CEPHAS HUDSON v. ANSON CRITCHER.

The existence of a claim, in equity, is a sufficient consideration for a promise t® pay money or any other thing, and such promise may be recovered in an action at law.

This was an action of assumpsit, tried before Bailey,, J., at the Fall Term, 1861, of Granville Superior Court.

The declaration contained two counts : one for the price of two slaves, Jack and Friday, which plaintiff had sold to the defendant, and for which he promised to pay the sum of $287.25 ; the other, the common count in assumpsit.

One:Paschall testified, that on the 10th June, 1856, the plaintiff and defendant came to him and asked him to make a settlement between them, stating that prior to that time, to wit, about the 16th of January, 1856, the plaintiff had sold to the defendant two negro slaves, named Jack and Friday; that he then made a statement of accounts between the parties upon their statements of debt and credit, and that there was a balance in favor of the plaintiff $287.25, the price of the slaves, which balance, the defendant promised the plaintiff that he would pay, and at the same time, he (defendant) made a writing in these words;

*486“To Hudson — Balance, $287.25;” and handed it to the witness to keep as a memorandum of the amount of said balance.

The defendant then produced and proved two bills of sale, under seal, dated 16th January, 1856, for Jack and Friday, in which, the payment of the full price was acknowledged.

The defendant insisted that the plaintiff was estopped by these bills of sale, and that the debt was entirely taken away, and there was no consideration for the promise to pay the money sued for. His Honor being of that opinion, so instructed the jury, who found a verdict in favor of the defendant. The plaintiff excepted to the charge of the Court, and appealed from the judgment rendered on the verdict.

No counsel appeared for the plaintiff in this Court.

B. F. Moore, for the defendant.

Manly, J.

An acknowledgment in a bill of sale, under seal, or in a deed, of the reception of the consideration money is, in general, a bar to any action, at law, for the same. This was very properly recognised by his Honor below as an established principle. But there remains, notwithstanding, m foro conscientiee a claim, which a court of equity will enforce. It is something more than a mere moral obligation. This was decided by the Court in Crawley v. Timberlake, 1 Ire. Eq. 346.

It is also settled, that an equitable demand is a sufficient consideration to support at law a promise to pay; Lowe v. Weatherley, 4 Dev. and Bat. 212; Noblet v. Green, 2 Dev. 517. When, therefore, parties, between whom there is an unsettled demand of this nature, come to an account and strike a balance, which the indebted party promises to pay, the equitable is converted into a legal demand, and may be recovered by an action, at law, upon the promise. The accepting of such a promise and the consequent abandonment, at that time of further strife or litigation, in respect to the claim, is the consideration. Without intimating any opinion upon *487the merits of the plaintiff’s case in this view of it, we. think it ought to have been presented to the jury.

Promises, upon equitable considerations, seem to have been maturely considered by the English Judges, im, bank, in the case of Hawkes v. Saunders, 1 Cowper, 289, and we refer to it for a corroboration of the judgment of the Court in Lowe v. Weatherley and Noblet v. Green. In the English Court, the question arose in an action upon the promise. of an executor, having assets, to pay a legacy; this was held to be a promise obligatory at law. The general doctrine of moral and equitable considerations is discussed, and there is a concurrence of opinion, to the extent, that a present demand in equity, is a consideration sufficient to support a promise in an action at law, brought upon it.

There should be a venire de novo.

Per Curiam,

• Judgment reversed.