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 6-, 
 
 -^^S X^/.'i
 
 A TREATISE 
 
 yaliiity of Terlal Aireemeiits, 
 
 AS A^rXOTED BT THE LEOISLATITE ENAOTSIENTS 
 
 m ENGLAND AND THE UNITED STATES, 
 
 COUUONLT CALLED 
 
 THE STATUTE OF FRAUDS; 
 
 INCLCTDINO, ALSO, THE EFFECT OF PARTIAL AND COMPLETE PERFORMANCE, AND 
 
 THE SUFFICIENCY OF THE WRITING, IN CASES WHERE VERBAL 
 
 AGREEMENTS ARE NOT VALID ; 
 
 TOGETHER WITH OTHER KINDRED MATTERS; TO WHICH ARE PREFIXED TRANS- 
 CRIPTS OF THE VARIOUS STATUTES ON THE SUBJECT, NOW IN 
 FORCE IN BOTH COUNTRIES. 
 
 BY MONTGOMERY H. THROOP. 
 
 rN" x-wo voLXJ]ytKS. 
 
 YOL. I. 
 
 ALBANY, N. Y. 
 
 JOHN D. PARSONS, Jr., PUBLISHER 
 
 1870. 
 
 2^n^M
 
 r 
 
 Entered, according to act of Congress, in the year Eighteen Hundred and Seventy, by 
 
 MONTGOMERY»H. THROOP, 
 
 in the Office of the Librarian of Congress, at Washington. 
 
 WHED, PARSONS AND COMPANT, 
 
 PllINTERS AND STEREOTTPERS, 
 
 ALBANY, NEW YORK.
 
 PKEFACE. 
 
 The uncertainty and confusion, which, after the lapse of nearly 
 two centuries, still obscure most questions pertaining to the appli- 
 cation of the statute of frauds to executory agreements, have long 
 been a reproach to our system of jurisprudence, a stumbling block 
 to the student, and a source of painful embarrassment to all per- 
 sons charged with the administration of justice. In the following 
 pages I have endeavored to reduce the discordant mass of doctrine 
 and authority upon this branch of the law, to an orderly and har- 
 monious system. The difficulties attending this undertaking are 
 well known to all who have studied the subject ; and although I 
 cannot expect complete success, I hope for the good will of the 
 profession towards my effort to accomplish an object so desirable, 
 and its kindly indulgence wherever I may have failed. And I cher- 
 ish with considerable confidence the belief, that this work, regarded 
 merely as a collation of cases and principles, many of which are 
 imperfectly understood, and inaccessible without much toil, will 
 tend materially to lighten the labors of my professional brethren 
 in similar investigations, and to smooth the path of the student ; 
 even if the methods which I have freely, (perhaps sometimes pre- 
 sumptuously,) suggested, of reconciling cases supposed to be 
 conflicting, and of terminating the conflict of authority when they 
 could not be reconciled, shall fail to command general approbation. 
 
 The nature of my task has often required more elaborate dis- 
 ''ussions of principles, more minute examinations of the peculiar 
 features of the adjudged cases, and more extended comments upon 
 them, than would be necessary or proper, in writing upon sub- 
 jects where the governing rules are more settled, and the authorities 
 more harmonious. For this reason, and particularly in conse-
 
 IV PREFACE. 
 
 quence of the manner in which I have cited leading and represent- 
 ative cases, I have found it impossible to complete this treatise in 
 one volume, as I had originally proposed. But, unless I misappre- 
 hend the preferences of the profession, few will complain of an 
 increase of bulk, caused by accurate condensations of judiciously 
 selected authorities. The number of the volumes of the reports, 
 to which an American lawyer is now referred by the digests, is so 
 great, that a personal examination of all the adjudications, upon 
 any obscure and controverted point of law, can rarely be made, ex- 
 cept in a public library ; and access to such an institution can be 
 obtained by many of the profession only at intervals, while it is 
 attended with great delays and inconveniences, even to those who 
 can command it at pleasure. The plan, which has been adopted 
 by some of the most popular legal authors, of giving abstracts, 
 more or less extended, of the principal cases cited, although but 
 a partial remedy for this evil, is the only one of which it admits. 
 And I have therefore used such abstracts freely, in order to eluci- 
 date the practical operation of settled principles ; to point out the 
 distinctions in their application; to show the arguments and 
 authorities upon each side of unsettled questions ; to fortify my 
 own conclusions ; and generally to illustrate the current discus- 
 sion. No pains have been spared to overcome the difficulty, 
 inseparable from the necessary condensation, of making them 
 faithful exponents of the reported cases. And although nothing 
 can entirely supply the place of the reports themselves, it is be- 
 lieved that these abstracts will greatly assist the ready understanding 
 of the text, and answer many useful purposes, not only in the 
 " occasions sudden " of professional practice, but also in the delib- 
 erate preparation of causes for trial or argument. 
 
 In condensing the English decisions, I have consulted all the 
 different reports of the same case, (frequently five or six in num- 
 ber,) selecting in each instance the most satisfactory version, and 
 sometimes gathering the points of the case from more than one 
 report. The book from which the condensation was made, is
 
 PREFACE. V 
 
 always mentioned in immediate connection with the title of the 
 case ; and when several books were used for the purpose, all are 
 similarly cited. The parallel reports are referred to in the foot 
 notes ; or, when the principal citation is in a foot note, they are 
 inserted in brackets. 
 
 There is a very close connection, in many instances, between 
 questions relating to the sufficiency of certain agreements under 
 the statute of frauds, and questions affecting their validity at com- 
 mon law, or the right to enforce them in equity. This connection 
 has frequently led to confusion ; but even where the dividing line 
 has been preserved, or after it has been pointed out, a rigid restric- 
 tion of the discussion to the questions arising under the siatute, 
 would often leave the examination of the subject incomplete, and 
 its result unsatisfiictory. For this reason many common law and 
 equitable doctrines, pertaining to the general law of contracts, 
 have been incidentally considered in the course of these pages, 
 sometimes at considerable length ; the discussion having been 
 thrown into a foot note, whenever it threatened to encroach too 
 much upon the space and attention, to which the principal subject 
 was justly entitled to lay claim. 
 
 M. H. T 
 
 N EW YOEK, Jidy, 1870.
 
 TABLE OF CONTENTS. 
 
 Statutes relating to the Subject of this "Woek, 31 
 
 Introductory Chapter. 
 
 General survey of tlie statute of frauds, especially those parts of it which 
 relate to executory contracts, 67 
 
 Akticle I. Object, origin, history and effect of the statute; different 
 opinions which have prevailed relative to the spirit in which it should 
 be construed ; effect of such opinions \ipon the rules determining the 
 application of the fourth and seventeenth sections, 67 
 
 Abticle II. The statute superadds the necessity of a writing, to the com- 
 mon law requirement that every contract must be founded upon a 
 suflacient consideration, 79 
 
 PART FIEST. 
 
 Op special promises op executors and administrators to answer 
 
 DAMAGES out OP THEIR OWN ESTATES, 85 
 
 Chapter J^'irst. 
 
 Consideration of the first clause of the fourth section of the statute, 87 
 
 Article I. Points of similarity and dissimilarity between cases arising 
 under the first and second clauses respectively ; whether this clause 
 applies to promises made before the grant of letters 87 
 
 Article II. When a general promise by an executor or administrator, 
 to pay a debt of the deceased, is without the statute, because u is not 
 to be fulfilled " out of his own estate," 98 
 
 Article III. When tliis clause of the statute does not apply, because the 
 subject matter or the form of the promise docs not answer the stat- 
 utory description of the liabilities embraced within it, Ill
 
 CONTENTS, 
 
 PAET SECOND. 
 
 Of special promises to answer for the debt, default, or miscab- 
 
 KIAGES of another PERSON, 129 
 
 Chapter Second. 
 
 Observations introductory to the consideration of the second clause of 
 the fourth section of the statute, 131 
 
 Article I. Explanation of the terms used in treating this subject, 131 
 
 Article II. How far the consideration of a verbal promise affects its 
 validity, 135 
 
 Article III. General classification of cases, apparently or actually within 
 the terms of this clause of the statute, where verbal promises are 
 nevertheless valid, 148 
 
 Article IV. Rules by which to determine the validity of verbal prom- 
 ises under this clause of the statute, 153 
 
 FIRST GENERAL DIVISION. 
 
 Cases which are not governed by this clause of the statute of frauds, 
 although they fall within its terms, 158 
 
 Chapter Third. 
 
 Cases governed by the law merchant, or the provisions of some other 
 statute, 159 
 
 Rule First. 
 Contracts, the construction, validity, and evidence of which depend upon 
 so much of the law merchant, as the common law recognizes, or the 
 provisions of some other statute, are exceptions to the operation of 
 this clause of the statute of frauds, 159 
 
 Akticle I. Contracts governed by the law merchant, 159 
 
 Article II. Contracts governed by the provisions of some other statute, IGl
 
 CO:: TEXTS. 
 
 SECOND GENERAL DIVISION. 
 
 Cases which are not witliin tliis clause of the statute, because the terms 
 of tlie statutory description of the promises to which it applies, are 
 only partially satisfied, 164 
 
 Chaptek Fourth. 
 
 Cases depending upon the words, " any special promise to answer," 160 
 
 Rule Second. 
 
 The statute does not apply to implied promises ; or to liabilities for deceit- 
 ful representations, whereby the third person gained credit ; or to 
 l)romises to do some act for the security of a creditor of a third per- 
 son, other than the absolute or contingent assumption of the debt by 
 the promisor, 166 
 
 Article I. Where the promise was not " special," 166 
 
 Article II. Where a liability for a third person's debt or default arises 
 out of a deceitful representation, and not out of a " promise," 171 
 
 Article III. Where a promise has been made, to do some act, tending to 
 the discharge of a liability of a third person to the promisee, but not 
 directly " to answer for " the same, 183 
 
 Chapter Fifth. 
 
 General observations upon the cases depending upon the words " debt, 
 default, or miscarriages," 191 
 
 Article I. Meaning and effect of these words, as used in this clause of 
 the statute, 191 
 
 Article II. The statute does not api)ly, unless the promisor and the 
 third person became concurrently liable for the same debt, default, 
 or miscarriage, 195 
 
 Chapter Sixth. 
 
 Cases which are not. within the statute, because the third person had 
 incurred no liability corresponding with that of the promisor, at the 
 time when tlic promise took effect, 209
 
 6 CONTENTS, 
 
 link Third. 
 Where there was no antecedent liability of the third person, and the 
 promise was founded ui)on a consideration moving to him, it is with- 
 out tlie statute, if the third person did not become liable to the prom- 
 isee, together with the promisor; and vice versa, if he did so become 
 liable, it is within the statute, 209 
 
 Article I. Origin of the rule ; English cases from which it is derived,. . . 211 "'' 
 
 Article II. "Where the consideration consisted of money, property or 
 services, furnished to the third person at his request, but he made no 
 express promise to pay for them, the test of the promisor's liability 
 is whether any credit was given to the third person, 216 
 
 Article III. English cases upon the question of credit to the third 
 
 person, 219 
 
 Article IV. American cases, establishing and illustrating the general 
 
 rule, and upon the question of credit to the third person, 228 
 
 Article V. How far the question, whether the promise was original or 
 
 collateral, belongs to the jury, 241 
 
 Article VI. Materiality of entries in the promisee's books, and of other 
 
 acts to which the promisor was not a party, 248 
 
 Chaptek Seventh. 
 
 The same subject continued. Application of the third rule to cases, where 
 the promise in terms contemplated a resort by the promisee to the 
 third person, 254 
 
 Article I. Where the promisor's liability was expressly made conditional 
 upon non-payment by the third person, 254 
 
 1) Where the promise was to pay, if the third person did not, 254 
 
 (2) Where the promise was to see the promisee paid, or words to that 
 effect, 255 
 
 Article II. Where the promise is collateral, because its language implied 
 that the third person was also to become liable, 261 
 
 (1) Miscellaneous cases, depending upon the use of particular words,. . . . 261 
 
 (2) Where the promise was to become a party to a note or bill of exchange 
 
 to be made by the third person, 263 
 
 Article III. Where a promise is not within the statute, although it was 
 in terms conditional upon non-payment by a third person, 273 
 
 Chapter Eighth. 
 
 The same subject continued. Cases where the interposition of other legal 
 principles has been supposed to create exceptions to or qualifications 
 of the third rule, , , , , , 283
 
 CONTENTS. 7 
 
 Article I. Where the person benefited by the transaction, and the per- 
 son who came in aid of his credit, assumed a joint liability to the 
 promisee, 283 
 
 Article II. Where the person benefited and the auxiliary promisor 
 undertook concurrently to respond ; but the person benefited was 
 either a married woman or an infant, 299 
 
 (1) Observations applicable to either species of auxiliary promise, 299 
 
 (2) Where the promise was auxiliary to that of a married woman, 303 
 
 (3) Where the promise was auxiliary to that of an infant, 308 
 
 Chapter Ninth. 
 
 Cases which are not within the statute, although the third person and the 
 promisor became liable for the same debt, because they were not so lia- 
 ble at the same time. The subject commenced with those cases, where 
 the extinguishment of the third person's liability resulted from some 
 actor omission of the promisee, other than an express discharge,. . . . 318 
 
 Itule Fourth. 
 
 A promise to assume an antecedent liability of a third person is without 
 the statute, if the third person's liability had become extinct, at the 
 time when that of the promisor came into existence, 318 
 
 Article I. Origin and correct definition of the rule ; in what cases an 
 executory agreement to discharge the third person, or to do some act 
 which will operate to discharge him will satisfy it, 319 
 
 Article II. Where the discharge of the third person's debt arose by 
 operation of law, in consequence of some act or omission of the 
 promisee, without his express assent thereto, 324 
 
 (1) Where the promisee discharged the third person from arrest under a 
 
 capias ad satisfaciendum, 324 
 
 (2) Where the promisee discharged a levy upon the third person's goods, 
 
 which had been made under a fieri facias or a distress warrant, 331 
 
 Article III. Where an abandonment of tlic third person's liability is 
 inferred, as matter of fact, from .some act or omission of the promisee, 
 without any agreement to that effect, 337 
 
 (1) General principles, upon which the application of the statute to this 
 
 description of cases is determined, 337 
 
 (2) How far the question is material, in this description of cases, 
 
 whether the promisor received the benefit of the consideration for 
 his promise, 3t7 
 
 (3) Cases where the new promise was in terms an assumption of the 
 
 liability of the original contractor, 353
 
 CONTENTS. 
 
 Chapter Tenth. 
 
 The same subject continued. Cases where the extinguishment of the 
 tliird person's liability was effected by an agreement, to which he, the 
 promisor, and the promisee were parties, 358 
 
 Article I. The doctrine of novation, 358 
 
 Article II. Where, by consent of all the parties, the third person's antece- 
 dent liability to the promisee was discharged, in consideration of the 
 promisor's engagement to pay to the promisee a debt antecedently 
 due by him to the third person, 360 
 
 Article III. Where the third person's antecedent liabilitj^ to the prom- 
 isee was discharged, in consideration of its assumption by the 
 promisor, 370 
 
 (1) Cases illustrating the general principle, and the rule that the three 
 
 persons in interest must concur, 371 
 
 (2) Where the third person and the new promisor assumed a joint liability, 
 
 in discharge of a previous liability of the third person only, 382 
 
 Chaptee Eleventh. 
 
 Cases depending upon the words " another person." The subject com- 
 menced with those illustrating the general proposition, that, in order 
 to bring the promise within the statute, it must have been made to 
 the creditor, 386 
 
 Bule Fifth. 
 
 A promise to discharge the debt or duty of another is not within the 
 statute, unless it was made to the person to whom the debt or duty 
 was to be discharged, 388 
 
 Article I. Origin of the rule. How it is reconciled with the language 
 of the clause under consideration, 388 
 
 Article II. Cases where the promise was not made to the creditor ; 
 where it did not relate to a liability thereafter to be incurred by the 
 promisee ; and where the promisee was the plaintiff in the action to 
 enforce it, 390 
 
 Chapter Twelfth. 
 
 The same subject continued. Cases where a creditor seeks to enforce a 
 contract between his debtor and another person, providing for the 
 payment of the debt by the latter, 407
 
 CONTENTS. 9 
 
 Article I. The question arising under the statute, stated and examined 
 upon principle ; the English rule with respect to the creditor's right 
 to sue 407 
 
 Article II. American cases, holding that the statute docs not apply to 
 
 the action, 420 
 
 Article III. American cases, holding that the statute applies to the 
 action, 448 
 
 Chapter Thirteenth. 
 
 The same subject continued. The rule with respect to contracts of 
 indemnity against liabilities thereafter to be incurred by the promisee, 453 
 
 Article I. Where the promise was to indemnify the promisee against a 
 liability to be incurred by him alone, without the intervention of any 
 third person, 453 
 
 Article II. Where the promise was to indemnifj'^ the promisee against 
 a liability to be incurred by him, at the request of the promisor only, 
 but as security for the fulfilment of a third person's engagement to a 
 fourth, 459 
 
 THIRD GENERAL DIVISION. 
 
 Cases which are not within this clause of the statute, although all the 
 terms of the statutory description of the promises to which it applies 
 are literally satisfied, because they are not within its spirit and 
 intent 488 
 
 Chapter Fourteenth, 
 
 Cases where, at the time of the promise, the promisor was already liable 
 for the debt or duty assumed by him, or a similar one, in some other 
 form, or to some person other than the promisee ; or where he had 
 previously been liable therefor, and had been only technically dis- 
 charged, 490 
 
 TtuU Sicrth. 
 
 A promise is without the statute, if its effect was merely to remove .^ome 
 impediment to the enforcement, by the promisee, of a liability already 
 resting upon the promisor, in the same or some other form ; although 
 its fulfilment will necessarily result in the discharge of the precedent 
 liability of a third person to the promisee 490
 
 10 CONTENTS. 
 
 Article I. Where the promise contained an admissiorn of liability on the 
 part of the promisor, as a primary debtor ; but another person was in 
 fact liable, either exclusively or with him, for the same debt or 
 duty, 491 
 
 A}{.TicLE II. Where the effect of the promise was to alter the form of a 
 previously existing liability, 496 
 
 Article III. Where the effect of the promise was to waive a legal de- 
 fence, against an action founded upon a previous engagement of the 
 promisor, 501 
 
 Article IV. Where the promise was to pay the promisor's debt to a 
 transferee thereof, in order to discharge a debt due by the transferor 
 to the promisee, 510 
 
 Chapter Fifteenth. 
 
 Cases where a promise to pay a third person's pre-existing debt is not 
 within the statute, because it was substantially to be fulfilled out of 
 the means of the debtor 519 
 
 Rule Seventh. 
 
 A promise to pay the pre-existing debt of a third person to the promisee, 
 is not within the statute, if the substantial effect of its fulfilment 
 will be to discharge the debt, out of a fund furnished to the promisor 
 by the debtor, in contemplation of which the promise was made, . . . 528 
 
 Article I. Origin and effect of the rule ; English cases recognizing the 
 principle which it embodies, 528 
 
 Article II. Where the promisor, having the fund in hand, undertook to 
 pay a debt due to the promisee, from the person who furnished the 
 fund, 534 
 
 Article III. Where the reception of the fund, and the making of the 
 promise, were parts of an agreement, to which the creditor, the orig- 
 inal debtor and the promisor were parties, 547 
 
 Article IV. Whether, if the fund proves to be insufficient to discharge 
 the promise, the promisor can ever be made liable for the excess of 
 the debt 558 
 
 Chapter Sixteenth. 
 
 Cases where a promise to pay a third person's debt is not within the stat- 
 ute, because the property of the promisor was then subject to a lien 
 or charge for the payment of the same debt, 504
 
 CONTENTS. 11 
 
 Rule Eighth. 
 A promise to pay the debt of another is not within the statute, if its con- 
 sideration was the abandonment to the promisor of a security for the 
 payment of the debt, consisting of a lien ujion, or interest in proper- 
 ty, to which the promisor then had a subordinate title, 565 
 
 Abticle I. English decisions upon the subject matter of this rule, and 
 also involving the questions to be discussed hereafter in this connec- 
 tion 566 
 
 Abticle II. American cases wherein the rule is established, and its appli- 
 cation illustrated, 585 
 
 Chapter Seventeenth. 
 
 A defence of the rejection, as unsound, of all legal propositions, depend- 
 ent upon the cases cited in the last two chapters, except those em- 
 bodied in the seventh and eighth rules 599 
 
 Article I. Examination of the prevalent theories derived from Williams 
 V. Leper, and kindred cases, 599 
 
 Article II. Discussion of the question whether the abstract proposition 
 can be supported, that a promise to pay the debt of another is not 
 within the statute, whenever the leading object of the promisor was 
 not to discharge the debtor, but to subserve some interest of his own, 
 distinct from the payment of the debt, and the consideration moved 
 to him, 610 
 
 Chapter Eighteenth. 
 
