aforesaid, but the said D then and there wholly refused so to do.

NOTE. For a concise view of the law on this subject, See Law Summary, p. 258.

9. For General Average.

For that whereas the plaintiff, before and at the time of the happening of the losses hereinafter mentioned, was owner of a certain vessel called the Star, and of her tackle, anchors, masts, boats and appurtenances, the same being of great value, to wit, of the value of $-, and which said vessel was then proceeding on a certain voyage, to wit, from &c. towards &c., with certain goods of the said D of great value, viz. of the value of $-, on board thereof, to be carried and conveyed therein on freight during the said voyage, to wit, at &c.; and whereas, while the said vessel was proceeding on her said voyage with the said goods on board thereof, viz. on &c., at &c., by the violence of tempestuous weather, one of the anchors belonging to the said vessel, and then and there being the property of the plaintiff, and of great value, to wit, of the value of $-, was forced overboard out of the said vessel, and became entangled in the rigging thereof; and thereupon, in order to preserve the said vessel, and the goods on board thereof, it became necessary to cut away the jibs, &c. and other parts of the rigging belonging to the said vessel, and the property of the plaintiff, of great value, to wit, of the value of $-, and the same were then and there accordingly cut away, and thereby then and there became wholly lost to the plaintiff; and the plaintiff further says, that by means of the said damage and loss, occasioned as aforesaid, the said vessel was so greatly damaged, that it became necessary for the preservation of the said vessel and goods, to put back again to said M, and there to repair the said damages; and the said vessel, with the said goods on board thereof, did thereupon then and there put back again to said M, and the said damage was then and there repaired, and the necessary expenses, incurred by the plaintiff in the premises, amounted to the sum of $; and the plaintiff further says, that, whilst the said vessel was so repairing as aforesaid, to wit, on &c., at &c., the plaintiff was obliged to pay the wages and maintenance of the crew on board the said vessel, amounting in the whole to $-; and the said goods were then and

there preserved, and arrived safely into the possession of the said D; of all which the said D, on &c., at &c., had notice; and by reason of the premises, the s id D being the owner of the said goods, so preserved as aforesaid, became liable to contribute to the said losses, damages, and expenses in a general average, and thereupon, in consideration thereof, the said D afterwards, viz. on &c., at &c., promised the plaintiff to pay him so much money as he, the said D, as owner of the said goods, was liable to contribute to the losses and expenses aforesaid, in a general average, upon request; and the plaintiff avers, that the said D, as owner as aforesaid, was liable to contribute to the losses and expenses aforesaid, in a general average, a large sum of money, viz. the sum of $-; whereof the said D, on &c., at &c. had notice; yet, though often requested, &c.

NOTE. In order to entitle one to contribution, the sacrifice must be necessary to save the vessel, &c. and must be made with that view, and that consequence must follow.

Neither sailors' wages, nor the ship's provisions, nor the wearing apparel, nor personal ornaments of those on board, contribute. But jewels, &c. when merely merchandise, as also gold and silver, contribute; See Park on Insurance, 128; 2 Pick. 1.

The value of property sacrificed, is that which other similar merchandise saved, was sold for, deducting freight and charges. Park, 127. See Law Summary, p. 321, where the subject of general average is examined.

10. On Collateral undertakings.

On an undertaking to pay the debt of another, in consideration that the plaintiff would forbear to sue.

For that whereas one H, on &c., at &c., was indebted to the plaintiff, in the sum of $-, with interest therefor, according to the note of the said H, under his hand, given to the plaintiff long before, viz. on &c., and being so indebted, the plaintiff was about to sue the said H, for the recovery of the said sum, with the interest thereon due; and the said E, on &c., at &c., in consideration that the plaintiff would then and there, at the special request of the said E, forbear to sue the said H, for the purpose and cause aforesaid, promised the plaintiff to pay him the said sum of money, and the interest due thereon, owing &c. as aforesaid, by the said H to the plaintiff; and the plaintiff avers, that confiding in the said promise of the said E, he hath hitherto forborne to sue the said H, and hath never commenced an action against the said H, in this behalf; and, although a

reasonable time for the payment of the said sum of money and interest, so owing by the said H, hath long since elapsed, viz. on &c., yet the said E, though on &c., at &c., requested, hath never paid the same, but wholly neglects and refuses so to do; and the said sum of money and interest, so owing from the said H as aforesaid, is still unpaid and in arrears to the plaintiff. See 3 Went. 436.

On an undertaking to pay the debt of another, in consideration of plaintiff's forbearing to sue him.

For that the said H and the plaintiff, on &c., at &c., had discoursed concerning a note of hand, given before that time for value received by one E, son of the said H, to the plaintiff, dated at &c. for $100, and interest therefor till paid, and for which the said H, before that time promised to be bound with his said son, to the plaintiff; which said sum, with the interest, was on &c. wholly unpaid; and the plaintiff was then determined [about] to commence a suit to the then next Court of Common Pleas, to be holden in said county of G, against the said E, to recover the principal sum and interest of the said note. And the said H, on &c., at &c., in consideration that the plaintiff would forbear suing said E, and also that the plaintiff would take wood, in part payment of said principal and interest, by a note and memorandum, promised the plaintiff to pay him the same, and interest. And the plaintiff in fact says, that he, trusting to the said promise of said H, forbore, and hath ever since forborne to bring any suit against said E, and that he hath always been ready and willing to take wood of the said H, in payment of said note and interest, and that he, the plaintiff, hath received no part of the said note, but that the same is still unpaid, and that the said H had paid no part of said note, though requested [and though a reasonable time for that purpose hath elapsed] but wholly refuses so to do. THACHER.

