
    John F. Wallis v. Isaac Frazier. 
    
    In an action of assumpsit upon a warranty, it is not necessary to state that it was in writing, 
    
    'Phis was a special assumpsit, on a warranty of soundness of a negro.
    On the trial a written warranty, not under seal, was produced by the plaintiff.
    The defendant’s counsel moved for a nonsuit on the ground that the warranty should have .been stated to have been in writing.
    
      For this supposed defect in the declaration, the presiding Judge, Mr. Justice Johnson, granted a nonsuit.
    The case was tried at Columbia, October Term, 1819.
    The plaintiff appealed from the decision, on the ground that the nonsuit was improperly ordered; the law not requiring that the warranty should be stated in the declaration to have been in writing.
    
      Nott and W Cord, for the motion. Stark, contra.
    
      
       S. C. Post. 516, 518.
    
    
      
      
         Even “in a declaration upon a collateral promise to he answerable for the debt or default of a third person, or any other promise or agreement which is required to be in writing by the statute of frauds, 29 Car. 2, c. 3, s. 4, 17, it is not necessary to state the promise, or any note of it, to have been in writing, or signed, though it must be so proved in evidence.” Lawles on Pleading, Assump-sit, 90. “But it maybe otherwise in a plea.” lb. See Anon. 2 Salk. 519; Williams v. Leper, 3 Burr, 1890. R.
    
   *The opinion of the Court was delivered by [*181

Gantt, J.

The motion has been ably supported by authorities, which show that such statement is unnecessary. See Rann v. Hughes, 7 Term Rep. 846. 1 Saund. 211.

The nonsuit is, therefore, set aside, and the cause ordered to be reinstated on the docket.

CoiiCOOK, Nott, Richardson and Johnson, JJ., concurred.  