 Cases where a guaranty of the debt of a third person is not within the 
 statute, 639 
 
 Rule Ninth. 
 
 A guaranty is not within the statute, if it was made upon a consideration 
 moving wholly 1 etwecn the parties to it, and related to the payment 
 of a debt or the performance of a duty by the third person to the 
 promisee, the right to enforce which then first passed, or l)y the terms 
 of the contract was thereafter to pass to him, from or through the 
 guarantor, 640 
 
 Article I. "Where the debt or contract guarantied was transferred from 
 the guarantor to the guarantee, at the time of making the contract 
 of guaranty, upon a consideration moving wholly between the 
 parties, 640 
 
 Article II. Where the debt guarantied was thereafter to be contracted 
 through the agency of the promisor, acting as the factor of the prom- 
 isee, under a del creih re commission, 655
 
 12 CONTEIS-TS, 
 
 PART THIRD. 
 Of agreements made upox consideration op marriage, 671 
 
 Chapter Nineteenth. 
 
 Cases witliin the third clause of the fourth section of the statute, 673 
 
 Article I. Object, effect, and true interpretation of this clause, 673 
 
 Article II. Nature and extent of the marriage consideration ; what per- 
 sons are entitled to avail themselves of it, 683 
 
 Article III. What contracts are within this provision, and vice versa, . . 688 
 
 (1) General principles regulating the application of the statute, to agree- 
 
 ments made in contemplation of marriage, 688 
 
 (2) Cases where the agreement was founded upon some distinct considera- 
 
 tion, in addition to that of marriage 695 
 
 Chaptee Twentieth. 
 
 Peculiar effect, upon the agreements which fall within this provision, of 
 the equitable doctrines, whereby relief granted to a party, who has 
 performed his part of a verbal agreement, 708 
 
 Article I. Whether marriage itself is such a performance, as to call into 
 
 operation the equitable rule, 709 
 
 Article II. Whether a verbal antenuptial promise will support a post- 
 niiptial settlement in accordance therewith, or a postnuptial written 
 agreement to make such a settlement, 716 
 
 Article III. Whether, in the absence of fraud, equity takes any distinc- 
 tion, for the purpose of enforcing specific performance between an 
 antenuptial verbal agreement, and an antenuptial ve-rbal representa- 
 tion of an intention, 730
 
 TABLE OF CASES. 
 
 [An asterisk denotes the pajje where aa abstract of the case is given.] 
 
 -A.. 
 
 PAOK 
 
 Adams vs. Anderson, 17;J 
 
 Adams vs. Dauscy, S8'.), 4.'j4* 
 
 Adams vs. Hill 25'J*, aT(i 
 
 Adams vs. Spalding, 121 
 
 Adcock vs. Fleming, U.">4 
 
 Adkinson vs. Barlleld 5!)7 
 
 Aiken vs. Duren, 4!)2 
 
 Albert vs. Winn, 122 
 
 Alcalda vs. Morales, 441 
 
 Aldrich vs. Ames, 474* 
 
 Alger vs. Scoville, 3S8, 400*, 445, 4S6 
 
 C20, (i2;3, 628* 
 
 Allaire vs. Oiiland, 3%, 4.5(i* 
 
 Allen vs. Prvor If.!)* 
 
 Allen vs. Scarli', 25i» 
 
 Allen vs. Thomas, 441 
 
 Allen vs. Thompson, 5!)(i* 
 
 Alliii:; vs. Munson, 116* 
 
 Allshoiise vs. Ramsay, 141, 381 
 
 AlL-'tan vs. C'<lllle(^ 52(i 
 
 Anderson vs. Davis, 381 
 
 Anderson vs. llayman, 219* 
 
 Andre vs. Bodman, 330, 627 
 
 Andrews vs. Jones 683, 693*, 722 
 
 Andrews vs. Smith, 227, 5.30* 
 
 Anstey vs. Marden, 76, 189*, 319, 320 
 
 330, 5^, (104 
 
 Antonio vs. Clissey, 381 
 
 Arbuekle vs. Hawks, 240 
 
 Ardern vs. Kowney, 528*, 561 
 
 Argenbright vs. Campbell, 724* 
 
 Armstrong vs. Flora, 3.S1 
 
 Arnold vs. Lyman, 44.") 
 
 Arnold vs. Stedman, 630* 
 
 Ash vs. Abdv 72* 
 
 Ashford vs. Kobinsou, 510*, 6.>4 
 
 Atkins vs. Farr, (90 
 
 A'kins vs. Hill, 99, 122 
 
 A\torney General vs. Chapman, 113* 
 
 Attorney General vs. Higham 114 
 
 Audul)on vs. The Excelsior Insurance 
 Company, 74* 
 
 B. 
 
 Babcock ts. Eckler, 722 
 
 Backus vs. Clark, . 143, 240 
 
 Bagley vs. Sasser 30 1 
 
 B:iker vs. Dillmanu, 148, 472* 
 
 Baldev vs. Parker, 77 
 
 Ball vs. Gates 252 
 
 Billiard vs. Walker 8t 
 
 Bampton vs. Paulin, 566, 575*, 602 
 
 Bank of Ireland vs. Archer 264 
 
 Bank of Kimtucky vs. Brooking, 50.) 
 
 Bank of Missouri vs. Benoist, 442 
 
 Bank of Trov vs. Topping, 84, 110* 
 
 Barber vs. Fo.x 3t7 
 
 Barg<'r V8 Collins 52(1 
 
 Barker vs. Buckliu 413, 429*, 431, 4.39 
 
 440, 443, 543, 5'Jl, 610 
 
 Barker vs. Prentiss 161 
 
 Barkworth vs. Young, 729 
 
 Barnard vs. Pomf rett, 99 
 
 PAOI 
 
 Barnstincvs. Eggart, 597 
 
 Barrel! vs. Trussell 84, 573*, 602 
 
 Barringer vs. Warden, .•}()!) 
 
 Barrow vs. Barrow, ()Si 
 
 Barry vs. l^insom, 464, 470*, 4S0 
 
 Barry vs. Kush, 117 
 
 Bartholomew vs. Jackson, 276* 
 
 Barton's Case, 12;} 
 
 Bason vs. Ilughart 381 
 
 Bastard vs. Stukely, 12;j 
 
 Bates vs. SUirr, 240 
 
 Batson vs. King, 4(h1*, 480 
 
 Battersbee vs. Farrington, 71(i*, 724 
 
 Bawdcs vs. Amhurst, 712, 715 
 
 Bayard vs. HolTman, 722 
 
 Beach vs. Hungerford, 366, 367* 
 
 Beal vs. Brown, 227 
 
 Beals vs. Beals, 43U 
 
 Beaman vs. Russell, 483* 
 
 Beaty vs. Grim, r,:A 
 
 Becker vs. Torrance, 4:}5*, 590 
 
 Beers vs. Robinson, 4.')0 
 
 Belden vs. Lamb 6.")5 
 
 Bellerjcau vs. Kotts, 124 
 
 Benedict vs. Dunning, 593* 
 
 Bennett vs. Pratt, 140,394* 
 
 Benson vs. Walker, 525 
 
 Bentley vs. Griffin, 304 
 
 Berly vs. Taylor 4.37 
 
 Berry vs. Dorcmus, 441 
 
 Bigelow vs. Davis, 437 
 
 Billingslev vs. Dempewolf, 240, 260* 
 
 Bird "s. Gammon, 200, 37 1 * 
 
 Bird vs. Lanins, 439 
 
 Birkmyr vs. Darnell, . .7.5, 9.\ 1.33, 19.3, 211, 212* 
 216, 217, 254, 256, 301, 302, 567 
 
 Bize vs. Dickason, 6.56 
 
 Blake vs. Cole, 473* 
 
 Blake vs. Parlin, 142*, 2:W 
 
 Blank vs. Dreher 255, 278* 
 
 Bleeker vs. Bingham 688 
 
 Blodgett vs. Town of Lowell, 277* 
 
 Blount vs. Hawkins 500* 
 
 Blow vs. Maynard, 722, 724 
 
 Blunt vs. Boyd, 431* 
 
 Bohanau vs. Pope, 414, 42.3* 
 
 Bold vs. Hutchinson 745 
 
 Bourka Mire vs. Darnell. (See Birkmyr.) 
 
 Bonbonus, Ex parte, 504 
 
 Booker vs. Tally, 240, 253 
 
 Borst vs. Corey 722 
 
 Bourkmire vs. Darnell. (See Birkmyr.) 
 
 Bourne vs. Mason 410, 411 
 
 Bovy's Case, Sir Ralph, 674 
 
 Bowman vs. Tallman, 122 
 
 Boyce vs. Owens, 84, 141, .597 
 
 Boyd vs. Stone 181 
 
 Boykin vs. Dohlonde 240 2H4 
 
 Bradley vs. Richardson, 662* 
 
 Brady vs. Sackrider, ... 210 
 
 Braman vs. Hess ().55 
 
 Brav vs. Freeman, 200, 201* 
 
 Bresler vs. Pendell, 3 13*, (i27 
 
 Brewer vs. Dyer 413. 4;J5, 445 
 
 Brewster vs. ^ott, 605
 
 14 
 
 TABLE OF CASES. 
 
 PAOE 
 
 Brewster vs. Silence, 052* 
 
 Urice vs. Kill":, 451 
 
 Bi-iir-s vs. Evans, 233*, ^14 
 
 BristDW vs. Lane 440 
 
 Brock vs. Thompson, 055 
 
 Brodic vs. St. Paul, 'i'T 
 
 Broiison vs. Stroud 259, 269*, 284 
 
 Brooks vs. Lynde, 124 
 
 Brown vs. Adams, 482-^ 
 
 ]}rown vs. Barnes C3''' 
 
 Brown vs. Bradshaw, 231* 
 
 Brown vs. Carter, 683 
 
 Brown vs. Curtiss. (See Curtiss vs. 
 Brown.) 
 
 Brown vs. George, 143, 240 
 
 Brown vs. Hazen 381 
 
 Brown vs. O^Brien, 441 
 
 Brown vs. Strait, 440 
 
 Brown vs. Weber 134, 295, 350*, 590, GIO 
 
 Brownini,' vs, Stallard, 302* 
 
 I'.rush vs. Carpenter, 483* 
 
 Buchanan vs. Dt^shon, 683 
 
 Buckoridi^e vs. Ingram, 70 
 
 Bucklin vs. Ward 526 
 
 Buckniyr vs. Darnall. (See Birkmyr.) 
 Buckniyr vs. Darnell. (See Birkmyr.) 
 
 Buhner vs. Hunter, 686 
 
 Burkmire vs. Darnel. (See Birkmyr.) 
 Burkmire vs. Darnell. (See Birkmyr.) 
 
 Burr vs. Boers 435 
 
 Burr vs. Wilcox, 5S8 
 
 Burt vs. Horner 650* 
 
 Burton vs. Baker, 655 
 
 Busheevs. Allen 240 
 
 Bushell vs. Beavan,.. 184*, 187, 266, 2(iT, 271 
 
 Butcher vs. Steuavt, 323, 320*, 330, 384 
 
 Button vs. Thrailkill, 140 
 
 Byrdvs. Odem, 74 
 
 Cabot Bank v8 Morton, 169*, 175 
 
 Cahill vs. Bigelow, 235*, 2.36 
 
 Cailleux vs. Hall, 552 
 
 Cameron vs. Clarke, 441 
 
 Campbell vs. Findley, 395, 451* 
 
 Campbell vs. Lord Netterville, 682 
 
 Campion vs. Cotton, 685 
 
 Canfield vs. Monger, 525 
 
 Caperton vs. Gray, 141 
 
 Cardell vs. McNiel 652* 
 
 Carnegie vs. Morrison, 445 
 
 Carnegie vs. Waugh, 410 
 
 Carr, E.X parte, 174, 676 
 
 Carter vs. Toussaint, 77 
 
 Carville vs. Crane, .... 187, 266*, 269, 272, 469 
 
 Case vs. Barber 320 
 
 Casey vs. Brabason, 160 
 
 Castfingvs. Aubert,... 191*, 389, 492,498, 566 
 571*, 573, 575, 576, 584, 601, 602, 604, 668 
 
 Caston vs. Moss, 140 
 
 Caton vs. Caton 706, 729, 746*, 751, 7.52 
 
 Chambers vs. Bobbins 121* 
 
 Chandler vs. Davidson, 92, 107* 
 
 Chapin vs. Lapham 300, 301, 313*, 473 
 
 Chapin vs. Merrill, .... 200, 397. 468*, 470, 472 
 475, 477, 478, 590 
 
 Chaplin vs. Rogers 76 
 
 Chase vs. Day 230* 
 
 Chater vs. Beckett, 76, 141, 199, 330 
 
 Chichester vs. Cobb, 682 
 
 Clancv vs. Piggott, 141, 578* 
 
 Clapp" vs. Lawton, 84, 106, 416, 418 
 
 446*, 558, 610 
 
 Clark vs. Hall, 536* 
 
 Clark vs. Herring, 124 
 
 Clark vs. Levi, 314* 
 
 Clark vs. Parker 682 
 
 Clark vs. Pendleton 690 
 
 Clarke vs. Cock, 264 
 
 PAGK 
 
 Clay vs. Walton, 352, 627, 634* 
 
 Clayland's lessee vs. Pearce, 48 
 
 Clerk vs. Withers 331 
 
 Cleveland vs. Farley. (See Farley vs. 
 
 Cleveland.) 
 
 Cleverley vs. Brett, 113 
 
 Click vs. McAfee, 381 
 
 Clymer vs. De Young, 554* 
 
 Cobb vs. Titus 655 
 
 Cochrane vs. Green, 524* 
 
 Cole vs. Dyer, 141 
 
 Cole vs. Shnrtletr, 381, 501* 
 
 Coleman vs. Eyles,... 223 
 
 Collins vs. Row 105, 127* 
 
 Colombine vs. Penhall, 686 
 
 Colt vs. Colt, 124 
 
 Colt vs. Nettervill, . . 30 
 
 Colt vs. Root, 398* 
 
 Colwcll vs. Alger 104 
 
 Combs vs. Harsbaw, 194* 
 
 Compton vs. Jones, 526 
 
 Conkey vs. Hopkins, 397* 
 
 Conn vs. Coburn, 316* 
 
 Conneratvs. Goldsmith, 300, 304, 306* 
 
 Connor vs. Williams, 412, 413, 437 
 
 Conolly vs. Kettlewell 255*, 259 
 
 Consociated Presbyterian Society, etc., 
 
 vs. Staples 369 
 
 Cook vs. Barrett, 369 
 
 Cook vs. Elliott, 84 
 
 Cookes vs. Mascall, 713, 714* 
 
 Coolidge vs. Payson, 264 
 
 Cooper vs. Chambers, 331* 
 
 Cooper vs. Ellston, 76 
 
 Cooper vs. Page 655 
 
 Cooth vs. Jackson, 77 
 
 Corbett vs. Cochran, 376*, 597 
 
 Corbin vs. McChesney, 384* 
 
 Cork vs. Baker, 690* 
 
 Corkins vs. Collins, 141, 591* 
 
 Corporation of Clergymen's Sons vs. 
 
 Swainson, 114 
 
 Cotterill vs. Stevens, 381 
 
 Couturier vs. Hastie,.. 78, 604, 667*, 668, 669 
 
 Covvell vs. Oxford, 124 
 
 Cram vs. Hendricks, 6.55 
 
 Crane vs. Gough, 683, 701*, 727 
 
 Creel vs. Bell 526 
 
 Cripps vs. Hartnoll, 465*, 467, 469 
 
 Crocker vs. Whitney, 526 
 
 Croft vs. Smalhvood, 218, 220*, 376 
 
 Cropper vs. Pittman, 240, 257*, 259, 263 
 
 Cross vs. Richardson, 631 
 
 Crow vs. Rogers, 410 
 
 Crowfoot vs. Gurney, 522* 
 
 Crown vs. Brown, 175 
 
 Cumberland vs. Codrington, 437 
 
 Currier vs. Hodgdon, 526 
 
 Curtis vs. Brown, ... 106, 381, 413, 418, 443* 
 
 448, 556, 557, 558, 588 
 
 Curtiss vs. Brown,.. 646*, 647*, 648, 649, 650 
 
 651, 6.52 
 
 Cutler vs. Hinton, 249, 251, 262*, 284 
 
 Cuxon vs. Chadley 363*, 377 
 
 13. 
 
 D'Aguilar vs. Drinkwater, 682 
 
 Darling vs. March, 605 
 
 Darlington vs. McCunn, 240 
 
 Darnell vs. Tratt 223*, 253, 304 
 
 Dater vs. Wellington, 74 
 
 Dauber vs. Blackney, . 653 
 
 Davenport vs. Runlett, 505 
 
 Davidson vs. Graves, 722 
 
 Day vs. Elmore, 655 
 
 Day vs. Patterson, 439 
 
 Dearborn vs. Parks 420*, 421 
 
 De Barante vs. Gott 683 
 
 Do Bcniales vs. Fuller, .... 411
 
 TABLE OF CASES. 
 
 16 
 
 PAGE 
 
 De Biel vs. Thomson. (See Haminers- 
 ley vs. De Biel.) 
 
 Decker vs. Sluiffer, 413, 438* 
 
 Deeks vs. Striitt, l-'S 
 
 Delaware Bank vs. Jarvis 6W 
 
 Delaware, etc., Company vs. West- 
 chester County Bank, 413, 4:U, 4.'n 
 
 Derby vs. Plielps, G!tO 
 
 Devlin vs. Wood«ate, 347*, ;!49, 027 
 
 Dexter vs. Blancliard 140, 315*, 5,S,S 
 
 Dillon vs. Coppin, 7215 
 
 Dilts vs. Parke, 544* 
 
 DiiiKeldein vs. The Third Avenue 
 
 Hailroad Company, 435* 
 
 Dix vs. Burford, V£i 
 
 Di.xon vs. Frazee, 233* 
 
 Dixon vs. Hatfield, 52!t* 
 
 Doaiie vs. Newman, 47>i 
 
 Dob vs. Halsey, 505 
 
 Dodson vs. Mackey, 242 
 
 Doe vs. Guy, 123 
 
 Doe vs. Mann ins, (jK4 
 
 Dot>littlo vs. Dininny, I(i3* 
 
 Dorwin vs. Smith, 457 
 
 Doutchuss vs. .Jones 4it2 
 
 Doujjlas vs. Vincent 681*, 082 
 
 Downi-y vs. Hinchman, 190* 
 
 Doyle vs. White, 240 
 
 Drake vs. Flewellen, 300 
 
 Drakelcy vs. De Forest, 171 
 
 Draujrhan vs. Bunting 84, 381, 482* 
 
 Dufolt vs. Gorman, 2.55 
 
 Du«an vs. GittinRs 6S4 
 
 Dunbar vs. Williams 270* 
 
 Duncomb vs. Tickrid>re 299, 301, 302* 
 
 Duiulas vs. Dutens, 712, 716*, 717, 719, 72U, 721 
 
 Duiilap vs. Thorne, 597* 
 
 Dunn vs. Tliar[), 674 
 
 Dunn vs. West, 479* 
 
 Durham vs. Arledtje, 141, .597*, 610 
 
 Durham vs. Manrow, . 167, 285, 648*, 6.50, 651 
 
 Durham vs. Taylor, 678, 709 
 
 Dutton and wife vs. Poole, . . . 408*, 411, 4:58 
 
 Dyer vs. Gibs(jn, 6.54 
 
 Dyprert vs. Kemerschnider, 699*, 722 
 
 D" Wolf vs. Kabaud 210, 229, 267 
 
 E, 
 
 Earle vs. Crane, 4:31* 
 
 Easter vs. White 480* 
 
 Eastwood vs. Kenyon,. . . . 388, 390*, 392, 395 
 396, 397, 398, 454 
 
 Eaton vs. Tillinghast, 688 
 
 Eddy vs. Roberts, 4i;$, 439*, 440, 010 
 
 Edwards vs. Kelly, 200, 332*, 566, .574* 
 
 576, 602 
 
 Elder vs. Warfleld, 167, 219, 240, 257 
 
 Elkins vs. Heart, 132, i:«, 184* 
 
 EUicott vs. Peterson's Ex'rs, 240, 302* 
 
 Elliot vs. Giese, 84 
 
 Ellis vs. Nimmo 72:3* 
 
 Ellison vs. Jackson Water Co.,. 339, ;349, 627 
 
 Jlllison vs. Wi.sehart, 276, :380* 
 
 Ellwood vs. Monk, 429, .5.50*, ,590 
 
 Emerick vs. Sanders, 451, .540*, .5.58 
 
 Emerson vs. Slater, . . . 230, 352, 388, .557, 620* 
 
 624, (i27 
 Emmet vs. Dewhnrst, . . . 142*, 271, 330*, 372* 
 
 Evans vs. Bicknell, 174 
 
 Evans vs. Lohr, 321 
 
 Everett vs. Morrison, 259 
 
 Ewins vs. Calhoun, 173 
 
 Exchantre Bank vs. Rice, 159 
 
 Eyre vs. Dunsford, 172*, 173 
 
 Falres vs. Lodanc, 143, 240 
 
 Fairlie vs. Denton, 519, 522* 
 
 Parish va. Wilson, La 
 
 PAGB 
 
 Farley vs. Cleveland, 334, 429, !>t4, 5.50* 
 
 589, 590, ti23 
 
 Farlow vs. Kemp, 439 
 
 Farmers' Bank vs. Brown, 441 
 
 Farwell vs. Jacobs 124 
 
 Faulkner, In the matter of, 97* 
 
 Fay vs. Bell, 590 
 
 Felton vs. Dickinson, 445 
 
 Files vs. McLeod , 4se 
 
 Finch vs. Finch, 706*, 707, 712, 726*, 728 
 
 First Baptist Church of Chicago vs. 
 
