
    
      Hezekiah Fraser, ad’mr. of Wm. Roberts, vs. Robert Goode, adm’r. of John Allen.
    
    A surety sold a negro and applied the proceeds to the debt of his principal and himself. At the time of the sale, it was agreed that the principal should convey to the surety , a tract of land in exchange for, or payment of, the negro. This agreement not having been complied with, held, that the surety might maintain an action for money paid against the principal.
    
      Before Gantt, J. at Barnwell, Spring Term, 1832.
    The report of his Honor, the presiding Judge, is as follows :
    “ John Allen, the defendant’s intestate, purchased at the sale of the estate of Christian Faust, a negro fellow, at $ — . He gave his note for the amount, with William Roberts, the intestate of plaintiff, as security, to Wm. McMillan, the administrator of Faust. $530 of this debt was paid by Wm. Roberts, the security, whose administrator brought this action to recover the amount with interest from Goode, the administrator of Allen. This statement was fully established by the proofs adduced on the part of the plaintiff. The difficulty thrown in the plaintiff’s way to recover, arose out of the manner of this amount of $530 having been settled by Roberts. The following facts were made to appear by the evidence. John Allen married the sister of Wm. Roberts. Roberts, who was an old and infirm man, lived with his sister, Mrs. Allen, to whom he was tenderly attached — an attachment which was returned with equal warmth on the part of Mrs. Allen, who nursed and took care of him. The debt due by Allen and Roberts to the estate of Faust, was settled by the sale of two negroes, one the fellow which Allen had bought at the sale of Faust, and a woman, the property of Roberts, who sold at $530. This was not a forced sale. It appeared by the evidence, that Allen was to give Roberts a tract of land for the woman. The witness who drew the bill of sale for the woman, said that it was mentioned at the time, in the presence of Roberts, that the land was of more value than the woman. Roberts smiled, and appeared pleased. Roberts died soon after, and no title seems to have been made for the land. There was other evidence offered on matters immaterial to the issue. The counts in the declaration, were money counts, none of which, in the opinion of the court, were proved. The strength of the evidence shewed that Roberts and Allen had come to an agreement respecting the woman. She was the wife of Allen’s fellow, and sold with him to pay the debt; Roberts having agreed with Allen to be paid by a tract of land for her. In my charge to the jury, I may have said, substantially, what is objected in the first ground taken for a new trial. I thought, and said, that stronger evidence ought to have been offered to substantiate either of the counts, because it appeared most distinctly that no money had been paid, laid out, (fee. at the instance of the defendant, but that the settlement took place under an agreement, which having been executed in part, was more properly cognizable in a Court of Equity than a Court of Law. That the death of the contracting parties did not revoke the agreement, and Allen’s representatives were willing that the land should pass pursuant thereto. I think the counsel is under some mistake as to the second ground taken, not intentional I am sure, as I thought that the proper remedy was by a bill in equity for a specific performance of the contract or agreement. The third ground taken is embraced in my remarks on the preceding grounds.”
    The plaintiff appealed, on the grounds,
    1st. Because his Honor erred in charging the jury that it was incumbent on the plaintiff to furnish stronger evidence that the payment was made by his intestate, at the instance and request of the defendant’s intestate.
    2d. Because his Honor charged the jury that the plaintiff ought to have declared on the special contract.
    
      3d. Because his Honor erred in charging the jury that the plaintiff was only entitled to relief in a court of equity, where he could obtain specific performance of the contract.
    Patterson, for the motion.
    -, contra.
   Curia, per

Harper, J.

As I understand the case, Roberts sold the negro woman, and paid the money he received to the holder of the note on which he was surety for Allen. This money he was liable to pay, and on his doing so, the law raised an implied contract in Allen to reimburse him. It was implied that he had paid the money at Allen’s instance and request. The motion is granted.

Johnson and O’Neall, JJ. concurred.  