after stating the case, delivered the opinion of the Court. — All the plausibility there is in the argument in behalf of the defendant results from a supposition, that the assignment of the execution from Page to the defendant, must have been made contemporaneously with the promise of the defendant, or thauhe promise was without cons!' - Uion. This construction *452would give the debtor in the execution all the benefit of the contract, and the plaintiff have no security; because the plaintiff, on receiving the promise of the defendant, discharged the debtor from custody on the execution, which would operate as a discharge of the execution as respects the creditor, and the assignment, contracted for, would answer every purpose to the defendant, if made-any time before he was to pay the execution, and before payment was demanded ; which was done in the present case. It further appears, that all parties then understood the business in this way. The debtor was in actual custody; his release from custody, by consent of the creditor, or his attorney, would be a discharge of the debt. This release, and that immediately, was to be, and was, the effect of the defendant’s promise : the defendant undertook at the request, and in behalf of Gove, the debtor in the execution. When payment was demanded, the defendant himself wrote an assignment, which the plaintiff executed and was ready to deliver, and the defendant counted out the money, as if ready to pay, before he concluded to refuse payment ; and then he would leave the officer to commit the debtor, when he was not liable to commitment, by reason of his discharge thus procured by the defendant’s promise : and, if liable, he had taken advantage of his release, and gone a journey out of the state ; so that he could not be had for commitment. All things concur to show, that the parties, themselves, understood the whole contract, as they might well understand it; that Gove was to be discharged forthwith, and the assignment to be made at the time of payment. This receives confirmation from the circumstance, that the defendant wrote the assignment on the back of his written promise, when the same was presented to be given up on payment.

But the defendant urges, that the claim upon the officer for the escape of Gove was to have been assigned to him, and was included in the assignment he wrote ; and that this was destroyed by the plaintiffs refusing to admit such a claim against the officer. This suggestion is answered by the bare statement of the case. There could be no claim against the officer; for he had done his duty in all respects. The discharge, procured by the defendant’s promise, was as good a discharge to the officer, as it was to Gove ; and the manly feelings of the plaintiff in refusing to set up a claim against the officer, were as much the result of 1c - gal obligation as of sound morals.

The judgement of the county courtis affirmed.