530 ^HIGH COURT OF CHANCERY.

debt, default or miscarriage of another, contrary to the provision
of the fourth section of that statute; which declares that a par-
ty shall not be so charged, "unless the agreement upon which
such action shall be brought, or some memorandum or note .
thereof shall be in writing, and signed by the party to be charg-
ed therewith, or some other person thereunto by him properly
authorized."

The evidence of Judge Crain conclusively proves that an
agreement was signed by the late Mr. Brawner, binding him to
pay this debt, and that it is lost, and upon diligent search can-
not be found. Secondary evidence of the contents of the agree-
ment, which was in the form of a letter from the deceased to
Brooks, Stephens & Co., is, therefore, admissible, and, it ap-
pears to me, taken in connection with the other evidence, to
furnish a full answer to the statute of frauds.

It might not be very easy to determine whether the engage-
ment of Mr. Brawner in this case is a collateral or original one;

and even though collateral, whether it might not be classed
with those engagements, which being made at the time of the
principal contract, was an essential ground of the credit given
to the principal debtor, thus forming an original and entire
transaction; and resting upon the .consideration upon which
the whole debt rested, may not be shown by parol proof,
as not being within the statute, as was decided in Seward vs.
Vrendenburgh, 8 Johns. Ch. Rep; 29, confirmed in other cases
in New York, and declared to be the reasonable doctrine in De
Wolf vs. Raband et al., 1 Peters S. C. Rep., 476.

But the agreement in this case, as proved by the witness, is
in strict conformity with the statute, both the engagement and
consideration being in writing, even if it be necessary that the
latter should be in writing, which, however, is said, by an emi-
nent judge, to be against the weight of American authority. 3
Kent's Corn., 122, note e.

The witness says, he called on Mr. Brawner in July, 1838,
for the payment and settlement of these claims, that Mr. Braw-
ner admitted his indebtedness, that the claim on the open ac-
count was predicated on a letter written by Mr. Brawner to