
    Brown v. Adams.
    
      '% If A. promise to B, th.it ;f he will become the security of C. in a sheriff’s bond, he will indemnify him for all lossi s he may sustain thereby, the obligation is binding, and the consideration sufficient.
    2 But such promise must be in writing, else it is void by the staiute of frauds and perj-ries
    3- It need not be averred in the declaration, that it is in writing; it is sufficient if the writing ;ie produced in evidence at the trial
    4. I lie distinction as to whei such promise must be averred i 'he declaration to be in writing, and when not, is, that jf the hatili y be one at common law, it need not be averred, but if the liah.lity be created by staiute, and r quired to be in writirg, it must be so averred
    5. under the statute of frauds, though the promise be in writing, yet it must he on good consideration.
    John Brown, jr , impleaded John Adams, in the Circuit Court of .lefferson county, in an action of as-sumpsit, and declared against him in five counts. 1 he first count charged, that on the 7"th July, 1823, in consideration that the plaintiff would, at defendant’s special instance, enter into a bond as a security for John jVI'Vvhor-ter, sheriff of said county, that he the defendant, would see to the management of the sheriffalty, and save the plaintiff harmless from all liability he might incur by reason thereof; that he did so enter into bond, and on said account was compelled to pay a large sum of money, to wit, $300 ; and that defendant had not saved him harmless, &c., but had failed so to do. The second count was substantially the same, alleging that the plaintiff had entered into said bond. fcc., confiding in the honesty of defendant ; and that in consideration thereof, defendant did undertake to see to the management of the sheriffalty, and save him harmless, &c. The three other counts were common money counts.
    The defendant demurred to the first and second counts, and plead the general issue to the remaining counts. At March term, 1826, the demurrer was sustained, and judgement rendered for the defendant.
    Bugbee, for the plaintiff,
    who was plaintiff below, assigned for error the judgement on the demurrer, and that the Court had rendered a judgement final on the sustaining of the demurrer.
    Peck, for defendant in error.
    The promise as set out in the declaration, was without consideration, a mere nudum pactum, and void; the rule both of the civil and common law; with rested to the consideration necessary to support a contract, is the same. “in all coi.tr ids e.ih'T expressed or implied, there roust he something gi.en in exchange something that is mutual or reciproc?!.” Here, nothing was given to Adams in est. barge foi his promise ; be could not in any possible event receive any advantage from Brown’s signing the bond as sertrit}' for.M Whortcr.
    fino- - ' But if the promise had been reduced to writing, the liability would not have, been changed ; it would still have been void for want of a consideration,  The doctrine is ■ now staled, that a parol promise, though reduced to wri-is not \a!kl unless it is f >uncled on good consideration ; and even since the statute of frauds, the rule is not altered. 
    
    The promise was void by the statute of frauds, for want of a memo'-amUm'., signed by the party to be chatgril. The promise was in the very language of the statute, to be answeiahle for the default of M'Whorter, over whom he liad no control, and from whose acts he was to receive no possible advantage. The promise is clearly a collateral one 
       Ei v. as !■ Brown, foi the benefit of McWhorter; it was iteren tent for M‘Whoiter to give security, else Vie ; oi Id not enter on the duties erf his office. If therefore, the promise made by Adams to Blown, induced Brown to b come, ill Wiiortcr’s security, then most certainly the promise made bv Adams to Brown ivas directly for the benefit, of lVTWborter; and no one can contend, that J’VÁIVhoi-ier ivas not directly bound and responsible to Brown, his security, for all injuries he might sustain on act cunt of bis seeurityship.
    It was held by Lord Kenyon, 
       that a promise by the endorser an unpaid note, to indemnify the holder, if he would proceed to enforce payment against the other par-tjcs to (jle must be in writing, or it would be void under the statute of frauds ; and indeed I have searched in vain to find a single decision, in which it has been held a good pio-ds.. if madi by A. to B. to indemnify him against injury from the dfault. o« miscarriage of C. Such a precedent would upen a rich field for the cultivation of the most obnoxious frauds and perjuries, and often, loose ami unguarded expressions, such as “there can be no danger in going his security,” and “I will warrant juju will not be injured,” would be worked, if possible, into tbe most solemn promises. Independently of the statute of frauds, it is contrary to sound policy to enforce this promise ; the tendency to produce litigation and perjury is too great.
    It was said in argument in the Coun below, that the demurrer should have been overruled, because the promise might ha' e been in writing, and be produced in evi-deucf on the trial. A declaration is a specification in a legal form of the cause of action;- e- ery material fact necessary to be proved on the trial, must be distinctly set forth, and alleged; therefore, if the promise as set forth in the declaration is void, unless reduced to writing, and signed by the party to be charged, and the declaration does not shew that fact, it is conclusively a good ground of demurrer. II the law requ res the promise to have certain requisites, and tobe made in a particul ir way, and the declaration does not shew it had those requisites, we may well say, the promise as laid, is not sufficient in law, and that we are not bound to answer it. See the case of Fish v. Hutchison, 
       whú.h was an action of assumosit , 1 > on a promise to pay the debt of a third person, to which the defendant demurred, arid per totam curiam the demurrer was sustained, on the ground that the promise was void by the statute of frauds, and upon that ground only.
    
