#### FORD v. REHMAN.

Consideration — equitable interest — demurrer,

A promise, that if the holder of a note having the equitable right to the money, will forbear its collection for a given time, the defendant will pay him, is good.

Such promise is not past and executed, but present; and the consideration moves direct from the plaintiff.

Courts of law will protect the equitable interest of assignees.

A general demurrer to several counts, some of which are good, will be overruled.

Assumpsit. 1. Count on a note for $100, given by Rehman to Thos. Ford, payable in thirteen months, from the 2d April, 1827, endorsed to the plaintiff before due. Notice to the defendant, and a promise by him to pay in a reasonable time, in consideration of the note, endorsement, and its remaining unpaid.

2. Same, with a promise to pay *generally,*without any time.

3. The same to the endorsement to the plaintiff. It then sets forth an undertaking, on the plaintiff’s part to delay the payment six months, and thereon raises a promise to pay in six months; avers the delay of six months, and shows the non payment as a breach.

4. General, that in consideration of the note, endorsement, and an agreement to forbear the collection a reasonable time, the defendant promised to pay in a reasonable time; avers that a reasonable time has elapsed, and the non payment.

5. Common counts for goods sold, and money lent, paid, and had and received.

To this declaration there is a general demurrer and joinder.

*Purdy,*for the plaintiff, and

*May,*for the defendant,

agreed, that if the law was with the plaintiff, he should have judgment for the amount of the note and interest.

Wright, J.

The first, third and fourth counts of the declaration are upon special assumpsits, and the only question is, whether the *435consideration discloses a legal foundation for the undertaking to pay. It is objected to the recovery, that there is no *privity*of contract in the parties, the note not being negotiable; that the plaintiff was only an equitable, not a legal holder. As to the second and fourth counts, it is insisted that the consideration is past and executed, and that no notice to the defendant is averred.

I see no want of privity; if the counts were upon a note not negotiated or not negotiable, there would be a want of privity; but the plaintiff does not declare on the note; he describes its existence, and the equitable right in him, as a meritorious consideration of the promise. Is it not so *1*Courts of law will recognize and protect the rights of equitable assignees of choses in action; 8 *John.R.*154; 17 *John. R.*330; 1 *T. R.*622; 1 *Bl. Rep.*1269; 1 *Caines R.*362. In equity, Ford was the owner of this note, and of the money due. Money due in justice and equity, is indisputably good consideration for a promise to pay it. The declaration counts upon this consideration as one moving direct to the plaintiff. We have no doubt it is good in law.

As to the objection, that the consideration is past, and so is no ground for the promise, we do not see its force; the consideration is the money due, and the forbearance in 'the collection. If you will forbear pushing this demand for a time, I will pay you. The forbearance is the consideration of the real promise, and is prospective, not past; the money has not been paid at all.

As to the question of notice, little need be said. You have to attain to certainty to a common intent. If one, in consideration of another’s forbearing to collect money of him, promise to pay at a given future time, may it not be presumed he had notice of the debt, for the forbearance of which he promised, and that it was unpaid. The first, third, fourth, and fifth counts, therefore, are good; as to them the demurrer is not well taken; and if we should be of opinion that the second count is bad, because it attains to no certainty as to time, still, as some of the counts are good, a bad one on general demurrer will not sustain the demurrer, and it must be overruled.

Judgment for the plaintiff.