which they affix to those terms. The case of Wain v. Warlters (c), which came before the court of King's Bench, arose on the following guarantee: "Messrs. Wain and Co., I will engage to pay you by half past 4 this day, fifty-six pounds, and expenses, on bill that amount on Hall." It was objected to this guarantee, on the part of the defendant, that though the promise which was to pay the debt of another was in writing, as required by the statute, yet that the guarantee did not express the consideration on which the promise was given; and they contended, that the consideration as well as the promise was required by the statute to be in writing; 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 consideration, and was consequently void. The court held the objection well founded, and that the word agreement was not to be understood in the loose incorrect sense in which it is sometimes used, as synonimous to a promise or undertaking, but in its more proper and correct sense of a mutual contract on consideration between two or more parties. Lord Ellenborough observed, that "it seemed necessary for effectuating the object of the statute, that the consideration should be set down in writing as well as the promise; for otherwise the consideration might be illegal, or the promise might have been upon a condition precedent, which the party charged might not afterwards be able to prove, the omission of which would materially vary the promise, by turning that into an absoluse promise which was only a conditional

(c) 5 East, 10.

ene and Mr. Justice Lawrence, adverting to the language of the statute, thought that the language used shewed that the word agreement was meant to be used in a different sense from promise, and that something besides the mere promise was required to be stated.

Shortly after the decision of the case of Wain v. Warlters, the point which that case had decided came to be considered in the case of ex parte Minet (d), in the court of Chancery, when the Lord Chancellor (Lord Eldon) expressed the strongest disapprobation of the case of Wain v. Warlters. "There is a variety of authorities," said his Lordship "directly contradicting the case in the King's Bench, which is a most important case in its consequences; for the undertaking of one man for the debt of another does not require a consideration moving between them." And in ex parte Gardom (d), which came before the same noble and learned Lord soon after, and which was a case arising on the following guarantee, "Whatever cotton twist you may dispose of to Mr. Thomas Tapp, we agree and engage to guarantee the payment of the same," his Lordship says, "until the case of Wain v. Warlters was cited some time ago, I had always taken the law to be clear, that if a man agreed in writing to pay the debt of another, it was not necessary that the consideration should appear upon the face of the writing; that case has determined two points; first, that a consideration is necessary; secondly, that it must appear upon the writing. It is excessively difficult (d) 14 Ves. 190. (e) 15 Ves. 287,8.

to distinguish this from that case; as for this engagement to be answerable for any twist which the petitioners should supply to another person, there is no consideration, unless, as it may be proved by parol evidence, that they did agree to furnish twist. My opinion is, that this is an agreement within the meaning of the statute, to pay for the debt of another person.

It does not appear that the Lord Chancellor was aware, at the time of making these observations, of a case which had been decided a few months before in the King's Bench, which may be regarded as a commentary and exposition by that court of the case of Wain v. Warlters, and, it is humbly presumed, may tend, in a great degree, to obviate the objections made by the most learned and eminent person whose observations have been just quoted. It was an action on the following guarantee; "I guarantee the payment of any goods which J. Stadt delivers to J. Nichols." It was contended, on the authority of Wain v. Warlters, that this guarantee was not binding on the defendant, as it did not express any consideration for his promise; but Lord Ellenborough, before whom the cause was tried, said, that although by the agreement the plaintiff was not obliged to deliver goods, there appeared a sufficient consideration for the defendant's promise to be answerable, if any should be delivered. He should therefore admit evidence of the delivery of the goods. The jury found a verdict for the plaintiff, and the court of King's Bench being afterwards moved to enter a nonsuit, refused a rule nisi, and confirmed the ruling of the Chief

Justice at the trial (ƒ). It seems scarcely necessary to observe, that this case is precisely similar to that of ex parte Gardom; and therefore, that when the Lord High Chancellor conceived his decision of that case to be inconsistent with the case of Wain. v. Warlters, his Lordship must have understood the court of King's Bench to have laid down a narrower construction of the statute in Wain v. Warlters, than they appear from the subsequent case of Stadt v. Lill to have intended; as there can be no doubt that the Judges of the King's Bench, who held the guarantee in Stadt v. Lill to be valid, would equally have supported that in ex parte Gardom. The difference between these two cases and that of Wain v. Warlters seems to be, that in Wain v. Warlters nothing is stated on the face of the guarantee but an absolute promise to pay, subject to no contingeney, and not shewn to be founded on any consideration either of benefit to the party promising or of loss to the party to whom the promise is made. If nothing more actually took place between the parties than what appears on the face of the guarantee, it was clearly nudum pactum; and, putting aside entirely all consideration of the statute of frauds, such an engagement would have been altogether invalid at common law for want of a consideration to support it. Now as the statute requires a note in writing of an agreement of this sort to give it efficacy, is there any thing unreasonable in the Court requiring that the note should include so material a part of the agreement as the consideration by which the party was induced to enter into it, and without which it would have no legal

(f) Stapp or Stadt v. Lill, 1 Campb. 242, and 9 East, 348,

operation at all?

The two later cases are cases of

conditional guarantee, and founded on a sufficient consideration. The party guaranteeing says in effect, "if you will deliver the goods, I will guarantee the payment for them." The delivery of the goods is the consideration of the guarantee, which is in its operation co-extensive with the consideration. Parol evidence would indeed be necessary at the trial, of the fulfilment on the part of the person to whom the guarantee is given, of his part of the contract, by the delivery of the goods; but it was no part of the intention of the authors of the statute of frauds to hinder evidence of this sort being given; their object was to prevent perjury and fraud respecting the terms of the contract, and not respecting the evidence to prove that the contract has been acted on. Nor does there appear to be any particular danger of perjury in these matters. In verbal agreements, of which no other evidence exists than the fleeting recollection of the parties who were present when the engagements were entered into, there is great danger of fraud and perjury when parol testimony is brought forward to sustain them. Against this the statute has wisely provided; and sufficient security is afforded if the consideration of the agreement appear on the face of the written memorandum. Considering then the case of Stadt v. Lill as an exposition by the court of King's Bench of the principle on which Wain v. Warlters was decided, and as tending to obviate the objections of the Lord Chancellor to that case, it seems to stand an uncontradicted authority; nor do the reasonings on which it is founded appear to have been successfully impugned. Two subsequent cases have been decided on the same point. The first came on in the