
    
      William Hindman v. John Langford.
    
    A bale of cotton, belonging to the principal, was in the hands of the payee of a joint note of principal and surety, to meet the note; the defendant haying demands against the principal, made a promise to the surety, that if he was allowed to taire the cotton, he would substitute his note for tire joint note: upon this agreement he received the cotton — promise held not to be within the statute of frauds.
    A promise is taken out of the statute by a new and distinct consideration, co-extensive with it, and moving not to the third person, but to the promisor; not mere loss to the promisee, but gain to the promisor. In effect, it is the purchase of an interest, not amere undertaking to pay the debt of another.
    
      Before Frost, J. at Spartanburg, Fall Term, 1848.
    This was a summary process in assumpsit, to recover $31 25, the amount of a joint note, which the plaintiff, as security, with one Wiggins, had given to Wm. A. Young. Young, to assist Wiggins, had given his note for the same amount, to Samuel Tucker, in payment of corn, which Wiggins had purchased of Mr. Tucker. When Young gave his note to Tucker, as an indemnity, he required and obtained from Wiggins and Hindman, as security, their note payable to Young. At the time this note was given, Wiggins promised Young that it should be paid from the first bale of cotton he made; and, by this assurance, Hindman was induced to join Wiggins in the note. Hindman and Wiggins planted on shares, on Hindman’s land, and Young ginned Wiggins’s cotton. He was accustomed to haul, the cotton of his customers to his gin. When Hindman and Wiggins had made a division of their cotton, Young received a message, or was told by each of them, to send for Wiggins’s cotton ; which he did. After the cotton was carried to Young’s gin, Lang-ford and Wiggins went to Young’s, and it was there agreed that Langford should purchase a judgment against Wiggins, which Young held. Langford was to pay two thirds of the judgment in cash, and for the balance, Young took his note. Wiggins wanted Young to wait for the payment of. the joint note of himself and Hindman; but Young refused to do so; and told Wiggins to see Hindman. At the time the judgment was transferred to Langford, it was agreed that one of the bales of cotton Young had to gin, should be appropriated to the payment of Wiggins and Hindman’s note, and two applied to the cash payment for the judgment; and the remaining two be applied to the purchase of bacon, for Wiggins. After a time, Langford went to Young, and told Young that he had agreed with Hindman to substitute his note for Hindman’s to Young, and take the cotton. On this information, Young let Langford have three bales of the cotton. Langford promised to give Young his note, but did not. He afterwards sent for and got the other two bales.— Hindman paid the note of himself and Wiggins to Young. Gentry testified that Langford told him he had agreed to pay Young’s claims, and then got the cotton. The claims referred to were the judgment and note.
    A motion was made for a non-suit, on the ground of a variance between the cause of action, set out in the process, and the proof; and because Langford’s promise was without consideration. The motion was granted, on the ground that Langford’s promise to give his note, instead of Hindman’s, was made to Young, and not to Hindman ; and so there was no privity of contract between Hindman and Langford; and there was no sufficient consideration to support a promise from Langford to Hindman; because the cotton was Wiggins’s, and pledged to Young; in which Hindman had no legal interest; and the delivery of Wiggins’s cotton by Young to Langford, though a sufficient consideration to support a promise from Langford, to either of them, to pay the note for which the cotton was pledged, yet it was not sufficient to support the alledged piomisefrom Langfoid to Hindman, to take up Hindman’s note.
    Leigh’s N. P, 1030; Wil-liamsv. Lfper.KL. 3 Bur. 186; Thomas v. Williams, 10 Barn, and Cres. 664.
    1 Saund. 211.
    The plaintiff appealed, and moved the Court of Appeals to reverse the decree of his Honor:
    Because the consideration proved, was sufficient to charge the defendant for the amount of the note given by Wiggins and Hindman to Young.
    
      Bobo, for the motion.
    Tucker, contra.
   Wardlaw, J.

delivered the opinion of the Court.

The declarations which Langford made to Young are proof of the promise wiiich he made to Hindman, as are his de-claraiions to Gentry. The first bale of cotton was m Young’s hands, according to previous agreement between Hmdman and Wiggins; sent to the gin with the knowledge and perhaps by the assistance of Hindman.

The case then seems to be this :

Young held one bale of cotton as security for the joint note of Wiggins and Hindman, in which Hindman was surety; Langford acknowledged that he had agreed with Hindman to substitute his note for Hindman’s to Young, and take the cotton. Upon this agreement he received the cotton ; he has refused to substitute his note forHiudman’s. Hindman, having lost his security, has paid the joint note to Young, and now claims damages from Langfoid. for non-performance of his contract. It is objected that the statute of frauds makes Langford’s promise void for want of memorandum in writing.

Langford’s agreement was a promise to answer for the debt of a third person, who was still held liable: but it was founded on a new and distinct consideration, co-extensive with it, and moving not to the third person, but to the person who made the promise.

The consideration was not of mere loss to the promisee, but of benefit to the promisor himself.

In effect, the case comes even up to the principle of those which have been taken out of the statute, on the ground that there was a purchase of an interest, and not a mere undertaking to pay the debt of another.

The motion is granted, and a new trial ordered.

Motion granted.  