John Hughes against Lucus Creyon.
-A promise by a bJa7 forthe\he meJdmarrfagaefff ucie™ifssfpa?aSute otriauS.®
This action was brought to recover a sum * ? _ . i money, which the defendant had promised to pay to the plaintiff, for the board of two young ladies, •daughters of a Mr. Gahaghin^ deceased, whose widow the plaintiff had married. Mr. Justice Smith, Who tried the case, reports the following facts as having appeared in evidence, viz.
That an Unhappy difference arose between the plaintiff and his lady, some time after their intermarriage, whereby they were about to separate; that, to this end, articles of separation were drawn up, and presented to the plaintiff for his signature, who, considering the stipulations unfair, and unfriendly to his interest* hesitated to sigh the same, alleging that he must be paid for the board of the young ladies. As an inducement, however, to a compliance on the part of the plaintiff, the defendant, who was the executor of Gahaghin, undertook and promised the plaintiff, that if he would sign the articles of separation, he (the defendant) would pay him for the board of the young ladies: whereupon the plaintiff signed the articles of separation., Testimony Was also offered, proving satisfactorily the time the young ladies had lived with the plaintiff, and the pride of such boarding as they had received. The Jury, under the direction of the presiding Judge, found a verdict for the *258plaintiff! The defendant has appealed therefrom, and relies upon the following grounds for a new trial:
1st. That the damages given were excessive, the J ury having allowed a greater sum than appeared to be due from the account exhibited by the plaintiff* himself.
2d. That there was no sufficient evidence of a consideration, to support the promise alleged against the defendant. And for a nonsuit, on the ground, that the plaintiff* signing articles of separation between himself and his wife, was no sufficient consideration to take the alleged promise of the defendant out of the statute of frauds.
The opinion of the Court was delivered by
Mr. Justice Gantt.
The first ground must necessarily fail; the plaintiff* having, by his counsel, consented to release so much of the recovery had, as shall exceed the account for board, as exhibited by the plaintiff!
On the second ground, I am of opinion that there was sufficient evidence of a consideration to support the promise. Was it nothing that the plaintiff*was to forego the society and pleasures of the conjugal state ? That he was no longer to have the control and authority of a husband over the person of his wife? Nothing, that this sacred tie, which in law identified them as one person, was, by the articles of separation, to be*259Come sundered, and he thereby deprived of the better part of himself ? Nothing, to drag through life, solitary and comfortless, without a partner to share in his joys, and sympathize with him in his hours of affliction? Nay, more; perhaps the current of his blood to dry up, and no mean left him, whereby to transmit his name to posterity ? These are weighty and important considerations, and are deemed quite sufficient to support the promise upon which this action was founded.
From this view of the privation and'losses which the plaintiff has and may sustain, I have no hesitation in saying, that the third ground taken for a nonsuit cannot be supported, being clearly of opinion, that the signing of the articles of separation by the plaintiff at the instance of the defendant, and on his promise to pay the hoard on that condition, is quite sufficient to take the case out of the statute of frauds. Lord Eldon, in the case of Houlditch vs. Milne, in 3 Espin. N. P. C. 86, says, that there may be cases where, though it is clearly the debt of another, yet a note in writing is not necessary, (See 2 Selwyn's Nisi Prius, note 7, page 858.) The reason which governed the decisions in the cases there put, exists in a much greater degree in the present; and leads me to the conclusion, that the promise made by the defendant in this case, is one not within the statute of frauds, and that he is bound to fulfil it. The verdict must stand,. *260the plaintiff releasing so much thereof as exceeds r ° the account for board filed by him.
—*--Grimke, Colcock, and Chevest J. concurred.
Johnson, J.
I concur in this case. From the report of the case I did not understand that the question of separation formed the basis of a consideration that had been before agreed upon; but the signing of articles by which the pecuniary interest of the plain tiff was affected, was the ground of the promise.
JVbíi, J. dissented.