
    Slingerland against Morse and others.
    ALBANY,
    Feb. 1811.
    where a bmd1°rd distrained the goods ot his tenant for rent in arrear, and a. signed an theTack"^ the ™hfohhe’“pr<i ™sedd^ d*''^ contained in the inventory,to the landlord, in six days after de* mand, or pay befo»5°the *a a-rent^due- th¡t 'yas held» that tins was an or** ginai and not del-taking, and be a main tamed jjf™], '^i.io[}ia
    THIS was an action of assumpsit. The declaration stated that the defendants, on the 7th June, 1809, in consideration that the plaintiff had delivered to the dey fendants, two horses, eight beds, two cows, &c. the der lili. ... tendants undertook, and by their agreement m writing pro-raised the plaintiff to deliver the same articles to the plaintiff when he should demand the same, or pay the plaintiff 450 dollars. The plaintiff averred that he demanded the goods of the defendants on the 1st of August, 1809, and ° _ ” . the defendants have not delivered them, &c. or paid the 450 dollars, but have refused, &c. The defendants pleaded non assumpsit, with notice of special matter to be given in evidence.
    The cause was tried at the Saratoga circuit, the 29th ° May, 1810, before Mr. Justice Van Ness. The plain - tiff proved that one Buys was duly authorized by the plaintiff to distrain for rent due to the plaintiff from his tenant, to the amount of 450 dollars, and that the articles mentioned in the declaration were duly distrained, which notice was given to the tenant, accompanied with an inventory of the articles distrained; but the goods were not removed. The defendants, at the request of the tenant, signed an agreement, endorsed on the back of an inventory of the goods, as follows: “ We do hereby promise to deliver to Peter Slingerland all the goods and chattels contained in the within inventory, in six days after demand, or pay the said Peter 450 dollars. June 7, 1809.” Buys thereupon suspended the sale of the goods, and left them in the house of the tenant. The counsel for the plaintiff then offered to prove a demand of the goods, &c. and a refusal, prior to the commencement of the suit. But it was objected that the agreement was a mere collateral undertaking, and as no consideration was. expressed or appeared on the face oi , ... ., the writing, it was void.
    The judge, being of opinion that it was a collateral un« dertaking, and that as no consideration appeared on the face of the paper, no action could be maintained; and he rejected the evidence offered; and the plaintiff was nonsuited. A bill of exceptions was tendered to the opinion of the judge, and signed by him, pursuant to the act.
    Rodman, for the plaintiff, moved to set aside the non-suit, and for a new trial. He cited 1 Saund. 211. note 2. 3 Johns. Rep. 210. 4 Johns. Rep. 280. 1 Comyn on Contracts, 104.
    Foot, contra.
   Per Curiam.

This was aboriginal and not a collateral undertaking. The case of William v. Leper, (3 Burr. 1886.) is very much in point. Here the plaintiff, as landlord, had a legal pledge in his custody, and the defendants made the promise in order to discharge the goods of the distress. According to the expression of Mr. Justice Aston, the goods here were the debtor. Whether this promise would not be good even as a collateral undertaking is another question. Lord Eldon says (14 Vesey, 190.) that in cases of a collateral undertaking to pay the debt of another, there is no new consideration moving from the party making the promise to the party to whom it is made ; and the same idea is advanced by the counsel for the plaintiff in the case cited from Burrow. But on this point we give no opinion. In the case of Sears v. Brink & Brink, (3 Johns. Rep. 210.) there was a con- - sideration admitted, and the court say that the consideration was part of the agreement, and ought to have been in writing; but the question did not arise as to what would have been the effect of the writing, if it- had not been •averred and admitted that there was a consideration constituting a jart of the agreement.

The motion to set aside the nonsuit is granted, with Costs to abide the event of the suit.

Motion granted.  