 Hyde 517* 
 
 Fish vs, Hutchin.son,...141,201*,205,212,591 
 
 Fish vs. Thomas 494* 
 
 Fisher vs. Beckwith 161 
 
 Flskc vs. .McGregory 401*, 417 
 
 Fitzgerald vs. Dressier, 1135, 46:5, .570, .573 
 
 581*, 598, 602, (i04 
 
 Flanders vs. Crolius, 232* 
 
 F'lemm vs. Whitmore, 457 
 
 Flowers vs. Kent, 674 
 
 Ford vs. Adams, 525 
 
 Ford vs. Finney, 441 
 
 Ford vs. Stuart, (i83 
 
 Forth vs. Stanton, .... 101, 1*5, 144, 167, 201 
 570, 571, 573, 578, 583, 603 
 
 Fowler vs. Clearwater, 6.53 
 
 F\)wler vs. Moller, 142* 
 
 Fraser vs. Thompson, 683, 6.S6 
 
 F'rench vs. French, 372* 
 
 French vs. Grindle, 655 
 
 French vs. New 74 
 
 F^rench vs. Thompson, 597* 
 
 F'rost vs. Bengough, 241 
 
 Fullani vs. Adams, 148. 405, 4,27, 527, 611 
 
 014*, 619, (>51, 033 
 Furbish vs. Goodnow,. . . 84, 106, 141, 1.52, 167 
 
 444*, 527, 556, 628 
 
 Gackenback vs. Brouse, 647 
 
 Gall vs. Comber, 6,56 
 
 Gale vs. Lindo 677 
 
 Gallager vs. Brunei 178, 179*, 272 
 
 Gansevoort vs. Williams, ,505 
 
 Gardiner vs. Hopkins, .590 
 
 Gaunt vs. Hill, 3:30 
 
 Gell vs. Vermedun 674 
 
 G ibbons vs. McCasland, .502* 
 
 Gibbs vs. Blanchard,... 288*, 291, 292, 29.5, 297 
 
 Gleason vs. Briggs 240, ;{81 
 
 Gold and Sill vs. Phillips,... 427*, 549*, 5.50 
 
 552, 590 
 
 Goldicutt vs. Townsend, 721*, 745 
 
 Goldsmith vs. Brown, 6.55 
 
 Goodman vs. Cliase, ... 135, 320, 324*, 329, ;330 
 
 591, 603 
 
 Goodrich vs. Gordon 264 
 
 Goodrich vs. Nickols, 188 
 
 Goodspeed vs. F'uller, 457 
 
 Goodwin vs. Chaffee, 124 
 
 Goodwin vs. Gilbert, 108* 
 
 (i ordon vs. Downey, ,526 
 
 Gordon vs. Martin, 27,5* 
 
 Gorin vs. Gordon, 688 
 
 Ciorton vs. Dyson, 123 
 
 Gould vs. Moring, 2i59* 
 
 Grav vs. Hill, 171* 
 
 Green vs. Cre.sswell, . . . 462*, 463, 464, 46.5, 406 
 409, 470, 471, 472, 47,5, 480, 481, 4,s;3, 003 
 
 Greene vs. Cramer 679, 683 
 
 Greening vs. Brown, 126* 
 
 (ireenleaf vs. Uurbank, 50()* 
 
 Gregory vs. Harinan, 123 
 
 Grillith vs. Sheffield, 03 
 
 Griggs vs. Seeley 74 
 
 Grove vs. Dubois, 0,56 
 
 Grover vs. Sims, 367* 
 
 Gull vs. Lindsay 578, 580*, 60'.J 
 
 Gunnels vs. Stewart, 865
 
 16 
 
 TABLE OF CASES. 
 
 „ PAGE 
 
 Hackleman V3. Miller, 91, 114*, (i;j4 
 
 Hackney vs. Hackney, 713, 7i;i* 
 
 Haines' Administrator vs. Tarrant, . . 310* 
 
 Hair vs. Hair, 693*, TOO 
 
 Hail vs. Fanner 647*, 649, 651 
 
 Hall vs. Marston, 445 
 
 Hall vs. Rogers, 6,54 
 
 Hall vs. Wood, 240 
 
 Haniar vs. Alexander, 176*, 179 
 
 Hamilton vs. Lyooniins Ins. Co., 75 
 
 Hammersley vs. De Biel,. . . 679, 680, 683, 688 
 697, 713, 730, 728, 731*, 736, 737, 738 
 739, 740, 741, 744, 745, 746, 750, 7.51, 753 
 
 Hanford vs. Hisgins, 240 
 
 Hapgood vs. Houghton, 124 
 
 Hardesty vs. Jones, 404 
 
 Hardey vs. Green, 6S5* 
 
 Hargraves vs. Parsons, 391*, 643* 
 
 Harrington vs. Ricli, 84, 91, 106, 118* 
 
 Harris vs. De Bevoice, 411 
 
 Harris vs. Huntbach, . . . 200, 395, 299, 300, 3(J1 
 310*, 311, 313, 315 
 
 Harrison vs. Cage, 689*, 690 
 
 Harrison vs. Sawtel, 467*, 469, 470, 475 
 
 Hart vs. Minors, 133 
 
 Haslock vs. Ferguson, 174 
 
 Hastie vs. Couturier. (See Couturier 
 vs. Hastie.) 
 
 Hatcher vs. Robertson, 709 
 
 Hawkes vs. Saunders, 99, 123, 125* 
 
 Hay vs. Green, 98, 115, 135* 
 
 Haycraf t vs. Creasy, 173* 
 
 Haydon vs. Christopher, 365* 
 
 Hazen vs. Bearden, 340 
 
 Hearn vs. Waterhouse, 175 
 
 Heaton vs. Angier, 366*, 426 
 
 Hetfleld vs. Dow, 240, 284* 
 
 Hicock vs. McKay, 430, 446 
 
 Hill vs. Doughty, 140*, 293* 
 
 Hill vs. Raymond, 237* 
 
 Hilton vs. Dinsmore, 141,537* 
 
 Hinkley vs. Fowler, 423 
 
 Hindman vs. Langford, 597 
 
 Hitchcock vs. Lukens 171, 440 
 
 Hodges vs. Eastman, 526 
 
 Hodges vs. Hall, 240, 253 
 
 Hodgson vs. Anderson, 514*, 523, 531 
 
 Hoffman vs. Schwaebe, 430* 
 
 Holland vs. Clark, 123 
 
 Hollingsworth vs. Martin, 493* 
 
 Holmes vs. Knights, 75, 467, 476* 
 
 HoIIis vs. Wliitoing, 712 
 
 Holloway vs. Headington, 733 
 
 Holt vs. Brien, 304 
 
 Homans vs. Lambard, 240, 244* 
 
 Hoover vs. Morris, 496* 
 
 Hoplcins vs. Lis well, 509 
 
 Hopkins vs. Richardson, 654 
 
 Hoppock vs. Wilson, 240 
 
 Hornby vs. Lacy, 656* 
 
 Hotchkiss vs. Ladd and Warner, 283* 
 
 Hough vs. Gray, 645* 
 
 Hougliton vs. lioughton, 74 
 
 Houghton vs. Houghton, 707, 735*, 738 
 
 Hougliton vs. Matthews, 656 
 
 Houlditch vs. Milne, ...... 566, 570*, 578, 603 
 
 603 
 
 Howard vs. Coshow, 404 
 
 Howe vs. Buffalo, etc., R. R. Co., 331 
 
 Howe vs. Talmer, 76, 77 
 
 Howes vs. Martin, 389, 4.53* 
 
 Hoyt vs. Murphy, 441 
 
 Huher vs. Ely, 437 
 
 Huckabee vs. May, 441 
 
 Hu^'hcs vs. Stringfellow, 171 
 
 Hunt vs. Adams, 2.59* 
 
 Hunt vs. Brown, 647* 
 
 Huntington vs. Harvey, 507* 
 
 Huntington vs. Wellington, 175, 654 
 
 I. 
 
 Ingalls vs. Lee, 655 
 
 Ingraham vs. Gilbert, 276 
 
 Israel vs. Douglas, 513, 519, 520* 
 
 Izard vs. Izard, 72a 
 
 J. 
 
 Jackson vs. Bowen, 331, 337 
 
 Jackson vs. Post, 723 
 
 Jackson vs. Rayner,. . 140, 539, 542*, 544, 549 
 
 Jarmain vs. Algar, 183, 187, 266, 267 
 
 Jasigi vs. Brown, 175 
 
 Jefferys vs. Jefferys 733 
 
 Jenkins vs. Eldridge, 709 
 
 Jennings vs. Webster, . 429, 550* 
 
 Jepherson vs. Hunt, 205*, 388, 628 
 
 Jessel V.S. Williamsburgh Ins. Co., 526 
 
 Johnson vs. Collings, 159, 264, 520 
 
 Johnson vs. Gilbert, 646* 
 
 Johnson vs. Johnson, 123 
 
 Johnson vs. Morris, 541*, 558 
 
 Johnson vs. Noonan, 163 
 
 Jolley vs. Walker, 381 
 
 Jones vs. Ballard, 365, 597 
 
 Jones vs. Cooper, 213*, 214, 215, 254, 256 
 
 Jones vs. Henry, 723 
 
 Jones vs. Letcher, 480* 
 
 Jones vs. Orchard, 467* 
 
 Jones vs. Palmer, 654 
 
 Jones vs. Robinson, 410 
 
 Jones vs. The Adm'rs of Shorter, 478* 
 
 Jones vs. Stienbergh, 655 
 
 Jones vs. Tanner, 123 
 
 Jones vs. Wallver, 141, 591* 
 
 JordenA^^. Money,... 684, 691, 692*, 740*, 742 
 
 743, 745, 746, 751, 752 
 
 Julian vs. Shobrooke, 159 
 
 K. 
 \ 
 
 Kay vs. Crook, 728 
 
 Keate vs. Temple, 221*, 256 
 
 Keitli vs. Kibbe, 252* 
 
 Kelley vs. Commonwealth Ins. Co.,.. 75 
 
 Kelly vs. Roberts, 436* 
 
 Kelsey vs. Hibbs, 171, 481*, 610 
 
 Kershaw vs. Whitaker, 91 
 
 Kimball vs. Comstock, 175 
 
 Kimball vs. Newell, 304*, 308 
 
 Kimball vs. Noyes, 441 
 
 King vs. Despard, 354*, 590, 627 
 
 King vs. Hutchins, 369 
 
 King vs. Whitely, 688 
 
 King vs. Wilson, 140 
 
 Kingsley vs. Balcome, 467, 469*, 472, 475 
 
 481, 483, 591, 610 
 
 Kinloch vs. Brown 250, 251, 358* 
 
 Kinnard vs. Daniel, 723 
 
 Kinning, Ex parte, 393 
 
 Kirkham vs. Marter, 140, 193*, 194 
 
 201, 303*, 31T 
 
 Knapp vs. Hanford, 124 
 
 Knox vs. Nutt, 340 
 
 Kreutz vs. Livingston, 441 
 
 Kurtz vs. Adams, 340 
 
 Kutzmeyer vs. Ennis, 353, 634*, 627 
 
 L,. 
 
 Lacy vs. McNeile, 513*, 521, 525 
 
 Ladd vs. Blunt, 331 
 
 Lafltte vs. Lawton, 688 
 
 Lamb vs. Donovan, 439 
 
 Lamb vs. Smith 124 
 
 Lamlee vs. Hanman, 677 
 
 Lanipson vs. Hobart,, 141, 631
 
 TABLE OF CASES. 
 
 17 
 
 PAOK 
 
 Laiidis vs. Royer, S40, 592* 
 
 Lane, Ex parte ;n re Lendon, . . 383* 
 
 Lane vs. BurRhart, 281, 325, 32()* 
 
 Lane vs. Steward, (155 
 
 Lang vs. Fiskc, 526 
 
 Lark V8. Linstead, 124 
 
 Larson vs. Wyman, 339 
 
 Lassence vs. Tierney, 712, 736*, 738 
 
 Lathrop vs. Briijgs 331 
 
 Lavencler vs. Blackstone, 674 
 
 Laver vs. Fielder, 729* 
 
 Law vs. Wilkin, 313* 
 
 Lawrence, Es parte. . . 331, Wi 
 
 Lawrence vs. Fox, 412, 413, 419, 434*, 346, 437 
 
 Leak vs. Morrice, 712 
 
 Ledlow vs. Becton, 281*, 387 
 
 Lee vs. Fontaine, 440 
 
 Leggat vs. Reed, '. . 218* 
 
 Leggett vs. Rjiymond, 647* 
 
 Leland vs. Crcyon, 240 
 
 Lennnon vs. Box, 62!)* 
 
 Leonard vs. Mason, 161 
 
 Leonard vs. Vredenburgh 145, 230, 397 
 
 585, 589, 609, 610, 615, 619, &2:i 
 
 Leverick vs. Meigs, 656, 657* 
 
 Lieber vs. Levy, 141, 591* 
 
 Lilly vs. Huy.s 411, 412, 519, 526 
 
 Lines vs. Smith 84 
 
 Lippincott vs. Ashfleld, 560*, 563 
 
 Littlefleld vs. Shee, 303 
 
 Liversidge vs. Broadbent, 520, 523* 
 
 Lloyd vs. Maund, , 241 
 
 Loffus vs. Maw, 728, 746* 
 
 Logan vs. Wienholt 729* 
 
 Loomis vs. Ncwhall, 236*, 237, 354 
 
 Loomis vs. Smith, 240 
 
 Loonie vs. Hogan, 266 
 
 Lord vs. Davison, 381* 
 
 Love's case, . .' 584*, 601 
 
 Love, ex'r vs. Iloneybourne, 117* 
 
 Loxley vs. Heath 688, 720 
 
 Lucas vs. Chamberlain, 479* 
 
 Lucas vs. Payne, 555* 
 
 Luders vs. Austey, 679 
 
 Luff vs. Pope, 266 
 
 Lumley vs. Palmer, 159 
 
 Luqueer vs. Prosser, 645*, 647 
 
 Lyde vs. Barnard, 31, 174 
 
 LythvB. Ault, 383 
 
 m:. 
 
 McBumie, Ex parte 686 
 
 McCaffll vs. Radcliff, 240, 253 
 
 McCoubray vs. Thomson, 410 
 
 McEvers vs. Mason, 264 
 
 McKay vs. Royal 122 
 
 McKenzie vs. Jackson, 440, 561*, 563 
 
 McKenzie vs. Scott, 656 
 
 McKinney vs. Whiting 175 
 
 McMuUen vs. Mayo, 74 
 
 McNeil vs. Ouince, 124 
 
 Macrory vs. Scott 497*, 643 
 
 Madden vs. McCray, ... 5.35* 
 
 .Madox vs. Nowlan 682* 
 
 Maggsvs. Ames 267, 304, 305* 
 
 Magniac vs. Thompson, 683, 685 
 
 Mallett vs. Bateman 187, 270*, 624 
 
 Mallett vs. Halfpenny, 715* 
 
 MaUory vs. Aillett, . 84, 133, 141, 146, 158 
 
 295, 332, 472, 544, 585, 588* 
 
 595, 610, 614, 615, 624 
 
 Halone vs. Keener, 654 
 
 Mann vs. Blancbard, 175 
 
 Mann vs. Mann, 441 
 
 Manny vs. Frasier, 442 
 
 Manrow vs. Durham. (See Darham vs. 
 Manrow.) 
 
 Marchington vs. Vernon, 410 
 
 Marcy vs. Crawford, 466* 
 
 3 
 
 PAoa 
 
 Marshall vs. Morris, 683 
 
 Martin vs. Black 127 
 
 Martin vs. Chapman, 74 
 
 Martin vs. England •. 333* 
 
 Martyn vs. Hind, 410 
 
 Mason vs. Hull 413, 440*, 441, 628 
 
 Mason vs. Hunt, 264 
 
 Masters vs. Marriott, 274*, 27.S 
 
 Mather vs. Perry 551*, 553 
 
 Matheson vs. Crain, 526 
 
 Matson vs. Wharam,. 211, 214*, 216, 220, 225 
 
 256, 293. 297 
 
 Matthews vs. Milton, 291*, 292 
 
 Maule vs. Bucknell, . . 388, 450, 610, 616*, 619 
 
 620, 631 
 
 Maunscll vs. White, 739* 
 
 Mawbrey vs. Cunningham, .... 213*, 214, 215 
 
 234, 256, 660 
 
 Maxwell vs. Hayries, 423 
 
 Mazuzan vs. Mead, 655 
 
 Mease vs. Wagner,... 219, 240, 279*, 300, 387 
 
 Meech vs. Smith l:J6, 690 
 
 Meert vs. Moessard, 120* 
 
 Mellen vs. Whipple, 445* 
 
 Merrill vs. Engfesby, 5;j4* 
 
 Mercein vs. Andrus 334*, 335, 590 
 
 Merritt vs. Scott, 688 
 
 Merry vs. Ryves, 682 
 
 Mersereau vs. Lewis, 397*, 486 
 
 Metcalfe vs. Shaw, 804 
 
 Meyer vs. Haworth, 303 
 
 Miles vs. Boyden, 124 
 
 Millard vs. Porter, 369 
 
 Miller vs. Gaston, 646* 
 
 Miller vs.Long, 305* 
 
 Mills vs. Brown, 478* 
 
 Mills vs. Wyman, 84 
 
 Moar vs. Wright, 101*, 526 
 
 Mobile, etc.. Insurance Company vs. 
 
 McMillan, 75 
 
 Money vs. Jorden. (See Jorden vs. 
 
 Money.) 
 MonUcute, Lady, vs. Maxwell, . . 697, 710*, 714 
 
 716, 720 
 
 Monteflori vs. Monteflori, 677 
 
 Montgomery vs. Henderson, 674 
 
 Moore vs. Bushcll, 411 
 
 Moore vs. Crof ton, 723 
 
 Moore vs. Hart, 679, 680* 
 
 Moorhouse vs. Colvln, 729* 
 
 Morgan vs. Thomas 95 
 
 Morgan vs. Yarborough, 690 
 
 Morfey vs. Boothby 547* 
 
 Morris vs. Cleasby, 656,. 657, 663, 664, 665, 666 
 
 Morse vs. Bellows, 526 
 
 Mosely vs. Taylor 84 
 
 Moses vs. Norton, 239* 
 
 Motley vs. Manufacturers' Ins. Co., 423 
 
 Mountney vs. Andrews 331 
 
 Mount Olivet, etc., Co. vs. Shubert, 526 
 
 Mowry vs. Todd, 526 
 
 Muldrow vs. Agnew, 6.55 
 
 Mundy vs. Ross, 395 
 
 Munn vs. Commission Company, 655 
 
 Musick vs. Musick, 140 
 
 Myers vs. Morse, 8%», 486, 690 
 
 2sr. 
 
 Nairn vs. Prowse 685 
 
 Nelson vs. Boynton,.. 84, 141, 586*, 589, 591 
 
 598, 623 
 
 Nelson vs. Hardy, 240, 4.39, 555* 
 
 Nelson vs. Scrle 01 
 
 Neville vs. Wilkinson 676* 
 
 Newell vs. Ingraham, 339,349 
 
 New England, etc., Co. vs. Robinson, . 75 
 
 Nicholson vs. Sherman, 123 
 
 Nixon vs. Van Hise 395 
 
 Noble vs. McClintock, 605
 
 18 
 
 TABLE OF CASES. 
 
 PAOE 
 
 Noble vs. The National Discount Co., . 524 
 
 Noel vs. Hart 347 
 
 North vs. Kobinson, 403* 
 
 Norton vs. Huxley, I'i'S 
 
 Norris vs. Spencer 259* 
 
 Noyes vs. Blakeraan, 122 
 
 Noyes vs. Humphreys,.. .. 251, 342*, 349, 627 
 
 O. 
 
