Opinion
(June Term, 1858.)
A promise to pay the debt of another, superadded to the original debt which still remains in force, is within the Statute of frauds, and will not sustain an action.
A promise to pay the debts of a third person, cannot be sued on to recover each debt separately, but one action should be brought for the whole together.
ACTION of ASSUMPSIT, tried before SAUNDERS, J., at the last Spring Term of Chatham Superior Court.
J. H. Bryan, for the plaintiffs.
Haughton, for the defendant.
The action was commenced by a warrant before a justice of the peace against a party, for the debt of his son, and brought up by appeal. It appeared on the trial that the son was making preparation to leave the State, and the defendant was very desirous to facilitate and hasten his departure. The plaintiffs having various and separate debts against the son, were about to take out bail warrants against him, upon which it was agreed and promised by the defendant, the father, to the said plaintiffs, that if they would not do so, but allow him to leave the State, he would pay the whole amount of their debts, which amounted to about $250. The plaintiffs did forbear according to the agreement, and the defendant having refused, on demand, to pay this debt, which was one of those owing the plaintiffs, the action was brought.
The recovery was resisted on the ground,
1st. That the promise not being in writing, was within the statute of frauds.
2nd. Being a promise to pay the debts of the son, a separate action could not be brought for each, but one action should be brought for the whole together.
The Court overruled both objections, and gave his opinion that the plaintiffs were entitled to recover. Defendant excepted.
Verdict and judgment for the plaintiff. Appeal by the defendant.
We are not of opinion that the plaintiffs were not entitled to judgment, and that both of the objections taken by the defendant were fatal to the right of recovery. The promise sued on, was, in so many words, a promise to pay the debt of another, which was superadded to the original debt, which remained in full force. It does not fall within the class of cases referred to in Draughan v. Bunting, 9 Ired. Rep. 10, which was cited on the argument, where the original debt is released and the promise in question is substituted, as where a creditor discharges a debtor who is in custody, and thereby discharges the original cause of action for which the new promise is substituted, for the plaintiffs did not have the son of defendant in custody, but were "about to take out a bail warrant," and the rule of law, that a voluntary discharge of the person of a debtor from custody is a discharge of the debt, does not apply. Notwithstanding the plaintiffs, at the instance of the defendant forbore to take out bail warrants, their debt against the son remained in full force, and the promise of the defendant was in addition thereto.
On the other ground, the Court is also with the defendant. There were several distinct and independent debts due by the son. The defendant, however, made but one promise, and of course is liable to but one action had the promise been valid. So the case does not fall within the principle held in Waldo v. Jolly, 4 Jones 174, which was cited.
There is error. Venire de novo.
PER CURIAM. Judgment reversed.