Barnard v. Norton ( 1786 )

By the whole Court.

Tbe plea is insufficient; —it contains no denial or avoidance, -of tbe principal facts alleged «in tbe declaration. It is averred in tbe declaration, that tbe plaintiff neglected to recover bis debt of Warner until Warner bad become insolvent, on tbe request of tbe defendant, and on bis promise to pay it in case it could not be recovered of Warner; and tbe plaintiff’s forbearance to sue-Warner was tbe consideration on which tbe defendant’s promise was made; and as it does not appear that any particular time of forbearance was agreed on by tbe parties, or that tbe defendant afterwards requested tbe plaintiff to pursue bis remedy against Warner until be became insolvent; -therefore, Warner’s abibty to pay tbe débt, must be supposed to have been at tbe risk of tbe defendant, during tbe whole time of forbearance.