This suit is upon a poor debtor’s bond. The principal makes no defense. The sureties defend upon the ground of their discharge by the plaintiff, and to sustain this defense put in the paper dated September 27,1877.
Tin's paper may presumably refer to the execution upon which the debtor was arrested, but it does not either directly or indirectly refer to the bond given to discharge that arrest. Here is no waiver of any of the conditions in the bond, nor any promise of delay in regard to them; nothing whatever to prevent the creditor from pursuing such remedies as it may afford and within the time allowed by its terms. Nor does it in any way interfere with such rights and remedies as may accrue to the sureties from the contract into which they have entered. The paper may perhaps be collateral to the contract in the bond, but cannot have any effect upon it or upon the liability of the sureties under it. Merrill v. Roulstone, 14 Allen, 511. The United States v. Hodge, 6 Howard, 279.
But whatever may be the true construction of the paper as an agreement, it is without consideration,- and therefore without binding force. It is first simply a receipt for twenty dollars to be endorsed on the execution. That was no more than a discharge of the debt then due to that amount. It does not purport to be a consideration for the agreement which follows, and if it did the result would be the same, for part payment of a subsisting debt already payable, is not a legal consideration for a promise of delay as to the balance. 2 Am. Lead. Cas., (3d ed.) 306 7. Mathewson v. Strafford Bank, 45 N. H., 104. The agreement is in effect simply a promise on t-he part of the plaintiff on conditions to be performed by the debtor in the future. There was no promise on the debtor’s part to perform these conditions, and if there were, it would only be for the payment of a debt for which the creditor had something more than a mere promise, a judgment of the court and execution. The debtor waived no right to fulfill any of the conditions of the bond, nor did he *232assume any burdens which did not rest upon him by virtue of the bond and judgment. Leavitt v. Savage, 16 Maine, 72.
Thus the ruling of-the'presiding justice was correct, and as provided in the report, the defendants must be defaulted.
Defendants defaulted.
Appleton, C. J., Barrows, Virgin, Peters and Symonds, JJ., concurred.