
    Kimball & Lange vs. N. A. Roye.
    Plaintiffs had given credit to McC. for goods, but had not delivered them; whereupon the defendant wrote to plaintiffs: — “McC. wishes you to send down his stove, for he wants to put it up to-morrow morning. He is good for the amount he got from you —Held, that defendant could not be charged upon the letter as guarantor of McC. — there being neither promise to' guarantee, nor evidence of consideration.
    BEFORE G-LOYER, J., AT CHARLESTON, FALL TERM, 1855,
    The report of his Honor the presiding Judge is as follows :
    “ This was an action within the summary process jurisdiction, on a merchant’s account. The goods were sold and delivered to one McCormick. After the credit had been given to McCormick, the defendant addressed the following note to the plaintiffs :—
    “ ‘ To Mr. Kimball, present.
    “ Mr. McCormick wishes you to send down his stove, for he wants to put it up to-morrow morning. He is good for the amount he got from you.
    Yours, respectfully, N. ROYE.’
    1855, April 16.
    “ It was insisted that the defendant was liable as guarantor j as McCormick was insolvent. It did not appear to the presiding Judge that the legal liability of the defendant had been established, and that the plaintiff could recover in this form of action. A nonsuit was, therefore, ordered.”
    The plaintiffs appealed and now moved this Court to set aside the nonsuit, on the ground:
    Because the note of defendant to plaintiffs, was a sufficient memorandum in writing to take the case out of the Statute of Frauds.
    
      Pope, for appellants.
    
      Me Grady, contra.
   The opinion of the Court was delivered by

Whitner, J.

The case made in the brief furnishes no sufficient evidence to charge the defendant as guarantor of the debt of another. The additional statement of counsel made and admitted, does not in the least vary the conclusion to be reached.

The memorandum in writing contains -no promise to pay, express or implied: a mere declaration that one who had obtained credit was good for the debt, cannot amount to a guaranty. It does not purport to be prospective, and in no way can it be tor’tured into a letter of credit. Such competent proof as was afforded of any transaction outside of the paper does not in any view help the case. In proving the merchant’s account, proof of any special contract appertaining thereto was not admissible by the books. Pritchard vs. McOwen, 1 N. & McC. 131, n.

Again, however well taken, the position of plaintiff's counsel, that the consideration of the promise to pay the debt of another need not be stated in the note or memorandum in writing required by the statute, as recognized in Fyler vs. Givens, 3 Hill, 48, still this case encounters the further objection that there is no competent proof of a sufficient consideration.

We concur therefore with the Presiding Judge, that the legal liability of defendant in this form of action was not established.

The motion to set aside the nonsuit is refused.

O’Nball, Wardlaw and Withers, JJ., concurred.

Motion refused.  