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Twidy v Saunderson.

jected as vague and unmeaning, or they must make a direct reference to what is out of the writing, that is, the terms upon which other negroes were hired at the same time and place, and this, of necessity, is to be ascertained by proof aliunde, so that the writing by its terms contemplates and makes necessary a resort to other evidence in order to ascertain the agreement. In any point of view, the parol evidence was admissible.

The next question as to the form of action is a more difficult one, and involves the necessity of deciding, whether the note under seal of the defendant contains as well the terms of agreement as the price; for, if so, the simple contract is merged in the specialty.

It is argued that the note does contain the terms of the hiring, by reference to something else, and that its legal effect, is the same as if the agreement had been set out at large, for id certum est, quod certum reddi potest, and that the action must be upon the deed even when it is necessary, on account of the reference, to resort to parol evidence. The reply is that the reference in this instance is so vague and uncertain as to be entirely unmeaning. If the words had been, "the slave is hired on the same terms as he was hired the yea. before, or as the negroes of A. B. are hired this year," the terms could be made certain; but the words "on the same terms as other slaves" announce a mere generality, unrestricted by time, place, or circumstance.

A latent ambiguity may be explained by parol evidence, as in a bequest of my white horse, if the testator has two white horses; it may be shown by parol evidence which of the two he meant, for th.ficulty arises from a circumstance dehors the will; so if a deed calls for a black oak tree marked as a corner, and there be two black oak trees marked as corners, evidence aliunde must be resorted to to ascertain which tree was meant. Such evidence must be resorted to in every case to fit the thing

Twidy v. Saunderson.

to the description; but if the description be uncertain, which is what is called a patent ambiguity, parol evidence is not admissible, for that would not be fitting the thing to the description, but making by parol a better one than was furnished by the writing.

We think it clear, that in this case the words in re. ference to the terms are to be rejected as unmeaning, and that the note does not contain the terms of hiring, except the price. We, therefore, concur with his Honor in both propositions.

It may be proper to add, that as no objection is taken to the rule of damages laid down by his Honor, we are to suppose there was evidence to authorise it, and are not to understand his Honor as ruling, that the value of the slave is the measure of damage as of course; for there may be circumstances, under which the slave might have been killed, and the defendant be not liable to the extent of his value, although his agreement be violated. The case does not state the manner in which the slave was killed, so as to show that the death was not a natural consequence of the slave having been carried out of the County.

PER CURIAM.

Judgment affirmed.

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WILLIAM C. DRAUGHAN vs. THOMAS BUNTING, & AL

Where A. has a cause of action against another, and B. makes a parol promise to indemnify A., which promise is superadded to the claim, which A. has ou his original cause of action, the statute, making void parol promises to indemnify against the default, &c. of another, will apply.

But, if there is no debt for which another is, or is about to be, answerable, or if the debt of the other is discharged and the promise is substituted, the statute does not apply.

A surety, who seeks to recover from a co-surety a rateable part of money paid, must take care to do no act, which will prevent the co-surety from having recourse against the prinejpal. If therefore, he release the principal, it is a discharge of the co-surety.

If A. is indebted to B. and puts money in the hands of C. to pay B., B; may sue C. for money had and received to his use.

The case of Hall v. Robinson, 8 Ire. 56, cited and approved.

Appeal from the Superior Court of Law of Sampson County, at the Spring Term, 1847, his Honor Judge BATTLE presiding.

This was an action of assumpsit, in which the plaintiff declared in several counts.

1st. On a promise to indemnify the plaintiff on a note for $600.

2nd. On a promise to indemnify the plaintiff on a note for $479 43.

3rd. On a promise to indemify the plaintiff on a judg ment of the Bank of Cape Fear against David Underwood, John Sellars and William C. Draughan.

4th. To receive money paid on a judgment obtained on a note endorsed by the plaintiff, at the instance and request of the testator, John Sellars, as supplemental surety, and not as co-security with said John Sellars on a note of David Underwood.

5th. To recover money laid out and expended for the use and benefit of the testator, John Sellars.

Draughan v. Bunting.

6th. To recover money had and received by the Tes. tator, John Sellars, for the use of the Plaintiff.

The defendants pleaded the general issue and the statute of frauds. For the plaintiff it was proved, that he endorsed a note for $600, payable to the Bank of Cape Fear, in which David Underwood was principal and the defendant's testator, John Sellars, surety, which was renewed from time to time until the note for $479 43-100 was given. It was further proved, that a judgment was obtained on this note and the plaintiff was compelled to pay the sum of $378 21-100, which he sought to recover of the defendants. The plaintiff then proved by Underwood, the principal in the note, that when he applied to the plaintiff to endorse for him, he declined doing so unless he could be indemnified, which he, Underwood, promised should be done; that thereupon, John Sellars, the testator, in consideration that Underwood would convey to him a large number of slaves to secure him as his, Underwood's surety in this and other debts, for which he, Sellars, was liable as his surety, promised to indemnify the plaintiff and save him from all loss in becoming endorser on Underwood's note; that Underwood did accordingly execute an abso lute bill of sale to Sellars for a large number of slaves, and the plaintiff then endorsed the note for $600, and that the negroes were afterwards sold by Sellars, and he acknowledged he had in his hands funds, with which to discharge the debt for which the plaintiff was liable as endorser. The defendants objected to the competency of Underwood as a witness to prove these facts, which objection was sustained by the Court. Whereupon the plaintiff executed to him a release, and the defendants pleaded it since the last continuance in bar of the action. A motion was then made by the defendants' counsel, that the plaintiff should be non-suited, both on the ground that they were discharged by the release, and also that the

Draughan v. Bunting.

defendants' liability, if any, was for the debt, default or miscarriage of another and not for his own debt, and the plaintiff could not recover, because the promise was not in writing as required by the Statute of Frauds.

The Court expressed an opinion that the action could not be sustained and the plaintiff submitted to a judgment of non suit and appealed.

Badger and W. Winslow, for the plaintiff.
Strange, for the defendants.

PEARSON, J. We concur with his Honor, that an action cannot be maintained upon the parol promise of indemnity. That is void by the Statute of Frauds. Underwood was under a legal liability to indemnify the plaintiff, as his surety, and the promise, superadded by the intestate, comes within the words and meaning of the Statute; it is a promise to answer for the default of another, and there being a consideration makes no difference; it required no statute to make void a promise not founded upon a consideration.

The true test is, has the plaintiff a cause of action against another, to which the promise in question is superadded? If so, the statute applies. But, if there is no debt for which another is already or is about to become answerable to the plaintiff, or if the debt of the other is discharged and the promise in question is substituted, the statute does not apply; as when a creditor discharges a debtor, who is in custody, upon a promise of a third person to pay the debt, the original cause of the action is gone by the effects of the discharge; the new promise is substituted.

We are of opinion that the effect of the release was misconceived. So far as there was a cause of action arising from the relation of co-suretyship under the act of 1837, the release to the principal is a bar; for a surety, who seeks to recover from a co-surety a rateable part of

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