
    SHEPHERD against LAYTON.
    OH CERTIORARI.
    A consideration of promise, must be alleged.
    The action below was brought on the following state of demand:
    Moses Shepherd, jun’r. Dr. To Thomas Layton, in damages.
    Jan. 9, 1808. To judgment obtained before William Cooper, Esq., at the suit of Michael Desperaux, wherein said Shepherd warranted and defended me from any harm whatever, agreeable to said judgment, that I should sustain agreeable to said suit.
    [*] Which judgment was $34 11
    Expenses, costs and damages, for which I pray judgment, 20 00
    There was a trial, verdict and judgment, for $41.07 damages and costs.
    It was now moved to reverse this judgment.
    1st. That the state of demand did not contain any lawful cause of action.
    2d. Eor that the contract set forth in the state of demand, being to answer for the debt, default or miscarriage of a third person, ought to have been in writing • and that the justice suffered the plaintiff below to prove it by parol evidence.
   By the Court.

There does not appear any consideration for the promise on which this action is founded; it is at best, a naked promise to warrant the plaintiff against a suit brought against him, by a third person; from a naked promise, no action arises; the consideration moving to the promise, must appear. It is true, that both the consideration and promise ought' to have been in writing, but this may have been proved at the trial; but for the first reason,

Judgment must be reversed.  