contract, they might have been liable to some other action. But they could not be liable to an action of false imprisonment, as long as the judgment and execution remained unsatisfied. The defendants appear to me to be equally justifiable upon moral as well as legal principles. The plaintiff's house had been sold-he was for ever divested of it, if the purchaser had been disposed to have kept it, and probably would have done so, if the defendants had not stepped in to the plaintiff's relief. They agreed to advance the money for him, to take the house as security for that and their own debt, and to give him two years to pay the money, but when a written agreement was tendered, he refused to sign it: whether that agreement was in conformity with the verbal contract, does not appear-but it at least appears that the bargain had not been finally concluded; the defendants then had no alternative but to proceed with their execution. The motion therefore must be refused. Justices Johnson, Huger and Richardson, concurred. Levy & Chappell, for the motion. McCord & Gregg, contra. (a.) See Reynolds vs. Corp, 3 Caines' Rep. 269, R. JOHN BOYCE vs. FANNY OWENS. A promise by A. to B. that if B. would discontinue an attachment against C. that he A. would pay B. the debt, is void, under the statute of frauds, not being in writing. A domestic attachment, it seems, cannot be levied on land. TRIED at Newberry, at a Special Court, July, 1822, before Mr. Justice Gantt. It was This was an action brought against the defendant, on a promise to pay a debt which her son Moorefield Owen's owed to the plaintiff. It appeared in evidence that the plaintiff held a note on Moorefield Owens for $87. Being apprehensive that he was absconding, so that the ordinary process of law could not be served upon him-he applied to a magistrate, and obtained an attachment against his estate for that sum. The attachment was directed to one Jones, a constable, and to any other constable. levied on a tract of land, and the defendant Funny Owens, was summoned as a garnishee. Whether the attachment was ever returned or not, did not appear. Mrs. Owens however agreed with the plaintiff, that if he would discontinue his attachment, and wait with her until next fall, she would pay the debt. The attachment therefore was not prosecuted any further, but the promise was not in writing, nor did it appear that the note was given up. Upon this evidence, the defendant moved for a non-suit in the court below, upon two grounds: 1st. Because the promise was without any consideration. 2d. Because it was to pay the debt of a third person, and was not in writing. That motion was overruled, and the plaintiff obtained a verdict. This was a motion for a non-suit or new trial, on the same grounds. Mr. Justice Nott delivered the opinion of the court: There is no statute perhaps which has given rise to more nice and subtle distinctions than those which have arisen upon the construction of the statute of frauds. Two things however appear to be very well settled: 1st. That to make a person liable upon a promise to pay the debts of another, that promise must be founded upon some consideration, and, 2d. That it must be in writing. Some consideration was necessary for the support of every contract at common law; and it was not the inten tion of the statute to alter the common law in that respect, but to superadd another requisite; to-wit, that the promise should be in writing. But it is contended in this case, that the discontinuance of the attachment, and giving time to the defendant, constituted a new consideration, moving from the plaintiff to the defendant, which made this an origin I undertaking, that need not be in writing. Such a construction, it appears to me, would almost amount to a repeal of the statute. A promise to pay the debt of a third person, was not good at common law, unless it had been on some consideration. And if the circumstance of the promise having been founded on a consideration, be sufficient to take it out of the statute, the law is precisely the same now as it was before the statute was passed; and one of the most important statutes in our law-books, has, by construction, become a dead letter. In Comyn on Contracts, 55, it is said, "if it be a part of the agreement that the original debt be discharged, that is a sufficient consideration to support the undertaking of another to pay the debt, and the agreement need not be in writing." The reason ap⚫pears to be obvious. The original debt being extinguished, it is no longer an undertaking to pay the debt of another, because there is no such debt existing, but it is a newly created debt of the undertaker. "But if no such stipulation be made, and the original debt be permitted to subsist, the undertaking is merely collateral, and the agreement must be in writing." There was no evidence in this case that the original debt was discharged. The. note was not given up, nor the relative situation of the parties in any manner changed. It is also further laid down in the same author, that "when nothing more is stipulated for, than indulgence to the debtor, or that an action which has be en commenced shall be stayed, the undertaking to pay the debt of a third person is within the statute; for the original debt still continues, and the undértaking is but collateral." (1 Comyn on Contracts, The 60.) That seems to be the very case before us. consideration, and the only consideration laid in the declaration, is the staying of the attachment. So where a creditor discharges a lien, on which he has the goods of his debtor, where a person promises to pay the debt of another on the faith of funds in his possession, it is considered an original undertaking-the goods in such case are the fund, and the person becomes liable in consideration of that security. (Williams vs. Lesser. Do. 61. 3 Burr. 1886. 2 Wils. 308,) and that is consistent with our own decisions on the subject. In the case of Thomas McCray ads. Jno. Madden, (1 McCord, 487.) Mr. Justice Gantt, who delivered the opinion of the court, observes, "whether the promise made in this case is to be considered as a collateral one, and void by the statute of frauds, will depend upon the fact of the defendant having effects in his hands at the time of the promise to pay the debt due by this note from the absent debtor to the plaintiff." In that case, the defendant had said, that "if the plaintiff would not take out an attachment, but would wait until the next Fall, he would pay the amount due by the note, as he had effects in his hands for that purpose." The case of Atkinson vs. Barfield, was decided upon the same principle. The plaintiff had levied an attachment upon a horse; the defendant promised that if he would give up the horse, he would pay the debt. (1 McCord, 575.) This case is therefore clearly within the statute, and the promise void. Indeed, there was no consideration even to support an original undertaking. The attachment was for eighty-seven dollars; it was directed to one Jones, a constable, or to any other constable. Now our act expressly declares, that an attachment for that amount shall be directed to the sheriff. A constable is not authorized to serve an attachment for any sum above twenty pounds; neither could a domestic attachment as this was, be levied on land. The attachment, therefore, in its creation, was void, and the service would have been void, if the attachment had been good. The plaintiff therefore had no lien; he had not even commenced an action-the whole proceeding was illegal and void, and did not furnish a sufficient consideration to support a contract. The motion for a non-suit must therefore be granted.. Justices Huger, Johnson and Colcock, concurred. O'Neal & Johnson, for the motion. Ex'ors of GLENN vs. MCCULLOUGH. Proof of a promise made to an executor will not support an allegation of a promise to a testator. ASSUMPSIT.-Tried before Mr. Justice Nott, at Laurens, Fall Term, 1822. This was an action on a promissory note. The promise was alleged to have been made to the testator. The defendant pleaded the statute of limitations, to which the plaintiff replied a subsequent promise. It appeared in evidence, that after the death of the testator, the executor presented the note to the defendant. He said he gave the note, and would not take the advantage of the statute of limitations; but that it was given for rotten tobacco. The judge on the circuit, instructed the jury that the acknowledgment made to the executor was sufficient to save the case from the statute of limitations; but that a promise to an executor would not support an action on a promise made to his testator; the evidence did not support the issue, and the plaintiff could not recover. The plaintiff's counsel then moved for leave to withdraw his record from the jury and amend his declaration, by laying a promise to the executor. The presiding judge was of opinion he had no authority to give such |