1804,

Thursday, April 19th. No person can, by the Statute of frauds, be charged upon any promise to pay the debt of an

other, unless

the agreement upon which

the action is

WAIN and Another against WARLTERS.

THE plaintiffs declared, that at the time of making the promise after-mentioned, they were the indorsees and holders of a bill of exchange, dated the 14th of February, 1803, drawn by one W. Gore, upon and accepted by one J. Hall; whereby Gore requested Hall, seventy days after date, to pay to his (Gore's) order, 56l. 16s. 6d. ; which bill of exchange Gore had before then indorsed to the plaintiffs; and which sum in the bill mentioned was, at the time of making the promise by the defendant, due and unpaid: brought, or some note or and thereupon the plaintiffs, before and at the time of meirorandum making the said promise by the defendant, had retained thereof, be in writing; by one A. as their attorney, to sue Gore and Hall respectively, for the recovery of the said sum so due, &c. whereof the defendant, at the time of his promise, &c. had notice and thereupon, on the 30th of April, 1803, at, &c. in consideration of the premises; and that the plaintiffs, at the instance of the defendant, would forbear to proceed for the recovery of the said 56/. 16s. 6d. he, the defendant, undertook and and therefore promised the plaintiffs to pay them, by half past four o'clock on that day, 567.; and the expences which had then been in

which word ugreement must be un

derstood the consideration for the promise, as well

as the pro

mise itself;

where one promised in writing to pay the debt of a third person,

consideration

was inadmis. sible by the statute of

curred by them on the said bill. The plaintiffs then averred

that they did, within a reasonable time after the defendant's promise, stay all proceedings for the recovery of the without stating on what said debt, and have hitherto forborne to proceed for the reconsideration, it was holden covery thereof; and that the expences by them incurred on that parolevi- the said bill, at the time of making the promise by the dedence of the fendant, and in respect of their having so retained the said 4. and on account of his having, before the defendant's said promise, drawn * and ingrossed certain writs, called Special frauds, and Capias, against Gore and Hall respectively on the said bill, consequently amounted to 201. of which the defendant had notice; yet such promise appearing to the defendant did not, at half past four o'clock on that day, &c. nor at any time before or since, pay the said sum of 561, upon the face and the said expences incurred, &c. There was another of the written special count, charging that the reasonable expences inengagament, curred on the bill were so much, which the defendant had it was nudum refused to pay; and the common money counts.

be without

consideration

pactum, and

gave no cause of action.

[ 11 ]

In support of the undertaking laid in the declaration, the

plaintiffs,

plaintiffs, at the trial at Guildhall, produced the written engagement, signed by the defendant, which was in these words: "Messrs. Wain and Co. I will engage to pay you by half past four this day, fifty-six pounds and expences on bill that amount on Hall. (Signed) Jno. Warlters; (and dated) No. 2, Cornhill, April 30th, 1803." Whereupon it was objected, on the part of the defendant, that though the promise, which was to pay the debt of another, were in writing, as required by the statute of frauds, yet that it did not express the consideration of the defendant's promise, which was also required by the statute to be in writing; and that this omission could not be supplied by parol evidence (which the plaintiffs proposed to call, in order to explain the occasion and consideration of giving the note); and that for want of such consideration appearing upon the face of the written memorandum, it stood simply as an engagement to pay the debt of another, without any consideration; and was therefore nudum pactum and void: and Lord Ellenborough, C. J. upon view of the statute of frauds, 29 Car. 2, c. 3, s. 4, which avoids any special promise to answer for the debt or another, "unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith," &c. thought that the term agreement imported the substance at least of the terms on which both parties consented to contract; and included the consideration moving to the promise, as well as the promise it. self: and the agreement in this sense not having been reduced to writing, for want of including the consideration of the promise, he thought it could not be supplied by parol evidence, which it was the object of the statute to exclude; and, therefore, nonsuited the plaintiffs. A rule nisi was ob▾ tained in the last term for setting aside the nonsuit and granting a new trial, on the ground that the statute only required the promise, or binding part of the contract to be in writing; and that parol evidence might be given of the con sideration, which did not go to contradict, but to explain and support the written promise.

The

Garrow and Lawes shewed cause against the rule. question is simply this, Whether parol evidence can be given of an agreement which the statute of frauds avoids, unless

it

1801.

WAIN against WARLTERS.

