#### Doty *against*Wilson.

NEW YORK,

October 1817.

A release after hit"rested°fivfttosente 'ws testimony competent * and where an objection is made at the trial, and persisted in. to the sufficiency of a release, the judge ought not to direct the examination of the witness to proceed, aud that ills testimony should be relied on, if the party should afterwards give a sufficient release But where a release has been objected to on account of some informality, and, whilst another release is preparing. the judge allows the examination to proceed, without any objection being made by the opposite party, this course is proper. *A*promise to indemnify a sheriff for a voluntary escape already made, is valid. Wnere a defendant taken on a *ca sa.*was allowed to go at large by the deputy sheriff, and the plaintiff in the execution haxing recovered judgment against the sheriff for the escape, the amount of which was paid by the sheriff the defendant afterwards promised to pay the same to the sheriff*, such promise will support an action, there being a moral obligation on the part of the defendant, accompanied with an express assumption ; and he had» besides, received a benefit by being exonerated from his liability to the original plaintiff, which is not liable to the objection that it was a past consideration, without a previous request, for the benefit to the defendant, cob-nested with his subsequent express promise, is equivalent to a previous request A past consideration, beneficial to the defendant, to which he afterwards assents, is sufficient to support an action. It is unnecessary to lay a special request In the declaration, In all cases where tire consideration for the-defendant’s promise wtta executed.

THIS was an action of *assumpsit.*The declaration contain-e(l the usual money counts, and the defendant pleaded *non as-sump s i t,*with notice of his discharge under the insolvent act of *3811811. The cause was tried before Mr. J. *Spencer,*at the *Wash-*. . *mgton*circuit, in *June,*1816.

At the trial, *Simon Kittle*was produced as a witness on the part of the plaintiff, and testified, that in the spring of 1810, he was deputy of the plaintiff, who was then sheriff of the county of Washington,'and received a *ca. sa.*issued out of this court, in favour of one *Stanton,*against the defendant, for 179 dollars 67 cents, on which he arrested the defendant, who, not being able to .pay the money, he voluntarily permitted him to go at large, supposing that he could, afterwards, take him and commit him to custody. The defendant objected to the competency of the witness, who then produced a release from the plaintiff ; and the sufficiency of the release being objected to, the judge decided in favour of the objection, but allowed the witness to proceed in his testimony ; and if the plaintiff should, afterwards, give a sufficient release, then, that the evidence should be relied on, otherwise it would be rejected. The witness then further testified, that on the 2d of *June,*1814, after the plaintiff had paid the judgment obtained against him by *Stanton,*for the escape of the defendant, the witness saw the defendant, and told him that he called, at the request, and on the behalf, 6f the plaintiff, to ask payment of the amount of the judgment; that the defendant said that he would go and see the plaintiff, and settle the demand with him; that the debt belonged to him to pay, and that he would pay it. The plaintiff having proved the amount of the recovery against him, the defendant offered in evidence his discharge, bearing date the 25th of *January,*1812, which was rejected by the judge, who charged the jury that the defendant’s promise to pay the debe to the plaintiff was sufficient to maintain the action. That it was founded on a precedent and valid consideration ; and that they ought to find for the plaintiff the amount which he had been compelled to pay. The jury, accordingly, found a verdict for the plaintiff, which the defendant now moved to set aside.

Z. *R. Shepherd,*for the defendant.

1. The witness, Kittle, was not competent without a sufficient release ; and, until that was executed and produced, he ought not to be allowed to testify. A release executed to a witness, after he has given his evidence, will not make him competent, or remove the objection to his testimony.*

*3822. There was no consideration for the promise of the dchmdant. The voluntary permission to the defendant to go at large, discharged all liability on the judgment. The judgment was satisfied in law. There was nothing left to furnish a consideration. An express promise can only revive a precedent g°°d consideration,* which might have been enforced through the medium of an implied promise. The sheriff is bound to pursue the course pointed out by law, and if he deviates, he acts contrary to law ; he violates his duty, and .any promise of indemnity to him, is void.

3. If the plaintiff is entitled to recover, it can only be in a special action founded on the promise. The declaration contains only the general money counts.

*Skinner,*contra.

1. *Kittle*was a competent witness. He had no fixed or certain interest in the event of the suit. The objeetion went to his *credit,*not to his competency.† The case of *Heyl*v. *Burling,*is very different from the present. There the deposition of the witness, taken before the trial, was offered, and the release was after the witness had been examined and his deposition taken. Here the witness was released before his examination, though the release was not deemed sufficient at the time it was offered.

