The opinion of the Court was by
Weston C. J.A warrant of distress, which is a judicial writ, in the nature of an execution, the final process of the law had issued from competent authority, in favor of Stephen Emerson against the present plaintiffs. To that process, they were bound to submit. It acted coercively upon them; and if the amount, for which it issued, was not otherwise paid, the officer, to whom it was confided, was authorized and required to distrain the property of the inhabitants, to be made available *182in satisfaction. If they thought proper to remain passive and await the consequences, no legal mandate necessarily required their action.
It was at their option to raise the money by loan, or by assessment; and if by assessment, either at once, or if more convenient, or less burthensome, by instalments. The defendant’s testator, to whom the money belonged, to induce the town, as the declaration avers, to raise the amount required at once by assessment, promised upon that consideration, to make a certain discount. They did so; and now claim damages for the non-performance of his promise'. The question raised is, whether a sufficient consideration is alleged in the declaration. Prior to this promise, the town had refused to take the course he desired. In consequence of the promise, they did take that course, in consideration of the discount stipulated. The service to be performed by them, he voluntarily procured for that price. He deemed the measure an advantage to him, equivalent to the sacrifice ; and he best knew what his interest required. The course thus purchased, was a trouble to them, which amounts to a legal consideration. And it is not' the less so, because their interest was also promoted by that mode of extinguishing their debt. If both parties were benefitted, so much the better.
The counsel for the defendant has not taken the ground, that there is a variance of proof, or that the whole consideration had not been set forth. If he had, the objection might have been removed by an amendment. The consideration alleged, was proved and somewhat more. That the town made the money, granted to them by the State, available for his benefit, was a good legal consideration ; even if the assessment and subseqent collection was insufficient. Both the promise and the consideration were proved to the satisfaction of the jury ; and in our opinion the instructions requested were properly witheld, and those which were given were warranted by law.
Judgment on the verdict.