      
       vi Mh % H u-il !- ¡kVi'uü-vdA 3i. |¡. i.>4 a 130. 5. i.í .luim. Jlt-p.SV.
    
    
      
       V<«’>! vt'! on Jfmuüi 207.
    
    
      
       Fraud!: 207,:;!
    
    
      
       fendorser « mi I i'óni.non
    
    
      
       cmnyn. m. Contracts 62, oou
    
   JUDGE CRENSHAW

delivered the opinion of the Court.

-The declaration contains the common money counts, on which issue was taken to the jury, and it does not appear that this issue war. e> er disposed of; but by an arrangement between the counsel, the second assignment of error was abandoned. The inquiry at present then is, wheth r the first and second counts ate sufficient? The promise to indemnify the plaintiff against the acts of the sheriff, was clearly a promise to answer for the default or miscarriage of a third person, and by the statute of frauds and perjuries, ought to be in writing. But the position contended for against the sufficiency of the declaration is, that it contains no averment that the promise was in writing. The distinction recognized by the authorities is, that where the contract would be good at common law before the passage of the statute, it is not necessary to aver.in the declaration that it was in writing; but where tfle duty or liability is created by statute, and also required to be tn writing, then it must be averred in the declaration that the promise was in writing. In the present case the contract, if supported by a sufficient consideration, was good at common law before the enactment of the statute, and though the statute requires such a contract to be in writing, yet by the above ru!e, this fact need not be averred in the declaration, but would be matter of evidence on the trial.

The nex¿ question is, that supposing the contract to have been written, is it essential to its validity that it should be supported by a sufficient consideration ? The opinion of Chief Baron Skinner, in the case of Rann vs. Hughes, delivered before the House of Lords on a writ of error, and in which he had the concurrence of the twelve judges of England, is high authority for the decision of this question, and whose reasons are so excellent,, that I think they should be adopted without comment. The principle is there settled, that the statute of frauds never intended to make a contra ;t valid, which was not so at common law; that though the contract be in writing, yet it is nudum pactum and void, unless the declaration shews that it was on a good and sufficient consideration. The same rule of construction has been adopted by the Courts of New-York and other American decisions; and in this respect our own statute bears an analogy so strong to the English statute, that I am constrained to give it the same construction. Is then the consideration set forth in the declaration sufficient to support the contract ? In Comyn on Contracts, it is said that if the plaintiff be prejudiced by reason of a promise or undertaking passing .from the defendant to him, this is a sufficient consideration to support the promise, and that it is not material whether the defendant.is to be benefitted or not, if in con~ sequence of his promise, the plaintiff was induced to do an act by which he has been damnified; the promise is valid if reduced to writing. The case at bar comes clearly within these principles. The declaration alleges that the defendant promised the plaintiff, if he would become security to the sheriff, he would answer for any damages he might sustain by reason of such secUrityship, and that confiding in tnis promise, the plaintiff did become security ; by reason of which, he hath.sustained damage to a certain amount. The Court are therefore of opinion that the first and second counts of the declaration are sufiU-cient, and that the judgement of the Circuit Court must be reversed. But because .the action is .purely in damages, the cause must be remanded for further proceedings in the Court below. 
      
       vide comynon c
     