Now, it has been decided-and the decision you will observe was (t) equally applicable to each of the five descriptions of contract-that in consequence of the introduction of the word "agreement" the consideration as well as the promise must appear in writing. That was settled by the well-known cases of Wain v. Warlters (u), Saunders v. Wakefield (x), and Jenkins v. Reynolds (y). For, the word agreement, comprehending what is to be done on both sides, comprehends of course the consideration for the promise as well as the *promise itself. The judgment of Lord Ellenborough, in Wain v. Warlters, very clearly explains the reasons upon which this doctrine is founded.
"The clause in question in the Statute of Frauds," says his Lordship, "has the word agreement (' unless the agreement upon which the action is brought, or some memorandum or note thereof, shall be in writing, etc.): and the question is, whether that word is to be understood in the loose incorrect sense in which it may sometimes be used as synonymous to promise or undertaking, or in its more proper and correct sense, as signifying a mutual contract, on consideration, between two or more parties? The latter appears to me to be the legal construction of the word, to which we are bound to give its proper effect: the more so when it is considered by whom that statute is said to have been drawn, by Lord Hale, one of the greatest judges who ever sat in Westminster Hall, who was as competent to express as he was able to conceive the provisions best calculated for carrying into effect the purposes of that law. The person to be charged for the debt of another is to be charged, in the form of the proceeding against him, upon his special promise; but without a legal consideration to borough in Wain v. Warlters, clearly shows that all the terras of the agreement, as well *as the consideration, must be expressed in the memorandum.
(t) See post, p. *79. (u) 5 East, 10.
(x) 4 B. & Ald. (6 E. C. L. E.) 595. (y) 3B.&B. (7 E. C. L. R.) 14.
States Courts, D' Wolf v. Rabaud, 1 Peters, 501; Fowler v. MacDonald, 4 Cr. C. C. 297; How v. Kemball, 2 McLean, 107; Connecticut, Sage v. Wilson, 6 Conn. 81; Nichols v. Johnson, 10 lb. 198; Florida, Dorman v. Bigelow, 1 Flor. 290; Georgia, Baker v. Herndon, 17 Ga. 571; Davis v. Tift, 11 Am. L. Rec. 701; Louisiana, Ringgold v. Newkirk, 3 Ark. 108 (under the civil law); Massachusetts, Hunt v. Adams, 5 Mass. 360; Packard v. Richardson, 17 lb. 127; Mississippi, Wren v. Pearce, 4 Sm. & M. 91; Missouri, Ivory v. Murphy, 36 Mo. 539; New Hampshire, Britton v. Angier, 48 N. H. 422; Lang v. Henry, 54 lb. 59; North Carolina, Ashford v. Robinson, 8 Ired. 114; Miller v. Irvine, 1 Dev. & Bat. 103; Ohio, Reed v. Evans, 17 Ohio, 128; Duckwall v. Rogers, 15 Ohio St. 546; Pennsylvania, Paul v. Stackhouse, 38 Pa. St. 306; Bowser v. Cravener, 56 lb. 132; Giltinan v. Strong, 64 lb. 245; South Carolina, Lecat v. Tavel, 3 McCord, 158; Fyler v. Givens, 3 Hill, 52; Griffin v. Rembert, 2 Rich., N. S., 114; Tennessee, Campbell v. Findlay, 3 Humph. 332; State v. Humphreys, 10 lb. 444; Whitby v. Whitby, 4 Sneed, 479; Texas, Ellett v. Britton, 10 Tex. 210; Fulton v. Robinson, 55 lb. 404; Vermont, Ide v. Stanton, 15 Vt. 689; Sheehy v. Adarene, 41 lb. 541; West Virginia, Capehart v. Hale, 6 W. Va. 550 In New York the question has been unusually fruitful of discussion and litigation. From 1830 until 1S63 a statutory provision required expressly a statement of the consideration in the memorandum. During this period it had been held in numerous cases that the statement of a consideration was essential, and that the statute required an explicit declaration of it; since the repeal of this act there has been some conflict, but the weight of authority appears to be that the effect of the repeal was simply to do away with this added statutory regulation, so that while an expression of consideration was still essential, any words from which it could be gathered or inferred were enough. See Sears v. Brink, 3 Johns. 215; Kerr v. Shaw, 13 lb. 236; Thompson v. Blanchard, 3 Comst. 335; Wright v. Weeks, 25 N. Y. 155; Burrell v. Root, 40 lb. 496; Marsh v. Chamberlain, 2 Lans. 293; May v. Bank of Malone, 9 Hun, 111; Speyers v. Lambert, 1 Sweeny, 338; Castle v. Beardsley, 10 Hun, 343.
All the statutes adopted in the United States have not been in precisely the same language. In some the memorandum has been required to contain the "promise," in others the "agreement," and in others the " promise or agreement," and the decision of the question has often been rested on this ground, the court holding that "agreement" embraced a consideration, while "promise" did not: Thompson v. Hall, 16 Ala. 207; Dorman v. Bigelow, 1 Flor. 290; Ratliffe v. Trout, 6 J. J. Marsh. 606; Pearce v. Wren, 4 Sm. & M. 97; Britton v. Angier, 48 N. H. 422; Nelson v. Dubois, 13 Johns. 175; Campbell v. Find-lay, 3 Humph. 332; Ellett v. Britton, 10 Tex. 209; Violett v. Patton, 5 Cranch. 151.
As a general rule it has been held that the consideration (where required to be expressed) need not be explicitly stated, it is sufficient if it can be inferred or made out from the memorandum. See cases supra and Forth v. Stanton, 1 Saunders, 210; Bainbridge v. Wade, 16 Q. B. (71 E. C. L. R.) 98; relates; for now by stat. 19 & 20 Vict. c. 97 (Mercantile Law Amendment Act, 1856), s. 3, if *the special promise to answer for the debt, default, or mis carriage of another be in writing duly signed, it is not necessary that the consideration should appear in the writing also (z).
The rule, however, laid down in the above case applies to the other four descriptions of contract. Therefore, where a contract was made in writing between a bookseller and an author, which evidently was to endure for more than a year, and which contained stipulations to be performed by the bookseller, but none to be performed on the part of the author, either express or which could be made out by necessary implication; it was decided that an action could not be supported upon this contract for want of any consideration appearing upon its face (a).