[ 13 ]

it be in writing? The words are, " That no action shall be "brought, whereby to charge the defendant, upon any' "special promise, to answer for the debt, &c. of another 66 person, &c. unless the agreement upon which such action "shall be brought, or some memorandum or note thereof, "shall be in writing, and signed by the party to be charged "therewith," &c. Now, to every agreement there must be at least two parties; and, in order to make it available in law, there must be some consideration for it; which neces sarily forms part of the agreement itself, being that in respect of which either party consents to be bound. It is no answer to say, That the parol evidence offered of the consideration, namely, the forbearance to sue Hall, did not go to contradict the written promise: it is enough that being part, and a material part, of the agreement, it was not reduced to writing and signed by the party to be charged, as required by the statute. The effect of such parol evidence, if admitted, would be to render valid that which, so far as appears by the writing itself, is void in law for want of a consideration; and this would be letting in all the dangers of fraud and perjury, which it was the object of the statute to guard against. Upon the face of the paper, the debt appears to be the debt of another; and as a mere promise to pay the debt of another, without any consideration, would, before the statute, have been void, as nudum pactum at common law; so it is not made good by the statute, without a consideration in law for entering into such an agreement; which agreement, i. e. the whole agreement, or some memorandum or note of the whole, specifying the contracting parties, the consideration, and the promise, must be made in writing. The consideration is an essential part of every executory agreement; and this was altogether executory, on the part at least of the defendant. If the agreement had been declared on as in writing, the mere production of the note would not have proved the consideration of forbearance laid in the declaration; and such consideration could not have been supplied by parol evidence. In Preston v. Marceau (a), where the plaintiff had

(a) & Blac. 1249.

agreed,

agreed, in writing, with the defendant's testator to let him certain premisses, at a certain rent, parol evidence, tendered to shew that the tenant had agreed to pay a further sum for ground-rent to the ground-landlord, was rejected, as subversive of the statute of frauds; although it was there contended, that the evidence offered did not go to alter, but to explain the agreement: so in Gunnis v. Erhart (a), the verbal declaration of an auctioneer at the time of a sale, that there was a charge on the estate, was deemed inadmissible to contradict the printed conditions, which stated the premisses to be free from all incumbrances.

Erskine and Marryat, in support of the rule, said, That the evidence tendered in the two cases cited, went not to explain, but to contradict the written agreements. In the one case to increase the quantum of the rent specified; in the other, to substract so much as the charge amounted to from the value of the estate which was offered for sale, free from incumbrances. But here the parol evidence went merely to shew on what occasion the written agreement had been entered into; and it is in common practice to admit parol evidence for such a purpose: it is part of the res gesta, and no part of the agreement itself, which must in its nature be executory at the time of the writing made. The foundation of the action in this case is not the writing, but the promise by the defendant to pay the debt of Hall. This, before the statute of frauds, might have been proved wholly by oral testimony; but since that statute, the promise can only be evidenced by writing, signed by the party to be charged therewith, or by some other lawfully authorized. It is difficult indeed to account for the introduction of the word agreement into the latter part of the clause, which, in its strict sense, as compounded of "aggregatio mentium, or the union of two or more minds, in a thing done or to be done (b)," is more properly applicable to the other branches of the clause, namely, " an agreement on consideration of "marriage, or upon contract, or sale of lands, &c. or upon "any agreement not to be performed within the space of one year, &c. than to any special promise by an executor, to 66 answer damages out of his own estate, or to any special

1804.

WAIN

against WARLTERS.

[ 14 ]

[ 15 ]

1804.

WAIN against

68 promise to answer for the debt, &c. of another." To such promises the word agreement can only be considered applicable, so far as it is synonimous to engagement or underWARLTERS. taking, in which sense it is often used in common parlance; and therefore means, in this respect, the agreement or promise to pay the debt of another. Besides, the statute does not require the whole agreement to be set out in form; but it is sufficient if there be a note or memorandum of it in writ ing; that is, so much of the agreement as is obligatory on "the party to be charged therewith." In whatever form of words therefore the promise is made, which, before the statute, would have been evidence to bind the party making it under the circumstances of the case, it will, if those words are reduced into writing, still bind him since the statute under the like circumstances: but in either case, the inducement for making such promise, which is part of the res gesta, may be evidenced by parol. Thus, suppose a promise in writing to pay the expences attending a certain bill drawn by another, parol evidence must necessarily be let in to shew to what bill the promise was meant to apply, and how the expences arose, and the bill itself would be produced and this would be evidence not to vary, but to corroborate the written promise. The sd, 7th, and 17th sections of the act all require the signature of the party to some note in writing, in order to charge him with the seve◄ ral subject matters of those sections; but in all those cases, the party must be charged on the special written agreement; but here he is charged on the promise, of which the writing is only evidence. Yet the 4th section supposes that the party is to be charged upon the agreement," unless the agree"ment upon which such action shall be brought," &c. ; which shews that agreement, as there used, means no more than undertaking or engagement: and in this sense an agreement, signed by one party only, on a sale by auction was holden sufficient to charge him within the statute of frauds (a). [Lord Ellenborough, C. J. There it was deemed sufficient proof of such agreement, so as to charge the party signing it. He was estopped by his signature from protecting himself under the statute: but there the consi

[ 16 ]

(a) Seton v. Slade, 7 Ves, jun. 265.

deration