#### Manasseh Kempton *versus*Timothy G. Coffin.

The defendant signed a writing to the following effect: —Whereas the plaintiff has this day indorsed the following notes (describing them) for the maker, and I the subscriber, having for good reasons and considerations agreed to become security for one fourth part of the foregoing sums, Í do hereby agree and bind myself to sustain one fourth part of all the loss which shall happen to the plaintiff by reason of his indorsement of the notes, that is to say, if the maker should fail to pay the notes and the plaintiff should be compelled to pay the same, I agree to pay fourth part of them as they shall become due and remain unpaid by the maker. — It was *held,*that this writing was evidence of a pecuniary liability being assumed by the plaintiff in consequence of the defendant's promise to indemnify him, and therefore that the promise was founded on a legal consideration.

•It was further *held,*that the plaintiff having paid the notes after regular notice to him as indorser, he had an immediate right of action against the defendant, without first bringing a suit against the maker, and that evidence respecting the maker's ability to pay the notes was irrelevant and inadmissible.

Assumpsit. The declaration contained a special count on the following agreement in writing, dated New Bedford, March *13420, 1826 :—cc Whereas Manasseh Kempton has this day indorsed for Thomas T. Churchill the following notes, all payable in two years, viz. (describing five notes,) and I the subscriber having, for good reasons and considerations, agreed to become security for one fourth part of the whole of the foregoing sums, I do hereby agree and bind myself to sustain one fourth part of all the loss which shall happen to said Manasseh by reason of his indorsement of said notes ; that is to say, if he, said Churchill, should fail to pay said notes, or parts thereof, and said Manasseh should be compelled to pay the same, or any part thereof, I do hereby agree to pay one fourth part of said notes, if he should have the whole to pay, or such parts thereof, as said Churchill shall fail to pay, and the same proportion to be paid and sustained by me, as said notes shall become due and remain unpaid by said Churchill. Timothy G. Coffin.”

At the trial, which was before *Morton*J. upon the general issue, the plaintiff produced the notes, signed by Churchill and indorsed by the plaintiff, and proved that they had been paid by the plaintiff after a demand on Churchill as maker and notice to the plaintiff as indorser.

The defendant contended that the plaintiff was not entitled to recover, unless he proved that Churchill, at the time when the notes became due, was unable to pay them; but this objection was overruled.

The defendant then offered to prove, that at the time when the notes became due, Churchill had property sufficient to pay all of them, and that two or three years afterward the plaintiff attached the property of Churchill to secure the payment of other debts due from him to the plaintiff; but the judge, being of opinion that this would be no defence to the action, rejected the evidence.

The jury returned a verdict for the plaintiff, and the defendant moved for a new trial.

*Oct. 26th.*

*L. Williams*and *Ezra Bassett*for the plaintiff.

*Coffin pro se.*

*Oct. 29th.*

*Per Curiam.*

It was contended, but not with much confidence, that no legal consideration was shown for the promise, under which the plaintiff claims. But taking the recital to *135ifte agreement declared on, we think it sufficiently appears, that before and at the time the notes were indorsed by the plaintiff for Churchill, the defendant had agreed to indemnify the plaintiff for one quarter part of the liability incurred by such indorsement; it being on the same day, the natural inference is, that it was all one transaction. If so, then the responsibility which the plaintiff assumed on himself by his indorsement, after the defendant’s promise to indemnify him, must be taken to have been assumed in consequence of that promise ; and pecuniary liability assumed in consequence of a promise to indemnify, is a good consideration for such promise.

Another point of law relied on was, that the plaintiff had no right to maintain this action, until he had commenced a suit against Churchill, and failed to recover the amount of him. But we think this is sufficiently answered by the terms of the defendant’s written contract. If Churchill should fail to pay the notes, that is, as appears from the whole agreement taken together, should fail to pay them when they became due, and Ine plaintiff should be compelled to pay the same, then the defendant did agree and bind himself to sustain one fourth of the loss. When therefore the notes became due, and Churchill failed to pay them, and the plaintiff was duly notified and thereupon compelled to pay, his right of action to recover one fourth part of the amount, of the defendant, was complete. Had he in fact collected or received the amount, of Churchill himself, by suit or otherwise, it would have been a good answer to the plaintiff’s claim, either in full or *pro tanto;*but it is not suggested that this was done. And we are all of opinion, that it was not necessary for the plaintiff to commence and prosecute a suit against Churchill, as a condition precedent to bringing this action. Whether therefore Churchill had property, which might have been attached by the plaintiff, was immaterial, and the evidence to that effect was rightly rejected.

*Judgment on the verdict.*