
    George Buckley against George Beardslee.
    
      ON CERTIORARI.
    
      “ I do promise to pay the amount &c. ifC. S. should not pay it in six months,” a sufficient promise, under the statute of frauds, if it is in writing.
    Consideration of promise. 
    
    ATTORNEY-GENERAL for the plaintiff.
    The state of demand, sets out the following case. That Beardslee, on the 2nd July 1810, became security for one Cornelius Smith, to Martin Byerson and Matthias Little, in a note of hand, for 64 dollars, 25 cents, payable the 1st November 1810 ; that on the 11th January 1811, Ryerson and IAitle, obtained judgment on the note for 65 dollars, debt, and 53 cents, cost, before Z. Sutton, esq.; that execution was issued on the judgment, and that on the 25th 1811, Beardslee paid the amount of it, to the plaintiffs ; that Beardslee, “ being about to prosecute and pursue the said Cornelius and his property, for the amount of the judgment aforesaid, the said George Buckley, by his agreement in writing, bearing date the 25th April 1811, and signed by said George Buckley, in consideration, that the said George Beardslee, would delay to prosecute and pursue the said Cornelius Smith, for the amount of the judgment aforesaid, for the space of six months, from the date of said agreement, undertook and promised the said George Beardslee, to pay him the ^amount of the said judgment and execution, if the said Cornelius should not pay the same, within the space of six months, from the date' of said agreement, to the said George Beardslee ; and the said George Beardslee, says he did delay to prosecute and pursue the said Cornelius and his property, and hitherto hath delayed and forborne, yet the said Cornelius hath not, nor has the said George Buckley yet paid the said George Beardslee, the amount of the said judgment and execution."
    The suit was commenced on the 26th April 1817 ; on the trial of the cause, by the consent of parties, the note from Smith and Beardslee to Ryerson and Little; the judgment and execution upon the note; and the undertaking-in writing from Buckley to Beardslee, were severally admitted and read to the jury. The last mentioned paper, is in the words following, viz: “ Judgment before Zebulon Sutton, esq. the 11th January 1811. Martin Ryerson and Matthias Little v. Cornelius Smith and George Beardslee ; execution 65dollars, cost 1 dollar, 5 cents; centage 1 dollar, 80 cents; amount 67 dollars, 35 cents. I George Buckley of Franlcford, do promise and engage to pay or-cause to be paid, to the said George Beardslee, the amount of the above stated execution, with cost, on the following condition, viz: that if the said Cornelius Smith, should not pay or cause to be paid the same, in six mouths from this date, then I the said George, will pay the amount of the above stated execution, to George Beardslee or his assigns, without defalcation or discount. Witness my hand, this 25th day of April 1811. George Buckley. Witness present, Charles lugliss.”
    
    Several witnesses were sworn, and there were verdict and judgment for plaintiff for 93 dollars, 81 cents.
    Three reasons for reversal were filed. 1. The state of demand, contains no legal cause of action, inasmuch as the contract therein stated, is not sufficient in law, to maintain an action. 2. The agreement alleged and proved, is variant from the state of demand. 3. The said alleged agreement, is an undertaking to pay the debt of another, without any consideration appearing upon the said alleged agreement. The last of these was principally relied on in the argument. ■
    
      
       See Shepherd vs. Layton, Pen. *618, Herbert vs. Cooper, Pen. *1044. Bigelow vs. Pine, Pen. *523. Youngs vs. Shough, 3 Gr. 27. Mundy vs. Ross, 8 Gr. 466. Ashcroft vs. Clark, post 577. Crozer vs. Chambers, Spen. 258. Laing vs. Lee, Spen. 337.
      
    
   Kirkpatrick C. J. and Rossell J.

affirmed the judgment ; none of the reasons being sufficient for reversal.

*Southard J.

The declaration does not merely set out an agreement which the plaintiff below was to establish by evidence, but a written agreement to pay money for another, and states a consideration as contained in that written agreement. The paper offered, does not contain such a consideration. The paper offered in evidence, is not the paper set out in the state of demand. It was not therefore evidence to support the demand. The plaintiff ought to have proved his contract as he laid it.

The agreement, I think, amounts to this, that if Smith did not pay the judgment which is recited, within six months, he, Buckley, would. But why would he pay it ? what reason induced him ? what consideration supported the promise? None is stated; and therefore the question is fairly presented. Must the written memorandum, under the statute of frauds to pay the debt of another, contain as well the consideration as the promise ? Or is the promise alone sufficient ?

Upon this question, I entertain the following opinions. 1. A promise without a consideration is void, and the mere circumstance that it is reduced to writing, if there be no consideration, does not make it valid.

2. The design of the statute was not to prevent contracts, void for want of consideration, from being sustained in courts of justice. Such contracts were not sustained before the statute was made, and it was more than useless to say that they should not be enforced.

3. The design of the statute was to prevent the enforcing of contracts, not void, but legal in their nature, for the payment of another’s debt, unless the whole contract was in writing. The attempt to enforce such contracts, gave rise to perjury as was supposed. Now the proof of the consideration was quite as likely to induce perjury as the proof of the terms of the contract. It is reasonable to suppose the one would be guarded against as much as the other.'

4. If the design was, to prevent the enforcing of a legal contract to pay another’s debt, I mean a contract with sufficient consideration, and if the statute require that contract to be in writing, it surely means that the whole contract should be in writing, and not such part only as is, in its very nature, illegal and void without the rest. I therefore believe that the consideration of the promise, as well as the promise itself, ought to be in writing.

*5. I think the terms of the statute, support this conclusion. “ Unless the agreement, or some note or memorandum thereof, be in writing.” Now what is an agreement ? A consideration is always contained in the legal idea of an agreement, and writers as well as courts, always so consider it. 3 Bur. 1670. Plow. 308. b. Dyer 336. b. 2 Bl. Com. 446. If then this agreement had stated the forbearance or delay to prosecute, which is stated in the demand, it would have set forth a valid consideration, and been sufficient under the statute of frauds. As it has not set forth that or any other consideration, I think it is insufficient, and that the judgment ought to be reversed.

Judgment affirmed.  