
    Thos. McCray ads. Jno. Madden.
    Where the defendant had received goods for the purpose of paying tilts debts of A. and promised B. who had ¡1 note of A. and who was about to attach property in the hands of the defendant, that if he would wait until fall he would pay the note ; the Court Held the promise good, and not within the Statute of Frauds.
    The promise being made to the agent of B. is the same as if made to B. himself.
    Tried at Laurens, Fall Term, 1821, before Mr. Justice Gantt. . -
    m _ JL HE brief states that this was an action within the summary jurisdiction, founded on a note which the plaintiff held on one Jos. McCray, on a parol promise made by the defendant to Henry Gray„
    The defendant pleaded the Statute of Frauds.
    
      Henry Gray, the only witness in this case, proved that he called on defendant and informed him that he held a note on his’brother Joseph McCray for $33 40. That he, the witness, understood the defendant had effects belong-irg to Jos. McCray, for the payment of his debts. The 'defendant informed the witness that he was security for his brother Jos. McCray, to a large amount, and if he, Henry Gray, zvould zvait untilfall, he zvould pay the debt; also that his brother would return in the full, when all his debts would be paid. The defendant said further, that he •had effects of Jos. McCray's in his hands to make himself safe as his security, and also for the payment of his debtsl But the defendant did not say he had effects to pay this debt, for which the action was commenced. The witness also proved that he did not inform the defendant that this note was owing to the plaintiff; nor did he mention pb.ki-tiff’s name at the time the promise was made.
    The presiding judge gave a decree for the plaintiff, for the amount of the note ; from which, the defendant am-pealed, and moved the constitutional court to reverse uic circuit decree, on the' following grounds :
    1st. Because it was a collateral promise, and within the Statute of Frauds.
    2d. Because the promise was made to the witness Henry Gray, and not the plaintiff.
   Mr. Justice Gantt

delivered the opinion of the court.

Whether the promise made in this case, is to be considered as a collateral one, and void by the Statute of Frauds, will depend upon the fact of the defendant having-effects in his hands at the time of the promise, to pay the debt due by this note fr^m the absent debtor to the plaintiff. From my notes, which in substance, coincides with the statement made in the brief, it appears that the plaintiff Madden, having a note of hand given to him by Joseph McCray for %52> 40 cents, placed the note in the hands of Henry Gray as an agent, to call on the defendant for payment, Joseph McCray, the debtor, being absent from the state.

It was the plaintiff’s intention to attach in the hands of the defendant in the event of the note not being paidi

Gray, as agent for the plaintiff, called on the defendant and required that payment should be made ; stating that the plaintiff would take out an attachment unless the note was paid. Upon which, the defendant said that if the plaintiff would not take, out an attachment, but let it stand until the next fall, he would pay the amount due by the note, as he had effects in his hands for that purpose. Under this promise made by the. defendant, the plaintiff declined taking out trie attachment. The defendant failed to pay the debt, and the plaintiff instituted his action.

Q'Neall and Irby, for the motion.

Downs, contra.

It has been decided that if a person obtains possession of goods, on which'a landlord has a right to distrain for rent, and he promises to pay the rent, though it is Clearly the debt of another; yet a note in writing is not necessary. (Se 2 Selwyn, 858.)

In principle, these two cases are analogous; the obligation however to' pay in the instance before us, is much stronger than in the one quoted. The defendant acted as trustee for the benefit of creditors merely; here the defendant? acknowledged that the absent debtor had placed' in his hands effects to pay his debts, and, according to my notes, effects for the purpose of paying this debt.

Is he to apply the effects to hi\\jndividual benefit, and be absolved from all responsibility arising from the promise ? I think not. He has denied to himself a benefit by the possession'of the goods and the promise is thereby rendered obligatory' upon him.

' On the 2d ground,. I have only' to remark that the demand of payment by Gray, in right of the plaintiff and evidenced by the note not being transferred, places the case precisely upon the footing of a demand by' the plaintiff himself. The note was due to the plaintiff, and the promise was to páy' .that debt if no attachment was taken . out. ft is the opinion of.the court, that the motion made in this case to reverse the decree made in the court below, must fail.

Justices Huger, Johnson, Nott and' Colcock, concurred.  