
    Henry Reed vs. Freeman Evans and another.
    The consideration of a promise to pay the debt of a third person need not be in writing.
    A memorandum at the foot of a promissory note in these words : 11 i hereby obligate myself that the above note shall be paid in three years from this 4th day of June, 1838,” made in consideration that the payee will delay the payment until two years after the maturity of the note, is an original agreement, and demand notice are not necessary to charge the signer of the memorandum.
    This is a Writ or Error directed to the Court of Common Pleas of Lucas County.
    The original action was founded upon the followingguaranty:
    “ $ 175. For value received I promise to pay to John Forman & A. G. Evans, or order, one hundred and seventy-five dollars with interest from date, to be paid as follows, to wit: one third in one year, one third in two years, and the remaining third in three years. Witness my hand and seal this 28th day of January, A.D. 1836.
    Henry Reed, Jr. [seal.]
    
      I hereby obligate myself that the above note shall be paid in three years from this 4th day of June, 1838.
    Henry Reed.”
    The declaration contains four counts.
    The first averred a general indebtedness from Henry Reed, Jr. to the plaintiffs, and in consideration that the plaintiffs would give time fo said Henry Reed, Jr. for the payment there of until three years from the 4th day of June, 1838, he, the defendant, by his promise in writing, bound himself to pay the same at such time — that time was given accordingly, and excused demand and notice at the expiration of the guaranty because of the insolvency of the principal.
    The second was like the first, except that the indebtedness was described according to the fact, as by the note.
    The third was like the second, except that demand and notice was averred' instead of the excuse.
    The fourth was the common count.
    Plea, the general issue.
    The case was submitted to the Court, without the intervention of a jury, and judgment rendered for the plaintiffs.
    A bill of exceptions was thereupon tendered and allowed, as follows:
    Be it remembered that on the trial of this cause in the Court of Common Pleas of Lucas county, at the November Term thereof, the said plaintiffs, to maintain the issue on their part, offered in evidence a note of hand under seal, made to the plaintiffs by Henry Reed, Jr., for the sum of one hundred and seventy-five dollars, and payable one third in one year, one third in two yearg, and one third in three years from the date thereof, to wit: the 28th day of January, 1836, attached to which said note was the following memorandum, viz: “ I hereby obligate myself that the above note shall be paid in three years from this 4th day of June, 1838. Henry Reed.” The plaintiffs also offered evidence to prove that the plaintiffs did not claim payment of Henry Reed, Jr. at any time within the three years next succeeding from the fourth day of June, 1838, on the writing on which the plaintiffs have declared, in this case, signed by said Henry Reed, Jr., and that the plaintiffs forebore to prosecute said Henry Reed, Jr. for the period of‘three years from the time that Henry Reed, the defendant in this case, signed the memorandum, on account of which this suit is brought; that the defendant offered to pay the amount of said note given by said Henry Reed, Jr. to the plaintiff, in Ohio State Bonds, some time in the winter of 1842-3, and that the attorney of plaintiffs called on the defendant in 1842 for the payment of the same, who at no time denied his liability to pay the same, but proposed paying in property, or excused himself on account of not having the means. But the evidence of the plaintiffs did not show that the said plaintiffs refrained from prosecuting the collection of said note of the said Henry Reed, Jr. for the other space of three years, nor for any other time on acount or consideration of the said undertaking or memorandum of the said Henry Reed. Neither did the said plaintiffs show that the said defendant ever promised to pay the said note.
    The plaintiffs, further to excuse themselves from proving a demand of the payment of said note, from the maker thereof, Henry Reed, Jr., and notice of such demand given to the defendant, offered the said Henry Reed, Jr. as a witness, to prove his own insolvency at the time of the expiry of the three years, from the fourth day .of June, 1838 — who testified, that at no time up to the said fourth day of June, and for a long time thereafter, had he been prosecuted to insolvency, or sued for any debt of his own, and that he was in the habit of paying his debts, though he supposes that if called upon at once, to pay all his debts, he could not have done it — still he was in hopes, at that time, of paying all that he owed as principal, and enjoyed credit to some considerable extent — that he has since taken the benefit of the bankrupt law, and has been discharged under its provisions —that at the said 4th day of June, 1841, he had, and for a long time after had, an amount of money sufficient to pay said note, which he kept appropriated to that specific purpose, until from the neglect of the plaintiffs to demand or prosecute, he was led to believe that the said plaintiffs had abandoned all demand against him, which means had since been posed of in another manner. Whereupon the plaintiffs rested their cause, and prayed the Court for judgment against the said defendant. Whereupon the said defendant objected to the sufficiency of such testimony; which objection was overruled by the Court, 'and judgment rendered against the defendant; to which opinion of the Court the defendant excepted, and prayed that his bill of exceptions in that behalf might be allowed, which is accordingly done, and upon his motion the same is ordered to be made a part of the record in this case.
    The error assigned is, that judgment was given for the plaintiffs, when by the laws of the land it should have been given for the defendant.
    
      Young &f Waite, for Plaintiff in Error.
    
      Fitch &f McBain, for Defendant.
   Birchard, C. J.

