
    CONSTITUTIONAL COURT, COLUMBIA,
    DEC. 1811.
    Stephens, Ramsay & Co. v. Richard Winn.
    The writing which is competent to bind one man to pay the debt of another, must express the consideration, and parol evidence of such consideration is inadmissible.
    Motion to set aside a nonsuit, and grant a new trial. Action of. assumpsit on a promissory note of hand, brought to trial before Brevard, J., in Fairfield district, 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 £16,15,2, 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; and cited the case of Wain and another v. WarL ters, 5 East. 10, decided in the year 1804.
    Ceaekh 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 v. Warlters, as authoritatively binding; but thought the reasoning contained in it answerable to them; 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. See Peake’s Evid. 211.
    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 ^own the reporting judge ; but contended it did not apply to the case. The sote, he said, was not a promissory note ; i. e., a note to pay money at all events. He quoted 1 Sir. 264. 1 Esp. Dig. ^' Bay ley on Bills, 13. 1 Ld. Raym. 131. He insisted it was not a case within the statute of frauds. The note, he said, imported a consideration.
    
      Note. See 3 Johns. N. York.T. R. 210. Action of assumpsit, (Sears v. Brink and another,) 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 maybe proved by parol, although the promise be in writing. Per cur. The consideration must be expressed in writing. The whole agreement must be in writing.
    6 East. 307, Egerton v. Mathew. Action on the case, fbrnot paying for certain goods contracted for by the following memorandum in writing: “ We agree to give Mr. Egerton 19d per lb. for 30 bales of cotton,” &c. Objected, no consideration appeared, and nonsuit accordingly. Motion to set aside nonsuit. Adjudged, 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.
    StaRK, on the contrary,
    cited 1 Saund. 210, 211. Wm.’s Evid., note.
    The case remained under consideration until 28th November, 1812, when it was decided that the motion should not be granted.
   Smith, J.,

dissented from the rest of the couit, 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.  