Jackson's Adm'r v. Jackson

COLLIER, C. J. — The pleadings in this case seem to have been made up by consent of parties, without any particular regard to form — the first plea, being the title of the general issue merely, and the second affirming only what is said in the statement of this case, and in the terms we have there employed. As the counsel of the parties have been thus liberal to each other, we shall endeavor fairly to interpret the second plea, without subjecting it to too rigid a criticism. In alledging that the surety subscribed his name to the note, without any consideration, we are not understood that he merely denied, that as between himself and the payee there was a consideration. The allegation goes beyond this, and must be taken as a denial that there was such a consideration as would sustain his promise to pay. It would be an unwarrantable limitation of a general averment, to attain any other conclusion. The question then, is, conceding the truth of the plea (as the demurrer does,) are the facts averred, an answer to the action. If necessary, we must intend that the plaintiff was authorized to agree with the distributees of the estate he represented, to receive their notes without security; especially as the reverse does not appear. It is alledged, that he did receive Peter Jackson’s note, and that the defendant did not sign it, until after it had actually been accepted by the plaintiff. These facts show that it became a perfect security for money according to the agreement of the original parties to it, without the defendant’s signature; and we will now inquire, whether it is essential to his liability, that there should have been some new, or additional consideration. If one promise to pay for goods delivered to a third person, it is good at common law, and under the statute of frauds, if in writing; but where one undertakes to pay the debt of an [794] other, the action will not lie, if the consideration be past at common law, nor if in writing, by the statute of frauds. [1 Bane’s Ab. 109.] But in general, any act of the nature of a benefit to the person who promises, or to am^ other person upon his request, or any act which is a trouble or detriment to him to whom the promise is made, is sufficient; and the amount of benefit, or of trouble, or detriment, or its comparative value, in relation to the promise, is indifferent. In respect to the consideration necessary to bind a surety or guarantor, it is said, that a benefit to the debtor, without any benefit to the surety, is sufficient. [Bailey v. Croft, 4 Taunt. Rep. 611; Morley v. Boothby, 10 J. B. Moore’s Rep. 395; Russell v. Mosley, 3 Brod. & Bing. Rep. 211.] But it is said, that the consideration must at the time the promise is made, be either wholly, or in part executory. Hence, it is said, if one promise in consideration of a credit already given, or agreed to be given, or o-f a debt already existing, it is an executed, or past consideration, and is insufficient; unless the act, though done, was done upon the request of the party' promising. [Payne v. Wilson, 1 Man. & Ry. Rep. 708.] It therefore follows, that if a person accedes as a surety to an existing agreement, or guaranties an existing debt, for which there was a sufficient consideration as between the plaintiff and a third person, something new must take place, of the nature of a detriment to the creditor, or a benefit to the debtor or surety, to form a consideration for the engagement of the latter. [Theobald on Prin. & Sur. 6 to &.J This view clearly shows, that the demurrer to the second plea was properly overruled. The tendency of the evidence objected to, was to prove the truth of the plea, and the competency of the witness not being questioned, we think it could not have been excluded. Whether the testimony was sufficient, unassisted by further proof, to show the want of consideration to sustain the defendant’s engagement, we need not inquire ; for if pertinent, it was properly admitted, and the plaintiff could have prayed an instruction upon its legal effect. It results from what has been said, that in the ruling of the Circuit Court, there is no available error; and its judgment is consequently affirmed.