#### WILLIAM J. T. MILLER v. SARAH IRVINE.

The act of 1819 *(Rev. ch.*1019), “ to make void parol contracts for the sale of lands and slaves,” does not require that the consideration of the contract should be set forth in the written memorandum of it.

Assumpsit brought to recover damages for the breach of the following written contract, viz.:

“ I, Sarah Irvine, do agree to convey to Wm. J. T. Miller, a certain piece or parcel of land adjoining the tract of land which said Wm. J. T. Miller bought of me. The lines to run as follows : to begin with the line where it crosses the main big road leading to M'Swain’s ford on First Little Broad River, thence south-west course with the edge of the old field down to th^Sfa&^tage'^ranch; thence up the said branch to the^i^^3B'.^^Pj>M%üer,s line of the three hundred acre tracjj:. January 15th, |829.

“ The condition of the above «j^á^if^'^qf^^ymat if the three hundred acre tract winch the said Wm. Jj T. Miller bought of the said Sarah ilyiiíeiBeRl&M *IfitJo*be four hundred acres after being surv^ged, theabgare obligation of Sarah Irvine is to be void ancrofnone effect. January 15th, 1829.”

On the trial at Rutherford, on the last Circuit, before his honour Judge Martin, after the plaintiff had proved the execution of the contract, his honour held, that no consideration being mentioned in it, the action could not be maintained. The plaintiff then proposed to prove by parol evidence, that the contract was founded on a valuable consideration. His honour refused to receive the testimony, saying, “ that to do so, would be to alter, or add to, the written contract.” The plaintiff was nonsuited and appealed.

No counsel appeared for either party.

Ruffin, Chief Justice.'

— The question presented in this case is, whether the consideration on which a written parol promise is founded, must appear in the instrument itself or in some other writing, or may be proved *viva voce.*At the common law, every agreement not under *104seal requires a consideration to support it; but the consideration might be proved in any manner in the party’s power — by the same instrument, or by a separate one, or by witnesses. , The question therefore depends upon the act of 1819. *(Rev. ch.*1016.) It is a new question in our Courts; and as it involves important consequences, and is one upon which there has been, upon similar statutes, much conflict of opinion in other Courts, we have very deliberately considered it. The majority of the Court is of opinion, that the statute does not operate upon the case, and that the consideration may be proved since, as before the statute. The act does not, on the one hand, give validity to an agreement, merely because it is written ; but'leaves the common law in force, which makes a consideration indispensable to its validity. So, on the other hand, while the common law requires such consideration, the statute does not prescribe that it shall be proved otherwise than at common law. If an alteration of such magnitude had been intended, as that no consideration should be required when there was a writing; or that, if required, the writing should set it forth; we think each would have plainly appeared by distinct enactments, and that neither would have been left to doubtful inference. The provisions actually made seem to have the obvious purposes of protecting persons from being drawn inconsiderately into sadden engagements touching the important properties in lands and slaves, and against the misunderstanding and misrepresentations of the extent of such engagements, by witnesses. Hence the contract must be put into writing and signed by the party *to he charged therewith.*It need not be signed by both parties; the one charged by the contract must sign it, and his signature shall suffice to charge him. If both are chargeable by the contract, as written, then both must sign it, to charge both. But if one only is to be charged on it, there seems to be no reason why it should contain any matter but such as charges him; that is, such stipulations as are to be performed on his part. It does not vary his contract, explain or alter it, to prove a consideration *aliunde;*for at the common law, such explanations or alterations by parol *105evidence were as inadmissible as they could be. This proves, that the consideration is *no part of the contract,*but only *the inducement to it;*and that the case is not more within the words than the spirit of the statute. To us it seems there could be no doubt upon the construction of the act, upon its terms and upon principle, were there no decisions either way. They have embarrassed us; but considering them upon their intrinsic merits, the weight of them is on the side to which our own opinion inclines. They are all regarded with respect; but, none of them having authority in this state, the respect must be in proportion to the degree of conviction produced on the mind by the reasoning of those who made them.

