Smithwick v. . Shepherd

49 N.C. 196

• Court: Supreme Court of North Carolina
• Decided: December 5, 1856
• Status: Published

Opinion

Battle, J.

The declaration -made by the defendant, that he would see the debt of his intestate paid, or that it should be paid, was, if a promise to pay at all, a special promise within the statute of frauds. Revised Stat, ch. 50, sec. 10, (Rev. Code, ch. 50, sec. 15). It was a promise either “ to answer the debt of another person,” or, by an administrator, “ to answer damages out of his own estate,” and, therefore, no action could be brought upon it; because it was not in writing and signed as the statute requires.

If the propositions contended for by the plaintiff were sustainable in this case, they would defeat the effect of the statute in every case, by making the promise operate as a substitute of itself, for the original debt. Such a doctrine cannot, for a moment, be upheld.

The judgment of nonsuit was right, and must be affirmed.

Pee. OubiaM. The judgment is affirmed.