 Oakley vs. Boorman, 161, 655 
 
 O'Donnell vs. Smith, 161 
 
 Ogden vs. Ogden, 690 
 
 Okeson's Appeal, 109*, 501 
 
 Oldham vs. Allen 247* 
 
 Olmstoaci vs. Greenly, 429, 549*, 550, 590 
 
 Oliphant vs. Patterson, 405* 
 
 Ontario Bank vs. Worthington, . . 159, 263, 266 
 
 Orrel vs. Ooppock, 493* 
 
 Osborne vs. The Farmers Loan and 
 
 Trust Co 636* 
 
 Ostrander vs. Walter, 337 
 
 Otway's Case, Sir John 674 
 
 Owings vs. Owings, 435 
 
 Packer vs. Willson, 140, 591, 644* 
 
 Page vs. Becker, 442* 
 
 Page vs. Kendrick, 685 
 
 Palethorpe vs. Lasher, 331 
 
 Palmer vs. Neave, 677 
 
 Paramour vs. Yardley, 123 
 
 Parker vs. Serjeant, 679 
 
 Parks vs. Brinckerhoff, 161 
 
 Parsons vs. Walter, 214*, 218 
 
 Pasley vs. Freeman, 172, 175, 177, 676 
 
 Payne vs. Baldwin, 341*, 349 
 
 Payne vs. Little '. . . . 113 
 
 Payne vs. Mortimer, 684 
 
 Payne vs. Smith, 124 
 
 Peabody vs. Harvey, 507* 
 
 Pearce vs. Blagrave, 218, 227*, 405, 477 
 
 Pearson vs. Henry, 113,116*, 118 
 
 Peck vs. Thompson, 457* 
 
 Peckham vs. Faria 213*, 214, 254 
 
 Peele vs. Northcote, 656 
 
 Pennell vs. Pentz, 234*, 260* 
 
 Perkins vs. Hinsdale, .' 245* 
 
 Perkins vs. Hitchcock, 423 
 
 Perkins vs. Littlefield, 404* 
 
 Perloy vs. Spring, 234*, 2.35, 473 
 
 Perry vs. Swasey, 413, 446* 
 
 Peter vs. Compton, 694* 
 
 Pettigrew vs. Pettigrew, 124 
 
 Pfeifter vs. Adler 590, 635* 
 
 Phillipps vs. Bateman, 496 
 
 Phillips vs. Gray, 516* 
 
 Philpot vs. Wallet, 689*, 690 
 
 Pickering vs. Pickering, 124 
 
 Pierce vs. Pass, 505 
 
 Pierson vs. Dunlop, 264 
 
 Pijrgott vs. Thomson, 410 
 
 Pike vs. Brown, 169*, 400 
 
 Pike vs. Irwin, 559* 
 
 Pillans vs. Van Mierop, 80, 81, 161, 264 
 
 Plummer vs. Lyman, 595* 
 
 Porter vs. Lan^horn, 240 
 
 Post vs. .(Etna Insurance Co., 75 
 
 Postlethwaite vs. Mounsey, 113 
 
 Potts vs. Merrit, 729* 
 
 Prather vs. Vineyard, 44 ) 
 
 Pratt vs. Hudson River Railroad Co., . . 73 
 
 Pratt vs. Humphrey,.. 84, 91, 92,104*, 105 
 
 128, 165, 402* 
 
 Preble vs. Baldwin, 400*, 417 
 
 Prentice vs. Wilkinson, 206*, 580 
 
 Prescott vs. Parker, 124 
 
 Price vs. Combs, 240 
 
 PAOB 
 
 Price vs. Easton, 410 
 
 Price vs. The Earl of Torrington, 252 
 
 Proctor vs. Jones, 76 
 
 Prole vs. Soady, 745* 
 
 Proprietors of Upper Locks vs. Abbott, 
 
 143, 240 
 Prosser vs. Luqueer. (See Luqueer vs. 
 Prosser.) 
 
 Puckett vs. Bates, 339, 627 
 
 Pulsford vs. Richards, 746 
 
 Q. 
 
 Quin vs. Hanford 546* 
 
 Quintard vs. De Wolf, 366* 
 
 R. 
 
 Rains vs. Storry, 218,224*, 253 
 
 Ramsdale vs. Horton, 369 
 
 Rand vs. Mather 237, 353* 
 
 Randall vs. Morgan, 717 
 
 Randall vs. Sweet, 316* 
 
 Rann vs. Hughes, 81*, 99, 120, 501 
 
 Ransom vs. Keyes, 331 
 
 Rapelye vs. Anderson 655 
 
 Raymond vs. Pritchard, 439 
 
 Read vs. Ladd, 240 
 
 Read vs. Nash, . . 133, 193, 198*, 200, 201, 202 
 
 203, 204, 205, 206, 207, 212, 301 
 
 .302, 319, 567, 574, 591, 603 
 
 Reade vs. Livingston, 722* 
 
 Reader vs. Kingham, . . 392*, 394, 395, 404, 463 
 
 Redding vs. Wflkes, 712 
 
 Redman vs. Redman, . . .• 677 
 
 Reech vs. Kennegal, 99 
 
 Reed vs. Holcomb 4S0*, 629* 
 
 Rcxford vs. Brunei], 499* 
 
 Reynolds vs. Carpenter, 637* 
 
 Rhodes vs. Leeds, 240 
 
 Rice vs. Barry, 331, 505*, 506 
 
 Rice vs. Carter, 404 
 
 Rice vs. Peet, 188 
 
 Richardson vs. Richardson, 240 
 
 Richardson vs. Williams, , . . . . 276, 379*, 388 
 
 Riddell vs. Sutton, 117 
 
 Rider vs. Riley, 404 
 
 Ridout vs. Bristow, 91 
 
 Right vs. Price, 70 
 
 Rifey vs. Riley 678, 703*, 706 
 
 Roberts vs. Roberts, 677 
 
 Robbins vs. Ayres, 441*, 442 
 
 Robinson vs. Gilman, 148, 243*, 538* 
 
 Robinson vs. Lane, 107, 111* 
 
 Robson vs. , 117 
 
 Roche vs. Chaplin 300, 301, 312* 
 
 Rogers vs. Collier, 597 
 
 Rogers V. Kneeland, 240 
 
 Rogers vs. Rogers, 139*, 141 
 
 Rogers vs. Waters, 388, 500 
 
 Rollison vs. Hope, 526 
 
 Rothcry vs. Curry, 140 
 
 Rowe vs. Whittier 141, 321, 421* 
 
 Rowland vs. Rorke, 654 
 
 Rucker vs. Cammeyer, 76 
 
 Rupp vs. Blanchard, 525* 
 
 Russell vs. Babcock, 141, 537*, 538 
 
 S. 
 
 SafTord vs. Stevens 437 
 
 Sailly vs. Cleveland, 437 
 
 St. Albans Bank vs. Dillon, 307* 
 
 Sanborn vs. Merrill, 300, 301* 
 
 Sanders vs. Clason, 441 
 
 Satterthwaite vs. Emley, 698*, 722, 724 
 
 Saunders vs. Cramer, 679, 683 
 
 Saunders vs. Ferrill, 722
 
 TABLE OF CASES. 
 
 19 
 
 PAOB 
 
 Saunders VS. Wakcfleld, 77, 84, 141 
 
 Savage vs. Lane, 113 
 
 Saxion vs. Landis, 321 
 
 Sclu'iuerhorn vs. Vanderheyden, 437 
 
 Scholcs and a.iother vs. Hampson & 
 
 Merriott 285*, 298 
 
 Scott vs. Pilkington, 410 
 
 Scolt vs. Scott 677 
 
 Scott vs. Thomas 140, 188*, 545* 
 
 Scuddervs. Wade 240, 251, 252, 253 
 
 Seaman vs. Hasbrouck, 412, 437* 
 
 Seaman vs. Whitney, 434, 437 
 
 Sears vs. Brink, SI 
 
 Semple vs. Pink, 84 
 
 Serle vs. Waterworth, 91 
 
 Severs vs. Severs, 113 
 
 Shaver vs. Adams, 539* 
 
 Shaw vs. Jakenian, 717 
 
 Shaw vs. Stine, 178, 181* 
 
 Shear vs. Mallory, 437 
 
 Sheen vs. Bump-^-tead, 174 
 
 Sherwood vs. Stone, G()6* 
 
 Shoemaker vs. King 418, 449*, 450, 552 
 
 Shook vs. Van Meter, . . 404 
 
 Siau ads. Piijgott 597 
 
 Sibley vs. Vvniiams, 48 
 
 Sidle vs. Anderson, 108* 
 
 Sigourney vs. Wetherell, . . 509* 
 
 Silsbee vs. Ingalls, 10.3* 
 
 Simon vs. Motives, 78 
 
 Simpson vs. Patten, 140, 542*, 54.3, 544, 540, 590 
 
 Simpson vs. Penton, 217, 225*, 247 
 
 Sinclair vs. Richardson,.. 244, 255, 345*, 627 
 
 Sinklear v. Emert 302* 
 
 Skelton vs. Brewster, 3.34*, 590 
 
 Skinner vs. Conant, 255, 261* 
 
 Slater vs. Emerson 621 
 
 Slingerland vs. Morse, 332*, 590 
 
 Small vs. Schaef er, 436*, 628 
 
 Smith vs. Berry, ... 526 
 
 Smith vs. Bradley, 167* 
 
 Smith vs. Cherrill 687* 
 
 Smith vs. Coleman, 365 
 
 Smith vs. Douglas, 74 
 
 Smith vs. Fah, 194 
 
 Smith vs. Finch, 654 
 
 Smith vs. Greer,, 722 
 
 Smith vs. Harris, 178*, 179 
 
 Smith vs. Ives 140,591,644* 
 
 Smith vs. Lewis, 411 
 
 Smith vs. Mayo, 196* 
 
 Smith vs. Sayward, 475* 
 
 Smith vs. Stevens, 365 
 
 Smyley vs. Head, 307* 
 
 Soulevs. Albee, 400*, 486 
 
 Spalding vs. Spalding, 12-1 
 
 Spann vs. Baltzell 161, 499*, 628 
 
 Spaulding vs. Andrews, 161 
 
 Spicer vs. Norton, 651 • 
 
 Spooner vs. Dunn, 598* 
 
 Sprat vs Agar, 410 
 
 Sproat vs. Matthews 247* 
 
 Spurgeon vs. Collier, 712, 713, 717*, 720 
 
 Stanly vs. Hendricks, 369 
 
 Stark vs. Ranev, 458* 
 
 Starkcv vs. Mill, 410 
 
 State Bank, &c., vs. Mettler, .... 433*, 448 
 
 Stolibins vs Smith, 91, 102*, 103, 105, 128 
 
 Steele vs. Towle 255 
 
 Steman vs Harrison, 413 
 
 Stephens vs. Pell 384* 
 
 Stephens vs. Squire, 132, 198*, 201, 491*, 603 
 
 Stern vs. Drinker 141, 335* 
 
 Sternburg vs. Callanen, 385* 
 
 Sterry vs. Arden 683, 684 
 
 Stevens vs. Squire. (See Stephens vs. 
 
 Squire.) 
 
 Stiles vs. Farrar 526 
 
 Stilwell vs. Otis 5.V2 
 
 Stocking vs. Sage, 170*, 402 
 
 StCMie vs. Symmes 84, 377* 
 
 PAQB 
 
 Stone vs. Walker, 255, 288* 
 
 Stony vs. Menzics, 3B9 
 
 Stoudt vs. Hine 553*, 555 
 
 Storer vs. Logan, 161 
 
 Styron vs. Bell, 450* 
 
 Strange, Lord, vs. Smith, 682 
 
 Strohecker vs. Cohen, 161 
 
 Surdonie vs. Pinniger, 738* 
 
 Swan vs. Nesmith 661*, 6ii3 
 
 Swann vs. Phillips, 174 
 
 Sweet vs Bradley, 651 * 
 
 Sweetser vs. French 505 
 
 Swift vs. Pierce 237*, 284 
 
 T. 
 
 Tapp vs. Lee, 174, 175* 
 
 Tarbell vs. Stevens, 495* 
 
 Tarr vs. Northey 219, 458* 
 
 Tatlock vs. Harris, .... 361*, 365, 366, 408, 516 
 
 518, 520 
 
 Taylor vs. Bates 525 
 
 Taylor vs, Drake, 21)9* 
 
 Taylor vs. Higgins, 520 
 
 Taylor vs. Hilary 265, 268* 
 
 Taylor vs. Hillyer, 3£5, 504* 
 
 Taylor vs. Mygatt, 122 
 
 Taylor vs. Savage 474 
 
 Tebbetts vs. Dowd, 509* 
 
 Tempest vs. Fitzgerald, 77 
 
 Templetons vs. Bascom, 91*, 140, 141 
 
 387, 632* 
 
 Tewksbnry vs. Hayes, 423* 
 
 Therasson vs. McSpedon, . 437 
 
 Thomas vs. , 410, 411 
 
 Thomas vs. Cameron, 97* 
 
 Thomas vs. Cook, 388, 460*, 462, 463 
 
 469, 471, 475, 477, 47a 
 
 Thomas vs. Dodge, 654 
 
 Thomas vs. Thomas, 410 
 
 Thomas vs. Welles, 395* 
 
 Thomas vs. Williams, 141, 576*, 602 
 
 Thompson vs. Blanchard, 161*, 16f. 
 
 Thompson vs. Bond 182, 222*, 256 
 
 Thompson vs. Gordon, 441 
 
 Thompson vs. Harrison, 677 
 
 Thompson vs. Perci val, 383 
 
 Thompson vs. Perkins, 656 
 
 Thruston vs. Thornton, 248* 
 
 Thurston vs. James 654 
 
 Thynne, Lady, vs. Lord Qlengall,... . 713 
 
 Thwaits vs. Curl, 256* 
 
 Tibbetts vs. Flanders, 404, 417* 
 
 Tibbitts vs. George 523 
 
 Tilestonvs. Nettleton, 2.34*, 2,35 
 
 Tindalvs. Touchberry 141,333*, 394* 
 
 Titus vs. Scantling, 74 
 
 Todd vs. Tobev 422* 
 
 Tollit vs. Sherstone, 410 
 
 Tomliuson vs. Gell, 141, 207, 579* 
 
 im 
 
 Tomlinson vs. Gill, 91. 93*, 95. 96 
 
 200, 202, 387, 567* 
 
 Tompkins vs. Smith, 321 
 
 Towne vs. Grover 187* 
 
 Townsley vs. Snmrall, 230* 
 
 Treat vs.' Stanton 446 
 
 Trewinian vs. Howell 99 
 
 Trustees of First Baptist Church vs. 
 
 Brooklyn Ins. Co 75 
 
 Trustees of Free Schools, Ac, vs. Flint, 138* 
 
 388, 500 
 
 Tupper vs. Cadwell,. 311 
 
 Turnbull vs. Trout . 161 
 
 Turner vs. Hubbell, 194, 202, 458* 
 
 Turnley vs. McGregor, 174 
 
 Turton" vs. Benson, 67" 
 
 Turton vs. Burke, 240 
 
 Tweddle vs. Atkinson, Ex'r., etc., 411* 
 
 Tyler VB. Stevens, 350*
 
 20 
 
 TABLE OF CASES. 
 
 TJ. 
 
 PAGK 
 
 Undcrhill vs. Gibson, 240 
 
 Union, etc., Ins. Co. vs. Commercial 
 
 etc., Ins. Co., '^2 
 
 United States Bank vs. Southard, 509* 
 
 Union vs. Vail, l'^3 
 
 "V. 
 
 "Valentine vs. Valentine, • • J4 
 
 Van Slyck vs. Pulver, 335, 591 
 
 Vcrplanck vs. Sterry, 684 
 
 Vincent vs. Robinson, 450 
 
 Wade vs. Tatton, 174 
 
 Waggener vs. Bells, 240 
 
 Waggoner vs. Gray, — 381 
 
 Wagnon vs. Clay 503* 
 
 Wainvvright vs. Straw & Cunningham, 286* 
 288, 290, 291, 297, 298 
 
 Wain vs. Warlters, 70, 71, 77 
 
 Wait vs. Wait's Executor, 426*, 427, 552 
 
 Wakefield vs. Greenhood, 265*, 268 
 
 Waldo V. Simonson, 631 
 
 Walford vs. Gray, '''46* 
 
 Walker vs. McDonald, 2.39* 
 
 Walker vs Norton, 240, 280* 
 
 Walker vs. Penniman, 377* 
 
 Walker vs. Richards, 238*, 2.51, 263* 
 
 Walker vs. Taylor, 566, 575, 577*, 578 
 
 Wallace vs. Freeman, 441 
 
 Wallace vs. Wortham, 291 
 
 Walters vs. Morgan, '"'4 
 
 Wanchford vs. Fotherly 681* 682, 713 
 
 Wankf ord vs. Fotherley 681 
 
 Wankford vs. Fotherby, 681 
 
 Wansborough vs. Dyer, 117 
 
 Ward vs. Evans 410 
 
 Warden vs. Jones, 709, 712, 713, 718* 
 
 Ware vs. Stephenson, '-:40 
 
 Warnick vs. Grosholz, 240, 242, 341*, 627 
 
 Warren vs. Barker, — l'i'5 
 
 Warren vs. Batchelder 408, 414, 424*, 521 
 
 Warren Academy vs. Starrett, 423 
 
 Warren vs. Wheeler, . 526 
 
 Watkins vs. Perkins 211*, 256 
 
 Watson vs. Jacobs, 375* 
 
 Watson vs. Randall, 141, 381*, 544, 591 
 
 Waugh vs. Carver, 283 
 
 Weed vs. Richardson, 505 
 
 Weld VB. Nichols 399* 
 
 PAOB 
 
 Wells vs. Lain, 74 
 
 Wells V. Mann, 453 
 
 Wells vs. Prince, 175 
 
 Westcott vs. Keeler 272* 
 
 Westfall vs. Parsons, 398*, 486 
 
 Westheimer vs. Peacock, 141, 541*, 558 
 
 Westwick vs. Wyer, — 123 
 
 Weyand vs. Crichfield, 240 
 
 Wharton vs. Walker, .-. . . .364*, 513*, 520, 521 
 
 Wheatley vs. Strobe, 266 
 
 Wheeler vs. Collier, 636 
 
 Wheeler vs. Rice, 505 
 
 Whelan vs. Whelan 684 
 
 Whitchurch vs. Bevis 712 
 
 Whitchurch vs. Whitchurch, 71 
 
 Whitcomb vs. Kephart, - 553* 
 
 Whittle vs. Henning 114 
 
 Wickham vs. Wickham 78, 668* 
 
 Wilkinson vs. Lutwidge, 161 
 
 Williams v. Corbet 240 
 
 Williams vs. Everett, 411 
 
 Williams vs. Lee, 123 
 
 Williams vs. Leper, . . 147, 202, 319, 568*, 571 
 
 572, 574, 575, 576, 584, 587, .599 
 
 601, 602, 603, 616, 668 
 
 Williams vs. Williams, 730, 746, 7.50* 
 
 Willis vs. Hobson 276* 
 
 Willoughby, in the matter of, 691* 
 
 Wilson vs. Coupland, 520*, 525 
 
 Wilson vs. Lorg 109 
 
 Wilson vs. Williams, — ^ . . . 505 
 
 Winckworth vs. Mills, 454* 
 
 Windham vs. Chetwynd, 71 
 
 Winne vs. Elderkin, 74 
 
 Wolflf vs. Koppel 663*, 665, 666, 668 
 
 Wollaston vs. Tribe, 687* 
 
 Wood vs. Corcoran, 367*, 381 
 
 Wood vs. Jackson, 685 
 
 Wood vs. Midgley, 712 
 
 Wood vs. Savage 722 
 
 Wood vs. Wheelock, 651* 
 
 Woods vs. Page, 74 
 
 Worthington vs. Barlow, 117 
 
 Wyman vs. Gray 84, 388, 500 
 
 Wyman vs. Smith, 526 
 
 Y. 
 
 Young vs. Holmes, 128 
 
 Zelhveger vs. Caffe, Wl
 
 STATUTES 
 
 REIiATCNQ TO 
 
 THE SUBJECT OF THIS WORK. 
 
 rrhe original statute of frauds is given at length ; but the subsequent amendments, 
 rfnd the extracts from statutes enacted in the United States, are confined to such as 
 relate to the matter of the fourth and the seventeenth sections, except wliere other 
 matters are also provided for in one section. All the enactments relative to verbal 
 representations respecting the credit, &c., of another, are given; for they may be 
 regarded as amendments to the fourth section; having been passed in consequence of 
 decisious that it did not apply to such representations.] 
 
 "THE STATUTE OF FRAUDS." 
 
 29 Car. II. (A. D. 1677.) 
 
 B,..P„, « CHAPTER III. 
 
 C. II. p. 1. no. i. 
 
 An Act for prevention of Frauds and Perjuryes. 
 
