
    
      Benjamin Mordecai vs. Thomas N. Gadsden.
    
    1. Action on a written instrument as follows:
    “Sixty days after date, I guaranty the payment of three hundred and fifty six dollars, sixty cents, due by J. M. Verdier, of Beaufort, to Benjamin Mordecai.
    [Signed] JOHN M. VERDIER.
    [Endorsed] BENJAMIN MORDECAI.
    [Accepted] THOMAS N. GADSDEN.”
    4th February, 1842.
    $356 60.
    Defendant, himself, drew up the paper after agreeing to become responsible for the debt to plaintiff, and adopted this form after refusing to sign a paper that would pass through the bank. Held, that in order to give the words, “I guaranty,” any rational application, defendant’s signature, under the word “accepted,” written upon the face of the papor, constituted his subscribing, as that of the maker of the instrument, which would make it a note of hand at sixty days, given by defendant to plaintiff.
    2. But for the fulfilment of the intended contract, the instrument might be as well considered as an order or request drawn by the debtor, to guarantee his debt to the plaintiff, which being accepted, in writing, by defendant, would render him the guarantor, under the Statute of frauds.
    3. A guaranteed, in writing, the debt of B, for which B was arrested under a bail writ, in consideration of B’s. release; the original debtor not being discharged. The guarantor had, at the time, three negroes of the debtor placed in his hands to be sold, and had made an advance on them of three or four hundred dollars. Two of the negroes were afterwards taken from the guarantor, by legal process.
    4. It is enough if there be a consideration for the guaranty at the time it was made, and the party guaranteed is not answerable for its continuance. The undertaking of the guarantor being under the Statute of Frauds did not require a consideration to the extent of the sum guaranteed.
    5. An objection on the part of the guarantor to the regularity of the bail writ, held not valid, as the defendant to that proceeding acquiesced; and even if so, it could only have borne on a part of the consideration — the release of the person of the debtor from the bail writ,
    6. The distinction between this case and that of Corhet vs. Cochran, 3 Hill, 41, adverted to and considered.
    
      In the City Court of Charleston, January Term, 1843.
    This was an action brought on a written instrument in these words:
    
      “Sixty days afterdate, I guarantee the payment of three hundred and fifty-six dollars, sixty cents, ($356 60) due by J. M. Verdier, of Beaufort, to Benjamin Mordecai.
    [Signed] John M. Verdier.
    [Endorsed] Benj. Mordecai.
    [Accepted] Thomas N. Gadsden.
    
      4th February, 1842.
    $356 60.
    The declaration contained counts on this instrument as a guaranty bill and note.
    Mr. Moses was present and saw Verdier and Gadsden sign the paper produced. He (witness) had arrested Verdier, on a bail writ, at Mordecai’s suit, and carried him to Gadsden’s office — Gadsden said to Mordecai, that if he would take his (Gadsden’s) responsibility, at 60 days, he would become his surety. He (Gadsden) said, he would hold himself responsible, and it would be paid at the day. Gadsden then w7rote the paper, and said he did not wish the paper to pass through the bank, and therefore he did not sign the one prepared for the bank. He spoke of having slaves of Verdier.
    On his cross-examination, he said that he did not recollect that any note was given up to Verdier. Witness did not know him before. He was going away in a steamer, when Gadsden signed the guarantee — Verdier was released from arrest.
    It appeared that Verdier had been arrested under an affidavit that he was about to leave the State, for the amount of a draft which had some time to run, but which the drawee had refused to accept.
    The plaintiff here closed his evidence, and the defendant moved for a non-suit, on sundry grounds, which are stated in the accompanying notice of appeal.
    The court refused the motion, on the ground that there was sufficient evidence to entitle the plaintiff to go to the jury. They would judge of the weight of the evidence, and if the jury thought that, at the signing by the defendant of the paper produced by the plaintiff, there was a valid contract between him and the defendant, that contract was sufficiently set forth in the declaration.
    
