| NY | Apr 5, 1850
It is contended on the part of the defendant, that the instrument declared upon contains neither an acknowledgment of indebtedness on his part, nor any express covenant or agreement to pay money, without one or the other of which this action cannot be maintained.
It is clear that the instrument set forth contains no express covenant to pay money, and this case must therefore fall within the principle determined in Briscoe v. King, (Cro. Jac. 281;) Suffield v. Baskeroil, (2 Mod. R. 36;) Smith v.Stewart, (6 Blackf. 162;) Scott v. Field, (7 Watts. 360;) Drummond v. Richards, (2 Munf. 337;) Salisbury v.Philips, (10 John. 57;) unless the defendant has bound himself by an express acknowledgment of indebtedness to the plaintiff. Now the language of the instrument which is relied on for this purpose falls far short of the requirements of the law. The defendant merely recites *266 an intention to secure the payment of a sum of money; and he might have done this although nothing was due to the plaintiff; or he might have transferred the chattels for the purpose of securing the debt of another, without intending to become personally bound for its payment.
It was for the plaintiff to show that the instrument declared on contained a clear and unequivocal recognition of a debt due from the defendant to himself, in order to escape from the application of the rule established in Briscoe v. King, and to bring his case within the principle laid down in Elder v.Rouse, (15 Wend. 218.) In the latter case, the defendant executed an instrument under seal, by which he recited in express words that he was indebted to the plaintiff in the sum of $100, and for the purpose of securing the payment of that debt he sold and conveyed to the plaintiff certain church pews, with a proviso, that if the defendant should pay the $100 with interest in one year, then the transfer should be void. The action of debt for $100 was sustained on this instrument, on the ground that the debt was expressly acknowledged to be due, on the face of it; and the case was thus distinguished from that of Briscoe v. King, and others of that class. The judgment of the supreme court must be affirmed.
Judgment affirmed.