NOTE. In cases of collateral undertakings under the statute of frauds, the plaintiff should declare specially; but it is not necessary to state that the promise or agreement was in writing.

Where goods were furnished to a third person, in consequence of a letter from the defendant, stating that he would answer for the payment and the plaintiff brought indebitatus assumpsit for goods sold to the defendant, and at his request delivered to such third person, the plaintiff was nonsuited. Mines v. Sculthorp, 2 Camp. 215.

A promise to pay the debt of another, in writing, and signed by the party intending to be bound, is a sufficient compliance with the statute of frauds, without any recital in the writing of the consideration, upon which

the promise is founded. Packard v. Richardson et al., 17 Mass, R. 122. This decision in Massachusetts overrules the decision of Wain v. Warlters, 5 East, 16. But in New York, in Sears et al. v. Brink et al., 3 Johns. 211, it is decided that the consideration, as well as the promise, must be in writing, and the case of Wain v. Warlters is recognised as law. See Law Summary, p. 73, where a concise practical view is given of the operation of the statute of frauds, on collateral undertakings, guaranties, &c.

For not indemnifying plaintiff, who was one of defendant's surety in a bond; in consequence whereof plaintiff paid the same to prevent a suit. For that whereas the said plaintiff, at &c., on &c., at the request of the said D, and for his, the said D's proper debt, together with the said D and one A A, by their bond of that date, duly executed, bound themselves jointly and severally to one B B, his heirs, executors, administrators, or assigns, in the full and just sum of &c., with lawful interest, on or before &c., he, the said D, in consideration thereof, then and there promised the said plaintiff, to pay the said B B the sum of &c., with interest, on or before &c., last above mentioned, and thereby save him, the said plaintiff, harmless and indemnified, against the bond aforesaid. Now the said plaintiff says, that although the said - day of &c. last above mentioned, hath long since past, yet he, the said D, hath never paid the said B B the said sum of &c., nor the interest thereof, nor hath he in any manner satisfied him or his heirs &c. therefor. And the said plaintiff further saith, that after the said day of &c., to wit, at &c., on the

day of &c., the said bond being then unsatisfied, he, the said plaintiff, to prevent his goods and estate from being attached, and his body from being arrested, was compelled to pay and satisfy the said bond, and to expend divers sums of money in and about the premises. And so the said plaintiff saith, that the said D, though often requested, hath not saved him, the said plaintiff, harmless and indemnified from the bond aforesaid, but hath refused and still doth refuse so to do. T. PARSONS.

For not indemnifying plaintiff who was surety for defendant in a bond; in consequence of which plaintiff was sued, &c.

For that the said D, on &c., at &c., in consideration that the said A, at the request of the said D, would become. bound with him, the said D, and E F, to one G H, by a bond, in the penal sum of $-, conditioned for the payment of $-, with interest for the same, to the said G, his execu

tors, &c., by the- day &c. promised the plaintiff to save him harmless from all demands, suits, and troubles, that might happen to him by means of his being so bound as aforesaid; and the plaintiff in truth saith, that giving credit to the said C's promises as aforesaid, he did then and there, at the request of said D, become bound with him and the said E unto the said G, by such a bond as aforesaid, conditioned as aforesaid; yet the said A, not minding his promise aforesaid, never paid the said $-, nor the said interest for it, by the said — day, or at any time since, nor saved the plaintiff harmless, concerning the premises; but at our C. C. P. the plaintiff was impleaded upon the bond aforesaid, by J K, administrator of the aforesaid G, who before that time, died intestate, to wit, at &c., which said J K so far prosecuted the action against the plaintiff, upon the bond aforesaid, that he recovered judgment against the plaintiff upon the said bond, for -, and $-costs of suit, and has since sued out a writ of execution thereupon, against the plaintiff, whereby the plaintiff has been compelled to pay, not only those sums, but divers other sums of money, and has been put to great trouble and expense by means of the suit aforesaid; to the damage, &c.

$

For not indemnifying sureties in a probate bond.

For that the said B and C, (plfs.) on &c., at &c., at the special instance and request of the said D, as well as for the sole debt of him the said D, by a certain writing obligatory of that date in &c. court to be produced, became bound with the said D, jointly and severally unto E E, Esq., Judge of the probate of Wills, and granting administration within the county of &c., in the sum of $-, to be paid unto the said E and his successors in his said office, or assigns, on demand; in consideration thereof the said D then and there promised the plaintiffs, that he, the said D, would at all times forever thereafter, well and fully indemnify and save harmless, them, the said B and C, from and against all damages, costs and charges, which might happen, arise, or accrue to them, from or by reason of their becoming so bound as aforesaid. Now the plaintiffs in fact say, that the said D, though requested, has never indemnified and saved them harmless as aforesaid, but the same obligation now remains in full force and virtue against them, and the same sum of $is forfeited and become due; and the said B and C are now exposed to an action by law, to be brought by said