Curia, per

This was a summary process on a merchant’s account. On the books it appeared that the goods were charged to one Simmons, the overseer of the defendant. It was attempted to be shown on the trial, that although the goods were charged to Simmons, yet that the defendant, Thomas C. Richardson, was the original contracting party, and, as such, bound in law to pay for them. The evidence offered to show this, was the examination of the clerk of the plaintiff, who deposed that he was under a strong impression that the goods were charged to Simmons at the request and direction of the defendant.

But the process which issued in this case, is conclusive to show that Simmons, and not the defendant, was the original contracting party ; for it alleges that the defendant is indebted to the plaintiff in the sum of twenty-seven dollars and seventy-one cents, which he assumed to pay on an account for that sum, which the plaintiff had against one Thomas Simmons. How, then, can it be maintained, that the undertaking was original on the part of the defendant ? If the defendant ever did promise to pay this account for Simmons, the promise should have been in writing ; otherwise, it cannot be enforced, being void by the statute of frauds.

The motion is refused.