
    GENERAL COURT,
    MAY TERM, 1796.
    Raymer and Beatty against Anthony Sim.
    THIS was an appeal from Frederick county court, from a judgment of nonsuit rendered at March term, 1795.
    Besides a count for money had and received, the plaintiff also declared, that “ whereas a certain Patrick Sim Smith was, on the day and year aforesaid, at the county aforesaid, indebted unto the said Raymer and Beatty in the sum of 101/. current money, and the said P. S. Smith. did, on the 11th of July, 1792, at the .county aforesaid, convey unto the said Anthony Sim and a certain Walter Smith, certain valuable negroes and other personal property, of great value, to wit, of the value of 700/. current money, in trust, to pay such debts of him the said Patrick Sim Smith as they the said A. and W. had become security, and had bound themselves for the payment of j and also for the payment of such other debts of him the said Patrick as could be made appear; in consideration of which premises, and also in consideration that the said Raymer and Beatty would forbear to sue the said Patrick for the debt due as aforesaid, from him to the said Raymer and Beatty, until after March court then next following for the county aforesaid, on the 1st January, 1793, at the county aforesaid, he the said An
      
      thony undertook and promised to the said Raymer and Beatty, that if they the said Raymer and Beatty would forbear to sue the said Patrick for the debt due from the said Patrick to them as aforesaid, until after March court then next following for the county aforesaid, that then he the said A. would pay and satisfy unto them the said R. and B. the debt aforesaid, due as aforesaid from, the said P. unto the said R. and B., or that he the said A. would give his bond to them the said R. and B. for the amount of the said debt due as aforesaid from the said P. unto the said R. and B. ; and the said R. and B. in fact aver, that they did forbear to sue the said P. for the debt due as aforesaid until after March court as aforesaid, and ever after, and that they the said R. and B. had a just debt, and made the same appear, amounting to the sum of 101/. current money as aforesaid, of which the said A. had notice.” The general issue was pleaded. Verdict for the defendant, and judgment of nonsuit.
    At the trial of the cause in jthe county court, two bills of exceptions were taken, by which it appears,
    1. That the plaintiff offered to prove that the defendant had sufficient property put into his hands by Patrick Sim Smith for the purpose of paying the plaintiffs this particular debt, for which this suit is brought, and that he the said defendant did actually convert the said property into money, and, after having so converted it into money, promised to the plaintiffs to pay them the aforesaid debt for which this suit is brought, and pray the opinion of the court, whether this evidence was not proper, without a note in writing, to be submitted to the jury 'to support the first count in the plaintiff’s declaration.
    Upon which prayer the court were of opinion that the above evidence was not proper, without a note in'writing, to be submitted to the jury to support the’ first count in the plaintiff’s declaration. To this opinion the plaintiff excepted.
    2. The plaintiff offered in evidence to the jury a bill of aale dated the 11th of July, 1792, from Patrick S. Smith, to Anthony Sim and Walter Smith, acknowledged on the same day before a justice of the peace, and recorded on the 30th of July, 1792. The said bill of sale recited that the said Anthony and Walter had become security for him the said Patrick, and bound themselves to the payment of sundry sums of money, for and on his account, &c. and bargained and sold sundry negroes, goods and chattels to the said Anthony and Walter.
    The plaintiff moreover offered evidence to the jury to prove that the said Patrick S. Smith, in his lifetime, to wit, in 1786, was indebted to the plaintiffs in the sum of 100/. current money, for rent in arrear, and due from the said Smith to the plaintiffs. That the defendant, in the year 1793, and some short time before the sitting of the county court of Frederick, in the month of March, in the year 1793, came to the plaintiffs and told them that he had heard that they the plaintiffs intended to sue the said Smith for the debt aforesaid; upon being informed by the plaintiffs that they did intend to do so, the defendant told the plaintiffs that if they would forbear to sue the said Patrick S. Smith until after Frederick county March court then nest ensuing, that he would give them his the said defendant’s bond for the amount of the said debt, or pay them the money. That the plaintiffs did agree to forbear bringing the suit for the time aforesaid, provided the said defendant would agree to give his bond for the said debt, or pay the money to them, which the said defendant did agree to do, and said he was perfectly safe in making such undertaking, for that he had seven or eight hundred pounds worth of property put into his hands by the said P. S. Smith, out of which he could well pay the plaintiffs their debt j which property the plaintiffs offered to prove was put into the hands of the defendant by the said P. S. Smith, for the purpose of paying the debts of the said P. S. Smith. That .the said plaintiffs did forbear to sue the said Smith, for the time aforesaid; that the said Smith died in October, 1793, insolvent, and the plaintiffs never did sue him for this debt.
    The plaintiffs then prayed the direction of the court to the jury, that if the jury were of opinion that if the seven or eight hundred pounds worth of property, proved by the admission of the defendant to be put into his hands by. the said P. S. Smith, was put there by the said P. S. Smith for the purpose of paying the debts of the said P. S. Smith, that then the above evidence was proper to support the issue in this case on the part of the plaintiffs, although there was no note in writing from the defendant to the plaintiffs ; which direction the court refused to give. The plaintiffs excepted.
    
      Mason and Shaajf, for the appellants.
    
      y. Dorsey, for the appellee.
   The general court reversed the judgment of the county court upon the first bill of exceptions; the court being of opinion that the defendant having funds in his hands to pay the debt, and making the express promise, was liable to the action of assumpsit, and cited, in support of their opinion, 2 Wils. 308. Cowp. 290. Esp. 100.

The court affirmed the judgment upon the second bill of exceptions.

Under the act of 1790, c. 42. the general court ordered aprocedendo to the county court, and directed a remission, of the record. This act (sect. 4.) enacts, “ That if the appeal or- writ of error shall be made for several exceptions, the general court shall give judgment on every exception.”  