from which it started-was the surety a creditor, and was there a mutual accommodation of the parties? Undoubtedly there was a contingent liability of the principal to the surety, which in transactions of the sort is invariably the subject of special protection, a provision for indorsers who have not paid the debt, being an article of almost every assignment. Then, of the existence of mutual accommodation there can be as little doubt. As has justly been remarked by Mr. Justice Buller, the surety is always the effective and responsible man, having been taken because the credit of the principal was doubted, and an arrangement like the present is a measure to secure him by means intended to produce payment of the debt out of the effects of the principal by whom it is due, and to satisfy a responsibility which is invariably incurred under a promise of payment or indemnity. It would seem, therefore. that the surety is entitled to the amount of his bond. Judgment affirmed. SURETY, WHEN MAY SUE PRINCIPAL.-The surety who has been obliged to pay his principal's debts may sue the latter immediately without a previ ous notice of such payment: Ward v. Henry, 13 Am. Dec. 119 and note. Whether the surety may sue the principal before actual payment of the debt depends upon the nature of the contract between them: Brentnal v. Helms, 1 Id. 44 and note, 47; Bank v. Douglass, 4 Watts, 96. ERRONEOUS AND IRREGULAR PROCESS distinguished and considered: Woodcock v. Bennet, 13 Am. Dec. 568; Allen v. Huntington, 16 Id. 702, where the difference between an erroneous and an irregular judgment is adverted to. JUDGMENTS VOID AND ERRONEOUS.-See Den v. Albertson, 22 Am. Dec. 719 and note. JUSTIFICATION OF OFFICERS BY THEIR PROCESS.-See note to Savacool v. Boughton, 21 Am. Dec. 190. REQUISITES OF PROCESS WHICH WILL PROTECT OFFICER.-Id. 191. The principal case is cited in Pursel v. Ellis, 5 W. & S. 528, as illustrating that a negotiable note or bill of exchange is equivalent to cash, and will support a count for money paid; and in Twelves v. Williams, 3 Whart. 493, as recognizing the principle that a pecuniary consideration is inserted in deeds to avoid the statute of Elizabeth. KELLY V. EVANS. [3 PENROSE & WATTS, 387.] PROMISE FOR THE BENEFIT OF A THIRD PERSON may be sued on by that party. Principle applied to a promise by one of two payees to keep the drawer clear if he would pay a certain sum to such payee; the other payee was deemed beneficially interested in such promise. ACTION by Kelly against Evans' intestate, Wadsworth. Judgment in favor of the defendant. The cause was removed by a writ of error to this court, and submitted on a case stated. E. Williams gave a note to Wadsworth and Kelly for three hundred dollars for services to be performed in defending an action of ejectment. Afterwards, Wadsworth made an agreement with E. Williams and Neff that he would defend the action for four hundred dollars, and would keep E. Williams clear of liability and costs, on account of the note given to Wadsworth and Kelly. The four hundred dollars was paid. Wadsworth and Kelly defended the action of ejectment. Gardner, for the plaintiff in error, cited: Algeo v. Algeo, 10 Serg. & R. 235; Young v. Henderson's Ex'r, 2 Yeates, 216; Bickman v. Irwin, 3 Id. 66; Eastwick v. Hugg, 1 Dall. 223; Ralston v. Bell, 2 Id. 242; Morrison v. Berkey, 7 Serg. & R. 238; Kearney v. Tanner, 17 Id. 94 [17 Am. Dec. 648]. Lewis, contra. By COURT. The engagement of the defendant's intestate to keep the drawer clear was a promise to satisfy the plaintiff, because the engagement could be performed in no other way; and such a promise may be enforced by the party beneficially interested. But the money was actually received by the intestate, and consequently in part to the plaintiff's use. Nor is this consequence to be averted by the fact that the money was paid on a new contract. That contract was substituted without the concurrence of the plaintiff, and whatever might be the new relation created by it between the immediate parties, yet as regards the plaintiff and the intestate, the payment is to be considered as having been on the original note, at least so far as was necessary to discharge it. Judgment below reversed, and judgment here for the plaintiff. PROMISE FOR BENEFIT OF THIRD PERSON, WHO MAY SUE ON.-See note to Schemerhorn v. Vanderheyden, 3 Am. Dec. 305; Smith v. Kemper, 6 Id. 708; Arnold v. Lyman, 9 Id. 154, and note; wherein a classification is made of those cases in which third persons may sue in assumpsit on a promise made for their benefit to a third person: Marigny v. Remy, 15 Id. 172. WHITEHILL v. WILSON. [3 PENROSE AND WATTS, 405.] A JUDGMENT CAN BE RELEASED AT LAW only by specialty; but in equity a parol release is sufficient, if based on a consideration. A PAROL EXECUTORY CONTRACT, not mercantile, is a nudum pactum when unsupported by a consideration. CONTRACTS ARE SPECIALTIES or parol contracts; there is no such middle class as contracts in writing. Contracts in writing, but not under seal, are parol contracts. REVOKING A LEVY ON THE GOODS OF ONE OF TWO SURETIES does not release the other; for as between themselves they are both principals, and the creditor may pursue either. TO LEAVE TO THE JURY THE FINDING of a fact without color of proof, is error. ISSUE framed to try whether, by certain acts of Whitehill, Wilson, one of the three obligors on a bond on which judgment had been obtained, was not released from liability on the judgment. Wilson and Boyd were the sureties on this bond, and Wilson claimed that the creditor having released Boyd, had thereby released him, Wilson. Other facts appear from the opinion. Verdict was found for the plaintiff; whence the writ of error was taken. Jenkins and Ellmaker, for the plaintiff in error. The relation of principal and surety did not exist between Boyd and Wilson so that a discharge of Boyd could work a discharge of Wilson: Bay's Adm'r v. Talmadge, 5 Johns. Ch. 305; Sterling v. Marietta and Susquehanna Trading Co., 11 Serg. & R. 179; Lenox v. Prout, 3 Wheat. 520; Commonwealth for Bellas v. Miller's Adm'r, 8 Serg. & R. 452; Lichtenthaler v. Thompson, 13 Id. 159 [15 Am. Dec. 5811; Geddis v. Hawk, 10 Id. 33, 39; Irvine & Co. v. Kean, 11 Id. 280; 3 Wheat. 