 For prevention of many fraudulent Practices which are 
 commonly endeavoured to be upheld by Perjury and 
 Subornation of Perjury Bee it enacted by the Kings most 
 excellent Majestie by and with the advice and consent of 
 the Lords Spirituall and Temporall arid the Commons in 
 this present Parlyament assembled and by the authoritie 
 of the same That from and after the fower and twentyeth 
 day of June which shall be in the yeare of our Lord one 
 thousand six hundi-ed seaventy and seaven All Leases 
 Estates Interests of Freehold or Termes of yeares or any 
 uncertaine 'Interest of in to or out of any Messuages 
 Mannours Lands Tenements or Hereditaments made or 
 created by Livery and Seisin o'nely or by Parole and not 
 putt in Writeing and signed by the parties soe makein.u'
 
 S2 The Statute of Fkauds. 
 
 or creating the same or their Agents thereunto lawfully 
 authorized by Writeing, shall have the force and effect of 
 Leases or Estates at Will onely and shall not either in 
 Law or Equity be deemed or taken to have any other or 
 greater force or effect, Any consideration for makeing 
 any such Parole Leases or Estates or any former Law or 
 Usage to the contrary notwithstanding. 
 
 TT Except neverthelesse all Leases not exceeding 
 
 ,.^ ^ n -| the terme of three yeares from the makeing 
 ^ ' '-^ thereof whereupon the Rent reserved to the 
 Landlord dureing such terme shall amount unto two 
 third parts at the least of the full improved value of the 
 thing demised. 
 
 T TT And moreover That noe Leases Estates or Liter- 
 P^ ^ ^ ests either of Freehold or Terms of yeares or any 
 uncertaine Interest not being Copyhold or Cus- 
 tomary Interest of in to or out of any Messuages Mannours 
 Lands Tenements or Hereditaments shall at any time after 
 the said fower and twentyeth day of June be assigned 
 granted or surrendred unlesse it be by Deed or Note in 
 Writeing signed, by the party soe assigning granting or 
 surrendring the same or their Agents thereunto lawfully 
 authorized by writeing or by act and operation of Law, 
 
 T^ And bee it further enacted by the authoritie 
 
 ro , T aforesaid That from and after the said fower and 
 
 OGC. T. 
 
 twentyeth day of June noe Action shall be 
 brought whereby to charge any Executor or Administrator 
 upon any speciall promise to answere damages out of his 
 owne Estate [2] or whereby to charge the Defendant upon 
 any speciall promise to answere for the debt default or 
 miscarriages of another person [3] or to charge any person 
 upon any agreement made upon consideration of Marriage 
 [4] or upon any Contract or Sale of Lands Tenements or 
 Hereditaments or any Interest in or concerning them [5] 
 or upon any Agreement that is not to be performed within 
 the space of one yeare from the makeing thereof [6] unlesse
 
 The Statute of Fkauds. 23 
 
 the Agreement upon wliicli sncli Action sliall bo brought 
 or some Memonindum or IM ote thereof shall be in Write- 
 ing and signed hy the partie to be charged therewith or 
 some other person thereunto by him lawfully authorized. 
 
 XT' AxD bee it further enacted by the authoritie 
 
 ro K -, aforesaid That from and after the said fower and 
 twentyeth day of June all Devises and Bequests 
 of any Lands or Tenements deviseable either by force of 
 the Statute of Wills or by this Statute or by force of the 
 Custome of Kent or the Custome of any Burrough or any 
 other perticular Custome shall be in Writeing and signed 
 by the partie soe deviseing the same or by some other 
 person in his presence and by his expresse directions and 
 shall be attested and subscribed in the presence of the 
 said Devisor by three or fower credible Witnesses or else 
 they shall be utterly void and of none effect. 
 
 VT A]srD moreover hoe Devise in Writeing of Lands 
 
 j-^ P -, Tenements or Hereditaments nor any Clause 
 thereof shall at any time after the said fower and 
 twentyeth day of June be revocable otherwise than by 
 some other Will or Coddicill in Writeing or other Write- 
 ing declareing the same or by burning cancelling teareing 
 or obliterating the same by the Testator himselfe or in his 
 presence and by his directions and consent [2] but all 
 Devises and Bequests of Lands and Tenements shall 
 remaine and continue in force until the same be burnt 
 cancelled torne or obliterated by the Testator or his direc- 
 tions in manner aforesaid or unlesse the same be altered 
 by some other AYill or Codicill in Writeing or other 
 Writeing of the Devisor signed in the presence of three or 
 fower Witnesses declareing the same, Any former Law 
 or Usage to the contrary notwithstanding. 
 
 VTT And bee it further enacted by the authoritie 
 ro - -1 aforesaid That from and after the said fower and 
 
 I OGC. i .\ 
 
 twentyeth day of June Declarations or Creations 
 of Trusts or Conlidences of any Lands Tenements or
 
 24 The Statute of Fkauds. 
 
 Hereditaments shall be manifested and proved by some 
 Writeing signed by the partie who is by Law enabled to 
 declare such Trust or by his last Will in Writeing or else 
 they shall be utterly void and of none effect. 
 
 'Y'TTT Provided alwayes That where any Conveyance 
 i-<^ J. ^ shall bee made of any Lands or Tenements by 
 ^ ' '■' which a Trust or Confidence shall or may arise 
 or result by the Implication or Construction of Law or 
 bee transferred or extinguished by an act or operation of 
 Law then and in every such Case such Trust or Confidence 
 shall be of the like force and effect as the same would 
 have beene if this Statute had not beene made. Anything 
 hereinbefore contained to the contrary notwithstanding. 
 
 TV Akd bee it further enacted That all Grants and 
 
 P^ Q ^ Assignments of any Trust or Confidence shall 
 likewise be in Writeing signed by the party 
 granting or assigning the same [or^] by such last Will or 
 Devise or else shall likewise be utterly void and of none 
 effect. 
 
 ^ Ats^d bee it further 'enacted by the authoritie 
 
 re w ^ -1 aforesaid That from and after the said fower and 
 I bee. 10. J 
 
 twentyeth day of June it shall and may be law- 
 full for every Sheriffe or other Officer to whome any Writt 
 or Precept is or shall be directed at the Suite of any person 
 or persons of for and upon any Judgement Statute or 
 Recognizance hereafter to be made or had, to doe make and 
 deliver Execution unto the partie in that behalfe sueing 
 of all such Lands Tenements Rectories Tythes Rents and 
 Hereditaments as any other person or persons be in any 
 manner of wise seised or possessed [or hereafter shall be 
 seised or possessed^] in Trust for him against whome Exe- 
 cution is soe sued like as the Sheriffe or other Officer might 
 or ought to have done if the said partie against whome 
 Execution hereafter shall be soe sued had beene seised of 
 
 interlined on the Roll.
 
 The Statute of Frauds. 25 
 
 such Lands Tenements Rectories Tythes Rents or other 
 Hereditaments of such Estate as they be seised of in trust 
 for liim at tlie time of the said Execution sued. [2J Which 
 Lands Tenements Rectories Tythes Rents and other Here- 
 ditaments by force and vertue of such Execution shall 
 accordingly be held and enjoyed freed and discharged 
 from all Incumbrances of such person or persons as shall 
 be soe seised or possessed in Trust for the person against 
 whome such execution shall be sued. [3] And if any 
 Cestuy que Trust hereafter shall dye leaveing a Trust in 
 Fee simple to descend to his Heu'e, there, and in every such 
 case such Trust shall be deemed and taken and is hereby 
 declared to be Assetts by descent and . the Heir shall be 
 lyable to and chargeable with the Obligation of his 
 Auncestors for and by reason such Assetts as fully and 
 amply as he might or ought to have beene if the Estate in 
 Law had descended to him in possession in like manner 
 as the Trust descended, Any Law Custome or Usage to 
 the contrary in any wise notwithstanding. 
 
 V J Peovided alwayes That noe Heire that shall 
 P^, ^ ^ -, become chargeable by reason of any Estate or 
 ^ ' Trust made Assetts in his hands by this Law shall 
 
 by reason of any kinde of Plea or confession of the 
 Action or suffering Judgement by Nient dedire or any 
 other matter bee chargeable to pay the Condemnation out 
 of his owne Estate [2] but Execution shall be sued of the 
 whole Estate soe made Assetts in his hands by descent in 
 whose hands soever it shall come after the Writt pur- 
 chased in the same manner as it is to be at and by the 
 Common Law where the Heire at Law pleading a true 
 Plea Judgement is prayed against him thereuj^on. Any 
 thing in this present Act contained to the contrary not- 
 withstanding. 
 
 XII ^^^ ^^^ ^^^® amendment of the law in the par- 
 
 p;^ ^ „ -. ticulars following [2] Bee it further enacted by 
 
 the authoritie aforesaid That from henceforth 
 
 any Estate per auter vie shall be deviseable by a Will in 
 
 3
 
 26 The Statute of Frauds. 
 
 writeing signed by the party soe deviseing the same or by 
 some other person in his presence and by his expresse 
 directions attested and subscribed in the presence of the 
 Devisor by three or more Witnesses, [3] and if noe such 
 Devise thereof be made the same shall be chargeable in 
 the hands of the Heire if it shall come to him by reason of 
 a speciall Occupancy as Assetts by descent as in case 
 of Lands in Fee simple [4] And in case there be noe 
 speciall Occupant thereof it shall goe to the Executors or 
 Administrators of the partie that had the Estate thereof 
 by vertue of the Grant and shall be Assetts in their hands. 
 
 XIII ^^^ whereas it hath beene found mischievous 
 l-^, ^ . ^ -, that Judgements in the Kings Courts at West- 
 minster doe many times relate to the first day 
 of the Terme whereof they are entred or to the day 
 of the Returne of the Originall or fileing the Baile and 
 binde the Defendants Lands from that time although 
 in trueth they were acknowledged or suffered and 
 signed in the Vacation time after the said Terme where- 
 by many times Purchasers finde themselves agrieved 
 
 re t < n Bee it enacted by the authoritie aforesaid That 
 I oec. 14.J *' 
 
 from and after the said foure and twenty eth day 
 of June any Judge or Officer of any of his Majestyes Courts 
 of Westminster that shall signe any Judgements shall at 
 the signeing of the same without Fee for doeing the same 
 sett downe the day of the moneth and yeare of his soe 
 doeing upon the Paper Booke Dockett or Record which 
 he shall signe which day of the moneth and yeare shall 
 be alsoe entred upon the Margent of the Roll of the 
 Record where the said Judgement shall be entred. 
 
 V J"^ And bee it enacted That such Judgements as 
 ra -1 K -| against Purchasers bona fide for valueable 
 consideration of Lands Tenements or Heredita- 
 ments to be charged thereby shall in consideration of Law 
 be Judgements onely from such time as they shall be soe 
 signed and shall not relate to the first day of the Terme 
 whereof they are entred or the day of the Returne of the
 
 The Statute of Frauds. 27 
 
 Originall or fileing tlie Baile Any Law, Usage or Course 
 of any Court to the contrary notwithstanding. 
 
 "VV AxD bee it further enacted by the authoritie 
 |.(^ ^ -. aforesaid That from and after tlie said fower and 
 ^ * '-^ twentyeth day of June noeWritt of Fieri facias 
 or other Writt of Execution shall binde the Property of 
 the Goods against whome such Writt of Execution is sued 
 forth but from the time that such Writt shall be delivered 
 to the Sheriffe Under Sheriffe or Coroners to be executed, 
 And for the better manifestation of the said time the 
 Sheriffe Under- Sheriffe and Coroners their Deputyes and 
 Agents shall upon the receipt of any such Writt (without 
 Fee for doeing the same) endorse upon the backe thereof 
 the day of the moneth [or^] yeare whereon he or they 
 received the same. 
 
 V'^TT And bee it further enacted by the authority 
 re -, ^- -, aforesaid That from and after the said fower 
 
 OGC 1 i 
 
 ' • and twentyeth day of June noo Contract for 
 the Sale of any Goods Wares or Merchandises for the 
 price of ten pounds Sterling or upwards shall be allowed 
 to be good except the Buyer shall accept part of the 
 Goods soe sold and actually receive the same or give 
 something in earnest to bind the bargaine or in part of 
 payment, or that some Note or Memorandum in writeing 
 of the said bargaine be made and signed by the partyes 
 to be charged by such Contract or their Agents thereunto 
 lawfully authorized. 
 
 ■VTrTT And bee it further enacted by the authority 
 l-^ . -, aforesaid That the day of the moneth ai^d 
 ' yeare of the Enrollment of the Recognizances 
 
 shall be sett downe in the Margent of the Roll where the 
 said Recognizances are enrolled, and that from and after 
 the said fower and twentyeth day of June noe Recog- 
 nizance shall binde any Lands Tenements or Ileredita- 
 
 > "iind" O. (omitted.)
 
 28 The Statute of Frauds. 
 
 ments in the liands of any Purcliasor bona fide and for 
 valueable consideration but from the time of such Enroll- 
 ment, Any Law Usage or Course of any Court to the 
 contrary in any wise notwithstanding. 
 
 VXTTTT Akd for prevention of fraudulent Practices 
 * in setting up Nuncupative Wills which 
 ^ ^^' ■-' have beene the occasion of much Perjury 
 [2] Bee it enacted by the authority aforesaid That from 
 and after the aforesaid fower and twentyeth day of June 
 noe Nuncupative Will shall be good where the Estate 
 thereby bequeathed shall exceede the value of thirty 
 pounds that is not proved by the Oathes of three Wit- 
 nesses (at the least) that were present at the makeing 
 thereof, [3] nor unlesse it be proved that the Testator at 
 the time of pronounceing the same did bid the persons 
 present or some of them beare wittnesse that such was 
 his Will or to that effect, [4] nor unlesse such Nuncupa- 
 tive Will were made in the time of the last sicknesse of 
 the deceased and in the House of his or her habitation or 
 dwelling or where he or she hath beene resident for the 
 space of ten dayes or more next before the makeing of 
 such Will except where such person was surprized or 
 taken sick being from his owne home and dyed before he 
 returned to the place of his or her dwelling. 
 
 "V JV Akd bee it further enacted That after six 
 ra on t mouetlies passed after the speaking of the 
 pretended Testamentary words noe Testimony 
 shall be received to prove any Will Nuncupative except 
 the said Testimony or the substance thereof were com- 
 mitted to writeing within six dayes after the makeing of 
 the said Will. 
 
 ^^^ And bee it further enacted That noe Letters 
 rs 91 1 Testamentary or Probate of any Nuncupative 
 Will shall passe the Seale of any Court till 
 fowerteene dayes at the least after the decease of the 
 Testator be fully expired, [2] Nor shall any Nuncupative
 
 TiiK Statute of Fit.vuDS. 29 
 
 Will be at any time received to be proved unlesse Pro- 
 cesse have first issued to call in tlie Widow or next of 
 kindred to tlie deceased to the end they may contest the 
 same if they please. 
 
 "V V J And bee it further enacted That noe Will in 
 v^^riteing concerning any Goods or Chattells or 
 L ec. .J Personal 1 'Estate shall be repealed nor shall 
 any Clause Devise or Bequest therein be altered or 
 changed by any Words or Will by word of mouth onely 
 except the same be in the life of the Testator committed 
 to writeing and after the writeing thereof read unto the 
 Testator and allowed by him and proved to be soe done 
 by three Wittnesses at the least. 
 
 VVTT Provided al waves That notwithstanding this 
 Act any Soldier being in actuall Military 
 L ec. .J Sepyjce or any Marriner or Seaman being at 
 Sea may dispose of his Moveables, Wages and Personall 
 Estate as he or they might have done before the makeing 
 of this Act. 
 
 VVJTT And it is hereby declared That nothing in 
 
 * this Act shall extend to alter or change the 
 
 LSec. 24.J j^j.-g^.(,^iQj^ oj. j^igi^i- of Probate of Wills 
 
 concerning Personall Estates but that the Prerogative 
 Court of the Archbishop of Canterbury and other 
 Ecclesiasticall Courts and other Courts haveing Right to 
 the Probate of such Wills shall retaine the same Right 
 and Power as they had before in every respect subject 
 neverthelesse to the Rules and Directions of this Act. 
 
 "V VJY' Atid for the explaining one Act of this 
 P^^sent Parlyament intituled An Act for the 
 [Sec. 25.J ^^^^^ eetleing of Intestates Estates Bee it 
 declared by the authority aforesaid That neither the said 
 Act nor any thing therein contained shall be construed to 
 extend to the Estates of Feme-Coverts that shall dye Intes- 
 tate, but that their Husbands may demand and have
 
 30 The Statute of Frauds. 
 
 Administration of their Rights Credits and other Personall 
 Estates and recover and enjoy the same as they might 
 have done before the makeing of the said Act.^ 
 
 ' The foregoing is an exact transcript of the text of the statute, with the 
 orthography an(f punctuation of the original preserved, as contained on 
 pages 839, 840, 841 and 842 of the fifth volume of the " Statutes of the 
 Eealm," foUo, pubhshed in London in the year 1819, "printed by command 
 of His Majesty, King George the Third, in pursuance of an address of the 
 House of Commons of Great Britain." In the printed vokime the Roman 
 numerals, designating the sections, are contained in the outer margin, and 
 under each is a short sentence, containing an abstract of the contents of 
 each section so designated. We have omitted these sentences, and added in 
 brackets the numbers of the sections, as we find them in the unauthorized 
 editions of the English statutes, and in the copies of the statute -of frauds, 
 contained in various text-books; and we have also designated the dififerent 
 clauses of several sections by Arabic numerals in brackets, to make them 
 correspond with similar divisions in those editions. In all these respects the 
 unauthorized editions of the statute are exactly alike ; and the dififerent 
 sections are cited according to this numeration in the text-books and 
 reported cases ; but it will be noticed that the thirteenth section, according 
 to the official copy, is divided by the unauthorized publications into two 
 sections, in 9onsequence of which the numbers of the subsequent sections 
 do not correspond with those of the oflficial edition ; the seventeenth sec- 
 tion, of which we shall treat largely in the second volume, being in reality 
 the sixteenth of the official copy. Doubtless this distribution of the statute 
 into sections was made in some copy published shortly after it was passed, 
 which has been followed ever since; but we are not able to trace its 
 origin. The cases decided soon after the passage of the statute of frauds, 
 generally refer to its clauses by stating their substance, without reference to 
 the numbers of the sections; and the earliest case which we have noticed 
 where any section subsequent to the twelfth is referred to by its number, 
 is Colt vs. Nettervill, 2 Peere Williams, 305, A. D. 1725, which speaks of 
 the seventeenth section, meaning thereby the one known to us by that 
 number. The South Carolina provincial statute of 1712, mentioned 
 hereafter as the enactment whereby the statute of frauds is now in force 
 in that State, adopts ''the several statutes, and the several paragraphs, 
 and sections or numbers of the paragrapns of the several statutes of the 
 Kingdom of England," thereafter contained in the enactment, "as the 
 same are distinguished and divided into paragraphs and sections or numbers, 
 by Joseph Keble, of Gray's Inn, Esq., in his statutes at large from Magna 
 Charta to the end of the reign of King Charles the 2d," and the statute of 
 29 Charles 2d, chapter 3, is inserted at length, with the sections numbered 
 and divided into paragraphs, as is now customary. It is quits probable that 
 the present numeration derives its origin from that book.
 
 TnK Statute of Frauds. 31 
 
 EXTRACTS FROM 
 
 "LOUD TENTERDEN'S ACT." 
 
 [9 Geo. 4, char- 1 1. May 9, 18^8.] 
 
 " An Act for rendering a written memorandum 
 necessary to the validity of certain promises 
 and engagements." 
 
 Sec. 6. That no action shall be brought whereby to 
 charge any person upon or by reason of any representa- 
 tion or assurance made or given concerning or relating to 
 the character, conduct, credit, ability, trade or dealings 
 of any other person, to the intent or purpose that such 
 other person may obtain credit, money, or goods upon,^ 
 unless such representation or assurance be made in 
 writing, signed by the party to be charged therewith. 
 
 Sec. 7. And whereas by an Act passed in England in 
 the twenty-ninth year of the reign of king Charles the 
 second, intitul'ed "An Act for the Prevention of Frauds 
 and Perjuries," it is among other things enacted, that 
 from and after the 24th day of June, 1677, no contract for 
 the sale of any goods, wares, and merchandises, for the 
 price of ten pounds sterling or upwards, shall be allowed 
 to be good, except the buyer shall accej^t part of the 
 goods so sold and actually receive the same, or give 
 something in earnest to bind the bargain, or in part of 
 payment, or that some note or memorandum in writing 
 of the said l^argain be made and signed by the parties to 
 be charged by such contract, or their agents thereunto 
 lawfully authorised ; And whereas a similar enactment is 
 contained in an Act passed in Ireland in the seventh year 
 
 ' So on the original roll of parliament : probably a mistake for ' tberenpon.' See the 
 observations of Parko B. and Lord Abiuger, C. B , Lyde vs. Barnard, 1 M. &. W. 115. 
 Note to Chilti/s Statutes.
 
