34 Ala. 129 | Ala. | 1859
The obligation of the defendant, which was read in evidence in this case, was a “ promise to answer for the debt, default or miscarriage of another,” within section 1551 of the Code, which declares such agreement void, “unless the agreement, or some note or memorandum thereof, expressing the consideration, is in writing, and subscribed by the party to be charged therewith, or some other person by him thereunto lawfully authorized in writing.”. — Brown v. Adams, 1 Stew. 51; Browne on the Statute of Frauds, §§ 158, 159, 160; Fay v. Hall, 25 Ala. 704; Shepherd’s Digest, 640. In the present case, the agreement is in writing, signed by the party to -be charged therewith; but the agreement or memorandum' does not express the consideration, and hence the statute pronounces it void.
Our own statute of 1803 (Clay’s Digest, 254, § 1) employs the words “promise to answer for the debt, default or miscarriage of another person,” and does not expressly require the consideration to be expressed in the writing. Under this statute, our predecessors held, that neither the pleadings nor the evidence need affirmatively show that such promise was made or given upon a c'on-sideration : that under our statute of 1811, (Clay’s Dig. 340, § 152,) the promise imported a consideration, until the presumption was rebutted.' — See Thompson v. Hall, 16 Ala. 204, and authorities therein cited.
It will be observed, that the distinction between the English statute and our act of 1803 consists in the substitution by our legislature of the word promise, for agreement employed in theirs. The case of Wain v. Warlters, supra, was made by Lord Ellenborough to hinge on the word agreement. See, also, Violett v. Patton, 5 Cranch, 142, (2 Cond. Rep. Sup. Ct. 214;) and authorities collected in Thompson v. Hall, supra.
The guaranty declared on in this case was executed after the Code went into operation,’January 17,1853; and it is contended for appellant, that inasmuch as the contract which is the foundation of-the suit is in writing, and purports to be executed by the party sought to be charged, it is evidence of the existence of the debt, and that it was made on sufficient consideration. — Code, § 2278. Such is doubtless the general rule bn the subject; and if there be nothing on the fao,e of this contract to take this case’out of the operation of the general rule, then, in pronouncing on the effect of the evidence, we must concede to the appellant the benefit of
For the error in sustaining the defendant’s demurrer to the first count of the complaint, the judgment of the circuit court is reversed, and the cause remanded.