
    CAMDEN DISTRICT,
    FALL TERM,
    1794.
    The Executors of Kershaw v. Whitaker.
    A promise by an executor to pay rent due by his testator, in considératioa of the release of a distress for the rent, is an original, and not a collateral undertaking, within the statute of fraud's.
    The release of a! remedy, or the forbearance of a right, is a sufficient .consideration to support a promise to pay the debt of another, and'such promise need not be in writing.
    William Whitaker, deceased, had leased land of Colonel Kershaw,' and the rent being in arrear after Whitaker’s death, Colonel Kershaw distrained on the premises a negro boy ; whereupon tha defendant, 'Willis Whitaker, one of the executors of the deceased William Whitaker, prevailed with Colonel Kershaw, to forbear proceeding on his distress, and to release the negro levied on, promising to see that the rent in arrear should be paid, and agreed to deliver corn on the river bank, for the same. Afterwards, the com which was intended for Colonel Kershaw, in satisfaction for this rent, being swept away by an inundation of the river, before any delivery thereof, the defendant refused to pay the rent in arrear whereupon tins action was brought.
    
      This case being disclosed in evidence upon the issue of non sssumpsit, the counsel in’behalf of the defendant, moved for a non-' suit, insisting that the contract proved was a collateral undertaking to pay the debt of another, and not being in writing, was insufficient by the statute of frauds, 29 Car. 2. c. 3. P. L. 82, to maintain this action. And,' at any rate, as it was expressly agreed, that the pay-merit should be made out of a particular fund'; viz. certain corn, then lying on the river bank, and as that fund had failed, by- the' act of God, an accident against which a careful man,'in the-com-' mon course of things, could not, in general,'guard, the defendant was not chargeable in this case.
    For the plaintiff, was cited the case of William's v. Leper, S’ Burr. 1886, aS in point;- upon the-authority of which case: it was contended, that the agreement was positive and direct, and not’ collateral. That here, there was a new consideration, moving from1 the defendant to the plaintiff’s testator! That’ the latter had been induced by the former, to release a sure and speedy remedy for the recovery of his rent, and to rely Upon his Verbal undertaking to pay the same. That as soon as this agreement was made,'the distress was dissolved ; the old debt was discharged, or at least, the right of recovery which before existed, was extinguished ; and a new-debt was created, ánd á néw security was'.substituted. The* undertaking of the defendant was original ánd direct, that he,himsélf, would positively pay, absolutely, and not conditionally, in' consideratibn of the release of the negro, and the discharge of the dis-trfess ; and, therefore, if was denied, that this case came within the scope, reason, or policy, of the statute of- frauds : for it was argued, that the plaintiff’s testator had a lien on the negro dis-trained, which lien he consented to discharge, in consideration of the defendant’s undertaking ; and the defendant’s refusing now to comply with his agreement,- is a' manifest fraud, which the statute ought not to protect. It was further insisted for the plaintiffs, that-the promise in this case, was not to- pay out of a particular or- specific fund, but to pay absolutely and generally ; and that Colonel Kershaw had agreed to take corn on the river- bank, to accommodate the defendant, which was a mere circumstance of accommodation, relative to the.mode of payment, but was not a condition- of the contract.
   By the court.

Waties, J.

The evidence is very proper to go-to the jury. Wherever a man is induced, by another’s promise, to release a remedy,-or forbear the exercise of a right which he has, the consideration is good- to support the promise, as at} original-agreement, and it cannot be deemed a collateral undertaking for another, within the meaning of the statute against frauds and juries. Neither does it appear that the parties intended that pay--meat in corn should be an essential part of the contract. It appears to have been casually mentioned, and agreed .on, for the mere. purpose of accommodation.

Mathis and Falconer, for pjaintiffs. Brown, for defendant.

The defendant'not having given any evidence, material to his defence, the jury found for the plaintiffs.  