Evoy

Murray, C. J., concurred.

*286 In this cause, it is alleged in the complaint that Evoy, the appellant, executed a lease to one McMakin of certain lands in the town of Contra Costa, Alameda county, for the term of one year, or until after the harvesting of the crops upon the land, the lease being dated December 15, 1853. It is also alleged in the complaint, that in consideration of the execution of the lease by Evoy to McMakin, respondent Tewksbury, at the same date of the instrument, wrote underneath, and attached to the lease, the following words: “I hereby agree to pay the rent stipulated above, when it shall become due, provided the said McMakin does not pay the same.” Signed, “ J. M. Tewksbury.” It being alleged in the complaint that the above agreement of the respondent was made in consideration of the execution of the lease by Evoy to McMakin, and the same being added as an agreement running with the lease, and executed at the same time, it must be considered as a part of the lease itself, and not within the statute of frauds.

By the statute of frauds, a special promise to answer for the debt, default, or miscarriage of another, must be in writing, and must express the…