I concur with the first judge in the conclusion that the promise made by the defendant, alleged in the complaint herein, is within the statute of frauds, and is void, if not in writing, although the consideration stated is amply sufficient to sustain it, if it were in a writing expressing that consideration.
But this is the first instance, within my observation, in which judgment was ever ordered for a defendant upon a demurrer to a declaration, because the promise declared upon was hot averred tú be m writing.
It is not necessary, in declaring upon a promise, (although it be confessedly within the statute, and if not in writing, void,) to aver that it was written. It is sufficient for the plaintiff if it appear in evidence on the trial in writvtig. (Roberts on Frauds, 156, 202; Buller’s N. P. 279; 3 Burr, 1,890.) And for the well settled reason that the statute in-' troduces a new rule of evidence only and not á new rule of pleading. And this rule is applicable to all contracts within the statute. (1 Saund. R. 276, note 2, to Duffe v. Mayo; Case v. Barber, 3 Raym. 451; Birch v. Bellamy, 12 Mod. 540; Hutchinson v. Hewson, 7 T. R. 350, n.)
Whether the evidence will support the claim, is a question which does not arise upon the pleading, but upon the trial of an issue thereon. For it is only necessary in pleading to state the legal effect, to wit, the promise. And if it appear *407on the trial that the defendant made no binding promise, then in judgment of law he made no promise. (Vide 3 T. R. 159; Read v. Brookman, by Ld. Kenyan; see, also, 2 Chit. Pl. 121, n. s., 123, n. x; 2 Saund. Pl. & Ev. 546.)
It follows that a demurrer to the declaration confesses a legal promise, or at least that the objection that the agreement is not in writing cannot arise on demurrer to the declaration. The demurrer dispenses with proof, and assumes that the fact alleged is true, and might be proved by the only legal evidence of such a promise.
(A different rule has been applied to pleas in bar. Villers v. Handley, 2 Wils. 49; Roberts on Frauds, 202, n.; Buller, 279.)
The objection, then, that the agreement on which the action is brought should be in writing, or is void, arises on the trial and not on demurrer, and such will be found to be the mode of raising that objection. (See Jackson v. Rayner, 12 J. R. 291; Howard v. Easton, 7 J. R. 205; Van Alstyne v. Whipple, 5 Cowen, 162; Lown v. Winters, 7 Cowen, 263; King v. Brown, 2 Hill, 485.)
This view of the subject appears to have been overlooked by the court below, and by the counsel for both parties. But I am not willing, by affirming the judgment, to sanction a precedent which is so clearly erroneous. And yet as this point was not raised before the justice, nor raised by counsel on this appeal, and the argument of the plaintiff’s counsel on the appeal concedes that the agreement is not in writing, a further prosecution of the action will not avail the plaintiff, and there would be no hardship in this particular case in holding that it is too late now to ask a reversal upon this ground, especially as an unqualified reversal would give the plaintiff costs. Under the circumstances, and in view of the further manifest error committed by the justice (referred to by'the first judge) in not pursuing the practice directed by § 64, subd. 7, I think we. shall best promote the ends of justice by suffering the plaintiff to wai/oe any claim to costs on the appeal, and upon such waiver to reverse the judgment. If he do not elect to do this, he cannot complain that his *408omission to raise the objections above adverted to, be held a waiver thereof, and the judgment be affirmed.
Judgment reversed, provided the plaintiff waives the costs of appeal; otherwise, affirmed with costs.