
    CONSTITUTIONAL COURT, COLUMBIA,
    MAY, 1812.
    William C. Gunnels v. Archibald Stewart.
    The plaintiff held Moore’s note for $25, which defendant promised to pay in consideration of Moore’s being discharged; but still the note was not given up, although the plaintiff said he had discharged Moore. Held, that the case came within the statute of frauds, as there was no consideration between the parties to oblige the defendant to pay Moore’s debt to the plaintiff: and that Moore must have been completely discharged before the defendant could be made liable.
    Motion to set aside a decree,- and order a nonsuit, in this case, which was a sum. pro., tried before Grimke, J., in York district.
    The cause of action was an account stated, viz., an assumption to pay a debt due by Bennet Moore, to the plaintiff, in consideration of discharging Moore from the payment of it.
    The defence was, that the promise was not in writing, and being to pay the debt of another, was within the statute of frauds, and void-. The proof ivas, that the plaintiff had Moore’s note for $25, which he left in the hands of a Witness for collection, and that the defendant undertook to pay the money due. • Heward said he owed Moore, and would pay the debt due to Gunnels. The note was not given up, but remained in the hands of the witness. On ano. ther occasion the defendant said he would pay the note, whereupon the plaintiff said he discharged Moore ; but still the note remained in plaintiff’s hands, and he gave Moore no written discharge.
    The court .decreed for the plaintiff.
    This motion was argued by Hooker, for defendant, and Gist, for the plaintiff.
    Cited 2 Wils. 94. 2 Com. on Contr. 238. 1 H. Bl. 120. 2 T. R. 80.
   Brevard, J.

My opinion is, that the motion ought to be granted. The consideration of the defendant’s promise was, the plaintiff’s promise to discharge Bennet Moore from a debt of twenty.five dollars, which was due by note of hand. From, the very nature of the contract, it is evident that Moore was to be completely discharged before the defendant would be liable. It was admitted at the trial that the note was in the plaintiff’s hands, and it did not appear that Moore was released, except by a mere declaration of the plaintiff that he discharged him.

It seems to have been the intention of the contract, that the defendant was to pay Moore’s debt, in consideration of being indebted to him, (Moore.) There was no consideration as between the parties in this action, to oblige the defendant to pay Moore’s debt to the plaintiff.

It is a case within the statute of frauds.

The court, Brevard, Nott, and Colcock, in the absence of Bat, and Smith, granted the motion.  