of a dinner alleged to have been furnished at the defendant’s request, by the plaintiff who was an inn-keeper, for a light infantry company called the Hampden Guards, on the 4th of July, 1825.
    At the trial in the Common Pleas, before Williams J., the following facts appeared in evidence. The defendant was the commanding officer of the company and a member of the general committee of arrangements for a public celebration on that occasion. Previous to the celebration no provision was made for a dinner for the Guards, different from that 'or the citizens generally. The Guards performed the escort duty on the occasion, and partook of the dinner in company with the other citizens. They did not pay for their dinners, and some of them testified that’ they supposed the dinner would be provided for them without expense, though they did not know who was to pay for it.
    
      At the dinner the plaintiff directed two persons to collect the pay for the dinner, from the persons present, one dollar each, making no exception of the Guards. When they were proceeding to collect the money of the Guards, after getting it from the other persons present, the defendant told the plaintiff that he need not call on the Guards for payment, as he would be responsible for them. The plaintiff assenting to this proposal, the Guards were not called on for pay. When this took place the company were eating, and had not completed their dinner. One witness testified that he believed that the Guards, though seated at the table, had not begun to eat, when this declaration was made.
    After the dinner a voluntary contribution of eleven or twelve dollars was collected from the Guards to pay for contingent expenses, such as target, uniform, &c. and for the dinner.
    The defendant offered evidence tending to prove that the money thus contributed was paid into the hands of the lieutenant of the company and expended by him wholly in paying the contingent expenses, — and that no part of it came into the defendant’s hands, except to pay him for money which he had advanced for the contingent expenses.
    The evidence was all submitted to the jury, with instructions from the Court, substantially, as follows : —
    1. That if they believed that the dinner for the Guards was provided at the defendant’s request, either express or implied, and on his credit, the plaintiff was entitled to recover without any agreement in writing.
    2. But if they should find that the defendant was not originally liable, and only interposed after the original liability had been incurred by others, and engaged collaterally to be responsible for the Guards, such a collateral undertaking would not be binding on him without a note in writing, as required by the statute of frauds.
    3. That if the defendant was not originally liable, any promise by him, not in writing, made while the Guards were seated and in the act of eating the dinner, would not be binding.
    4. That if the plaintiff provided this dinner for the Guards, without intending to look to them personally for payment, and on an expectation that the defendant would pay for the same, still, if the defendant had done nothing to authorize such an expectation, a verbal promise to be responsible for it after-wards would not be binding on him.
    5. That the plaintiff’s desisting from collecting his pay from the members of the Guards at the defendant’s request, and suffering them to disperse after the dinner in consequence of the defendant’s undertaking, though it might be a good consideration for a written contract, did not constitute such an original contract as would be valid without a note in writing.
    6. That if they should believe that the money obtained by the contribution was specifically for the payment of the dinner for the Guards, the plaintiff would be entitled to recover the sum so specifically contributed by the company ; but if the contributions were made generally to discharge the debts of the company for contingent expenses, and had been appropriated and paid for that purpose,' the plaintiff could not recover the money so contributed, in this action.
    The jury returned a verdict for the defendant, and the plaintiff filed his exceptions to the above instructions.
    Packard, for the plaintiff.
    
      Willard and W. Bliss, for the .defendant.
   Per Curiam.

The principles laid down by the Court of Common Pleas are certainly correct, and well maintained by the authorities cited. The true question is, was the prom ise of the defendant original or collateral. There is no direct evidence of an original promise. The members of the company appear to have been the original debtors, and they might have been sued severally upon an implied promise ; and their original liability proves that the defendant’s engagement was only collateral.

Judgment affirmed. 
      
       See Roberts on Frauds, 216 to 225; Swan v. Nesmith, 7 Pick. 220; Chitty on Contracts, (3d Am. ed.) 202 et seq; Elder v. Warfield, 7 Harr. & Johns. 391; Cutler v. Hinton, 6 Randolph, 509; Slingerland v. Morse, 7 Johns. R. (2nd ed.) 463, note a; Skelton v. Brewster, 8 Johns. R. 376; Bailey v. Freeman, 11 Johns. R. 221; Chase v. Day, 17 Johns. R. (2nd ed.) 115, note a; 2 Stark Ev. (5th Am. ed.) 345, 346, notes.
     