In England it must now be deemed the settled law, that under the statute of 29th Charles 2, contracts for the sale of land, in consideration of marriage, and to answer for the debt of another, must state the consideration. The point was first decided in 1804, in the case of *Wain*v. *Warlters,*5 East, 10; and has been followed by the cases of *Saunders*v. *Wakefield,*4 Barn. & Ald. 595, (and 6 Eng. Com. Law Rep. 530,) and *Jenkins*v. *Reynolds,*3 Brod. & Bing. 11, (and 7 Eng. Com. Law Rep. 328,) and *Lyon*v. *Lamb,*in the Court of Exchequer, Fell on Guar. 318. The latter cases may, however, be regarded as decisions by compulsion under the authority of *Wain*v. *Warlters,*as the leading one. They are but submissions to that j udgment, which was .that of the Court of King’s Bench. No trace of the doctrine can be found earlier than 1804. That fact has much more authority than the decision of any Court, or of a Superior Court followed by those which are inferior. The silence of all the Courts and counsel from the reign of Charles the Second, to the year 1804, implies that the law was deemed certain during that long interval. On which side of this question was the professional impression ? It cannot be said that we have no means of ascertaining ; and that the question was not made, because the statute was deemed plain; for in *Ex parte Minet,*14 Ves. 189, Lord Eldon said, there was a variety of authorities directly contradicting *Wain*v. *Warlters;*and in *Ex parte Gardom,*15 Ves. 286, he says, *“*until that case *106was decided I had always supposed *the law to he clear,*that if a man agreed in writing to pay the debt of another, it was not necessary that the consideration should appear in the writing.” I do not cite Lord Eldon’s words merely to put his opinion as authority upon the question of construction, against that of the Judges of the King’s Bench; but for the sake of his testimony as to what was understood to be the law up to the time of the case in which that construction was rendered authoritative in that country. It cannot be denied, that if it was the true one there, upon the word *agreement*in the statute of Charles, it is equally true here, upon the word *contract*in our act. But Lord Eldon is not the only English Judge, whose opinion does not accord with that decision. In *Egerton*v. *Matthews,*6 East, 307, which arose on the 17th section of the statute of frauds, the decision was irreconcilable with it. That section provides, “ that no *contract*lor the sale of goods shall be allowed to be good, unless some note or memorandum in writing of the said *bargain*be made and signed by the parties to be charged with *such contract.”*The contract then, was simply a bill of parcels with the *prices;*and yet it was held valid. The case was tried before Lord Ellenbokough, at Nisi Prius, who had presided in *Wain*v. *Warlters,*and thought the case within that precedent and so ruled. But when the question was argued in Bank, he and the other Judges distinguished it upon the word *bargain,*instead of *agreement.*If there be a difference between “ *bargain”*and “ *agreement,”*I am unable to comprehend it. But that difference could not exist in the context of the 17th section, which calls *the*bargain “ such contractwhich surely must be as comprehensive as “ *agreement.”*In this country, we find as little satisfaction expressed with that case, as in England. Soon after the decision of *Wain*v. *Warlters*reached us, the point was made in the Courts of New York and decided, without great consideration, in conformity to it; and after being thus established, has been followed in that state until it is there, as it ought to be, settled law. But Chancellor Kent, then Chief Justice, dissented from it in *Leonard*v. *Vredenburg,*8 John. Rep. 29. In the other *107Courts of the Union, we have been unable to find any willing recognition of the doctrine; and in several of the states it has been positively denied after full argument at the bar and from the bench. In *Violett*v. *Patton, 5*Cranch, 142, the Supreme Court of the United States evaded the force of *Wain*v. *Warlters,*upon the words *“promise*or *agreement,”*in the statute of Virginia; but I think, that *“*promise” and “ agreement” there, are not used to describe different instruments or those of different obligation, but are obviously referred to 'the same thing; the *promise*being the *agreement*and *vice versa.*This decision evinces a great unwillingness to deny directly the authority of an adjudication, but the still greater unwillingness to follow it, as a reasonable one. In Connecticut, Judge Swift has opposed to it an able course of reasoning, which must greatly influence a dispassionate mind, not bound down by authority. (Note to *Wain*v. *Warlters,*in the American edition of East.) In South Carolina, the question is still reserved for decision by the Court; the case of *Wain*v. *Warlters*being expressly put in doubt. In Massachusetts, the whole law, and all the cases up to 1821, were reviewed in *Packard*v. *Richardson,*17 Mass. Rep. 122; in which Chief Justice Parker, in an elaborate opinion denies its correctness, as Chief Justice Par-sows had before done in *Hunt*v. *Adams,*5 Mass. Rep. 358, and overrules it. These last decisions are entitled to the more respect, because in Massachusetts the statute of Charles had been literally re-enacted as early as the year 1692; and, as in England, no question had been made upon it as altering the rule of the common law in respect to setting out the consideration in the written memorandum. But those eminent Judges declare, that from their earliest recollection a doubt had never been entertained upon the point.z

As I before remarked, the weight of authority thus seems to be against *Wain*v. *Warlters.*At all events, the authority of that case is at least neutralized, and this Court is free to exercise its own judgment upon the question. We have done so; and the majority of the Court is of opinion *108that the decision of his honour is erroneous and that the judgment must be reversed.