156, in notes. Equity will not extend a release not amounting to a technical release at law, beyond the intention of the parties. There was no intention here to release Wilson: Rowley v. Stoddard, 7 Johns. 207; Patterson v. Swan, 9 Serg. & R. 16, 20; Gro v. Huntingdon Bank, 1 Penn. 425; 2 Show. 394; 5 Burr. 272; Bucher v. Commonwealth, 1 Rawle, 357. W. Hopkins and Hopkins, and Champneys, contra. The release of one of two joint debtors is a release of both: Whart. Dig. 247, pl. 3; Milliken v. Brown, 1 Rawle, 398. The judgment did not extinguish the relation of principal and surety: Commonwealth for Bellas v. Miller, 8 Serg. & R. 452; King v. Baldwin, 17 Johns. 391, 393, 395 [8 Am. Dec. 415]. By Court, GIBSON, C. J. Two of the three points made at the trial were ruled in favor of the plaintiff in error; consequently our attention is to be restrained to the third, which presents a question arising out of, not the equity of a surety, but the supposed legal right of a co-defendant to be released from a judgment by the operation of acts thought to be a release of his fellow. The circumstances were shortly these: The judgment creditor had levied the property of the principal debtor, as well as that of the two sureties, who are principals as regards each other, when Babbet, a friend to one of the sureties (Boyd), desired the creditor to release Boyd. Six weeks afterwards, the creditor told Babbet " he thought he had got that matter fixed." At the time of the levy, Boyd complained that it would bring his other creditors upon him, on which the creditor gave him a certificate that his property was clear of any levy made by him, saying at the same time that it might be kept secret; and shortly afterwards gave written instructions to the sheriff to sell the property of the principal, and of Wilson, the other surety, but to consider the property of Boyd as not subject to the levy. This was left to the jury, with a direction that if the declaration of the creditor to Babbet related to "the orders he had given relieving Boyd's property from the levy, it would be a discharge of Wilson to that amount, and that he would be entitled to a credit for it on the judgment; that if he declared and meant to declare that he had discharged Boyd altogether, it would operate as a discharge of Wilson to the same extent." The fact thus left to the jury, it will be perceived, was the supposed reference of the declaration in one aspect to the revocation of the levy, or in another to an intent to release the surety altogether, the rest being delivered as a conclusion of law, the soundness of which remains to be examined. That a judgment may be released at law by anything less than a specialty, is not pretended. But a parol release is sufficient in equity, and hence, perhaps, a misconception of its operation in supposing it to be immediate and direct. In this respect, as in all others, equity produces its peculiar results, not by controlling the principles of the common law, but by compelling the parties to put the transaction into such a form as will bring it under the operation of the rule of law originally intended to govern it; and in thus compelling them to give entire effect to their agreement, according to the true meaning, it performs the office of a handmaid to the law, but without power even to abate its rigor, being equally bound to submit to those venerable maxims, quæ relicta sunt et tradita: 3 Com 430-436. Thus the assignment of a chose in action which is void in law, is supported in equity by treating it as an agreement for the assignee to use the name of the assignor, to recover the possession, and executing it as a declaration of trust accordingly: Co. Lit. 232, b, note. On the same principle equity gives to a parol release, not the abstract qualities of a specialty, but the effect of an agreement not to sue, which it executes specifically by a perpetual injunction. But a consideration of some sort is as necessary to such an agreement as to any other; and in this it differs essentially from a release by deed, which imports a consideration from the very solemnity of the act. It is executory in its very essence, and therefore unlike a gift which, passing by manual delivery, vests the property as against the douor, without any other consideration than his own will: 1 Fonbl. 329, 337, note b. That a parol executory contract, not mercantile, is nudum pactum, when unsupported by a consideration, is a rudimental principle. Even in the case of a promissory note, want of consideration is constantly set up between the original parties: Pearson v. Garrett, 4 Mod. 242; Jeffries v. Austin, 1 Stra. 674; Snelling v. Brigys, Bull. N. P. 274; and in Todd v. Blair, a voluntary extension of forbearance to a principal, though in writing, was held not to tie up the creditor's hands, nor consequently to release the surety. In the case at bar there was neither evidence nor pretense of consideration beyond the mere benevolence of the creditor; and the direction would be without a shadow of a support were it not intimated in Wentz v. Dehaven, 1 Serg. & R. 312, on the authority of Lord Mansfield's dictum in Martin v. Mowlin, 2 Burr. 379, that a parol gift or relinquishment of a mortgage debt will release the mortgage itself, without regard to the question of consideration or actual delivery. It is obvious that Lord Mansfield's attention was occupied with the disputed operation of the statute of frauds, instead of the necessity of a consideration or delivery; and it is fair to intend that he had in view a gift accompanied by all the incidents necessary to give it validity. He is therefore not authority for the broad position that a debt, by specialty or of record, may be released without consideration and by parol; nor does the opinion of the judges in Wentz v. Dehaven go that far. The propriety of the judgment in that case is not to be disputed, the release being in favor of a child; but it is less easy to subscribe to another point of doctrine asserted in it, that the delivery of the agreement in writing to the party intended to be benefited would have been a circumstance to cure a defect in the consideration, or perhaps to sup |