 32 The Statute of Frauds. 
 
 of the reign of king William the third : And whereas it 
 has been held, that the said recited enactments do not 
 extend to certain executory contracts for the sale of goods, 
 which nevertheless are within the mischief thereby 
 intended to be remedied; and it is expedient to extend 
 the said enactments to such executory contracts ; Be it 
 ENACTED, That the said enactment shall extend to all con- 
 tracts for the sale of goods of the value of ten pounds 
 sterling and u^Dwards, notwithstanding the goods may be 
 intended to be delivered at some future time, or may not 
 at the time of such contract be actually made, procured, 
 or provided, or fit or ready for delivery, or some act may 
 be requisite for the making or completing thereof, or ren- 
 dering the same fit for delivery. 
 
 Sec. 8. That no memorandum or other writing made 
 necessary by tliis Act shall be deemed to be an agreement 
 within the meaning of any statute relating to the duties 
 of stamps. 
 
 Sec. 9. That nothing in this Act contained shall extend 
 to Scotland-
 
 The Statute of Frauds. 33 
 
 EXTRACTS FROM 
 
 "THE MERCANTILE LAW AMENDMENT ACT." 
 
 [19 and 20 Vict., chap. 97. July 29, 1856.] 
 
 ''An Act to amend the Laws of England and 
 Ireland affecting Trade and Commerce/^ 
 
 Sec. 3. No special promise to be made by aiiy person 
 after the passing of tliis Act to answer for the debt, 
 default, or miscarriage of another person, being in writing, 
 and signed by the party to be charged therewith, or some 
 other person by him thereunto lawfully authorised, shall 
 be deemed invalid to support an action, suit, or otlier 
 proceeding, to charge the person by whom such promise 
 shall have been made, by reason only that the considera- 
 tion for such promise does not appear in writing, or by 
 necessary inference from a written document. 
 
 Sec. 4. No promise to answer for the debt, default or 
 miscarriage of another, made to a firm consisting of two 
 or more persons, or to a single person trading under the 
 name of a firm, and no promise to answer for the debt, 
 default or miscarriage of a firm consisting of two or more 
 persons, or of a single person trading under the name of 
 • a firm, shall be binding on the person making such prom- 
 ise in respect of anything done or omitted to be done after 
 a change shall have taken place in any one or more of the 
 persons constituting the firm, or in the person trading 
 under the name of a firm, unless the intention of the par- 
 ties, that such promise shall continue to be binding not- 
 withstanding such change, shall appear either by express 
 stipulation or by necessary implication from the nature 
 of the firm or otherwise. 
 
 Sec. 13. In reference to the provisions of the Acts of the 
 ninth year of the reign of King George the fourth, chapter 
 5
 
 84 The Statute of Frauds. 
 
 fourteen, sections one and eight, and tlie sixteenth and 
 seventeenth years of the reign of her present majesty, 
 chapter one hundred and thirteen, sections twenty-four 
 and twenty-seven, an acknowledgment or promise made 
 or contained by or in a writing signed by an agent of the 
 party chargeable thereby, duly authorised to make such 
 acknowledgment or promise, shall have the same effect as 
 if such writing had been signed by such party himself.
 
 Tin: Statute of Feauds. 35 
 
 AMERICAN STATUTES. 
 
 ALABAMA. 
 
 Revised Code of 1867. Part 2, Title 3, chapter 4. 
 
 Sec. 1862. In the following cases, every agreement is void, unless 
 such agreement, or some note or memorandum thereof, expressing 
 the consideration, is in writing, and subscribed by the party to be 
 charged therewith or some other person by him thereunto lawfully 
 authorized in writing. 
 
 1. Every agreement, which, by its terms, is not to be performed 
 within one year from the making thereof. 
 
 2. Every special promise, by an executor or administrator, to 
 answer damages out of his own estate. 
 
 3. Every special promise to answer for the debt, default, or 
 miscarriage of another. 
 
 4. Every agreement, promise, or undertaking, made upon con- 
 sideration of marriage, except mutual promises to marry. 
 
 5. [Related to agreements for the sale of goods, &c.^ exceeding 
 1200 ; repealed Nov. 7, 1862.] 
 
 6. Every contract for the sale of lands, tenements, or heredita- 
 ments, or of any interest therein, except leases for a term not 
 longer than one year, unless the purchase money, or a portion 
 thereof, be paid, and the purchaser be put into possession of the 
 land by the seller. 
 
 Sec. 1863. When goods, or things in action are sold, or lands, 
 tenements, or hereditaments sold or leased at public auction, and 
 the auctioneer, his clerk, or agent, makes a memorandum of the 
 property, and price thereof at which it is sold or leased, the terms 
 of sale, the name of the purchaser or lessee, and the name of the 
 person on whose account the sale or lease is made, such memo- 
 randum is a note of the contract within the meaning of the pre- 
 ceding section. 
 
 Sec. 1864. No action can be maintained to charge any person, 
 by reason of any representation or assurance made, concerning
 
 36 The Statute of Feauds. 
 
 the character, conduct, ability, trade or dealings of any other 
 person, when such action is brought by the person to whom such 
 representation or assurance was made, unless the same is in 
 writing, signed by the party sought to be charged. 
 
 ARKANSAS. 
 
 Gould's Digest, 1858. Chapter 74. 
 
 Sec. 1. No action shall be brought, first, to charge any executor 
 or administrator, upon, any special promise, to answer for any debt 
 or damage out of his own estate ; second, to charge any person 
 upon any special promise to answer for the debt, default, or mis- 
 carriage of another ; third, to charge any person upon an agree- 
 ment made in consideration of marriage ; fourth, to charge any 
 person upon any contract for the sale of lands, tenements, or 
 hereditaments, or any interest in or concerning them; fifth, 
 to charge any person upon any lease of lands, tenements, or 
 hereditaments, for a longer term than one year ; sixth, to charge 
 any person, upon any contract, promise, or agreement, that is not 
 to be performed within one year from the making thereof; unless 
 the agreement, promise, or contract, upon which such action shall 
 be brought, or some memorandum or note thereof shall be made 
 in writing, and signed by the party to be charged therewith, or 
 signed by some other person by him thereunto properly authorized. 
 
 Sec. 2. No contract for the sale of goods, wares, and merchan- 
 dise, for the price of thirty dollars, or upwards, shall be binding 
 on the parties, unless first, there be some note or memorandum 
 signed by the party to be charged ; or, second, ±he purchaser shall 
 accept part of the goods so sold, and actually receive the same ; 
 or, third, shall give something in earnest to bind the bargain, or 
 in part payment thereof. 
 
 CALIFORNIA. 
 
 Hittel's General Laws, 1865. [Act of April 19, 1850.] 
 
 3152. Every contract for the leasing for a longer period than 
 one year or for the sale of any lands, or any interest in lands, shall 
 be void, unless the contract, or some note or memorandum thereof, 
 expressing the consideration, be in writing, and be subscribed by 
 the party to whom the lease or sale is to be made.
 
 The Statute of Feauds. 37 
 
 31j3. Every instrument required to be subscribed by any person, 
 under the last preceding section, may be subscribed by the agent 
 of such party, lawfully authorized. 
 
 3154. Nothing contained in this chapter shall be construed to 
 abridge the powers of courts to compel the specific performance 
 of agreements, in cases of part performance of such agreements- 
 
 3156. In the following cases, every agreement shall be void, unless 
 such agreement, or some note or memorandum thereof, expressing 
 the consideration, be in writing, and subscribed by the party charged 
 therewith : first, every agreement that by the terms is not to be per- 
 formed within one year from the making thereof; second, every 
 special promise to answer for the debt, default, or miscarriage of 
 another; third, every agreement, promise, or undertaking, made 
 upon consideration of marriage, except mutual promises to marry. 
 
 3157. Every contract for the sale of any goods, chattels, or 
 things in action, for the price of two hundred dollars or over, 
 shall be void, unless, first, a note or memorandum of such contract 
 be made in writing, and be subscribed by the parties to be charged 
 therewith ; or, second, unless the buyer shall accept and receive 
 part of such goods, or the evidences, or some of them, of such 
 things in action ; or, third, unless the buyer shall at the time pay 
 some part of the purchase-money. 
 
 3158. Whenever any goods shall be sold at auction, and the 
 auctioneer shall, at the time of sale, enter in a sale-book a meino- 
 randum, specifying the nature and price of the property sold, the 
 terms of the sale, the name of the purchaser and the name of the 
 person on whose account the sale is made; such memorandum 
 shall be deemed a note of the contract of sale within the meaning 
 of the last section, 
 
 3163. Every instrument required by any of the provisions of 
 this chapter to be subscribed by any party may be subscribed by 
 the lawful agent of such party. 
 
 [Act of May 1, 1851.] 
 5913. No executor or administrator shall be chargeable upon any 
 special promise to answer damages, or to pay the debts of the tes- 
 tator or intestate out of his own estate, unless the agreement for 
 that purpose, or some memorandum or note thereof, is in writing, 
 and signed by such executor or administrator, or by some other 
 person by him thereunto specially authorized.
 
 38 The Statute of Frauds. 
 
 CONNECTICUT. 
 
 General Statutes, 1866. Title 25. 
 
 Sec. 1. That for the prevention of many fraudulent practices 
 which are commonly endeavored to be upheld by perjury, and 
 subornation of perjury, no suit in law or equity shall be brought 
 or maintained upon any contract or agreement, whereby to charge 
 any executor or administrator, upon special promise, to answer 
 damages out of his own estate ; or whereby to charge the defend- 
 ant upon any special promise, to answer for the debt, default, or 
 miscarriage of another person ; or to charge any person upon any 
 agreement made upon consideration of marriage ; or upon any 
 contract for the sale of lands, tenements, or hereditaments, or any 
 interest in or concerning them ; or upon any agreement that is 
 not to be performed within the space of one year from the making 
 thereof; unless the contract of agreement upon which such action 
 shall be brought, or some memorandum or note thereof, shall 
 be made in writing, and signed by the party to be charged there- 
 with, or by some other person thereunto by him lawfully author- 
 ized, but all parol contracts or agreements, made for the hiring or 
 leasing of any lands or tenements or of any interest therein, for 
 the term of only one year, or for any less time than one year, in 
 pursuance of which the leased premises have been, or shall be, 
 actually occupied by the lessee, or by any person claiming under 
 him, during any portion of the period covered by such contract 
 or agreement shall be as valid and effectual as if the same were in 
 Avriting, and signed by the parties thereto, and nothing herein 
 shall be so construed as to prevent an action being brought or 
 sustained thereon. 
 
 Sec. 2. No contract for the sale of any goods, wares, or mer- 
 chandise, for the price of thirty-five dollars or upwards, shall be 
 allowed to be good, unless the buyer shall accept part of the goods 
 so sold, and actually receive the same, or give something in 
 earnest to bind the bargain, or in part payment, or unless some 
 note or memorandum, in writing, of the said bargain, shall be 
 made and signed by the parties to be charged by such contract, or 
 by their agents, thereunto lawfully authorized.
 
 The Statute of Frauds. 39 
 
 DELAWAEE. 
 
 Revised Statutes of 1852. Chapter 63. 
 
 Sec. 5. All promises and assumptions, whereby any person shall 
 undertake to answer or pay for the default, debt, or miscarriage 
 of another, any sum under five dollars, being proved by the oath 
 or affirmation of the persons to whom sucli promise and assump- 
 tion shall be made, are good and available in law to charge the 
 party making such promise or assumption. 
 
 Sec. 6. No action shall be brought, whereby to charge any 
 executor or administrator, upon any special promise to answer 
 damages out of his own estate, or whereby to charge any defend- 
 ant, upon any special promise, to answer for the debt, default, or 
 miscarriage of another person, of the value of five dollars, and 
 not exceeding tAventy dollars, unless such promise and assumption 
 shall be proved by the oath, or affirmation, of one credible wit- 
 ness, or some memorandum, or note in writing, shall be signed by 
 the party to be charged therewith. 
 
 Sec. 7. No action shall be brought whereby to charge any 
 person upon any agreement made upon consideration of marriage, 
 or upon any contract or sale of lands, tenements, or heredita- 
 ments, or any interest in, or concerning them, or upon any agree- 
 ment that is not to be performed within the space of one year 
 from the making thereof, or to charge any person whereby to 
 answer for the debt, deftiult, or miscarriage, of another, in any 
 sum of the value of twenty-five dollars and upwards, unless the 
 same shall be reduced to writing, or some memorandum or note 
 thereof shall be signed by the party to be charged therewith, or 
 some other person thereunto by him lawfully authorized ; except 
 for goods, wares, and merchandise sold and delivered, and other 
 matters which are properly chargeable in an account, in which 
 case the oath or affirmation of the plaintiff, together with a book 
 regularly and fairly kept, shall be allowed to be given in evidence, 
 in order to charge the defendant with the sums therein contained.
 
 40 The Statute of Frauds 
 
 FLORIDA. 
 
 Thompson's Digest, 1847. Second Division. Title 4, chap. 3, page 217. 
 
 Sec. 1. No action shall be brought whereby to charge any 
 executor or administrator upon any special promise to answer, or 
 pay any debt or damages out of his own estate, or whereby to 
 charge the defendant upon any special promise to answer for the 
 debt, default, or miscarriage of another person, or to charge any 
 person upon any agreement made upon consideration of marriage, 
 or upon any contract for the sale of lands, tenements, or heredita- 
 ments, or of any uncertain interest in,- or concerning them, or for 
 any lease thereof for a longer term than one year, or upon any 
 agreement that is not to be performed within one year from the 
 making thereof, unless the agreement or promise upon which such 
 action shall be brought, or some note or memorandum thereof, 
 shall be in writing and signed by the party to be charged there- 
 with, or by some other person by him thereunto lawfully 
 authorized. 
 
 Sec. 2. No contract for the sale of any personal property, goods, 
 wares, or merchandise, shall be good, unless the buyer shall accept 
 the goods or part of them so sold, and actually receive the same, 
 or give something in earnest to bind the bargain, or in part pay- 
 ment, or some note or memorandum in writing of the said bargain 
 or contract be made, and signed by the parties to be charged by 
 such contract, or their agents thereunto lawfully authorized. 
 
 GEOEGIA. 
 
 Irwin's Code, 1867. (Adopted 1860.) 
 
 Sec. 1940. To make the following obligations binding on the 
 promiser the promise must be in writing, signed by the party to 
 be charged therewith, or some person by him lawfully authorized, 
 viz.: 
 
 1. A promise by an executor, administrator, guardian, or trustee 
 to answer damages out of his own estate. 
 
 2. A promise to answer for the debt, default, or miscarriage of 
 another. 
 
 3. Any agreement made upon consideration of marriage, except 
 marriage articles as herein before provided.
 
 The Statute of Frauds. 41 
 
 4. Any contract for sale of lands, or any interest in, or concern- 
 ing them. 
 
 5. Any agreement (except contracts with overseer^) that is not 
 to be performed within one year from the making thereof. 
 
 6. Any promise to revive a debt barred by the acts of limita- 
 tion. 
 
 7. Any contract for the sale of goods, wares, and merchandise 
 in existence, or not in esse, to the amount of fifty dollars or more, 
 except the buyer shall accept part of the goods sold and actually 
 receive the same, or give something in earnest to bind 'the bargain, 
 or in part payment. 
 
 Sec. 1941. The foregoing section dcfes not extend to the following 
 cases viz. : 
 
 1. "When the contract has been fully executed. 
 
 2. Where there has been performance on one side, accepted by 
 the other in accordance with the contract. 
 
 3. Where there has been such part performance of the contract 
 as would render it a fraud of the party refusing to comply if the 
 Court did not compel a performance. 
 
 ILLINOIS. 
 
 Scatea, Treat and Blackwell's Statutes, 1858. Vol. 1, pp. 541, 542. 
 
 [From R. S., 1845, ch. 44.] 
 
 Sec. 1. No action shall be brought, whereby to charge any 
 executor or administrator, upon any special promise, to answer 
 any debt or damages out of his own estate, or whereby to charge 
 the defendant, upon any special promise, to answer for the debt, 
 default, or miscarriage of another person ; or to charge any person 
 upon any agreement made upon consideration of marriage, or upon 
 any contract for the sale of lands, tenements, or hereditaments, 
 or any interest m or concerning them, for a longer term than one 
 year; or upon any agreement that is not to be performed witliin 
 the space of one year from the making thereof, unless the promise 
 or agreement upon which such action shall be brought, or some 
 note or memorandum iliereof, shall be in writing, and signed by 
 the party to be charged therewith, or some other person thereunto 
 by him lawfully authorized.
 
 42 The Statute of Frauds. 
 
 INDIANA. 
 
 Gavin and Herd's edition of the Statutes, 1862. Vol. 1, pp. 848, 351. 
 [Act of June 9, 1852.] 
 
 Sec. 1. No action shall be brought in any of the following 
 cases : 
 
 1. To charge an executor or administrator, upon any special 
 promise, to answer damages out of his own estate ; or, 
 
 2. To charge any person, upon any special promise, to answer 
 for the debt, default or miscarriage of another; or, 
 
 3. To charge any person, upon any agreement or promise made 
 in consideration of marriage ; or, 
 
 4. Upon any contract for the sale of lands ; or, 
 
 5. Upon any agreement that is not to be performed within one 
 year from the making thereof; unless the promise, contract or 
 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 charged therewith, or by some person thereunto 
 by him lawfully authorized ; excepting, however, leases not exceed- 
 ing the term of three years. 
 
 Sec. 2. The consideration of any such promise, contract, or 
 agreement, need not be set forth in such writing, but may be 
 proved. 
 
 Sec. 5. Nothing contained in any statute of this state shall be 
 construed to abridge the powers of courts to compel the specific 
 performance of agreements in cases of part performance of such 
 agreements. 
 
 Sec. 6. No action shall be maintained, to charge any person by 
 reason of any representation made concerning the character, con- 
 duct, credit, ability, trade or dealings of any other person, iinless 
 such representation be made in writing, and signed by the party 
 to be charged thereby, or by some person thereunto by him legally 
 authorized. 
 
 Sec. 7. No contract for the sale of any goods for the price of 
 fifty dollars or more shall be valid, unless the purchaser shall 
 receive part of such property, or shall give something in earnest
 
 The Statute of Frauds. 43 
 
 to bind the bargain or in part payment, or unless some note or 
 memorandum in writing of the bargain be made, and signed by 
 the party to be charged thereby, or by some person thereunto by 
 him lawfully authorized. 
 
 IOWA. 
 
 Revision of 18G0. 
 
 Sec. 1824. All contracts in writing hereafter made and signed 
 by the party to be bound or his authorized agent or attorney 
 shall import a consideration in the same manner as sealed instru- 
 ments now do. 
 
 Sec. 4006. Except wlien otherwise specially provided, no evi- 
 dence of any of t*he contracts enumerated in the next succeeding 
 section is competent, unless it be in writing, and signed by the 
 party charged or by his lawfully authorized agent. 
 
 Sec. 4007. Such contracts embrace : 
 
 1. Those in relation to the sale of personal property, when no 
 part of the property is delivered, and no part of the price is paid. 
 
 2. Those made in consideration of marriage, but not including 
 promises to marry. 
 
 3. Those wherein one person promises to answer for the debt, 
 default or miscarriage of another, including promises by execu- 
 tors to pay the debt of their principals from their own estate. 
 
 4. Those for the creation or transfer of any interest in lands, 
 except leases for a term not exceeding one year. 
 
 5. Those that are not to be performed within one year from the 
 making thereof. 
 
 Sec. 4008. The provision of the first subdivision of the pre- 
 ceding section does not apply when the article of personal prop- 
 erty sold is not at the time of the contract owned by the vendor 
 and ready for delivery, but labor, skill, or money are necessarily 
 to be expended in producing or procuring the same ; nor do those 
 of the fourth subdivision of said section apply where the pur- 
 chase-money or any portion thereof has been received by the 
 vendor, or when the vendee, with the actual or implied consent of 
 the vendor, has taken and held possession thereof under and by 
 virtue of the contract, or when there is any other circumstance
 
 44 The Statute of Frauds. 
 
 which by the law heretofore in force would have taken a case out 
 of the Statute of Frauds. 
 
 Sec. 4009. The above regulations, relating merely to the proof 
 of contracts, do not prevent the enforcement of those which are 
 not denied in the pleadings, unless in cases where the contract is 
 sought to be enforced, or damages to be recovered for the breach 
 thereof, against some person other than him who made it. 
 
 Sec. 4010. Nothing in the above provisions shall prevent the 
 party himself, against whom the unwritten contract is sought to 
 be enforced, from being called as a witness by the opposite party, 
 nor his oral testimony from being evidence. 
 
 KANSAS. 
 
 General Statutes of 1868. Chapter 43. 
 Sec. 6. No action shall be brought whereby to charge a party, 
 upon any special promise, to answer for the debt, default, or mis- 
 carriage of another person, or to charge any executor or adminis- 
 trator upon any special promise to answer damages out of his 
 own estate, or to charge any person upon any agreement made 
 upon consideration of marriage, or upon any contract for the sale 
 of lands, tenements or hereditaments, or any interest in or con- 
 cerning them, or upon any agreement that is not to be performed 
 within the space of one year from the making thereof, 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 charged therewith, or some other person thereunto 
 by him or her lawfully authorized. 
 