2. In *Given*v. *Driggs,*
      *‡*
      **the court decided, that a bond given to indemnify a sheriff against an escape, which had *already happened,*was good. It is not a bond for ease and favour, nor to induce the sheriff to do an unlawful act.

3. There was a sufficient consideration to support the promise. It is sufficient that the party derives a benefit from the past consideration; there the law implies a previous request.§ As if a man pays a sum of money for another, who, afterw'ards, promises to pay it, the promise is valid ; it being equivalent to a payment on request. In the case of *Shippey*v. *Henderson,*
      *ǁ*
      **where the defendant had been discharged under the insolvent act, the. court held that the plaintiff might declare on the original cause of action, and was not bound to declare specially on the new promise.

Heyl v. Burning, 1 Case's Rep. 14.

*3*Bos. *& Pull 249, 252*note. Smith v. Ware 13 Johns Rep. 257, 259 Shipey v. Henderson, ante p. 178, 180.

Stockham v. Jones, 10 Johns. Rep. 21.

*1*Caines, 450.

*1 Saund.*261. note 1. *1 Str. 933. 3 Burr. 1671.*

*Ante.*178.

Thompson, Ch. J.,

delivered the opinion of the court. As. this case now appears before the court, there is some difficulty "with respect to the competency gf *Kittle,*as a witness, when he • *383was sworn and examined. There can be no doubt, that a lease given after the examination of an interested witness,: comes too late to validate his testimony. The witness must be disinterested at the time of his examination. Unless the release is given before the examination, it does not remove the influence, which the law presumes the interest has upon the mind of the witness. (1 *Caines,*19.) If we are to understand the case as stating, that the defendant’s counsel persisted in the objection to the witnesses being examined, until a competent release was formally executed, and that the judge directed the examination to proceed, *de bene esse,*the decision was incorrect. But the case may well admit of the interpretation, that there was some informality about the first release that required correction ; and, to save time, the judge permitted the witness to be examined, whilst the release was correcting, and this without any objection on the part of the defendant to the examination .going on. This, we think, is the light in which we ought to view the case.

Considering *Kiltie*a competent witness, his testimony goes very fully to establish the plaintiff’s right to recover. The defendant admitted to him, in the most unqualified manner, that the debt paid by the plaintiff to *Stanton,*by reason of the escape, was to the defendant’s debt, and belonged to him to pay, and promised that he would pay it. These acknowledgments and promises were made, after the plaintiffhad paid the money to *Stanton,*and after the defendant had been discharged under the insolvent act. If the promise, therefore, was valid and binding, it would not be affected by the discharge. And being made after the escape, and not for the purpose of procuring it, the promise was valid,; it falls within the principle laid down by this court, in the case of *Given*v. *Driggs;*(1 *Caines,*460.) that a bStiff given to indemnify against an escape that has already happened, is good. If a moral obligation to pay a debt is a sufficient consideration to uphold a promise to pay it, as was laid down by this court, in *Stewart*v. *Eden,*(2 *Caines,*152.) the circumstances attending this case are • abundantly sufficient to raise such a consideration. But the case does not rest on this alone. Here is a real and substantial benefit, resulting to the defendant from this payment. He is exonerated from his liability to *Stanton.*Nor does this case fall *384within the rule that makes void promises founded upon a past consideration, unless moved by a precedent request.

No difficulty arises with respect to the pleadings. The declaration contains the usual money counts, and, of course, a request is sufficiently laid. It is laid down, by the court, in Comstock v. Smith, (7 Johns. Rep. 88.,) that it is not even necessary to lay an express request in the declaratiou, in all cases of a past consideration. Though the cases in which it is not required, are rather exceptions to the general rule, and are those in which a beneficial consideration, and a request, are necessarily implied, from the moral obligation under which the party was placed. We may here refer to the cases as well cpllected, in I Saund. 264. n. 1. It is there laid clown, as the result of all of them that where a party derives a benefit from the consideration, it is sufficient, because equivalent to a previous request. As where a man pays a sum of money for me, without my request, and I afterwards agree to the payment, this is equivalent to a previous request to do so. Jf this be a sound and just conclusion from the cases, it is directly applicable to the case before us. The benefit to the defendant, connected with his express promise to pay, must be deemed equivalent to a previous request. It was an adoption of the payment as made for the benefit of the defendant, and a subse4ii~nt ratificabon is equivalent to an original command. The opinion of the court, accordingly, is, that the' motion for a new trial must be denied.