It may be proper to say, that, if in any case, the statute requires the consideration to be stated, it does so in all. We do not perceive a difference between executed, and executory, considerations in this respect, as there is the same danger of perjury in proving either. Our opinion goes on this ; that the statute does not extend to the consideration at all, but that the fraud and perjury provided against, is that which charges the defendant to do what he never contracted to do.

Gaston, Judge, concurred.

Daniel, Judge;

*dissentiente.*— The act of assembly passed in the year 1819, declares, “ that all *contracts*to sell or convey any lands, tenements or hereditaments, or any interest in or concerning them, shall be void and of no effect, unless such *contract*or some memorandum or note thereof, shall be put in writing and signed by the party to be charged therewith, or some other person thereto by him lawfully authorised; except contracts for leases not exceeding the term of three years.” The question to be decided is, whether the consideration is such a part of the contract, as must necessarily be set forth in the writing to make it good and available under the statute *1*

The British statute of frauds, 29 Charles 2nd, enacting upon this subject, makes use of the word *agreement*instead of the word *contract,*as is mentioned in our statute. The words are synonymous, and the same construction which has been put upon the British statute, I think ought to be placed upon ours. *Wain*v. *Warlters, 5*East, 10, decided in 1804, was an undertaking to pay the debt of another. The written engagement signed, was in these words, “Messrs. Wain & Co.; I will engage to pay you by half past 4 this day, £56, and expenses on bill, that amount, on Hall. (Signed.) Jno. Warlters, (dated) April 30th, 1803.” It was objected that the writing did not express the consideration of the defendant’s promise, and that this omission could not be supplied by parol testimony, (which the plain*109tiff proposed calling,) and that for want of such consideration appearing upon the face of the written memorandum, it stood simply, an engagement to pay the debt of another without any consideration, and was therefore *nudum pac-tum*and void. Lord Ellenborough, upon a view of the statute of frauds, which avoids any special promise to pay the debt of 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, and included the consideration moving to the promise, as well as the promise itself; 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 supported by parol evidence, which it was the.object of the statute to exclude; and therefore non-suited the plaintiff. A rule *nisi*was obtained, for setting aside the non-suit, 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 consideration, which did not go to contradict it, but to explain and support the written promise. After argument in the King’s Bench, the rule was discharged. Lord Ellenborough in delivering his opinion, said, “ it seems 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 made upon a condition precedent, which' the party charged may not afterwards be able to prove, the omission of which would materially vary the promise, by turning that into an absolute promise, which was only a conditional one; and then it would rest altogether on the consciences of the witnesses, to assign another consideration in the one case, and to drop the condition in the other, and thus to introduce the very frauds and perjuries, which it was the object of the act to exclude, by requiring that the *agreement*should be reduced into writing, by which the consideration as well as the promise would be rendered *110certain.” All of the other Judges gave their opinions, and concurred with his lordship. The rule in this case was followed in New York, in *Sears*v. *Brink,*3 John. 210; *Leonard*v. *Vredenburg,*8 John. 29. Also in New Hampshire, *Neelson*v. *Sanborne,*2 New Hamp. Rep. 414. But in Massachusetts, where the statute of frauds is nearly a *verbatim*copy of the British statute, the rule is rejected, and parol evidence admitted to prove the consideration. *Lent*v. *Padelford,*10 Mass. Rep. 230; *Packard*v. *Richardson,*17 Mass. Rep. 122. So in New Jersey, *Barkley*v. *Beardsley,*2 South. 570. In Connecticut, Judge Swift has made a vigorous attack upon *Wain*v. *Warlters.*(Note to the A merican edition of East.) Chief Justice Parker, in delivering his opinion in *Packard*v. *Richardson,*which was in 1821, predicted that *Wain*v. *Warlters*would not be recognised as law, if the principle ever came to be again examined in any of the Superior Courts at Westminster. In this he was mistaken, for in that very year, the question was again brought before the King’s Bench, in the case of *Saunders*v. *Wakefield,*4 Barn. & Aid. 595, (and 6 Eng. Com. Law Reps. 530,) when all the authorities were referred to by counsel, and the Judges gave their opinions *seriatim,*and affirmed the doctrine laid down in the case of *Wain*v. *Warlters.