#### Cook vs. Barrett and another.

Where A owes B, and G owes A the same amount, an oral agreement among all the parties that C shall pay B, and that B shall look to C for his pay, discharges A, and is not an agreement by C to he answerable for the debt of another within the meaning of the statute of frauds.

Judgment for costs should not include the fees of witnesses called by the party *against*whom such judgment is rendered.

APPEAL from the Circuit Court for *Jefferson*County.

This action was brought before a justice of tbe peace to recover for several items of indebtedness, of which tbe following was tbe last set forth in the bill of particulars: “ April, 1860. Paid John Walker, $400. ” The evidence given as to this item on the trial, is stated in the opinion of the court. Judgment for the plaintiff for damages and costs, in-eluding in the latter the fees of the defendants’ witnesses. On appeal to the circuit court, the judgment was affirmed.

*JEhws*& *Hall,*for appellants :

*597October 11.

1. Tbe agreement under wbicb tbe plaintiff seeks to recover tbe item of $4.00, was without consideration, and if it bad a consideration, is void by tbe statute of frauds. So long as tbe indebtedness of Walker remained, tbe verbal promise of tbe *Barretts*to pay this debt to *Cook,*is void, unless founded upon a new and original consideration of benefit to tbe Barretts, or barm to *Cook,*moving to tbe party making tbe promise, from *Cook*or Walker. 21 N. Y., 412; 8 Johns, 29; 1 Wis., 77 ; 10 id., 422. 2. Tbe justice erred in including in tbe judgment against the defendant for costs, tbe fees of tbe defendants’ own witnesses.

*B. F. Weymouth, contra,*

on tbe first point, cited 17 Mass., 236 ; 10 Johns., 412; 4 Cow., 432; 7 id., 639; Riley, S. C., 44; 2 J. J. Marsh, 309; 1 Scam., 58; 2 Denio, 45.

*By the Court,*

Cole, J.

As we understand tbe facts of this case, tbe last item of tbe respondent’s account does not come within tbe statute af frauds. It is not the promise to answer for tbe debt or default of another, but an original undertaking by tbe *Barretts.*It appears that'Walker was owing *Cook,*and that tbe *Barretts*were owing Walker. So it was agreed by and between all tbe parties, that *Cook*should release bis debt against Walker and look to tbe *Barretts*alone for tbe payment of tbe four dollars. For *Cook*says in substance, in bis testimony : “ Walker owed me and worked for tbe *Barretts*to tbe amount of four dollars, and it was agreed between me, the *Barretts*and Walker, that tbe *Barretts*should pay me the four dollars, and that I was to look to them for it.” If this were so, we suppose the original debt from Wal-. ker to *Cook,*and .that from tbe *Barretts*to Walker, were discharged, and tbe new debt was substituted in lieu of those previous debts. ' *Cook*could no longer look to Walker for payment, because be had released him by this new arrange - ment and accepted the *Barretts*for bis debtors. This brings the case precisely within that class of decisions wbicb bold that when tbe original debt becomes extingriisbed, and tbe creditor has only tbe new promise to rely upon, it is not within tbe statute. All tbe cases cited by tbe counsel for *598the appellant recognize this distinction, *and we do*not understand him to controvert the position that if Walker’s debt was extinguished by *Gooh*in consideration of the *Barretts'*agreement to pay it, then they are liable. As we understand the evidence, this was the case.

We suppose, however, that the justice erred in taxing the fees of the appellants’ witnesses against them. Where a party recovers judgment in an action like this, the statute permits him to recover his costs. But we do not understand that he has a right to recover the costs of the other party. It does not concern the respondent whether the appellants pay their witnesses or not. *He*has not paid them, and is not liable to pay them ; why then should he recover their fees in his judgment ? We are not aware of any reason why he should, and think they must be struck out of the judgment.

The j udgment must be modified 'so as to strike out the $4.45 for fees for the appellants’ witnesses, and affirmed as to the residue.