Opinion of the Court by
Various grounds *365of error have been assumed in this cause, and on which it is contended the judgment below ought to be reversed.
Semple, for appellant.
Strode and Ford, for appellee.
It will be unnecessary to notice more than two, which are deemed sufficient to require a reversal of the judgment.
The note declared on is evidently one given to pay the debt of a third person. As there is neither a consideration for the promise expressed on the face of the note, nor one averred in the declaration, the omission in the last instance is certainly fatal, whether the first be so or not.
It is deemed unnecessary to discuss the difference between our statute of frauds, which is said to be the same as that of Virginia, under which, it has been adjudged, that the difference between the use of the words “ promise ” and “ agreement,” which is required to be in writing, renders it unnecessary that the consideration for the promise shall be in writing, and the British statute; or whether the use of the word “ promise ” in the one statute, and that of “ agreement” in the other, be a mere legal subtilty, because the omission to aver in the declaration that there was a sufficient consideration for the promise, and the ground of the legal liability of the defendant, is such a substantial defect as can not be cured after verdict.
There also existed a fatal variance between the instrument declared on, and the one produced in evidence. This objection, it appears by the bill of exceptions, was taken on the trial and overruled. The note declared on, is described as a promise by the defendant to pay to the plaintiff the amount, by the name of Almond Cottle; the note produced in evidence promises to pay to the creditors of Samuel B. Smith, jointly, the sums enumerated and set opposite each of the names of said creditors, of whom the said Cottle is alleged to be one. The promise in the note produced in evidence is a joint, and not a several promise, and does not therefore support the declaration. It is made to all the creditors of Samuel B. Smith, and not to each separately. The variance, however, in the description of the note, and the one produced, is obviously fatal. Sheehy v. Mandeville, 7 Cranch, 208. Ferguson v. Harwood, 7 ibid, 40.
The judgment of the circuit court is, for these reasons, reversed with costs. (a)
Judgment reversed.