      The defendant then went into his defence. Mr. Lesesne directed a levy on several negroes of Verdier, in the hands of Gadsden, and there was a sale of them. John M. Verdier was a resident of the town of Beaufort, up to May last, 1842.
    Mr Grayson — has resided in Beaufort since his boyhood. Witness saw Verdier in November last — -he removed 30 or 40 of his negroes some eighteen months ago into Florida —his son went with them — -he has never changed his residence since witness knew him.
    R. C. Geyer — was clerk with Gadsden in Febraary, 1842. Verdier put three negroes with him to be sold — one was sold and two levied on. In the first instance, Gadsden advanced 300 or 400 dollars. Witness was not there when the acceptance was given. The negroes were táken by Mr. Condy, federal marshal. Witness does not know where Verdier was going. Nothing came under his view.
    Anthony Salinas — was clerk with the defendant in February, 1842. He knows nothing of the paper sued on. Does not think he was present when it was given. The negroes which Verdeir had placed in defendant’s hands, were levied on. On his cross-examination, witness said that he wrote on the back of a check and handed it to Gadsden— that Verdier was insolvent. The evidence here closed.
    The court left the case, on the evidence, to the jury, and they found for the plaintiff.
    The defendant moved the Court of Appeals for a non-suit or new trial, on the following grounds:
    1. Because the cause of action was neither a guaranty nor a draft, nor a note; but was void foi uncertainty.
    2. Because there was no consideration proved to sustain the cause of action as a guarantee.
    3. Because the arrest of J. M. Verdier was illegal, and a discharge from it could not be made the foundation of a guarantee by the defendant to the plaintiff.
    4. Because J. M. Verdier was a domiciled resident of South Carolina at the time of the contract and at the time of the arrest, and up to the time of the trial, and not subject to suit under the Act of 1839, and therefore the creditor, Benjamin Mordecai, had no right of action under the Act, and no right of arrest against his debtor, and consequently there was no consideration for the alleged guarantee.
    5. Because the indebtedness by J. M. Verdier to the plaintiff was created on the 4th February, 1842, and the action was brought against Verdier on the following day, and to give a creditor a right of action against his debtor by the Act of 1839, the creditor must be ignorant at the time of the creation of the debt of the debtor’s intention to remove or abscond; and if such intention did not exist in the present instance, the ignorance of such intention on the part of the creditor was repelled by the whole res gestee of the transaction ; and in this point of view, no right was given up by the plaintiff, and the consideration of the alleged guaranty failed.
    6. Because the affidavit of the plaintiff was no evidence as against the defendant of the facts which gave him the remedy to sue the original debtor under the Act of 1839, and if it were, these facts were liable to be contradicted by the transaction itself, and by other witnesses.
    7. Because the original debtor was on the facts liable to arrest on common process, and if so he could not be liable to arrest under the Act of 1839. Both remedies could not exist at the same time.
    8. Because there was no forbearance to sue for a given time alleged in the record to be the consideration of the guaranty, or proved at the trial.
    9. Because parol testimony was admitted to enlarge the contract, whereas it was only admissible to explain the consideration.
    10. Because the parol testimony, if admissible at all, should have been admissible as to the entire transaction, and that proved an acceptance payable when in funds, or an agreement to pay out of the sales of the negroes deposited with the defendant by Verdier the original debtor.
    11. Because the true consideration of the note or guarantee was the deposit of the negroes with the defendant by the original debtor, and that failed by the negroes being taken out of the hands of the defendant, by the authority of the law. "
    " 12. Because the only count in the record in which the contract was set forth as a guaranty, does not allegg that the discharge of John M. Verdier, the original debtor, was made at the request of the guarantor, the defendant.
    13. Because the verdict was otherwise against the law and the facts of the transaction.
    
      -I. B. Thompson, for the motion. Phillips contra.
   Curia, per

Richardson, J.

The merits of the plaintiff’s case depends upon two questions. First, is the writing set forth in the plaintiff’s declaration, an intelligible written assumption by the defendant, Gadsden, to pay the debt of Verdier to Mordecai 1 And secondly, was there legal consideration for such assumption 1 As to the first question. The written assumption purports to guarantee the payment of the money due by Verdier to Mordecai. This paper, if subscribed by Gadsden, in the usual form of subscribing written contracts, a note for instance, would be too plain for doubt. But, it is so signed by Verdier, the debtor; then endorsed by Mordecai, the creditor. And thirdly, under the word “accepted,” Gadsden signed his name ; having written the paper himself after agreeing with Mordecai to become responsible. And this form was adopted, after Gadsden had refused to sign a note that would pass through the Bank.

The evidence of Mr. Moses explains why a very peculiar form was adopted by the defendant. But, in no way alters the contract. It was evidently Mr. Gadsden’s own written form in assuming to pay Verdier’s debt. And, for that end, any rational construction may be put, to bind him to his contract.

