Opinion
(December Term, 1833.)
1. A promise by A to pay the debt of a third person, on his being discharged from custody, is not within the Act of 1826, c. 10, there being a new and original consideration moving between the parties.
2. Such a promise, though the debt be payable "in trade," is within the jurisdiction of a single magistrate.
This was an action of ASSUMPSIT commenced by warrant before a single magistrate for $18 and interest, which came up to the Superior Court of HAYWOOD by appeal.
No counsel appeared for either party.
It appeared on the trial before Norwood, J., that the plaintiff had caused on Starns to be arrested on a ca. sa. and committed to jail. While in custody the defendant agreed to see the plaintiff's debt, interest and costs, paid "in trade," if he would discharge Starns from imprisonment. Starns was accordingly discharged, and the defendant paid part of the prison fees. It was objected by the defendant's counsel: 1st. That a parol promise would not sustain the action.2d. That the case was not within the jurisdiction of a single magistrate. Both objections were overruled by the Court, and from the judgment rendered against him, the defendant appealed.
The first objection made to the plaintiff's recovery is, that the action is founded upon a parol promise or agreement to pay the debt of another.
By Laws 1826, c. 10, it is declared that no person shall be charged upon a special promise to answer the debt, default or miscarriage of another person, unless the agreement is reduced to writing and signed by the promisor or his agent. But when the promise to pay the debt of another, arises out of some new and original consideration of benefit or harm, moving between the newly contracting parties, the case is not within the statute. 1 Saund., 211, note (a) 8 Johns, 39. This is a case of that description; the consideration to support the promise was the injury or harm the plaintiff sustained, by discharging his debtor at the request of the defendant, and upon the agreement that he would pay the debt. When the plaintiff (262) discharged Starns from prison, he was entirely freed from the debt, and the defendant became the debtor. The defendant did not derive any benefit from this agreement, but the plaintiff sustained harm, by giving up those advantages with which the law had invested him, to coerce the debt from Starns. Here was a new and an original consideration, moving between the contracting parties at the time the agreement was entered into; and the case is not within the meaning of the statute. This case is very different, from a collateral undertaking by the defendant, that Starns should pay the debt or he would, or that Starns should do any other act or thing; for then such collateral undertaking would be within the meaning of the Legislature, when it declares that a special promise to answer the "debt, default or miscarriage," of another must be in writing. — We think this objection cannot prevent the plaintiff's recovery.
The second objection is, that the promise sounds in damages only, and was not within the jurisdiction of a justice of the peace. The debt due to the plaintiff from Starns, was ascertained by a judgment and the prison fees are fixed by law; therefore, the claim does not sound in damages. The mode of payment (viz: "in trade," which I conceive to mean valuable articles of trade), is not an objection to the jurisdiction of a justice of the peace, if the value of the articles in money, at the time they were to be delivered, would be a sum within his jurisdiction. By Laws 1744, c. 13, a justice of the peace has jurisdiction of sums, under £ 20, for goods sold and delivered, for work and labor done, or for specific articles, although due by assumpsit, and the justice may give judgment for the value. We must take it for granted, in this case, as no objection has been raised, on that ground, that the plaintiff has demanded the "trade," before he brought his warrant, and that the defendant did not pay or tender any articles of value in trade, to satisfy the demand. We think this case one that is within the jurisdiction of a justice of the peace, and therefore, the judgment is affirmed.
PER CURIAM. Judgment affirmed.
Cited: Ashford v. Robinson, 30 N.C. 116; Shaver v. Adams, 32 N.C. 15; Nichols v. Bell, 46 N.C. 33; Jenkins v. Peace. Ib., 417; Haun v. Burrell, 119 N.C. 547.
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