
    Matthews and Alderson vs. Milton.
    Where A and B are in a store together, and A told the merchant he would settle or pay for any article B might take np, and B thereupon purchased several articles which were jointly charged to A and B: It was held, A was not liable, upon this undertaking, unless it was in writing.
    The bill of exceptions in this case shows that William Milton and Philip Milton were together in the store of the plaintiffs, in Columbia; that the defendant, Philip, told the plaintiff, that whatever goods William Milton took up in the store, he, the defendant, would pay for out of a cotton contract, which the plaintiffs and defendant were about to make.; that the articles were delivered to William Milton, after the promise made by the defendant, and on the same day; that these articles were charged in the plaintiffs’ books to William Milton and Philip Milton; that at different times afterwards, William Milton took up different articles in said store, which were charged to William Milton. It was proved by Bums, a clerk in the store of plaintiffs, that before the promise of Philip Milton, above named, the plaintiffs told him not to credit William Milton. The whole amount of the account was under fifty dollars.
    The court charged the jury, that if the said William Milton was ever liable at all for the amount of the account or any part of it, then Philip Milton was not liable for any part of that for which William was liable; that the charging of the account to both, was strong, though not conclusive evidence, that credit was given to William, to whom the goods were delivered; that if the jury believed that credit was given exclusively to Philip Milton, then Philip would be liable for so much as was sold and delivered to William, upon the promise of the defendant, and for which credit was exclusively given to the defendant; that if the defendant promised positively to pay for any of the articles before they were delivered, and they were delivered on his credit alone, then he would be lia-hie for all the articles which were delivered on such promise; provided, William Milton was not also held responsible by the plaintiffs; but if the defendants undertook to pay for the articles before they were delivered, upon condition that William Milton did not pay for them, or only said if they would let William Milton-have the articles, he would see them paid for, the defendant would not be liable; to all of which the plaintiffs except, and pray this their bill of exceptions, may be signed, sealed and made a part of the record, which was done accordingly.
    
      Combs and Rivers, for plaintiffs in error.
    
      Craighead, for defendant.
   Catkon, Ch. J.

delivered the opinion of the court.

The circuit judge charged the jury, that if there was no liability resting on William Milton, and the credit was extended to Philip alone, then the promise was original, and without the statute; but if William and Philip were jointly trusted, and both held responsible, and so charged on the books of the plaintiffs, then the promise was collateral on the part of Philip, because he undertook to pay. the debt of William.

That the goods were advanced on the joint credit of both, is evident. They stand so charged on the books; and these were given in evidence for some of the articles, on the oath of one of the plaintiffs under the book-debt law.

Our act provides, (1801, ch. 25,) that no action shall be brought, whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person, unless the promise or agreement upon which the action shall be brought, shall be in writing, &c.

So far as the statute operates on the present case, ours and the English act are the same. If Philip Milton promised for the debt of William, then the promise is void. This is plain enough. But it is insisted, no debt existed when the promise was made, and the credit given was founded on the promise. This can make no difference; until the goods were delivered the promise was not binding; it took effect on the delivery, if at all. If William was bound to pay for the goods, it was his debt; Philip could not be bound unless in writing. It follows, they could not be jointly charged. On the English statute, the construction contended for on the part of the plaintiffs in error, to some extent had prevailed, although it was not settled until in Maston vs. Washam, (2 Term Rep. 80,) the rule was laid down by Buller, J. “that if the person for whose use the goods are furnished be liable at all, any other promise by a third person to pay that debt, must be in writing, otherwise it is void by the statute of frauds. There the promise had been made before the goods were furnished. Since that decision, (1787,) it has been uniformly holden in Engalnd, that there is no distinction between a promise to pay for goods furnished for the use of another, made before they were delivered or after. Robts. on Frauds, 209.

We think this construction accords with the intention of the Legislature, which was, that no one should be bound to pay for property received by others, unless the deliberation of a written agreement had intervened: and second, that a naked promise could be easily proved, and not possibly disproved, in most instances, and therefore, should only be established by written evidence.

Judgment affirmed.  