
    Samuel Caldwell v. Alexander M'Kain.
    "Where a defendant gave his note to the plaintiff, on condition that the plaintiff ■would give him a note which he held on a third person, the plaintiff cannot recover on the note given by the defendant, unless he deliver the note on the third person to the defendant, agreeably to their agreement.
    In a written agreement to pay money on account of a third person, the words, “for value received,” are a sufficient expression of consideration to charge the party under the statute of frauds, 
    
    This was a summary process, tried at Fairfield, Fall Term, 1820, brought on a note made by the defendant to the plaintiff, in the following words: “ On or before the 11th of November, 1818, I promise to pay Samuel Oaldwell, or bearer, on account of M. Miller, the just and lawful sum of forty dollars, for valuó received. Signed, Alex. M’Kaiit.”
    «..I *The case, made by the defence, was this. Miller, the third person J mentioned in the note, had purchased property, to the amount of the note, at a vendue made by the plaintiff, the terms of which were, that the purchasers were to give note and security. Miller had given his individual note to the plaintiff, and some time after, in the presence of the plaintiff, solicited the defendant to become his security, which he promptly refused to do, saying he would not be any man’s security, but observed to the plaintiff that if he would give him Miller’s note, he would give him his own note for the amount, which was agreed to, and the plaintiff promised, (not having Miller’s then with him,) that he would send it to him in two or three days; and the witnesses stated emphatically, that the present defendant gave the note in question on the express condition that the plaintiff should afterwards give him Miller’s note in exchange; and it was further proved, that the plaintiff never had sent Miller’s to the defendant, but stated it was lost, of which fact, however, there was no legal proof.
    For the defendant, it was contended, that- the plaintiff was not entitled to recover.
    1. Because this was an undertaking to pay the debt of another, and was not obligatory without the consideration on which it was founded, was set forth.
    2. Because the consideration had failed, inasmuch as the plaintiff had not delivered Miller’s note to the defendant, as was stipulated between them.
    The presiding judge decreed for the defendant, and a motion was made for a new trial. The grounds of the motion, taken together, deny the legal correctness of these positions.
    
      
      
         See Aiken v. Duren, ante, 370, and Stephens, Ramsay & Co. v. Winn, in note. R.
    
   The opinion of the Court was delivered by

Johnson, J.

This ease was tried before myself, and the impression on my mind was, that the question'made by the first ground of defence, had been decided by this Court in the case of Stephens, Ramsay & Co. v. Winn; *but it is found, upon examination of the manuscript re- -* port of that case, that although like the present in every other respect, the note wanted the words “for value received,” used in this note. In that case the Court decided, that under the statute of 29 Charles II., c. 3, usually called the statute of frauds, a writing to charge one man for the debt, &c., of another, should express the consideration ; but I am satisfied that this case is distinguishable from that, and that the words, “for value received,” is a sufficient expression of a consideration, to charge the party. It is an admission of the party, that a valuable consideration has been received, although the thing itself is not mentioned.

M’Call, for the motion. Peareson, contra.

On the other ground of defence, however, I think the decree is maintainable. The witnesses stated in the strongest terms, that the defendant made it an express condition, that the plaintiff should deliver him Miller’s note, and he promised to do so within two or three days, which he has not yet performed, although more than two years have elapsed. The first impression made by the evidence on my mind, was, that the sole object of the delivery of Miller’s note to the defendant, was, that it might be cancelled, and that the evidence of that debt might be destroyed, which occurred to me was as effectually done by the note, which the defendant gave to the plaintiff, as if it had been delivered, and that the object of a delivery was fully accomplished. But to come at this conclusion, it was necessary to put a forced construction on the evidence, and upon further consideration, I was satisfied that other objects which the defendant might have had in view at the time, consistent with the evidence, might have made the possession of the note an important consideration. In his hands it would have furnished evidence of the debt due by Miller, on which an action might have been brought when it became due, and this view was strongly supported by the fact which appeared on the trial, that Miller had afterwards become insolvent, so that the debt was lost to the defendant.

Colcock, Nott, Gantt and RichaRdson, JJ., concurred. 
      
       Ante, 372.
     