
    Tappan & Perkins vs. Campbell.
    
    Where tho declaration alleged that the defendant promised to pay the debt of another, (which debt was not due at ¿he time of the promise) in consideration of forbearance to sue Qr niolcst the debtor after the debt became due; Held, that this was sufficient.
    Debt will not lie upon a collateral undertitking or contract to pay the debt of another.
    This was an action of debt, to which the defendant pleaded nil debit and the statute of limitation of three years. To the last plea there was a demurrer. The jury found a verdict for the plaintiff upon the plea of nil debit; whereupon the defendant moved the court to arrest the judgment, and alleged as reasons why the judgment should be arrested, the following; 1st. That an action of debt could not be sustained upon the Undertaking stated in the declaration; And 2nd that if it could, the consideration stated in the declaration was not sufficient to support the promise.
    The suit was brought upon a promise, in writing, by which the defendant undertook and agreed to pay two notes executed by his brother to the plaintiffs. At the time of the defendants promise the debts were not due, one having eight or nine months to run, the other about one month. There were two counts in the declaration, which were however substantially the same. The second count after stating the indebtedness of Robert Campbell, the brother of the defendant, as above stated, “averred that he was about to start for the lower country, and that defendant promised if plaintiffs would permit the said Robert Campbell to proceed on his journey to the lower country, and would not molest him after his arrival there, that in consideration thereof, he the defendant promised that he would pay the plaintiff the said sum of seven hundred and eleven dollars, and sixty-two cents, if the said Robert Campbell should die in the lower country, and not leave effects sufficient to pay his debts. And that confiding in said promise, they, the plaintiffs, did permitthe said Robert Campbell to proceed on his journey to the lower country, and forbore to sue him after his arrival, and that he died in the lower country insolvent and unable to pay his debts.’5
    The circuit court arrested the judgment from which the plaintiff prosecuted an appeal in error to this court.
    
      Alexander, for plaintiff’s in error.
    We insist that debt will lie in this case for the following reasons.
    1. By the ancient law, debt would not lie against an executor on simple contract Pinchon’s case 9 Co. R. 86; 1 Chit. P. 128, Barry v. Robinson, 4 Bos. and P. 292.
    2. Nor against an acceptor of a bill of exchange, because this was an undertaking to pay the debt of another; 1 Chitty P. 116, 129. Bishop v. Young, 2 Bos. and Pul. 78, 82, 83.
    3. Nor against an endorser for the same reason. 1 Chitty P. 129.
    4. Nor against a guarantor upon a promise to pay the debt of another upon consideration of forbearance &c. 1 Chit- P. 116, 129, and authorities there cited.
    The reasons of this in all these instances were; 1st. on account of the wager of law; 2nd, on, the ground that the precise sum as laid must have been recovered. 3 Bl. Com. 155: 1 Chit. P. 129; 5 Dane 102,193; Art. 2.
    These reasons have measurably ceased in England, and have never had any effect in this State; and the reasons not applying, the law can have no effect. We find that in England new remedies have been devised to evade the wager of law. 3 BI. Com. 137; and the law lias been changed in all four of the above points since the causes have ceased.
    5. Debt will lie against an executor in Tennessee, on simple contract, and there is no wager of law in this state, Childress v, Emory. 8th Wheat. R. 642.
    6. Debt will now lie in the United States even by an en-dorsee against an acceptor of a bill of exchange- Raborg v. Peyton, 2 Whe.at. R. 385.
    7. Debt will now lie against an endorser in England; 1 Chit. P. 98; .3 Price R. 253. And also in Tennessee. Ra-ley v. Hazzard; 3 Yerg. R. 487.
    8. Debt will lie upon a promise to pay the debt of another upon a contingency after the contingency happens, which is tfie case under consideration. We conceive this point is settled by the case just cited, of Bailey v. Hazzard, 3 Yerg . R. 487.
    •9. Debt will lie on conditional contracts.. 5 Dane Dig. 101, 105. A policy of insurance is an indemnity against loss, and the insurers liability depends upon the contingency of the loss happening, as specified in the policy, and yet after the loss happens, debt will lie against the insurers for the amount of the loss. 8 Wheat. R. 29⅜, which is a stronger case than the present, the damages in the case of the policy being uncertain.
    
