14 Ala. 611 | Ala. | 1848
Is the undertaking on the part of Gordon, the defendant’s intestate, within the statute of frauds ?
The facts are these: Gordon, where execution is now sued, was a member of the respective firms of Gordon & Goldthwaite, and of Gordon & Chandler. While these firms existed, they contracted partnership liabilities to the plaintiff in error for costs, as clerk of the district court of the United States. The firms dissolved, and Gordon, subsequent to the dissolution, promised Files to pay him the cost. He also promised to pay to Files certain costs which had accrued in the district court in the prosecution of a chancery cause against the heirs of McCord, in which suit Gordon was solicitor. For the last cost he was in no ways bound, unless made so by his subsequent promise, no rule or motion having been entered against him for security pending the action.
There cannot be the least doubt in respect to the law as applicable to the cost in the case on McCord’s heirs. There being no previous liability of the part of Gordon to pay them, and no consideration, the promise is a nude pact, and clearly comes both within the letter and spirit of the statute. Not so however, in respect to the cost due from the two firms of which he was a member. He was bound for these demands anterior to his promise, and under our statute, was liable to be sued separately for the same'. The debt being his own, as well as the debt of his respective partners, the statute has no application whatever to the promise to pay it. The statute of frauds was not enacted to protect persons against the payment of their own debts, but the debts of others. In Curtling v. Aubert, 2 East, 325, Lord Ellenborough held
The circuit court having decided the law differently, its judgment is reversed and the cause remanded.
