#### Solomon Towne *versus*Nathaniel Grover.

A housewright having contracted to build a house for the defendant and to find the materials, and the defendant having agreed to pay him when the house should be finished, the defendant made a *verbal*promise to the plaintiff, that if he would supply the housewright with the materials upon credit, he, the defendant, would not settle with the housewright without giving the plaintiff notice after the house should be finished, in order that he might secure his demand by a process of attachment upon the defendant as trustee of the housewright; nevertheless the defendant, without notice to the plaintiff, did pay the housewright, before the house was finished, and the housewright absconded, whereby the plaintiff lost his debt. It was *held,*that the promise of the defendant to the plaintiff was legal, and that it was not within the statute of frauds.

Assumpsit. The declaration alleged, that the defendant employed one Newell, a housewright, to build for him a house ; that Newell was to do all the work and find all the materials, and the defendant was to pay him therefor the sum' of $ 1400, when the house should be completed ; that Newell being indebted to the plaintiff in the sum of $790, partly for materials supplied and used for building the house, and being desirous of purchasing more lumber to finish the house, the plaintiff refused to sell him any more, unless the defendant would cause the plaintiff to be secured’ out of the amount which the defendant should owe to Newell when the house should be completed, as well for the sum then due to the plaintiff, as for what might become due for materials afterwards sold to Newell to finish the house ; that in consideration of the premises the defendant *311promised the plaintiff, that if he would sell and deliver to New-ell the lumber necessary to finish the house, he, the defendant, would not settle with Newell for the house, until he had given the plaintiff sufficient notice, after the completion of the house, so that the plaintiff might secure himself by process of attachment upon the defendant as trustee of Newell, for the whole of the debt which should be then due from Newell to the plaintiff; that relying on this promise, the plaintiff forbore to take measures to secure his debt against Newell, and gave him further credit to the amount of $ 98, but that the defendant afterwards, the house not being then completed, settled with Newell without giving the plaintiff notice, and paid Newell, by negotiable notes, $ 760, the balance due, and that Newell immediately-absconded and was wholly unable to pay, by reason of which the plaintiff had lost his debt.

The cause was tried before *Wilde*J. on the general issue The plaintiff offered the testimony of a witness to prove the promise ; to the admission of which the defendant objected, on the ground that the promise was within the statute of frauds and could be proved only by writing. But the objection was overruled, and the evidence admitted ; to which the defendant excepted. The verdict was for the plaintiff.

Fletcher, for the defendant.

1. The promise is within the statute of frauds, and is void, not being in writing. It is in effect a collateral promise to pay the debt of Newell ; and the only circumstance in which it differs from promises in general, to pay the debt of another, is, that the defendant undertakes to see the plaintiff paid in a particular way. *St.*1788, *c.*16, § I ; *Kirkham*v. Marter, 2 Barn. & Ald. 613 : *Dixon*v. *Hatfield*2 Bing. 439 ; *Barber*v. *Fox,*1 Stark. R. 270 ; Chit. Contr. 201 ; 2 Stark. Ev. 593.

2. The contract is illegal. The defendant could not perform it without violating his contract with Newell.

*Nichols,*for the plaintiff.

This was not a promise to pay the debt of another, but to do a distinct act, namely, to give the plaintiff notice for a purpose specified ; and the promise was upon a new consideration. 1 Wms’s Saund. 211 *a; Jarmain*v. *Algar, 2*Carr. & Payne, 249 ; *Williams*v. *Leper,*3 Burr. *3121886 ; *Costling v.*Aubert, 2 East, 325 ; *Bampton*v. Paulin, 4 Bing. 264.

Per *Curiam.*

The plaintiff shows a fair ground of action, having parted with his property on the faith of the defendant’s promise. We think the promise is not within the statute of frauds.1 It is a separate, independent agreement, having no reference to the debt of Newell, except as to the measure of damages. The defendant was not to pay the debt of Newell, but was to give notice, previously to making a settlement with him, which would enable the plaintiff to obtain payment of his demand. Whether Newell paid the debt or not, the promise of the defendant would remain to be performed.

The second objection made by the defendant is not sustained. We see no reason why a debtor of an insolvent person may not give a creditor of such person an opportunity to secure himself. The property of the insolvent person is applied to the payment of his own debt. There is no illegality or impropriety in such a transaction : not more than in the law itself, whi:-. allows a preference among creditors.

*Judgment on the*verdict.

1

 See Chitty on Contr. (4th Am. ed.) 405 *et seq.*