By the Court.
Lumpkin, J.,delivering the opinion.
Concede the writing is a guaranty and not an acceptance, still it is actionable. No consideration need be stated in the writing. Pamphlet Acts of 1851-2, p. 243.
And it is a mistake to suppose that the Act of 1852 was repealed by the Act of 1856, as supposed by the Compiler *903of the laws for 1856. This latter Act repealed the Act of 20th February, 1854, Pamphlet, p. 58, and not the Act of 1852, cited above, and which remains in full force.
A glance at these several statutes will demonstrate this. The Act of 1856 purports to be “ An Act to alter, amend and explain Section 4th of an Act entitled an Act for the prevention of frauds and perjuries.” And this Act, by a line and a half, it expressly repeals. The Act of 1852 is “ An Act to give a construction to the 4th Section of the Statute of Frauds, so far as the same relates to a party defendant being chargeable upon any special promise to answer for the debt, default or miscarriage of a third person.”
The Act of 1856 manifestly, then, does not fit this Act. But the intermediate Act of 1854, which the compiler no doubt overlooked, purports to be “ An Act to alter, amend and explain Section 4th of an Act entitled an Act for the prevention of frauds and perjuries;” and this is the identical Act designated in the Act of 1856, and which it intended to repeal and did repeal.
The Act of 1852, dispensing with the consideration, being expressed in the written agreement, provided the agreement itself was reduced to writing, is a good Act — one rendered necessary to correct the absurd construction put by the British Courts upon the Statute of Frauds and Perjuries, and which the Courts in this State felt bound to follow, contrary to my judgment. But the Act of 1854, declaring that the Statute of Frauds and Perjuries should not operate in cases where there has been a performance of the agreement, either in whole or in part, was of doubtful propriety; and one about which even lawyers might differ in opinion.
The decisions of the Courts had gone pretty far that way as the law stood; not quite to the extent to which the A.ct goes. The Act of 1854 would make the payment of the purchase-money in whole or in part, such a part performance as would take the case out of the operation of the Statute of Frauds. But the decisions of the Courts have never gone that far. For myself, I should have voted for the Act of 1854 and against its repeal.