For instance, the words “I guarantee,” must constitute the assurance of some one of the parties to the contract But such guaranty of his own debt could not be supposed to come from Verdier, the debtor himself, and still less from his creditor Mordecai. Both had signed it.

To give the words “I guarantee,” any rational application, then, the signature of the defendant under the word “accepted,” written upon the face of the paper, must plainly constitute his subscribing, as the maker of the instrumant. The defendant cannot be allowed to escape his evident assurance to Mordecai. And such is my own construction of the contract, which would make it a note of hand, at sixty days, given by Gadsden to Mordecai. But, for the fulfilment of the intended contract, the instrument may be as well considered as an order, or request, drawn by Verdier to guarantee his debt to Mordecai, which, being accepted in writing by Gadsden, renders him the guarantor, under the statute of frauds.

The assumption was then an intelligible written under-, taking for the debt of another.

But, secondly. Was the consideration sufficient 7 The consideration consisted in the release of the person of Verdier from a bail writ. It did not appear from the evidence that his bill, which was the subject of the bail writ, was given up to him, nor a receipt. And the witness Salinas, said Verdier was insolvent. But Geyer proved that the negroes had been put by Verdier with Gadsden, and 3 or $400 advanced him. One was sold, and two levied upon by the marshall afterwards.

The argument against the sufficiency of the consideration, was, that 'it failed by reason of two of the negroes being taken away.

But, if the consideration was sufficient at the time, the party guaranteed does not answer for its continuance, The counter indemnity from the original debtor to the guarantor is between themselves. And it is enough for the party guaranteed to shew that it existed at the time. It was then no nudum pactum; and that is enough. Were the law otherwise, he would be subject to the frauds of his debtor and guarantor, in a matter utterly beyond his control, and of which the guarantor was the proper judge, In the case of Corbett against Cockran, 3 Hill, 41, the court held, unanimously, that the discharge of the debtor, on open account, being made in the books of Corbett, at the, instance of Cockran, and himself debitted with the account, amounted to the discharge of the original debtor, and such consideration sufficient, and Cockran liable without any written assumption, unless such entry in Corbett’s books can be so called, which I cannot so understand.

But in the case before us there was a written assumption, which fulfils the express requisition of the statute against frauds. And so there be some legal consideration to fulfil what may be called the “sine qua non ,” of the common law, in such cases, we are not to measure the consideration with strictness. Advantage to the defendant, or detriment to plaintiff, answers the purpose. See 2 Bay, 383 ; 4 Pick. 97; 14 John. 4. Otherwise the statute might be greatly perverted,

Upon these two first heads the court then concurs with the recorder, that the non-suit was properly rejected, and the case rightly left to the jury.

But thirdly. A series of grounds are urged, upon a supposed irregularity in issuing the bail writ against Verdier. But such objections do not lie with the guarantor. The then defendant acquiesced in the proceeding ; and the action was at least substantially just and legal. And even if such objections were valid, they would only bear upon a part of the consideration ; the release of the person of Verdier from the bail writ.

But, on the third head, let it be admitted for the argument, that the action of Mordecai against Verdier was both radically defective, and the debt still subsisting. What follows ? No more than this. That the guaranty of Gadsden is collateral, and must be in writing, by the statute. But, then, as Judge Earle so well puts it, in Corbett’s case (p. 44) “a loss, or even inconvenience to the promisee, is enough,” See also Judge Nott’s observation, in Boyce vs. Owens, in 2 McCord, 208, upon this distinction between such a case as Corbett’s, where the original debtor being actually discharged amounts to full legal consideration for the verbal promise to pay his debt, and a case like that now before us, where the original debtor is not discharged. And the promise of a third person must be in writing, ex vi termini of the statute, but must still have some consideration for common law sake, I have been led to remark, not only on account of the present case, but because the exact character of Corbett’s case, and the very learned and just exposition of Judge Earle, has not been very generally considered and conceded by the profession. That was a case at common law; and required a consideration co-extensive with the promise of Cockran. But the present case is under the statute, and does not require a consideration to the extent of three hundred and fifty-six dollars, fifty cents. And that is the proper legal answer to all the objections that Gadsden’s expected consideration fell short of his written guaranty to pay that exact sum of money; i. e. he lost two of the three negroes. This might be admitted. But no fraud appearing, the consideration may be still good for the guaranty under the statute. The motion is therefore dismissed.

O’Neall, Evans and Butler, JJ. concurred.  