
    Paul Rogers v. Edward Collier.
    A promise, by a party in possession of goods which have been levied on under execution against another person, to apply the proceeds of the goods in satisfaction of the execution, in consideration that the plaintiff would release the levy, is an original undertaking upon a sufficient consideration, and need not be in writing, provided the levy were' valid ; but if the goods were not subject to the levy, it is a naked promise for the debt of another, within the statute of frauds, and is void if notin writing.
    Although the overseer of a plantation, is, by the agreement with his employer, to receive a certain portion of the crop, as the compensation for his labour and services, he has no title to any part of the produce, until his portion has been severed, and delivered to hhn, by the employer; nor can any part of H be levied on, under execution against the overseer, until such severance and delivery.
    Where a part of the crop of a planter had been levied on under execution against his overseer, who by the agreement between them was intitled to a portion of it, as the compensation for his services; held, that the assent of the planter to the levy, given under the mistaken impression, that the levy .was legal, although there had been no severance of the overseer’s share, would not avail as an acknowledgment that there had been a severance, and thus legalize the levy.
    Tried before Ml Justice Martin, at Abbeville, Fall Term, 1831.
    Special assumpsit. The plaintiff was assignee of an execution against one Alexander, who was the defendant’s overseer for the year 1828, and who, by his agreement with the defendant, was to receive a share of the crop, as the compensation for his services. Alexander died sometime about the close of the year; and a month or two afterwards, a deputy sheriff, by the orders of the plaintiff, levied the execution on four bales of cotton, out of a parcel of fifty or sixty bales, which he found at the defendant’s plantation. The cotton was not removed, nor was. the defendant present at the time of the levy. On the same day the deputy met the defendant at the Court-House, and informed him of what had been done: the defendant made no objection to it, and in a few minutes afterwards came up to the deputy, and proposed to him to release the levy, promising if he would do so, to send the cotton to Augusta, and pay over the proceeds to the plaintiff, whenever the cotton was sold. This proposal was communicated to the plaintiff, and the sheriff', both of whom assented to it, and the levy was abandoned. The defendant, however, subsequently refused to pay over the proceeds of the cotton to the plaintiff; who thereupon brought this action.
    At the trial, tho plaintiff endeavored to prove, that Alexanders interest in tho crop of the defendant, under the agreement between them, was equivalent to four bales; but the fact was not made out.
    It was contended for tho defendant,' that even if Alexander’s interest in the crop was as large as the plaintiff insisted, it was not such an interest as gave him any right of property in the cotton, or any other part of the crop. The extent of the crop was to furnish the measure of his compensation, and he had, perhaps, a right to be paid in kind ; but he was still nothing more than a creditor of the defendant, and had no title to any part of tho crop, until it had been severed, and delivered to him, by the defendant. The levy, then, was illegal, and unavailing; and tho abandonment of it, furnished no consideration for the defendant’s promise : the latter was consequently a naked undertaking for the debt of another, and, not being in writing, was void under the 4th section of the statute of frauds. P. L. 82.
    The presiding Judge was of opinion, and so instructed the jury; that the defendant’s failure to object to the levy, accompanied with his promise to pay the proceeds of the cotton to the plaintiff, amounted to an acknowledgment, that the fouibales of cotton levied on were the property of Alexander, as his share of the crop ; that the levy was consequently valid and binding, and the release of it by the plaintiff was a sufficient consideration to support the promise of the defendant, as an original undertaking, which was not required to be in writing by the statute of lauds.
    The jury, under the charge of the Court, found for the plaintiff ; and the defendant now moved to set aside the verdict for misdirection.
    Wakolaw, for the motion,
    cited, and commented on, Fish v. Hutchinson, 2 Wilson, 94. Williams v. Leper, 3 Bur. 1886. M’Cray v. Madden, 1 M’C. 486. Adkinson v. Barfield, lb. 575. M’Kiimey v. Quilter, 4 Id. 409. Fell on Guarantees, 17.
    Burt, contra.
   Johnson, J.

It seems to be contended, in support of the motion, that conceding the plaintiff’s execution to have been properly levied on the four bales of cotton, and that it was in law a lien on them, the defendant’s promise was, nevertheless, within the statute of frauds, and not binding, because it was not supported by a consideration beneficial to the defendant, although it was the occasion of loss to the plaintiff. But this position cannot be maintained. If one say to a merchant, deliver goods to such an- one, and.I will pay you for them ; no one would question that such a promise was binding. The rule very clearly is, that a consideration operating either as a prejudice to the promissee, or to the benefit of the promissor, will support an assumpsit; and there is no reason why it should not equally apply to a promise to pay the debt of another. To make it binding in that case, the promise must be original, not collateral. In Williams v. Leper, 3 Bur. 1889, it does not appear that the defendant was to be benefited, otherwise than by the retention of the goods; for his promise was to pay the amount of plaintiff’s demand.v His commissions, if he was intitled to any, were but the equivalent for services he was to render: nolis that circumstance taken into the account in the judgment of the Court. And the same may be more emphatically said as to the cases of M’Cray v. Madden, 1 M’C. 486, and Adkinson v. Barfield, Ib. 575.

We think, however, very decidedly, that the levy was improperly made on the cotton, and gave the plaintiff no lien upon it; and consequently, that he suffered no prejudice, and the defendant derived no benefit from it. . It was therefore a naked promise to pay so much as the cotton should bring in the market, towards the debt of another, and within the statute of frauds, and void. .

The contract between the defendant and Ms overseer, Alexander, was, that the defendant should give him a certain portion of the crop, which should be made on the plantation, as a compensation for his labour and services. Now, whether we take the contract according to the letter, or spirit, it is very apparent, that Alexander could have no right,title, or interest, in the cotton, except so far as it furnished the measure of his interest in the crop, until the defendant had apportioned it, and delivered his share to him. It could never be tolerated, that the overseer had a vested interest in the crop of his employer. His right to it must depend on his fulfilling his contract, and upon the assent of the employer. Until that is attained, his whole interest consists in the promise made by the employer; a mere chose in action, and not the subject of levy.

The circumstance that the defendant made no objection to the levy when it came to his knowledge, and his promising to pay the money, are relied upon, as shewing that he assented to this partition of the crop. But it is certain that no partition had ever been actually made; and yet the conduct of the deputy sheriff shows, that he thought the cotton, notwithstanding, a proper subject of levy: and it is apparent, that the defendant’s-promise was made under the same impression, which was a mere mistake, and cannot alter the rights of the parties. On this ground, therefore, the motion is granted.

O’Neall, J. and Martin, J; sitting for Harper, J. concurred.

Motion granted.  