Majority
p. 376Skelton against Brewster. contended, that the promise being a parol and collateral undertaking, was void by the statute of frauds. He cited 4 Johns. Rep. 422 . 7 Johns. Rep. 463 . Rob. on Frauds, 225. Burr. Rep. 1886. said, that this case came within the third class of cases stated in the case of Leonard v. Vredenburgh;[1] and the promise was to be considered as an original, not a collateral undertaking.
Headnote
Where A. 'in that B. would his’liousehoid311 U°0dwonidd 'dkcharge B. from execution, promised to pay G. the amount of the execution, tins was heU to not ewUhlnS the statute of frauds.IN error, on certiorari, from a justice’s court. Brewster sued Skelton before the justice; and declared on a promise, made by Skelton, to pay the amount due on a cer^in execution against one W. S. being the sum of 25 dollars. The defendant pleaded non assumpsit. On the 1 * trial, the plaintiff proved, that Brewster recovered iudg- ’ f , . , „ . J ° ment, and took out an execution tor 25 dollars, against W. ^ an(j t]iat the defendant, the said W. S. delivered all his household goods to the present defendant, who received tbem, and thereupon, and in consideration that the plain-* tiff would discharge the said W. S. from the execution, promised to pay the plaintiff 25 dollars.
Campbell, for the plaintiff in error,
Ford, contra,
This is not- a case within the statute of frauds. The promise of the defendant below, to pay the judgment against a third person, was founded on a new
p. 377
and distinct consideration, which was the delivery of tne , r goods or such person, and the plaintiff s discharge or the judgment. It is then to be considered in the light of an original promise, and so the law was declared by this court, in the case of Leonard v. Vredenburgh. The judgment must be affirmed.
Judgment affirmed.