
    Caperton vs. Gray.
    A parol promise to pay the debt of another, upon consideration that time should be given the debtor to pay it, is a promise to pay the debt of another within the act of 1801, ch. 25, and should be in writing.
    A verbal statement by A to a justice of the peace, after he had rendered judgment against B, that he should put his name down as security for the stay of the execution, which the justice accordingly did, is void.
    This was an action upon the case brought by Gray against Caperton, in the Williamson county court. The defendant pleaded non assumpsit. A verdict and judgment were obtained by the plaintiff, Gray, in the circuit court. The defendant moved the court for a new trial, which motion was overruled. The facts were as follows: Gray obtained a judgment against one William Webb, before Wars Henly, Esq. for $99 874; the justice was examined as a witness, and he stated that either on the day, or a day or two after he rendered the judgment, the defendant, Caperton, rode up to his gate, and requested witness to put his, Caperton’s, name down as security for the stay of the execution on said judgment; which witness, when he returned to the house, did. The plaintiff also proved, that after the stay was out, Caperton requested of plaintiff further indulgence, and that plaintiff gave the indulgence upon Caperton’s promise to pay the debt,
    
      R. C. Foster and Craighead, for plaintiff in error.
    
      T. Washington and Lacy, for defendant in error.
   Catron, Ch. J.

delivered the opinion of the court.

The defendant, Caperton, did not by his directions to the justice, stay the judgment. Hickman vs. Williams, M. & Y. Rep. Execution might have issued forthwith. This is admitted, and the undertaking is proceeded upon as a binding contract on the part of Caperton, with Gray, Pay dekt °P Webb. It is insisted for Gray,'-that the statute of frauds' can have no operation, because the undertaking of Caperton was original in its character;- a promise- to pay Webb’s debt, if Gray would give time: and of this opinion seems to have been the circuit court.

Did Caperton undertake, “for the debt, default, or miscarriage of another,” within the meaning of the act of 1801, ch. 25? .To whom was the credit given? To Webb. Caperton never received any consideration from Gray. Bul. N.P. 281-2. The case then rests on the giving of time as the consideration of the promise. Gray was not bound to give time upon any promise made by Caperton, and the fact of his having done so, influenced Capérton’s conduct, does not take the case out of the statute. To render Caperton liable, a written promise to pay the debt of Webb, was necessary. The request to give time or the like, and the collateral undertaker will pay, is refining the statute into no meaning: immaterial circumstances make-no difference. The general rule is, that if the debtor continue bound, the collateral promise is void unless written. So are the English authorities. In Fish vs. Hutchinson, (2 Wils. 94,) F. promised H. that if he would indulge Veikars, sued by H., F. would pay the debt. Held to be void. So in King vs. Wilson, (2 Sty. 872,) heldj'that a parol promise to pay the debt of another, in consideration of forbearance, was void by the statute of frauds and perjuries.

In Rothing and Currey, (Bull. N. P. 281,) defendant, in consideration that the plaintiff would not sue A. B., promised to pay plaintiff the money due, viz. £4, in a week. This was holden to be within the statute of frauds— for no consideration laid, the plaintiff had promised not to sue, and if he had, A. B. could in no sort have availed himself of this agreement, but the debt is still subsisting, and consequently the promise collateral.

It is difficult to say Caperton did, by parol, promise to pay to Gray the debt of Webb. He had no intercourse with Gray, but said to the justice he would stay the execution. Be this as it may, the promise was clearly within the statute, and void. Judgment that defendant go hence, &C.

Judgment reversed.  