
    Elliott vs. Giese.
    June, 1826.
    The defendant signed, and addressed to the plaintiff, the following note. ¿‘Agreeable to promise I was to call on you this evening, but being too unwell, See. I must beg to be excused; yet as the meeting was to be for tile purpose of guaranteeing unto you a debt due you by my brother-in-law, J. G, amounting to, &c. I hereby guarantee the said aim,” — Held, that the consideration did not sufficiently appear on the face of the instrument, under the statute of frauds 29 Car. II, eh. 3, s. 4, and that it was nudum pactum, and void.
    Appeal from Baltimore County Court. This tvas an action of assumpsit. The declaration contained two counts. 1. That one Joseph Galbraith, on the 5th of November 1819, was indebted to the plaintiff, (the appellant,) in $105, for money paid, laid out and expended, by the plaintiff, to and for the use of the said Galbraith, and at his special instance and request; and being so indebted he promised, &c. and after-wards, on the 6th of November 1819, in consideration of the. premises, and to secure the payment of the said sum of money by the said Galbraith to the plaintiff, the defendant, (the appellee,) upon himself assumed, and did then and there guarantee to the plaintiff the payment of the said sum of $105, so due by the said Galbraith to the plaintiff, in case the said Galbraith should fail to pay the same. Averment, that Galbraith hath not paid, &c. of which the defendant had notice, &c. By reason whereof the defendant became liable, &c. and being so liable undertook, &e. 2. A similar count for another sum of $105, due from Galbraith to the plaintiff, for meat, drink, &c. The defendant pleaded non assumpsit, and issue was joined.
    At the trial the plaintiff offered in evidence the following letter from the defendant to the plaintiff, and which was admitted to be in the defendant’s handwriting: “Dear Sir, Agreeable to promise I was to call on you this evening; but being too unwell with the head-ache, I must beg to be excused; yet as the meeting was to be for the purpose of guaranteeing unto you a debt due you by my brother-in-law, Jos. Galbraith, amounting to one hundred and five dollars, I hereby guarantee tfie said sum. I remain yours, &c.
    
      L. W. H. Giesp
    
    
      Guarantee for @105. Philadelphia, 6th Novr. 1819.” Addressed to “Mr. Wm. Elliott, Philad. 43, N. 3d.”
    The defendant then prayed the opinion and direction of the court to the jury, that the said writing created no liability on the part of the defendant, and that for that reason the plaintiff was not entitled to recover. And the Court [Jireher, Ch. J. and Hanson A. J.] being of that opinion, so directed the jury. The plaintiff excepted. Verdict and judgment for the defendant, and the plaintiff appealed to this court.
    The cause was argued before Buchanan, Ch. J. and Earle, Stephen, and Dorsey, J.
    
      R. Johnson, for the Appellant,
    cited Russell vs. Moseley, 3 Brod. & Bingh. 211, (7 Serg. & Lowb. 414.)
    
    
      R. B. Magruder and C. C. Harper, for the Appellee,
    were stopped by the court.
   Buchanan, Ch. J.

delivered the opinion of the Court. This is clearly an undertaking to answer for the debt of another, and though, being in writing, and signed by the defendant, the statute of frauds is so far gratified; yet in the absence of any superadded consideration moving between the plaintiff and the defendant, either of forbearance or otherwise, it is nudum pactum, and void.

The declaration avers the consideration to be a preexisting debt due from Joseph Galbraith to the plaintiff and sets out no other; and the instrument of writing itself, on which the suit was brought, is, upon the face of it, a naked aijd express guarantee of that debt, without any apparent new, consideration moving between the parties to that guarantee. ,

The case of Wyman vs. Gray decided this term, (ante 409,) is decisive of this case.

JUDGMENT AEEIRMED.  