The only question of any difficulty in this case is, whether the plaintiff was legally authorized to commence the action in his own name ; for if he was, we 'think it very clear that the writ was not abated by the death of Williams A. Royce ; nor was it any valid objection that the note in suit was antedated by mistake, and not fraudulently.

As to the main question, the objection is, that the property in the note sued was in Williams A. Royce at the commencement of the action, and that the plaintiff was his agent, and had only authority to sue and collect it for him. This objection would be supported by the cases cited by the defendant’s counsel, but for the evidence reported, which was introduced by the plaintiff’s counsel. That evidence tended to prove, and it has not been questioned that it did satisfactorily prove, that the plaintiff, before commencing the action, called on the defendant for the payment of the note, and that the defendant asked for further time for payment, and then promised the plaintiff to pay it. After this promise, we think it was not competent for the defendant to question the plaintiff’s right to sue in his own name.

*279In the case of Gunn v. Cantine, 10 Johns. 389, it was intimated by the court, that if there had been “ an express promise by the defendant to pay the money to the plaintiff,” the action would have been sustained. Considering, as we do, that such a promise was proved in this case, we think the action is well sustained, and that the instructions to the jury were substantially correct. No injustice has been done to the defendant, by the ruling of the court or the verdict of the jury. He was allowed to avail himself of all matters in defence, which he might have done if the action had been brought in the name of Williams A. Royce, the original promisee.

The jury allowed the defendant all he claimed by way of set-off; so that full justice has been done. And a new trial ought not to be granted for any verbal inaccuracy or defect in the instructions, not affecting the merits of the case, if any such there are.

Exceptions overruled.