 KENTUCKY. 
 
 Revised Statutes, Stanton's edition, 1859. Chapter 22. 
 Sec. 1. No action shall be brought to charge any person, 
 
 1. For a representation or assurance concerning the character, 
 conduct, credit, ability, trade, or dealings of another, made with 
 intent that such other may obtain thereby credit, money, or 
 goods; nor, 
 
 2. Upon a promise to pay a debt contracted during infancy, oi 
 a ratification of a contract or promise made during infancy ; nor,
 
 The Statute of Frauds. 45 
 
 3. Upon a promise as personal representative to answer any 
 debt or damage out of his own estate ; nor, 
 
 4. Upon a promise to answer for the debt, default or misdoing 
 of another; nor, 
 
 5. Upon any agreement made in consideration of marriage, 
 except mutual promises to marry ; nor, 
 
 6. Upon any contract for the sale of real estate, or any lease 
 thereof, for a longer term than one year ; nor, 
 
 7. Upon any agreement which is not to be performed within 
 one year from the making thereof; unless the promise, contract, 
 agreement, representation, assurance or ratitication, or some memo- 
 randum or note thereof, be in writing, and signed at the close 
 thereof by the party to be charged therewith, or by his authorized 
 agent. But the consideration need not be expressed in the 
 writing ; it may be proved ■\vhen necessary, or disproved, by parol 
 or other evidence. 
 
 Sec. 2. A seal or scroll shall in no case be necessary to give 
 effect to a deed or other writing, but a signature without seal 
 shall have the same efficacy for every purpose as if a seal were 
 affixed thereto ; and all writings so executed shall stand upon the 
 same footing with sealed writings, having the same force and 
 effect, and upon which the same actions may be founded. But 
 this section shall not apply to an assignment by indorsement on a 
 bond, note, or bill, nor shall it alter any law requiring the state or 
 county seal, or the seal of a court, corporation, or notary, to any 
 writing. 
 
 LOUISIANA. 
 
 Acts of 1858. No. 208. 
 
 Sec. 3. Be it further enacted, etc., that hereafter, parol evidence 
 shall not be received to prove any promise to pay the debt of a 
 third person ; but that in all such cases the promise to pay shall 
 be proved by written evidence, signed by the party to be charged, 
 or by his specially authorized agent or attorney in fact. 
 
 Civil Code. 
 
 [Various provisions of the Civil Code relate indirectly to some 
 of the matters provided for in the 4th and 17th sections of the 
 Statute of Frauds, but the following contain, it is believed, all 
 the provisions relating directly thereto.]
 
 46 The Statute of Frauds. 
 
 Art, 2308. Every matrimonial agreement must be made by an 
 act before a notary and two witnesses. 
 
 The practice of marriage agreement under private signature is 
 abrogated. 
 
 Art. 2311. The most ordinary conventions in marriage con- 
 tracts are the settlement of the dowry, and the various donations 
 which the husband and wife may make to each other, either 
 reciprocally or the one to the other, or which they may receive 
 from others, in consideration of the marriage. 
 
 Art. 2316. Husband and wife may, by their marriage contract, 
 make reciprocally or one to the other, or receive from other per- 
 sons, in consideration of their marriage, every kind of donations, 
 according to the rules and under the modifications prescribed in 
 the title of donations inter vivos and mortis causa. 
 
 Art. 2255. Every transfer of immovable property or slaves 
 must be in writing ; but if a verbal sale or other disposition of 
 such property be made, it shall be good against the vendor, as 
 well as against the vendee who confesses it when interrogated on 
 oath, provided actual delivery has been made of the immovable 
 property or slaves thus sold. 
 
 Art. 2415. All sales of immovable property or slaves shall be 
 made by authentic act, or under private signature. 
 
 All verbal sale of any of these things shall be null, as well for 
 third persons as for the contracting parties themselves, and the 
 testimonial proof of it shall not be admitted. 
 
 Art. 2437. A promise to sell amounts to a sale, when there 
 exists a reciprocal consent of both parties, as to the thing and tho 
 price thereof; but to have its effect, either between the contract- 
 ing parties, or with regard to other persons, the promise to sell 
 must be vested with the same formalities as are above prescribed 
 in articles 2414 and 2415 concerning sales, in all cases where the 
 law directs that the sale be committed to writing.
 
 The Statute of Frauds. 47 
 
 MAINE. 
 
 Revised Statutes of 1857. Chapter 111. 
 
 Sec. 1. No action shall be maintained in any of the following 
 3ase8 : 
 
 1. To charge an executor or administrator, upon any special 
 promise, to answer damages out of his own estate. 
 
 2. To charge any person, upon any special promise, to answer 
 for the debt, default, or misdoings of another. 
 
 3. To charge any person, upon an agreement made in consid- 
 eration of marriage. 
 
 4. Upon any contract for the sale of lands, tenements, or here- 
 ditaments, or of any interest in or concerning them. 
 
 5. Upon any agreement that is not to be performed within one 
 year from the making thereof. 
 
 6. Upon any contract to pay a debt after a discharge therefrom 
 under the bankrupt laws of the United States, or assignment 
 laws of this state. 
 
 Unless the promise, contract, or agreement, upon which such 
 action is brought, or some memorandum or note thereof, is in 
 writing, and signed by the party to be charged therewith, or by 
 some person thereunto lawfully authorized. 
 
 Sec. 2. The consideration of any such promise, contract, or 
 agreement need not be expressed in said writing ; but may be 
 proved by any other legal evidence. 
 
 Sec. 4. No action shall be maintained, to charge any person by 
 reason of any representation or assurance, made concerning the 
 character, conduct, credit, ability, trade, or dealings of another, 
 unless made in writing, and signed ^ by the party to be charged 
 thereby, or by some person by him legally authorized. 
 
 Sec. 5. No contract for the sale of any goods, wares, or mer- 
 chandise, for thirty dollars, or more, shall be valid, unless the pur- 
 chaser accepts and receives part of the goods, or gives something 
 in earnest to bind the bargain, or in part payment thereof, or 
 some note or memorandum thereof is made, and signed by the 
 party to be charged thereby, or by his agent!
 
 48 The Statute of Frauds. 
 
 MARYLAND. 
 
 [In Sibley v. Williams, 3 Gill and Johnson, 62, A. D. 1830, the 
 Court of Appeals declared that " It has always been understood that 
 the judges under the old government laid it down as a general rule, 
 that all statutes for the administration of justice, whether made 
 before or after the charter" (1628), " so far as they were applicable, 
 should be adopted." A clause substantially to the same effect was 
 contained in the third article of the Declaration of Rights adopted 
 in 1776, and has been continued, with slight yariations, in eyery 
 subsequent change of the Constitution ; and accordingly, all the 
 provisions of 29 Car. II, chap. 3, have been regarded as of force 
 within the province and the state, without any legislative re-enact- 
 ment. Sec also, Clayland's Lessee v. Pearcc, 1 Harris & McHenry, 
 29, A. D. 1714. The existing Constitution, adopted in 1868, con- 
 tains a clause (article 5,) adopting all English statutes in force 
 on the 4th of July, 1776, which are locally applicable, and which 
 have been introduced, used and practiced by the courts, subject to 
 the action of the legislature of the state.] 
 
 MASSACHUSETTS. 
 
 Eevised Statutes of 1859. Chapter 105. 
 
 Sec. 1. No action shall be brought in any of the following 
 
 cases, that is to say : 
 
 1. To charge an executor, administrator, or assignee, under any 
 insolvent law of this commenwealth, upon a special promise, to 
 answer damages out of his own estate : 
 
 2. To charge a person, upon a special promise, to answer for the 
 debt, default, or misdoings of another : 
 
 3. Upon an agreement made upon consideration of marriage : 
 
 4. Upon a contract for the sale of lands, tenements, or heredita- 
 ments, or of any interest in or concerning them : or, 
 
 5. Upon an agreement that is not to be performed within one 
 year from the making thereof: 
 
 Unless the promise, contract, or agreement, upon which such 
 action is brought, or some memorandum or note thereof, is in 
 writing a.nd signed by the party to be charged therewith, or by 
 some person thereunto by him lawfully authorized.
 
 The Statute of Frauds. 49 
 
 Sec. 2. The consideration of such promise, contract, or agree- 
 ment need not be set forth or expressed in the writing signed by 
 the party to be charged therewith, but may be proved by any other 
 legal evidence. 
 
 Sec. 4. No Oiction shall be brought to charge a person, upon or by 
 reason of any representation or assurance made concerning the 
 character, conduct, credit, ability, trade or dealings of any other 
 person, unless such representation or assurance is made in writing, 
 and signed by the party to be charged thereby, or by some person 
 thereunto by him lawfully authorized. 
 
 Sec. 5. No contract for the sale of goods, wares, or merchandise, 
 for the price of fifty dollars or more, shall be good or valid, unless 
 the purchaser accepts and receives part of the goods so sold, or 
 gives something in earnest to bind the bargain, or in part payment; 
 or unless some note or memorandum in writing of the bargain be 
 made and signed by the party to be charged thereby, or by some 
 person thereunto by him lawfully authorized. 
 
 MIOHIGAK 
 
 Compiled Laws of 1857. Chapter 104. 
 Sec. 8. Every contract for the leasing for a longer period than 
 one year, or for the sale of any lands, or any interest in lands, 
 shall be void, unless the contract or some note or memorandum 
 thereof, be in writing, and signed by tlie party by whom the lease 
 or sale is to be made, or by some person thereunto by him lawfully 
 authorized by writing. 
 
 Sec. 9. The consideration of any contract or agreement, required 
 by the provisions of this chapter to be in writing, need not be set 
 forth in the contract or agreement, or in the note or memorandum 
 thereof, but may be proved by any other legal evidence. 
 
 Sec. 10. Nothing in this chapter contained, shall be construed 
 to abridge the powers of the Court of Chancery to compel the 
 specific performance of agreements, in cases of part performance of 
 such agreements. 
 
 Chapter 106. 
 
 Sec. 2. In the following cases specified in this section every 
 agreement, contract and promise shall be void, unless such agree- 
 7
 
 50 The Statute of Fkauds. 
 
 ment, contract, or promise, or some note or memorandum thereof, 
 be in writing, and signed by the party to be charged therewith, or 
 by some person by him thereunto lawfully authorized, that is to say : 
 
 1. Every agreement that, by its terms, is not to be performed in 
 one year from the making thereof 
 
 2. Every special promise to answer for the debt, default, or mis- 
 doings of another person. 
 
 3. Every agreement, promise, or undertaking made upon con- 
 sideration of marriage, except mutual promises to marry. 
 
 4. Every special promise made by an executor or administrator 
 to answer damages out of his own estate. 
 
 Sec. 3. No contract for the sale of any goods, wares, or mer- 
 chandise, for the price of fifty dollars or more, shall be valid, unless 
 the purchaser shall accept and receive part of the goods sold, or 
 shall give something in earnest to bind the bargain, or in part pay- 
 ment, or unless some note or memorandum in writing of the bar- 
 gain be made and signed by the party to be charged thereby, or by 
 some person thereunto by him lawfully authorized. 
 
 Sec. 4. Whenever any goods shall be sold at auction, and the 
 auctioneer shall, at the time of sale, enter in a sale-book a memo- 
 randum specifying the nature and price of the property sold, the 
 terms of the sale, the name of the purchaser, and the name of the 
 person on whose account the sale is made, such memorandum shall 
 be deemed a memorandum of the contract of sale within the mean- 
 ing of the last section. 
 
 Sec. 5. No action shall be brought to charge any person, upon or 
 by reason of any favorable representation or assurance, made con- 
 cerning the character, conduct, credit, ability, trade, or dealings of 
 any other person, unless such representation or assurance be made 
 in writing, and signed by the»party to be charged thereby, or by 
 some person thereunto by him lawfully authorized. 
 
 Sec. 6. The consideration of any contract, agreement or promise, 
 required by this chapter to be in writing, need not be expressed in 
 the written contract, agreement, or promise, or in any note or mem- 
 orandum thereof, but may be proved by any other legal evidence.
 
 The Statute of Frauds. 51 
 
 MINNESOTA. 
 
 General Statutes of 1866. Chapter 41. Title II. 
 
 Sec. 6. No action shall be maintained in either of the followin;^ 
 cases upon any agreement unless such agreement, or some note or 
 memorandum thereof expressing the consideration, is in writing 
 and subscribed by the party charged therewith : 
 
 1. Every agreement that by its terms is not to be performed 
 within one year from the making thereof; 
 
 2. Every special promise to answer for the debt, default or 
 doings of another ; 
 
 3. Every agreement, promise or undertaking, made upon con- 
 sideration of marriage, except mutual promise to marry. 
 
 Sec. 7. Every contract for the sale of any goods, chattels, or 
 things in action, for the price of fifty dollars or more, shall be 
 void, unless, 
 
 1. A note or memorandum of such contract is made in writing 
 and siibscribed by the parties to be charged therewith ; or, 
 
 2. Unless the buyer accepts and receives part of such goods, 
 or the evidences, or some of them, of such things in action ; or, 
 
 3. Unless the buyer at the time pays some part of the purchase 
 money. » 
 
 Sec. 8. Whenever goods are sold at public auction, and the 
 auctioneer at the time of sale, enters into a sale-book a memoran- 
 dum specifying the nature and price of the property sold, tlie 
 terms of the sale, name of tlie purchaser, and the name of the 
 person on whose account the sale is made; such memorandum 
 shall be deemed a note of the contract of sale within the meaning 
 of the last section. 
 
 Sec. 12. Every contract for the leasing for a longer period than 
 one year, or for the sale of any lands, or any interest in lands, 
 shall be void, unless the contract, or some note or memorandum 
 thereof, expressing the consideration, is in writing and subscribed 
 by the party to whom the lease or sale is to be made, or by his 
 authorized agent. 
 
 Sec. 13. Nothing in this chapter contained shall be construed to 
 abridge the power of courts of equity to compel the specific perform- 
 ance of agreements in cases of part performance of such agreements.
 
 62 The Statute of Fkauds 
 
 MISSISSIPPI. 
 
 Hutchinson's Code, 1848. Chapter 47. Article 1. 
 
 [Act of 1832.] 
 
 Sec. 1. No action shall be brought whereby to charge any 
 executor or administrator, upon any special promise, to answer 
 any debt or damage out of his own estate ; or whereby to charge 
 the defendant upon any special promise to answer for the debt, 
 default, or miscarriage of another person ; or to charge any person 
 upon any agreement made upon consideration of marriage ; or 
 upon any contract for the sale of lands, tenements or heredita- 
 ments, (or the making any lease thereof for a longer term than 
 one year) or upon any agreement which is not to be performed 
 within the space of one year from the making thereof, unless the 
 promise or 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 charged therewith, or some other person 
 by him or her thereunto lawfully authorized. 
 
 MISSOURI. 
 
 General Statutes of 1865. Chapter 106. 
 
 Sec. 5. No action shall be brought to charge any executor or 
 administrator, upon any special promise, to answer for any debt 
 or damages out of his own estate, or to charge any person upon 
 any special promise to answer for the debt, default, or miscarriage 
 of another person, or to charge any person upon any agreement 
 made in consideration of marriage, or upon any contract for 
 the sale of lands, tenements, hereditaments, or any interest 
 in or concerning them, or upon any agreement that is not to be 
 performed within one year from the making thereof, unless the 
 agreement, upon which the action shall be brought, or some 
 memorandum or note thereof, shall be in writing, and signed by 
 the party to be charged therewith, or some other person by him 
 thereto lawfully authorized. 
 
 Sec. G. No contract for the sale of goods, wares and merchan- 
 dise, for the price of thirty dollars, or upwards, shall be allowed 
 to be good, unless the buyer shall accept part of the goods so
 
 The Statute of Frauds. 53 
 
 sold, and actually receive the same, or give something in earnest to 
 bind the bargain, or in part payment, or unless some note or mem- 
 orandum in writing be made of the bargain, and signed by the 
 parties to be charged with such contract, or their agents lawfully 
 authorized. 
 
 Sec. 7. No action shall be brought to charge any person upon, or 
 by reason of, any representation or assurance made concerning the 
 character, conduct, credit, ability, trade or dealings, of any other 
 person, unless such representation or assurance be made in writing, 
 and subscribed by the party to be charged thereby, or by some per- 
 son thereunto by him lawfully authorized. 
 
 l^EBKASKA. 
 
 Territorial Statutes of 1855. Part First. 
 
 857. Except when otherwise specially provided, no evidence of 
 any of the contracts enumerated in the next succeeding section is 
 competent unless it be in writing and signed by the party charged 
 or by his lawfully authorized agent. 
 
 858. Such contracts embrace: 
 
 1. Those in relation to the sale of personal property when no 
 part of the property is delivered and no part of the price is paid ; 
 
 2. Those made in consideration of marriage, but not including 
 promises to marry ; 
 
 3. Those wherein one person promises to answer for the debt, 
 default, or miscarriage of another, including promises by executors 
 to pay the debt of their principal from their own estate ; 
 
 4. Those for the creation or transfer of any interest in lands, 
 except leases for a term not exceeding one year ; 
 
 5. Those that are not to be performed within one year from the 
 making thereof 
 
 859. The provision of the first subdivision of the preceding 
 section does not apply when the article of personal property sold 
 is not at the time of the contract owncjl by the vendor and ready 
 for delivery, but labor, skill, or money are necessarily to be 
 expended in producing or procuring the same: nor do those of 
 the fourth subdivision of said section apply where the purchase 
 money or any portion thereof has been received by the vendor, or
 
 64 The Statute of Frauds. 
 
 when the vendee with the actual or implied consent of the vendor 
 has taken and held possession thereof, under and by virtue of the 
 contract, or when there is any other circumstance which by the 
 law heretofore in force would have taken a case out of the statute 
 of frauds. 
 
 860. The above regulations, relating merely to the proof of 
 contracts, do not prevent the enforcement of those which are not 
 denied in the pleadings, unless in cases where the contract is 
 sought to be enforced or damages to be recovered for the breach 
 thereof against some person other than him who made it. 
 
 NEVADA. 
 
 Territorial Statutes of 1861. Chapter IX. 
 
 [Continued in force by the State Constitution, Art. 17, § 3, until altered or 
 
 repealed by the Legislature.] 
 
 § 57. Every contract for the leasing for a longer period than one 
 year, or for the sale of any lands, or any interest in lands, shall 
 be void, unless the contract, or some note or memorandum thereof, 
 expressing the consideration, is in writing, and subscribed by the 
 party to whom the lease or sale is to be made, or by his authorized 
 agent. 
 
 Sec. 61. In the following cases every agreement shall be void, 
 unless such agreement, or some note*or memorandum thereof, 
 expressing the consideration, be in writing, and subscribed by the 
 party charged thereAvith : First. Every agreement that, by the 
 terms, is not to be performed within one year from the making 
 thereof. Second. Every special promise to answer for the debt, 
 default, or miscarriage of another. Third. Every agreement, 
 promise, or undertaking, made upon consideration of marriage, 
 except mutual promises to marry. 
 
 Sec. 62. Every contract for the sale of any goods, chattels, or 
 things in action, for the price of fifty dollars or over, shall be 
 void, unless : First. A note or memorandum of such contract be 
 made in writing, and be subscribed by the parties to be charged 
 therewith; or, Second. Unless the buyer shall accept or receive 
 part of such goods, or the evidences, or some of them, of such 
 things in action ; or. Third. Unless the buyer shall, at the time, 
 pay some part of the purchase money.
 
 The Statute of Frauds. 55 
 
 Sec. 63. "Whenever goods shall be soid at auction, and the auc- 
 tioneer shall, at the time of sale, enter in a sale book a memorandum, 
 specifying tlie nature and price of the property sold, the terms of 
 the sale, the name of the purchaser, and the name of the person on 
 whose account the sale is made, such memorandum shall be deemed 
 a note of the contract of sale, within the meaning of the last section. 
 
 NEW HAMPSHIRE. 
 
 General Statutes of 1867. Chapter 201. 
 
 Sec. 12. No action shall be maintained upon a contract for the 
 sale of land, unless the agreement upon which it is brought, or some 
 memorandum thereof, is in writing, and signed by the party to be 
 charged, or by some person by him thereto authorized by writing. 
 
 Sec. 13. No action shall be brought to charge an executor or 
 administrator upon a special promise to answer damages out of 
 his own estate, nor to charge any person upon a special promise 
 to answer for the debt, default, or miscarriage of another, or upon 
 any agreement made in consideration of marriage, or that is not 
 to be performed within one year from the time of making it, 
 unless such promise or agreement, or some note or memorandum 
 thereof, is in writing, and signed by the party to be charged, or 
 by some person by him thereto authorized. 
 
