
    
      James Dunlap vs. M. A. Thorne.
    
    Where one has a complete and enforcible lien on the property of his debtor, a promise of a third person to pay the debt, on condition that the property under the lien is given up, is not within the statute of frauds.
    An innkeeper has a lien on the goods of his guest, for the amount of his bill. 
    
    
      Tried in the City Court of Charleston, November Term, 1844.
    This was an action of assumpsit, for thirty dollars, cash lent the defendant, and seventy dollars and twenty-five cents, assumed by him on account of one J. C. Welbourn. Of the seventy dollars and twenty-five cents, part was for the board and bar account of Welbourn for fifteen days, and the balance, twenty-one dollars, for his travelling expenses from Charleston to Columbus, Georgia.
    The only witness examined was Robert Dunlap, the plaintiff’s son. He testified that “he presented the account to the defendant several times,, when he promised to pay it.
    
      “ Defendant acknowledged the whole of the account to be correct. The thirty dollars was cash lent to the defendant, in May, 1843. Welbourn was brought to the Merchants’s Hotel by defendant, who told them to board him, and he would be responsible for it. Witness, for the plaintiff, wrote to Welbourn’s father concerning his bill, at the instigation of defendant. Plaintiff charged Welbourn’s count to Thorne, before Welbourn left plaintiff.
    “The account of seventy dollars and twenty-five cents was first charged to Welbourn, afterwards charged to Thorne, because Thorne said he would be accountable for it. Welbourn was then about removing his.trunk, which was in the bar-room. Thorne said to plaintiff he would be responsible for the whole account. The account was then charged to Thorne, and Welbourn took his trunk away. If Thorne had not made this promise, Welbourn would 'not have been allowed to take his trunk away. Witness has several times asked Thorne for payment of the account — he always begged for time. Welbourn was desirous of going to Columbus, Georgia, where the plaintiff was then also travelling, and Thorne said to plaintiff,, that if the plaintiff would take Welbourn to Columbus and pay his travelling expenses, he, Thorne, would repay plaintiff. Plaintiff agreed to do this, and they went to Columbus — Welbourn did not return to Charleston.”
    Under the charge of the Recorder, (who, in his report to the Court of Appeals, cited Corbit vs. Cochran, 2 Hill, 41; Carlisle vs. Quattlebum, 2 Bail. 452; and Nayler vs. Mayles, 1 Esp. N. P. C. 109 ; Thompson vs. Lacy, 5 Eng. C. L. R. 286, to shew that an innkeeper has a lien on the goods of his guest for his bill,) the jury found for the plaintiff the whole amount of his demand.
    The defendant appealed, and now moved for a new trial, on the ground,
    That the demand, for the amount of Welbourn’s account, was within the statute of frauds.
    
      Kunhardt, for the motion,
    contended that Welbourn’s liability had never been discharged, and, therefore, the case came within th^ statute of frauds. The case of Corbit Sp Cochran, he said did not apply; and the case of Carlisle 6p Quattlebum, shewed that the plaintiff had no lien on Welbourn’s trunk.
    
      Phillips, contra.
    The point decided in the case of Carlisle vs. Quattlebum is not correctly stated in the note at the head of the case. Innkeepers have a lien on the goods of their guests ; 5 Eng. C. L. R. 286. If the plaintiff had a right to detain the trunk, then the contract wak not within the statute of frauds.
   Curia, per

Butler, J.

This case presents a question of some nicety, and one, upon which there may be a difference of opinion.

The ground taken is, that the promise was collateral, being an undertaking to pay the debt of another; and, therefore, should have been founded on a sufficient consideration, and in writing. This objection must be fatal, unless the undertaking of defendant can be made to assume the legal character of an independent and original promise, founded upon an adequate consideration. If so, it will aíford a good cause of action by its own obligation, unaffected by the previous liability of Welbourn himself.

