
    Cornelius Dillingham versus Thomas Runnels.
    A special promise to pay a preexisting debt is not within the statute of frauds, and may be proved by paroi evidence, although the origin of such debt was the sale of land by the promisee to the promisor.
    The declaration was in case, “ for that the said R., at, &c., in consideration that the plaintiff would discount 31 dollars out of a sum of money then and there due from said R., to the plaintiff, for land before that time by the plaintiff sold and conveyed to the said R., to the amount of more than 31 dollars, undertook, and faithfully promised the plaintiff, provided he would take and receive of said R. a certain note of hand, then and there in possession of said R., signed by one J. P., wherein and whereby the said J. P. promised to pay one M. R., or his order, 30 dollars 38 cents on demand with interest, which said note was endorsed by said M. R., and would commence a suit thereon ; that if said J. P. did not immediately upon the commencement of such suit pay said note, and the cost which should arise thereon, that he, the said R., would well and truly, on demand, pay to the plaintiff the full contents of said note, with such costs as should by means of such suit accrue thereon. And the plaintiff avers that, relying on the promises and agreements of the said R., so by him made as aforesaid, he, the said Dillingham, then and there received said note of said R., and commenced a suit thereon, and prosecuted the same to final judgment and execution ; and that the said J. P. never did pay the contents of said note and the costs which arose thereon, or any part thereof; and that the contents of said note and the costs which accrued thereon amount to the sum of 62 dollars 58 cents; of all which the said R., at, &c„, had due notice, &c. There was also a count* for [ *401 ] 49 dollars 99 cents, money had and received; and another for the like sum laid out and expended.
    Upon the general issue pleaded and joined, there was a trial be fore Thatcher, J., at the last October term in this county, and a general verdict for the plaintiff for 75 dollars 10 cents.
    Upon the trial, to prove the promise stated in the special count in the declaration, the plaintiff’s counsel offered oral testimony. To this the counsel for the defendant objected, on the ground that the promise, as stated, was within the statute of frauds and perjuries, and could therefore be only proved by some memorandum in writing, signed by the defendant or his agent; and that such testimony could not apply to either of the other counts, as it was admitted that the promises alleged in all the counts related to the same cause of action. The judge overruled the objection, and admitted the evidence. To this opinion of the judge the defendant filed his exception, pursuant to the statute, and now moves for a new trial, because the said evidence was admitted.
    
      E. Whitman for the plaintiff.
    
      Mellen for the defendant.
   By the Court.

We are satisfied that in this case the admission by the judge of the paroi evidence was right. Runnels, being justly indebted to Dillingham, made the contract declared on, to induce the plaintiff to take J. P.’s note towards the payment of the debt. It is very immaterial what was the origin of the debt due to the plaintiff, if it was a just debt, whether it accrued from the plaintiff’s having therefor sold land to the defendant, or from any other lawful consideration. The defendant’s promise cannot be considered within the statute of frauds, because the contract, on which he is charged, is not on the consideration of the sale of lands, or of any interest therein, but to pay a precedent existing debt.

As the Court were about entering judgment according to the verdict, the defendant’s counsel took an exception to the declaration, that it did not allege the discount to have been made by the plaintiff, which formed the consideration of the defendant’s promise and undertaking. The verdict was then set aside by consent, and the defendant was afterwards defaulted on terms as to the costs.  