Livingston v. Tremper

4 Johns. 416

• Court: New York Supreme Court
• Decided: August 15, 1809
• Status: Published

Opinion

Kent, Ch. J.

We do not wish to hear you on this point. It is too well settled to admit of doubt.

Van Ness, J.

There is a fallacy in the argument, of the plaintiff’s counsel. The statute of frauds was-never meant to alter the common law. Any promise, under seal was valid at common law. The seal imports a consideration, as much as if it was expressed in so many words. The statute of frauds says merely, that a promise to pay the debt of another, shall not be valid, unless in writing. The statute has no application to a writing under seal.

Per Curiam.

The promise to pay, in this case, was in writing and under seal, and is not, therefore, within the statute of frauds, nor any decision under it. The covenant, of itself, conclusively imports a consideration, so that it is not necessary that it should be set forth in the deed. The plaintiff is entitled to judgment, but the defendant has leave to withdraw his demurrer, on payment of costs.

Judgment for the plaintiff.