Majority
p. 148Holly against Rathbone. cited 1 Term Rep. 72. 2 Vesey, 341. 6 Bro. P. C. 45. Ambler, 586. Roberts on Frauds, 138. 140. cited 1 Comyn on Contracts, 26. Bull. N. P. 129. 2 East, 507. Cowper, 284. 289.
Headnote
Ji. an overseer themanagement the property of mid a receded’ moneys belong-consideration of which he promised C. to pay him.a defat due to him from B. valid unde'rtafcexpressbpromise in writing, "and founded on a valuable consideration.On a return in a certiorari, the promise on which the below was sume^tT^e mí Tn writin|)when ?o thí contrary1
IN error, on certiorari, from a justice’s court. Rath* bone sued Holly before a justice, and in his declaration stated, that Holly was one of the overseers of the poor Camden, and, as such, has received certain moneys of Elizabeth Potter, a pauper of that town, and expected to receive more moneys which belonged to the pauper, and ~ ° . r r ' that in consideration thereof, he promised to pay to the . , . . - plaintiff a certain debt due from Elizabeth Potter to the plaintiff; and that Holly did, in fact, receive moneys of the pauper sufficient in amount to pay the debt of the PIamlnTl
The defendant pleaded non assumpsit, and the statute of frauds.
It was proved that Holly, as overseer of the . poor, • . r . r . 1 * had the management ox the property ot the pauper, and had received money belonging to her; and on that account made the promise to the plaintiff, and had paid him 70 cents *n Part the debt, and engaged to pay the residue, being 4 dollars. The justice gave judgment for the plaintiff below.
Clark, for the plaintiff in error,
H. Bleecker, contra,
As it appeared from the proof that ‘r „ , Holly was not only the overseer of the poor, but that he actually had the management and control of the property of the pauper, and as a trustee, with the fund in hand, made a promise, the case comes within the doctrine in Beecker v. Beecker. ( 7 Johns. Rep. 99 .)
The promise is to be taken to have been an express promise in writing, as the plaintiff in error has not called for any fact from the justice, to. rebut that presumption. This was said, in Beecker v. Beecker, to be the acknowledged rale. The promise was one which Holly ought, in duty, as trustee, to have performed; and it was founded on a valuable consideration. The judgment ought to be afSraied.