*They say, that by the fourth section of the statute of frauds, an agreement to pay the debt of another, must, in order to give a cause of action, be in writing, and must contain the consideration of the promise as well as the promise itself, and parol evidence of the consideration is inadmissible. Bayley, Judge, said, “ I find too, that the word *agreement*in this clause is coupled with contracts of marriage, and for the sale of lands; now, in those cases, it is clear, that the consideration must be stated. For it would be a very insufficient agreement to say, ‘ I agree to sell A. B. my lands,’ without specifying the terms or the price; and if those could be supplied by parol evidence, we would let in all the mischief against which the statute meant to guard, viz. of having important parts of the contract proved by parol evidence.” Hol-royd, Judge, said, “ that upon an agreement upon consideration of marriage, or a contract for the sale of lands, it is *111quite clear that the consideration must be stated in writing.” In *Jenkins*v. *Reynolds,*3 Brod. & Bing. 11, (and 7 Eng. Com. Law Reps. 328,) a few months after, in the Common Pleas, the same rule was adopted. In 1807, in the case of *Lyon*v. *Lamb,*Fell’s Mer. Gua. 318, the Court of Exchequer admitted the doctrine in *Wain*v. *Warlters.*The question has been twice brought immediately to the notice of the Court in South Carolina, but no direct decision has there been given. In *Stephens*v. *Winn,*2M‘Cord, 372, no consideration was expressed in the face of the note, nor was there any offer to prove it by other evidences. In a case in 3 M'Cord, page 158, there were two written papers, and the Court was of the opinion, that the one referred to the other, and the consideration by that means was made to appear in writing. The Court seem to think, that the doctrine in *Wain*v. *Warlters*should be confined to contracts executory on both sides; that if the consideration has been executed, then the terms of the contract on the other side being in writing, could be enforced, although it did not contain the consideration. They proceed to say that, “ If A., in consideration that B. will undertake to build him a house, promise to pay him so much money, and B. does undertake to build the house, their minds meet about the matter, and this constitutes an agreement; and if the consideration of a promise to pay the debt of another, consists of something moving at the time, and to be afterwards performed, it might perhaps comport more strictly with the letter of the act, that it should be set out on the face of the promise, as constituting a part of the agreement. But if B., in consideration that A. had advanced him so much money, undertakes to build the house, here the undertaking is altogether on the part of B.; the *aggregatio mentium,*the meeting of the minds, is past and gone, and the contract consists altogether of the promise to build the house; and in such a case the requisitions of the statute would seem to be fulfilled, if the promise itself was in writing; although like every other contract, to make it obligatory, it must be founded on a good consideration, which might be proved by parol.” But the Court then proceed to say, they *112“ have thought it advisable to reserve the determination of the question for some further occasion, when it is possible more lights may be thrown upon it.” These remarks were made in the year 1825, and without having had the cases of *Saunders*v. *Wakefield*or *Jenkins*v. *Reynolds,*brought to their notice. All the cases referred to in the opinion delivered, except *Sears*v. *Brink,*are cases which do not profess to overrule *Wain*v. *Warlters,*but contain *dicta*throwing doubts on that case. I do not know the wording of the statute of frauds in South Carolina, but if it uses the language of the statute of Charles 2nd, I am at a loss to see, how the Court could have entertained the idea, that as wide a door was not opened to let in frauds and perjuries, when the *amount*of money *actually paid,*or the *quantity*of articles *actually delivered,*might be permitted to be proven by parol, as when the amount of money or quantity of articles were to be *hereafter paid*or *delivered.*It seems to me, that the same mischiefs intended to be prevented by the statute, would as well arise in the first class of cases, as in the latter. It is a distinction which I nowhere find'in any of the authorities, and I cannot bring my mind to the conclusion, that the distinction is a sound one.

Without a good consideration, no contract could be enforced at the common lavs7. The framers of the statute well knew this. Can it therefore be supposed, that the legislature, when it passed the statute, to guard the property and rights of the subject, against the frauds of parties, and the perjury of witnesses, did not contemplate that the whole terms of the agreement or contract should be in writing, as well the consideration to be paid, or which had been paid, as the engagement on the other side ? It seems to me that it did, and that the weight of authority is on that side of the question. I therefore am of the opinion, that the judgment must be affirmed.

Per Curiam. Judgment reversed.