
    Delamater against Rider.
    NEW YORK,
    October, 1814.
    A., being indebted to B.on ajudgment,delivered to him a horse, as security. B. afterwards took out execution on the judgment, and sold the horse at auction,and became tlie purchaser at the sale for 8 dollars, and lie promised to allow A. or pay him whatever thehorseshould sellfor,over and above the 8 dollars, and he afterwards sold the horse for 25 dollars. It was held that A.was entitled to recover ofB. 17 dollars, in an action of assumpsit^ the judgment having been satisfied. That there was a sufficient consideration forfche promise of B. the sale of the horse on the execution befog a violation of his trust,but that, at any rate, !i e promise was a waiver of all right under that sale, and the horse must be deemed to have remained on the terms of the original a« greement, and that A., by bringing Inaction to recover the i7 dollars, ratified the subsequent sale.
    IN ERROR, on certiorari, from a justice’s court. Rider brought an action of assumpsit, for money had and received to his use, against Delamater, who pleaded non assumpsit.
    
    At the trial, the plaintiff proved that being indebted to the defendant on a certain judgment, and also on a book account, he delivered to the defendant, as security for the same, a certain horse; that afterwards the defendant took out an execution upon the judgment, and sold the horse at auction, and purchased him in himself, for eight dollars; that he afterwards promised to allow the plaintiff, or pay. him whatever he, the defendant, sold the horse for more than the eight dollars; that the defendant below proceeded to collect of the plaintiff the residue of his judgment. It was proved that the defendant had sold the horse for 25 dollars. The justice gave judgment for the plaintiff for If dollars, and the costs.
   Per Curiam.

The judgment in the court below is clearly according to the justice of the case, and no rule of law appears to have been violated. The want of consideration to support the promise of the defendant below, is the only possible ground of objection, and this is not well founded. The defendant received and held the horse as security only; and the sale and purchase under the execution might very well be considered as a violation of his trust. But at all events his subsequent promise must be deemed a waiver of his claim to any right by virtue of that sale, and the horse deemed to be held as security according to the original terms upon Which he was delivered to the defendant; and the §ubsequent conduct of the defendant in selling him was ratified by the claim of the money received on such sale; and the defendant having only credited the plaintiff eight dollars on the sale of the horse, seventeen dollars, the residue of the 25 dollars, for which he sold, was money received to the plaintiff’s use. The judgment, therefore, must be affirmed.

Judgment afiitined.  