Elting v. Vanderlyn ( 1809 )

Van Ness, J.

delivered the opinion of the court. 1. There is no pretence for bringing the promise within the statute of frauds. Whether the promise was in writing" or not, need not appear in the declaration. That is matter of evidence only; and after verdict, we must presume that it was in writing. Forbearance to sue is a sufficient consideration for a promise to pay the debt of another. (1 Saund. 211. a. note.)

2. The defendant is not sued as heir, but on a promise to pay the debt of the heirs, and the question of assets does not, therefore, arise. Heirs, under our statute, are liable for the simple contract debts of their ancestor.

3. The consideration of forbearance generally is sufficient, without setting forth a specific time. There was, in fact, a total forbearance for a long time, which brings the case within that of Mapes v. Sidney. (Cro. Jac. 683.) The court are of opinion, that the motion must be denied.

Motion denied»