
    William Aikin v. William Duren and Abram Duren.
    An unsealed instrument of writing, in the form of a penal bond, whereby Thomas and A. B. Duren acknowledged themselves held and firmly bound in a certain sum, for value received, with a condition that the obligation shall be void, if the defendants should pay the half of a debt due by Duren and Ballard, is not void under the statute of frauds, as being an undertaking to pay the debt of a third person, 
    
    This was an action of assumpsit, tried at Camden, Spring Term, 1820, before Mr. Justice Oolcook, on the following note or instrument in writing:
    
      South Carolina, Kershaw District :
    Know all men by these presents, that we, the undersigned, are held and firmly bound, unto William Aiken, of Charleston, in the sum of fourteen hundred dollars, which has been for value received, this 28th day of August, 1819.
    The condition of the above obligation is such, that if the undersigned should pay, or cause to be paid, to William Aikin, one-half of a debt on several notes of *hand, which are due by the firm of Duren & Ballard, which, in the whole, amount to about twenty-six hundred dollars, and does not ex- L' ceed, in the whole, twenty-eight hundred, the above obligation to be null and void. Witness our hands and seals, this 28th day of August, 1819.
    Thomas Duren, Jr.,
    A. B. Duren.
    The presiding Judge being of opinion that this contract came within the principles of the case of Stephens, Ramsay & Oo. v. Winn, decided in this Court, in the year 18 — , which was held to be void under the statute of frauds, non-suited the plaintiff.
    This was a motion to set aside that nonsuit.
    
      
      
         Stephens, Ramsay &. Co. v. Richaed Winn;
      Motion to set aside a nonsuit, and grant a new trial. Action of assumpsit on a promissory note of Rand, brought to trial before Mr. Justice Beevakd, at Fair-field, November Term, 1809.
      The note produced in evidence was in these words: “I promise to pay Stephens, Ramsay & Co., or order, one month after date, the sum of £16, 15s. 2d. sterling, on account of Doctor Street, which, when paid, will be in full to this 22d March, 1786. Rd. Winn.” It was objected by Evans, for the defendant, that this evidence amounted only to a promise to pay the debt of another; and that by the statute of frauds, the defendant was not legally chargeable, as the note did not amount to an agreement to pay the debt of another, nor was it such a note or memorandum of an agreement to pay the debt of another, as the statute requires, but was a mere naked promise, &e., and cited the case of Wain and another against Walters, 5 East. 10, decided in the year 1804.
      
        Clarice argued to the contrary.
      The presiding judge said that he was satisfied the objection was valid, and ought to prevail. He did not consider the case of Wain and another against Walters as authoritatively binding, but thought the reasoning contained in it answerable to show, that, to oblige one man to answer for the debt of another, there must be an agreement in writing, or a note, or memorandum of an agreement in writing. The word “agreement,” he said, has a technical meaning, extending to the consideration of the promise as well as to the promise itself.
      The writing, therefore, which is competent to bind one man to pay the debt, or answer for the default or miscarriage of another, must express the consideration. And parol evidence of such consideration is inadmissible.
      He, therefore, held, that the written promise given in evidence was nudum pactum as it appeared to have been made without any consideration. A nonsuit was ordered.
      The motion was argued, May 4, 1810, before all the judges.
      
        
        Hooker, in support of the motion, agreed to the doctrine laid down by the reporting judge; hut contended it did not apply to the oase. The note, he *said, was not a promissory note, i. e., a note to pay money at all events. -*0170 He quoted 1 Sel. 264; 1 Esp. Dig. 27 ; Bail, on Bills, 13 ; 1 Lord Raymond, L 6 0 131. He insisted it was not a case within the statute of frauds. The note, he said, imported a consideration, &c.
      
        Stark, on the contrary, cite'd 1 Saund. 210-211, Wins. Ed. note.
      The case remained under consideration till November, 1812, when it Was decided that the motion should not be granted.
      Mr. Justice Smith dissented from the rest of the Court, and was of opinion that the nonsuit ought to be set aside, as the note was sufficient to take the case out of the statute, importing a sufficient consideration on the face of it.
      The other judges concurred in opinion with the judge who ordered the nonsuit. Brevard’s Reports.
      
        Note. — See 3 John. New York Term Rep. 210. Action of assumpsit (Sears v. Brink et al.) on articles of agreement, viz. : “This is to certify, that so much is the balance due,” &c., objected that no consideration appeared. Answered, that consideration may be proved by parol, though the promise be in writing. Per Our. The consideration must be expressed in writing ; the whole agreement must be in writing.
      6 East, 307, Egerton v. Mathew, action on the case for not paying for certain goods contracted for, by the following memorandum in writing: We agree to give Mr. Egerton 19d. per lb. for thirty bales of cotton, &c. ; objected, no consideration appeared, and nonsuit accordingly. Motion to set aside nonsuit. Had judged that the case was governed by the 17th clause, and not the 4th, of the statute of frauds, which concerns agreements to pay the debt of another. The 17th clause is satisfied by “some note or memorandum in writing, of the bargain, signed,” &c. See 2B. & P. 238 ; 1 Yes. Jr. 351. N. S.
      9 East, 348, Stadt. v. Lill. A. D. 1808, a guarantee in writing, to pay for any goods which the vendor delivered to a third person, is good within the 4th sec. of the statute of frauds, as containing a sufficient description of the consideration of the promise, viz., the delivery of the goods, when made, as of the promise itself, both of whioh are included in the word “ agreement.”
      Note to pay $60, in cattle, value received; not necessary to prove the consideration. Yide 7 John. 321; 3 Caines, 286 ; 7 T. R. 350.
      A parol promise in writing is not valid, unless a consideration is proved. But see 3 Johns. 484 ; 2 Johns. 235. “Yalue received” is prima facie evidence of consideration in a note or deed. 7 John. 321; 10 East. 431; see 10 John. 501, Fisher v. Fields; Newld. on Contracts, 210, 565; 4 Bro. C. C. 377; 4 Cranch, 229 ; 4 John. 236 ; 3 Ib. 210 ; 1 Atk. 13.
      But see Ves. Jr., Lord Eldon’s opinion contrary to the case in East. R.
      See Tyler v. Givens, 3 Hill, 48 ; 3 McC. 168, and Appendix; 9 Rich. 296; Post. 556; Harp. 539, Appendix.
    
   The opinion of the Court was delivered by

Nott, J.

The only question in this case is, whether the contract appears on its face to be within the statute of frauds, and therefore void ■under that statute. This instrument is in the form of a penal bond. The first, or obligatory part, is merely a note of hand. It purports to be an original undertaking, and for a valuable consideration. The condition is uo part of the contract. It only provides a method by which the contract may be avoided. And if it was expressly stated to be by the payment of the debt of a third person, I should not consider it as coming within the statute of frauds, because it appears to be founded on a good consideration.

Levy, and M’ Willie, for the motion. Means, contra.

The case of Stephens, Ramsay & Co. v. Winn, was a promise to pay the debt of a third person, without showing any consideration, or even expressing that it was for value received. But even if we look to the condition in this instrument, we are not bound to conclude that this was an undertaking to pay the debt of a'third person. The debt to be paid was dúe from Duren and Ballard. It may be that Duren, one of the payer of those notes, is one of the parties to this contract. We are not to presume that he is ^another person.. It is nothing more, -* then, than a renewal of his note for the’ payment of which, the other has become his security.

It does not, therefore, appear to be a contract within the statute of frauds, and the motion must be granted.

Johnson, Colcock, Richardson, and Huger, JJ., concurred.

Gantt, J., absent, from indisposition.  