majority">Perkins, J.

Carpenter sued Brush, before a justice of the peace, in an action of assumpsit, for 23 dollars and 50 cents. The cause went by appeal to the Circuit Court, where the plaintiff had judgment.

It appears that Carpenter became replevin bail for one Anderson, upon the request of Brush, and on his promise to indemnify against loss, &c.; and that Carpenter had been compelled to pay, as such bail for Anderson, a fraction over 20 dollars.

The evidence further tends to show that Anderson had placed money in the hands of Brush to pay the amount Carpenter had paid for said Anderson, and that Brush had promised Carpenter to pay him the amount.

D. Kelso and J. W. Gordon, for the plaintiff.

It is urged, in this Court, by counsel, that the promise of Brush to Carpenter to indemnify him as bail, was void under the statute of frauds, not having been in writing.

This position seems to be well settled by the latest authorities. Nelson v. Boynton, 3 Metcalf 396.—Kingsley v. Balcombe, 4 Barb. S. C. Rep. 131.—Green v. Cresswell, 10 Adolph. and Ellis 453. But it does not dispose of the case.

If Anderson placed in the hands of Brush, for the use of Carpenter, the money to pay the latter, and Brush expressly promised the latter to pay it to him, Anderson being thereby released from liability to Carpenter, Carpenter can sustain an action against Brush for the amount. Such a state of facts might be inferred by a jury from the evidence.

But it is further urged that Brush had actually paid Carpenter before the institution of this suit.

The evidence on this point was, that Brush, on one occasion, when called on to pay, gave Carpenter “a note on Tower Lemon, and told him to go to Lemon and get the money; that if Lemon did not pay the money, to bring the note back, and he, Brush, would pay the money;” that Carpenter did go to Lemon and demand the money, but failed to get it, and that it had not yet been paid by Lemon to any one. Lemon is solvent. The note was tendered back at the trial—perhaps before the suit. The note was not assigned to Carpenter.

These facts did not show that the note was taken as payment, nor that it had produced payment, but the contrary ; and constituted no bar to this suit.

Had negligence in the matter been fixed on Carpenter, the case might have been different. He might thus have made the note his own, and been bound to account for its amount. See Spangler v. McDaniel, 3 Ind. R. 275.

The suit having originated before a justice of the peace, no great strictness as to form of action, and pleading generally, is required.

Per Curiam.

The judgment is affirmed, with 3 per cent, damages and costs.

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