In looking through our own decisions <pn the subject, this is the prevailing principle that has been recognized by them. That where one has a complete and enforcible lien on the property of his debtor, a promise of a third person to pay the debt, on condition that the property under the lien is given up, will be held binding, and not within the statute of frauds. This upon the ground that the release of the lien is the surrender of . a security operating in the nature of a payment, and, therefore, if not a benefit to the promissor, is a prejudice to the creditor, to the extent of his loss. As Judge Johnson says, in the case of Jones vs. Ballard & wife, 2 Mill. C. R. 113 — “If there be a new consideration moving to the person making the promise, from the party to whom it is made, or if confiding in the promise, he discharges the original debtor, or loses or abandons a security which he had on him before, the undertaking is original, and need not be in writing? The decision in Adkinson vs. Barfield, 1 McC. 575, presents and rules the question in a more definite form. The plaintiff in that case had attached the horse of his absent debtor, in the possession of the defendant, who promised that if the plaintiff would release the horse, he would pay the debt; the court held the promise good, and not within the statute of frauds. Judge Gantt, who delivered the judgment of the court, rests his opinion mainly on the authority of the case in 2 Wils. R. where a landlord being about to destrain for rent, the defendant promised to pay the rent in arrear, on condition that the property should be delivered up freed from distress ; it was held that this promise was not avoided by the statute of frauds. This decision was subsequently reviewed and approved by Lord Eldon. Judge Johnson, in the case of Rogers vs. Collier, 2.Bail. 581, seems to’ take the same view of the subject. It might be inferred from some of the cases, that the defendant incurred his liability, because property was placed in his hands to pay the debt of the original party — and that he, therefore, derived a benefit by the temporary use of it, or by some advantage which the possession would give him. But this is not the controlling consideration which seems to have governed the adjudications. For in the case of Barnstine vs. Eggart, 3 McC. 162, Judge Johnson says, it is not necessary to the validity of a promise to pay the debt of another, that the party to be charged should derive a benefit. If it be a damage to the other party, or a benefit to the party promised for, it will be sufficient; provided, these proceed from the forbearance to enforce, immediately, some subsisting lien. The only case which would seem to conflict with these views, is that of Boyce vs. Owens, 2 McC. 208. Fanny Owens was in possession of a tract of land belonging to Mansfield Owens. The plaintiff procured a domestic attachment for £89, to be levied on the land, by a constable. The defendant, Fanny Owens, promised the plaintiff, that if he would discontinue his attachment, she would pay the debt. This was held to be a promise (within the statute of frauds, because it was not in writing. But it will be found that, in this case, there was no independent consideration to make the contract original. It was collateral, because it was to pay the debt of a third person, without any injury to the plaintiff in giving up any security. As Judge Nott remarks, this was giving up no lien, because the attachment for that amount could not 'be served by a constable, but should have been directed to the sheriff of the State; and besides, that such an attachment could not be levied on land. In the same case, Judge Nott recognizes the authority of Adkinson & Barfield. So that I do not think that the case of Boyce and Owens can be regarded as inconsistent with the other cases quoted, when all its circumstances are taken into consideration. It is, perhaps, unnecessary to say whether the case under consideration comes within the case of Corbit vs. Cochran, 3 Hill, 41. Judge Earle, in that case, recognizes the principles which I have been considering, in his reasoning on it. As a question of fact, it may have been that plaintiff had discharged Welbourn from all liability, when he entered defendant as his debtor on the books. The case was decided on that assumption, and if so, it is unexceptionable in its result. The recorder intimates the opinion that, but for his understanding, at the time of the case of Carlisle vs. Quattlebum, 2 Bail. 452, he might have held that defendant was liable, on an original promise, if plaintiff had given up any legal lien. That case does not rule that an innkeeper has no lien on the goods of his guest for the payment of his bill. • The true principle on which it rests is, that Quattlebum was not an innkeeper, and, therefore, not entitled to the rights and remedies of one. He was one who occasionally, and only as he thought proper, afforded accommodation to travellers. Such being his situation, he was not subject to the liabilities or rights of an innkeeper, without special contract.

“ A person who makes it his. business to entertain travel-lers and passengers, and to-procure lodging and necessaries for them and horses and attendants, is an innkeeper.” His duty is not only to procure lodging and victuals, but to receive such guests as can pay, and to take charge ,of their goods and effects. From these duties result his rights. The incivility of making a special contract with every guest who comes in, sanctions the propriety of an implied understanding that he may detain his guest who eats, or his horse which eats, until payment be made. See Bac. Ab. Innkeepers. This right of the innkeeper to have a lien on the goods of his guests, is fully sustained by the authorities quoted by the recorder, and which I refer to without further comment. So far as it regarded Welbourn’s board account, the plaintiff, who was an innkeeper, in the strictest sense of the word, had a lien onWelbourn’s trunk, as his security for payment. He would not give up that lien till the defendant consented to become his debtor. But for defendant’s undertaking, he would, in all probability, have been paid. The trunk may be regarded as having been given up to the defendant, in consequence of which the plaintiff lost all his means of enforcing payment against Welbourn. Is it not right, then, that he should be indemnified for his certain loss, by the defendant who occasioned it? More especially, if all demand against Welbourn was discharged by the proceeding. The affirmative is entirely consistent with the authorities which I have referred to.

As to the money paid for the travelling expenses of Welbourn, it was advanced not at all on the credit of Welbourn, but on the credit and original undertaking of defendant. Such a contract as that, is not at all affected by the statute.

All the other questions in this case have been satisfactorily disposed of by the decision belew. Motion dismissed.

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

Wardlaw, J.

dissenting. Cases have been decided which make an excption'to the statute of frauds, by holding that a promise to answer for the debt of a third person does not come within the statute, when it is founded on a new consideration. But the statute, in making the additional requisite of writing necessary to the validity of such a promise, did not dispense with the previous requisite of a consideration. The more exact of these cases have, then, narrowed the exception, by requiring that the new consideration should be the creditor’s resignation of a charge or lien, which afforded him a remedy or fund to enforce payment. In this restricted form, the exception amounts only to this — that where the debt of a third person is referred to, as the measure of the sum to be paid for the resignation of a lien, the new promise becomes a substitute for the lien resigned, and payment of the money upon it discharges the original debt, in like manner as the enforcement of the lien would have done. It is hard to reconcile any of the cases with the statute — harder to reconcile many of them with one another. It seems that where the resignation of the lien is personally beneficial to the promissor, the transaction may be regarded as an assignment to him; but where the resignation is mere loss to the creditor, without personal advantage to the promissor, if the liability of the original debtor survive the resignation, it must be made to appear that the lien was of at least equal value with the debt assumed. There having been, here, no evidence as to the value of the trunk, (the resignation of the innkeeper’s lien upon which is supposed to constitute the sufficient new consideration to take the promise to pay Welbonrn’s board out of the statute) I do not feel authorized to support that promise in opposition to the terms of the statute.  