This case was submitted to the Court below upon the proofs offered by the plaintiff. Exception was taken to the sufficiency of the testimony offered in support of the action. The Court found it sufficient, and no motion for a new trial was presented. By treating the exception as a demurrer to the evidence, and in no other way, can the questions argued upon the assignment of error be considered. Viewed in this light, the proof offered below should be considered as establishing every fact which may reasonably be inferred from the evidence, without drawing therefrom forced or violent inferences. Trying the evidence by this rule, did it establish the cause set forth in the declaration ?

The consideration of the promise declared upon is alleged to have been forbearance to sue Henry Reed, Jr. for three years from the fourth of June, 1838.

The evidence to support this averment consisted of the written promise, of proof that no claim of payment from Henry Reed, Jr. was made within the three years ; that plaintiff below forbore to prosecute for three years, and that after the expiration of that time, the defendant below offered to pay the claim in Ohio State Bonds. That again, in 1842, he proposed paying the same in property, 'or excused himself when called on, by alleging inability for want of means, but at no time denied his liability to pay the same.

Now it may be said that this all does not prove directly that the consideration alleged actually existed, yet one could scarce doubt from these facts that a good consideration did exist; and the presumption is that it is the one set forth in the declaration. It is unreasonable to presume that the written engagement was entered into without cause. The Judges of the Court of Common Pleas had the facts so before them that they were justified in drawing all reasonable and fair inferences that could be well based upon this evidence. They might well presume, from the circumstances, that the delay granted to the maker would not have occurred without cause. That the promises to pay in State Bonds or other property, as well as the excuses for non payment, would not have been made without a binding promise. The circumstances, viewed in a favorable light, certainly looked towards the support of a consideration for the written guaranty; and to no other than the identical one set forth in the declaration. We are not prepared, therefore, to say that the Court erred in this respect.

But it is further urged that no evidence was admissible to prove any consideration, none being expressed in the written guaranty.

This objection presents a vexed question, arising out of the act for the prevention of frauds and perjuries. It is believed that in this State it has been hitherto uniformly held, that a promise, in writing, to pay the debt of another, if founded upon a good consideration, would sustain an action, and that such a consideration might be proved by parol, and need not be set forth or incorporated in the writing itself. Upon this question different Courts have held different opinions. It was to me a matter of some surprise to find that the law of this State, upon this point, was considered unsettled. This casé was into Bank, in order that a reported case, in accordance with what was supposed to have been the uniform current of decision in this State, might be placed within the reach of every one, and not because the point was regarded doubtful.

Our statute is similar, so far as it bears upon this question, to the English Statute of 29th Charles 2d, c. 3, § 4. In 1804, in the case of Wain v. Walters, that statute, for the first-time; received a construction, requiring a recital, in writing, of the consideration on which a promise to pay the debt of another is founded. The doctrine seems to have taken the profession in England by surprise. It has been repeatedly questioned in England, but has hitherto been sustained there. 14 Ves. p. 189; 15 Ves. p. 286.

In 1808, the principle held in Wain v. Walters was adopted in New York, and these decisions have been perhaps the means of giving a more extended currency to the doctrine of that case in some of our sister States, and possibly may have contributed to its stability in the country of its origin. But in 1809 in the case of Hunt v. Adams, 5 Mass. Rep. 360, the doctrine of Wain v. Walters was departed from, by the Supreme Court of Massachusetts, and, as we think, very good reasons were given for the departure by the learned Chief Justice Parsons. He held the English case to be one of first impression, but admitted that if the word agreement, as used in the statute, is to be taken not in a popular, but in a strictly legal sense, it might be unreasonable to question that decision. He held, however, that the word agreement, as originally incorporated into the statute, was used in the popular sense, as intending the undertaking of the party charged, and not necessarily including the consideration •for it. This view of the statute was re-affirmed by the same Court in 1821, in a learned and able opinion by Parker, C. J. in Packard v. Richardson et al., 17 Mass. Rep. 137, in which he reviewed at length all the cases then decided upon this subject. His concluding remarks are worth copying.’ “We are not (says ^ge) overruling a settled principle, or introducing a new in.refusing to yield to this doctrine; but are merely vindicating what we believe to be the true and established construction, from the doubts brought upon it by the Courts of King’s Bench.”

Well might he call it the vindication of an established construction, for from the reign of Charles II, to the year 1804, it had always been understood, both in England and the United States, that it was not necessary that the consideration should appear on the face of the writing. So said Lord Eldon, and so said Lord Ellenborough. The question was, what did the statute mean, or rather what did the men who framed the act, and Parliament mean in King Charles’ time, when they enacted the law ? Those best able to answer were its cotemporaries — the Legislators and Judges who lived at the time of the enactment, and within the first century afterwards. Their construction, in the language of the Massashusetts Court, “ became established law,” for whatever was the meaning of the statute when first enacted, should be its meaning through all future time. It is ‘the very essence of a law, that it be uniform and unchangable.

Again, it is said there should have been a demand and notice of non-payment. To this, we reply, that the engagement was an original undertaking to pay the amount of the note in three years. It was not an engagement that the pnaker should pay the note when due, and if not, that the guarantor would pay it, but that in consideration that the payee would delay the payment until two. years after the maturity of the note, the guarantor would pay it. No demand, under this contract, was required of the maker, at the maturity of the note; it was not contemplated by the parties. On the contrary, the consideration of the promise not only excused the making of such demand, but made one improper. The promise was made because the payee had agreed to delay payment when the note fell due, and not then demand it.

Judgment affirmed,'  