
    E. L. Roche v. Edwin Chaplin.
    Charleston,
    Feb. 1830.
    £f the defendant in summary process refuse, or neglect, to answer the interrogatories annexed to the process, the plaintiff is intitled to judgment pro confesso, although it appear, by the interrogatories, that other evidence of the facts is accessible to him. vide Wallace & Wilboum v. Norvell, ante, p. 125, contra.
    
    TJie promise of a guardian, to pay a debt contracted by his ward, is an original, and not a collateral undertaking within the Statute of Frauds, and need not be in writing.
    Tried before Mr. Justice O'Neall, at Coosawhateliie, Spring Term, 1829.
    Summary Process upon an open account for a frock coat furnished by the plaintiff, a tailor, to the defendant’s ward. The defendant was served with an interrogatory annexed to the process, requiring him to answer on oath ; whether he had not promised the plaintiff’s attorney, after the account had been placed in his hands for collection, to pay the debt, if he were indulged for a specified period, and whether he had not been indulged accordingly. He refused to answer, and the plaintiff moved for judgment. The motion was opposed by the defendant, on the grounds : 1. That it appeared by the interrogatories, that the plaintiff’s attorney could prove the promise, to which the defendant was interrogated ; and therefore, the plaintiff was not intitled to require the defendant’s oath. '2. That supposing such promise to have been made, yet, as it did not appear to have been in writing, it was void under the Statute of Frauds, being an undertaking for the debt of another.
    The presiding Judge overruled the defence on both grounds. If. the defendant had not made the promise, it was very easy for him to say so ; and it was the precise object of the act of 1769, establishing the summary jurisdiction, to get rid of the difficulties arising from technical rules in suits for the recovery of small debts. P. L. 270. Neither was the second ground tenable. The defendant’s promise was an admission, both that the debt had been properly contracted, by the ward, and that he himself had funds in hand to meet it.
    Decree for plaintiff, which defendant now moved to set aside.
    Fuller, for motion.
    H. S. Legare, contra,
    
   Johnson, J,

delivered the opinion of the Court.

According to the rule laid down in the case of Walker v. Mathaney, Harp. 187, the Circuit Court seems to have been warranted im awarding judgment against the defendant, on his refusal, or neglect, to come in and answer the interrogatories propounded to him under the rule of Court. So that the only question is, whether the defendant’s promise was, or was not, within the Statute of Frauds. Assuming as true, the affirmative of the question propounded, the case is this. The plaintiff, a tailor, furnished the ward of the defendant with a frock coat, without the order of the defendant, and the defendant afterwards promised to pay the plaintiff the value, if he would indulge him a short time, and that indulgence was granted. The rule laid down by chiefjustice Swift, is, that “ where there is no debt or liability, on the part of the person for whom the promise is made, so that no action will lie against him, it is an original undertaking on the part of the promisor.” 1 Swift’s Dig. 253. It may, I think, be well questioned, whether an infant, having a guardian, would under ordinary circumstances, be himself liable eveu for necessaries furnished him. But there is clearly nothing in this case which would bind him ; and according to the rule, the promise of the defendant was original, and binding on him. The rule is illustrated by the case of Harris v. Huntbach, 1 Bur. 373, where the plaintiff at the request of the defendant had advanced money'on account of his infant grandson, to pay for work done, and this was held an original undertaking. Foster, J. says “the infant was not liable, and, therefore, it could not be a collateral undertaking. It was an original undertaking of the defendant to pay the money.” 1 Bur. 376.

jJpcTih Vide Conol-

Colcock, J. and Richardson, J. concurred.

Motion refused.  