      Chas. Scott, for defendant.
    1. An action of debt will not lie upon a collateral undertaking; a special action of as-sumpsit in this case was the proper remedy. See 1 Saunders Reps, 211; (note 2.) 1 Salk Reps. 23: 1 Burr, Reps, 373: 2 Wil’s. Reps. 141: 1 Bacon Abr. 141: 5 Dane Abr.. 326: 1 Chitty P. 116, 129: Comyn Dig. Debt. B. See Fell on guarantees, 188, where ail the authorities are examined.
    2-. Although according to' the construction which has been given to our statute of 1801, c. 25 it is sufficient for the mere promise to answer for the debt, default or miscarriage of another person, to be in writing, without any consideration being expressed therein to charge the guarantor; yet to sustain an action against Mm, a sufficient consideration must be averred in the declaration, and proved. See 1 Saunders Reps. 211, (note 2:) 1 Chitty P. 221; (mar. P.) Comyn Dig., Action, Assumpsit, 3: 4 East Reps. 455,465, Ross v. Taylor and Williams, 3 Yerg. Rep.
    4. The act of forbearance alleged as the consideration, in the first count of the declaration, was of no legal value, because forbearance is not a sufficient consideration, if the person in whose favor it was exercised was not liable to a suit or action. That he was so liable should appear upon the face of the declaration. See 1 Law, Lib. 7: 2 Saunders Reps. 135, Barber v. Fox, and note's to that case. Chitty on Contracts, 9: 4 East Reps. 455.
    5. The consideration of forbearance as alleged in the second count of the declaration, is also insufficienf, for the forbearance as stated, does not appear to be either general, orfor any particular time certain. See Powellon Com.. 213; Chitty on Com. 9, 16.
    The case oí Bailey v. Hazzard, 3 Yerg. Reps., is not ah authority to sustain the action. In that case the party guaranteed the payment of a note which he had assigned. For value received of the assignee, he promised to pay him the amount of the note assigned, if the maker did not. It was not a promise to pay the assignee a debt which the maker of the note owed to the assignee, before the promise. It was ¿n original promise to pay his own debt, if the note was not paid.
    
      James Campbell, in reply,
    contended that whatever conflict of authority there might be in the English cases, he considered that in this state, debt would lie upon a promise" to pay the debt of another, he cited and commented on Bailey v. Ilazzard, 3 Yerg. Rep. and insisted that in principle that cáse was not distinguishable from this. He also cited 1 Comyn Dig. Debt A.
    2 That the consideration state.! in the declaration was sufficient. Á forbearance to sue generally without specifying á limited time was a “sufficient consideration to support a promise.” Ellery v. Fanderlyn, 4 John Rep. 237.
   Reese J.

delivered the opinion of the court.

The demurrer and the motion in arrest of judgment for the' reasons filed in the circuit court, raise two questions, which have been very fully discussed.

1st. Does the declaration state a consideration sufficient in law to sustain the collateral undertaking therein set forth? and 2nd. can an action in the form of that which has been brought,' an action of debt, be maintained upon a promise to pay contingently, the debt of another, upon such a collateral undertaking-of guaranty, as that which is stated in the declarations. As to’ the first question it is enough, perhaps, to mention briefly, that tve deem the consideration sufficient, and so stated, particuly in the second count, as to give effect and obligation to the undertaking in the declaration described. But 2nd. We think that the written undertaking in the declaration described is not such as will maintain the action in the form in which it has been brought. This has been established by numerous authorities-in England. See the cases cited at the bar. 1 Saunders Rep. 211, (note 2.) 1 Salk Rep. 23, 1 Burrow 373: 2 Wil. Rep. 141: 1 Bacons Abr. 141: 1 Chitty Plead. 116, 129. Comyn Dig. debt B. Fell on Guaranties 188. In that country, the position is not questioned, that neither debt nor indeb-itatus assumpsit will lie against a guarantor upon his collateral undertaking to pay the debt of another, but a special action of assumpsit is the proper remedy. However little may be said as to the grounds or reasons of this doctrine, the doctrine itself is universally admitted and maintained. It is from the courts of that country as the founders and expounders of the common law, that wo have adopted all the forms of our actions, and the distinctions which govern them, and however arbitrary and artificial may be these forms and distinctions, it is a wise policy to adhere to and preserve them. If this be not done, much uncertainty and confusion must necessarily arise. That debt will not lie in the case before us, is alike shown by American authorities. In 5 Dane’s Abr. it is said that debt will not lie on any collateral undertaking, for he that so undertakes is not debtor or indebted, though he may have promised to do, or perform some action, he has engaged, but does ndt owe á debt. Set this question, it is urged, has been in effect determined by the case of Bailey v. Hazzard, 3 Yerg. 487. That was an action of debt, brought upon the following assignment. “I assign the within to W. W. B. and bind myself to stand good until paid, for value received of him,” this ivas signed by Hazzard who affixed his seal to his signaturé. The action was brought in the county court, and a demurrer was filed to the declaration, which was overruled and judgment given for plaintiff. Defendant appealed but gave no bond till after the court had adjourned. In the circuit court there were pleas, that no demand was made and no notice given, which were demurred to. Upon this state of the case, this court briefly remarks, “that the county court was not authorised to grant the appeal in this case, without first taking bond and security as required by the act of 1811. c. 72, §11.” The court adds, “we are also of opinion that the law is for the plaintiff below upon the pleadings. The demurrer to the pleas should have been sustained.” Whether the court considered of the point, now under discussion, we know ndt.-We are not disposed to question the authority of the case, as resting upon its oWri circumstances. But we should carry it too far, if we permitted it to determine the question now before us. That case, may perhaps, have been correctly decided upon the peculiar terms used in the written undertaking endorsed upon the note. We do not here assume' to determine whether in that case, debt or covenant should have been the' form of action. But we are satisfied, that it should not be held to decide that in the ordinary case of endorser and endor-see, or in other cases of collateral undertakings, debt can be maintained. Judgment affirmed.  