 Sec. 14. No contract for the sale of goods, wares, or merchandise, 
 for the price of thirty-three dollars, or more, is valid, unless the 
 buyer accepts and actually receives part of the property sold, or gives 
 something in part payment, or in earnest to bind the bargain, or 
 unless some note or memorandum thereof is in writing, and signed 
 by the party to be charged, or by some person by him thereto 
 authorized. 
 
 I:^EW JERSEY. 
 
 Nixon's Digest, 1868, p. 358. [Act of 1794.] 
 
 Sec. 14. No action shall be brought, whereby to charge any 
 executor or administrator, upon any special promise, to answer 
 damages out of his own estate ; or whereby to charge the defend- 
 ant, upon any special promise, to answer for the debt, default, or 
 miscarriages of another person ; oy to charge any person upon 
 any agreement made upon consideration of marriage ; or upon any 
 contract or sale of lands, tenements, or hereditaments, or any inter-
 
 66 The Statute of Frauds. 
 
 est in or concerning them ; or upon any agreement that is not to 
 be performed within the space of one year from the making 
 thereof, 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 charged therewith, or some 
 other person thereunto by him or her lawfully authorized. 
 
 Sec. 15. No contract for the sale of any goods, wares, and mer- 
 chandise, for the price of thirty dollars or upwards, shall be 
 allowed to be good, except the buyer shall accept part of the 
 goods so sold, and actually receive the same, or give something in 
 earnest to bind the bargain, or in part payment, or that some note 
 or memorandum in writing of the said bargain be made,, and 
 signed by the parties to be charged by such contract, or their 
 agents thereunto lawfully authorized. 
 
 NEW YORK. 
 
 Eevised Statutes. (Took effect January 1, 1830.) 
 Part II. Chapter VI. Title V. 
 
 Sec. 1. No executor or administrator shall be chargeable upon 
 any special promise to answer damages, or to pay the debts of the 
 testator or intestate out of his own estate, unless the agreement 
 for that purpose, or some memorandum or note thereof, be in 
 writing, and signed by such executor or administrator, or by some 
 other person by him thereunto specially authorized. 
 
 Part II. Chapter VII. Title I. 
 
 Sec. 8. Every contract for the leasing for a longer period than 
 one year, or for the sale of any lauds, or any interest in lands, shall 
 be void, unless the contract, or some note or memorandum thereof, 
 expressing the consideration, be in writing, and be subscribed by 
 the party, by whom the lease or sale is to be made. 
 
 Sec. 9. Every instrument required to be subscribed by any party, 
 under the last preceding section, may be subscribed by the agent 
 of such party lawfully authorized. 
 
 Sec. 10. Nothing in this title contained shall be construed to 
 abridge the powers of courts of equity, to compel the specific 
 performance of agreements, in cases of part performance of such 
 agreements.
 
 The Statute of Frauds. 67 
 
 Part II, chapter VII, title II. (As amended by the Statute of 1863.) 
 Sec. 2. In the following cases every agreement shall be void, 
 unless such agreement, or some note or memorandum thereof,' 
 be in writing, and subscribed by the party to be charged there- 
 with: 
 
 1. Every agreement that by its terms is not to be performed 
 within one year from the making thereof; 
 
 2. Every special promise to answer for the debt, default, or mis- 
 carriage of another person ; 
 
 3. Every agreement, promise or undertaking, made upon con- 
 sideration of marriage, except mutual promises to marry. 
 
 Sec. 3. Every contract for the sale of any goods, chattels, or 
 things in action, for the price of fifty dollars or more, shall be 
 void, unless: 
 
 1. A note or memorandum of such contract be made in writing, 
 and be subscribed by the parties to be charged thereby ; or, 
 
 2. Unless the buyer shall accept and receive part of such goods, 
 or the evidences, or some of them, of such things in action ; or, 
 
 3. Unless the buyer shall at the time pay some part of the pur- 
 chase money. 
 
 Sec. 4. "Whenever goods shall be sold at public auction, and the 
 auctioneer shall at the time of sale enter in a sale-book a memo- 
 randum specifying the nature and price of the property sold, the 
 terms of the sale, the name of the purchaser and the name of the 
 person on whose account the sale is made; such memorandum 
 shall be deemed a note of the contract of sale within the meaning 
 of the last section. 
 
 Sec. 8. Every instrument required by any of the provisions of 
 this title to be subscribed by any party, may be subscribed by the 
 lawful agent of such party. 
 
 •The amendment of 1863 expnnged in this place the words "eipressmg the con- 
 Bideratiou." 
 
 8
 
 58 The Statute of Feauds. 
 
 NOETH CAROLINA. 
 
 Revised Code of 1854. Chapter 50. 
 
 Sec. 11. All contracts to sell or convey any lands, tenements, or 
 hereditaments, or any interest in or concerning them, or any slave ; 
 and all leases and contracts for leasing of land for the purpose of 
 digging for gold or other minerals, or for the purpose of mining 
 generally, shall be void and of no effect, unless such contract or 
 lease, or some memorandum or note thereof, shall be put in 
 writing, signed by the party to be charged therewith, or by some 
 other person by him thereto lawfully authorized, except, never- 
 theless, leases and contracts for leases (other than .those above 
 named) not exceeding in duration the term of three years. 
 
 Sec. 15. No action shall be brought whereby to charge an 
 executor or administrator, upon a special promise to answer 
 damages out of his own estate, or to charge any defendant upon 
 a special promise to answer the debt, default, or miscarriage of 
 another person, 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 charged therewith, or some 
 other person thereunto by him lawfully authorized. 
 
 OHIO. 
 
 Revised Statutes ; Swan and Critclifield's edition, 1860. Chapter 47. 
 
 ■ [Act of 1810.] 
 
 Sec. 5. That no action shall be brought whereby to charge the 
 defendant upon any special promise to answer for the debt, 
 default, or miscarriage of another person; or to charge any 
 executor or administrator, upon any special promise, to answer 
 damages out of his own estate ; or to charge any person upon any 
 agreement made upon consideration of marriage, or upon any 
 contract or sale of lands, tenements, or hereditaments, or any 
 interest in or concerning of them ; or upon any agreement that is 
 not to be performed within the space of one year ft-om the making 
 thereof; unless the agreement upon which such action shall be 
 brought, or some memorandum or note thereof, shall be in writing,
 
 The Statute of Frauds. 59 
 
 and signed by the party to be charged therewith, or some other 
 person thereunto by him or her hnvrully authorized. 
 
 [From the note to this chapter it would appear that there is a 
 question whether the whole of the English statute is not in force 
 in Ohio under an act of 1795.] 
 
 OREGON. 
 
 Code of Civil Procedure, 1 862. 
 
 Sec. 775. In the following cases the agreement is void, unless 
 the same, or some note or memorandum thereof expressing 
 the consideration, be in writing and subscribed by the party 
 to be charged, or by his lawfully authorized agent; evidence 
 therefore of the agreement shall not be received other than the 
 writing, or secondary evidence of its contents, in the cases pre- 
 scribed by law : 
 
 1. An agreement that, by its terms, is not to be performed 
 within a year from the making thereof. 
 
 2. An agreement to answer for the debt, default, or miscarrfage 
 of another. 
 
 3. An agreement by an executor or administrator to pay the 
 debts of his testator or intestate out of his own estate. 
 
 4. An agreement made upon consideration of marriage, other 
 than a mutual promise to marry. 
 
 5. An agreement for the sale of personal property, at a price 
 not less than fifty dollars, unless the buyer accept and receive 
 some part of such personal property, or pay at the time some part 
 of the purchase money; but when the sale is made by auction, an 
 entry by the auctioneer, in his sale-book, at the time of the sale, 
 of the kind of property sold, the terms of the sale, the price, and 
 the names of the purchaser and person on whose account the sale 
 is made, is a sufficient memorandum. 
 
 6. An agreement for the leasing, for a longer period than one 
 year, or for the sale of real property or of any interest therein. 
 
 7. An agreement concerning real property, made by an agent 
 of the party sought to be charged, unless the authority of the 
 agent be in writing. 
 
 Sec. 776. No evidence is admissible to charge a person upon a 
 representation, as to the credit, skill, or character of a third
 
 60 The Statute of Frauds. 
 
 person, unless such representation, or some memorandum thereof, 
 be in writing, and either subscribed by, or in the handwriting of, 
 the party to be charged. 
 
 PENNSYLVANIA. < 
 
 Purdon's Digest, Brightly's edition, p. 497. 
 [Act of April 26, 1855, §§ 1 and 2.] 
 
 4. No action shall be brought whereby to charge any executor 
 or administrator, upon any promise to answer damages out of his 
 own estate, or whereby to charge the defendant, upon any special 
 promise, to answer for the debt or default of another, 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 charged therewith, or some other person by him 
 authorized. 
 
 5. This act shall not go into effect until the first day of January 
 next ; or apply to or affect any contract made or responsibility 
 incurred prior to that time ; or for any contract the consideration 
 of which shall be a less sum than twenty dollars. 
 
 RHODE ISLAND. 
 
 Revised Statutes of 1857. Chapter 176. 
 
 Sec. 8. No action shall be brought — ■ 
 
 1. Whereby to charge any person upon any contract for the 
 sale of lands, tenements or hereditaments, or the making of any 
 lease thereof for a longer time than one year ; 
 
 2. Whereby to charge any person upon any agreement made 
 upon consideration of marriage ; 
 
 3. Whereby to charge any executor or administrator upon his 
 special promise to answer any debt or damage out of his own 
 estate ; 
 
 4. Whereby to charge any person upon his special promise to 
 answer for the debt, default or miscarriage of another person ; 
 
 5. Whereby to charge any person upon any agreement which is 
 not to be performed within the space of one year from the making 
 thereof; —
 
 TiiK Statute of Frauds. G] 
 
 Unless the promise or agreement upon which such action shall 
 be brought, or some note or memorandum thereof, shall be in 
 writing, and signed by the party to be charged therewith, or by 
 some other person by him thereunto lawfully authorized. 
 
 SOUTH CAROLINA. 
 
 By an act of the Province of South Carolina, passed December 
 12, A. D. 1712, several "statute laws of the Kingdom of England 
 or South Britain," therein copied at length, are declared to be in 
 *•■ as full force, power and virtue, as if the same had been specially 
 enacted and made for this province, or as if the same had been 
 made and enacted therein by any general assembly thereof." 
 Among these statutes is the 29th Car. II. chap. 3. 
 
 TENNESSEE. 
 
 Code of 1858. 
 
 Sec. 1758. No action shall be brought — 
 
 1. Whereby to charge any executor or administrator, upon any 
 special promise, to answer any debt or damages out of his own 
 estate ; 
 
 2. Whereby to charge the defendant upon any special promise 
 to answer for the debt, default, or miscarriage of another person ; 
 
 3. Whereby to charge any person upon any agreement made 
 upon consideration of marriage ; or 
 
 4. Upon any contract for the sale of lands, tenements, or here- 
 ditaments, or the making any lease thereof for a longer term than 
 one year ; or 
 
 5. Upon any agreement or contract which is not to be performed 
 Avithin the space of one year from the making thereof ; 
 
 Unless the promise or 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 charged therewith, or some 
 other person by him thereunto lawfully authorized.
 
 62 The Statute of Fkauds. 
 
 TEXAS. 
 
 Paschal's Digest, 1866. 
 
 [Act of 1840.] 
 
 Art. 3875. No action shall be brought, (1.) whereby to charge 
 any executor or administrator, upon any special promise to answer 
 any debt or damage out of his own estate, (3.) or whereby to 
 charge the defendant, upon any special promise to answer for the 
 debt, default, or miscarriage of another person, (3.) or to charge 
 any person upon any contract made upon consideration of mar- 
 riage, (4.) or upon any contract for the sale of lands, slaves, tene- 
 ments, or hereditaments, or the making of any lease thereof for a 
 longer term than one year, (5.) or upon any agreement which is 
 not to be performed within the space of one year from the making 
 thereof; unless the promise or agreement upon which such action 
 shall be brought, or some memorandum thereof, shall be in writing 
 and signed by the party to be charged therewith, or some person 
 by him thereunto lawfully authorized. 
 
 VERMONT. 
 
 General Statutes of, 1863. Chapter 66. 
 
 Sec. 1. No action at law or in equity shall be brought in any of 
 the following cases : 
 
 1. To charge an executor or administrator upon any special 
 promise to answer damages, out of his own estate. 
 
 2. To charge any person, upon any special promise, to answer 
 for the debt, default or misdoings of another.* 
 
 3. To charge any person, upon any agreement made upon 
 consideration of marriage. 
 
 4. Upon any contract for the sale of lands, tenements or here- 
 ditaments, or of any interest in or concerning them. 
 
 5. Upon any agreement not to be performed within one year 
 from the making thereof. 
 
 Unless the promise, contract or 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 charged there- 
 with, or by some person thereunto by him lawfully authorized;
 
 The Statute of Frauds. 63 
 
 and if the contract or agreement relate to the sale of real estate, 
 or to any interest therein, such authority shall be conferred by 
 writing. 
 
 Sec. 2. No contract for the sale of any goods, "wares, or mer- 
 chandise, for the price of forty dollars or more, shall be valid, 
 unless the purchaser shall accept and receive part of the goods so 
 Bold, or shall give something in earnest to bind the bargain, or in 
 part payment, or unless some note or memorandum of the bargain 
 be made in writing, and signed by the party to be charged thereby, 
 or by some person thereunto by him lawfully authorized. 
 
 Sec. 3. No action shall be. brought to charge any person upon 
 or by reason of any representation or assurance, made concerning 
 the character, conduct, credit, ability, trade or dealings of any 
 other person, unless such representation or assurance be made in 
 writing, and signed by the party to be charged thereby, or by 
 some person thereunto by him lawfully authorized. 
 
 VIRGINIA. 
 
 Hevised Code of 1860. Chapter 143. 
 
 Sec. 1. No action shall be brought in any of the following 
 cases: 
 
 1. To charge any person upon or by reason of a representation 
 or assurance concerning the character, conduct, credit, ability, 
 trade, or dealings of another, to the intent or purpose tliat such 
 other may obtain thereliy credit, money, or goods; or, 
 
 2. To charge any person, upon a promise made, after full 
 age, to pay a debt contracted during infancy, or upon a ratifica- 
 tion after full age of a promise or simple contract made during 
 infancy ; or, 
 
 3. To charge a personal representative upon a promise to answer 
 any debt or damages out of his own estate; or, 
 
 4. To charge any person upon a promise to answer for the debt, 
 default, or misdoings of another ; or, 
 
 5. Upon any agreement made upon consideration of marriage ; 
 or, 
 
 6. Upon any contract for the sale of real estate, or the lease 
 thereof for more than a year ; or,
 
 64 The Statute of Frauds. 
 
 7. Upon any agreement that is not to be performed within a 
 year; 
 
 Unless the promise, contract, agreement, representation, assur- 
 ance, or ratification, or some memorandum or note thereof, be in 
 writing, and signed by the party to be charged thereby, or his 
 agent. But the consideration need not b ^ set forth or expressed 
 in the writing ; it may be proved (where i consideration is neces- 
 sary) by other evidence. 
 
 Sec. 2. Any writing, to which the person making it shall affix 
 a scroll by way of seal, shall be of the same force as if it were 
 actually sealed. 
 
 WEST VIEGINIA. 
 
 [By the Constitution of West Virginia, adopted in 1862, the 
 Statutes of Virginia are continued in force until altered or 
 repealed by the Legislature.] 
 
 WISCONSIN. 
 
 Revised Statutes of 1838. Chapter 106. 
 
 Sec. 8. Every contract for the leasing for a longer period than 
 one year, or for the sale of any lands, or any interest in lands, 
 shall be void, unless the contract, or some note or memorandum 
 thereof, expressing the consideration, be in writing, and be sub- 
 scribed by the party by whom the lease or sale is to be made. 
 
 Sec. 9. Every instrument required to be subscribed by any party, 
 under the last preceding section, may be subscribed by the agent 
 of such party, lawfully authorized. 
 
 Sec. 10. Nothing in this chapter contained shall be construed 
 to abridge the powers of courts to compel the specific performance 
 of agreements in cases of part performance of such agreements. 
 
 Chapter 107. 
 Sec. 2. In the following cases, every agreement shall be void, 
 unless such agreement, or some note or memorandum thereof, 
 expressing the consideration, be in writing and subscribed by the 
 party charged therewith : —
 
 The Statute of Frauds. 65 
 
 1. Every agreement that by the terms is not to be performed 
 within one year from the making thereof. 
 
 2. Every special promise to answer for the debt, default, or mis- 
 carriage of another person. 
 
 3. Every agreement, promise, or undertaking, made upon con- 
 sideration of marriage, except mutual promises to marry. 
 
 Sec. 3. Every contract for the sale of any goods, chattels, or 
 things in action, for the price of fifty dollars or more, shall be 
 void, unless — 
 
 1. A note or memorandum of such contract be made in writing, 
 and be subscribed by the parties to be charged therewith ; or — 
 
 2. Unless the buyer shall accept and receive part of such goods, 
 or the evidences, or some of them, of such things in action ; or — 
 
 3. Unless the buyer shall, at the time, pay some part of the 
 purchase money. 
 
 Sec. 4. Whenever goods shall be sold at public auction, and the 
 auctioneer shall, at the time of sale, enter in a sale-book a memo- 
 randum, specifying the nature and price of the property sold, the 
 terms of the sale, the name of the purchaser, and the name of tlie 
 person for whose account the sale is made, such memorandum 
 shall be deemed a note of the contract of sale within the meaning 
 of the last section. 
 
 Sec. 8. Every instrument required by any of the provisions of 
 this title to be subscribed by any party, may be subscribed by the 
 lawful agent of such party. 
 
 The foregoing are the enactmenti now in force ; but, except in Pennsylvania and 
 Louisiana, the recent statutes in the older States are re-enactments, sometimes with 
 amendments, of similar provisions contained in former acta 
 
 9
 
 A TREATISE 
 
 YALIDITT OF VERBAL AGREEMENTS. 
 
 ESTTRODUCTORY CHAPTER. 
 
 GENERAL SURVEY OF THE STATUTE OF FRAUDS, ESPECIALLY 
 THOSE PARTS OF IT "WHICH RELATE TO EXECUTORY CONTRACTS. 
 
 ARTICLE I. 
 
 Object, origin, history and effect of the statnte; different opinions which have prevailed rela- 
 tive to the spirit in which it should be construed ; effect of such opinions upon the rules 
 determining the application of the fourth and seventeenth sections, 
 
 § 1. Probably no beneficial legislative enactment ever 
 received from the legal profession a designation so well 
 calculated to mislead an unprofessional person, or a jurist 
 under other systems, respecting its contents, as the cele- 
 brated statute of the twenty ninth of Charles the second, 
 known as the Statute of Frauds and Perjuries, or more 
 commonly, as the Statute of Frauds. To any mind not 
 previously instructed respecting its subject matter, those 
 terms suggest the idea, either that it is a part of the crimi- 
 nal code, or that it provides some new method of detect- 
 ing, in civil actions, the commission of the criminal acts at 
 which it purports to have been aimed, and of nullifying 
 their consequences. Nor is this impression much weak- 
 ened by the phraseology of its legal title, which affords 
 but little evidence that the leading design of its framers 
 was to preclude the determination of the rights of liti- 
 gants upon oral testimony merely, in certain cases, where 
 experience had shown that such evidence tended to facili-
 
 68 General Survey of the Statute. 
 
 tate the accomplishment of fraud under the forms of 
 law, and offered peculiar temptations to the commission 
 of perjury. 
 
 § 2. The fact that the framers of the act laid such stress 
 in its title, and again in its general preamble, and still 
 again in the special preamble to the nineteenth section, 
 upon the consequences of the defects in the law of evidence 
 which they proposed to remedy, to the exclusion of any 
 reference to the direct purpose of the enactment, affords 
 very striking proof of the prevalence of the evils which led 
 to its passage. At that time the rules of evidence, derived 
 from a period when to require written proof in support 
 of any description of claims, would have been almost 
 tantamount to providing that such claims should no longer 
 be enforced by legal proceedings, imposed scarcely any 
 limits to the power and the duty of the courts to deter- 
 mine the rights of litigants, upon oral testimony merely. 
 A man might be deprived of his real or personal property, 
 in any appropriate form of action ; he might be made 
 liable for the performance of executory contracts of every 
 description ; and his personal property might be disposed 
 of to strangers after his death, {a) upon proof, even in the 
 most guarded cases, of equivocal acts ; and, in nearly every 
 case, of spoken words only. If such a state of things could 
 safely be permitted when the population was scanty, and 
 men were comparatively poor, simple, and ignorant, it is 
 evident that it opened the door to great abuses, as popula- 
 tion, business, and wealth increased, and the vices, as well 
 as the virtues of civilization became generally diffused 
 among the people. It is therefore easy to understand that 
 false swearing had become so common, that the legislature 
 felt itself urgently called upon ' ' for the prevention of many 
 fraudulent practices, which are commonly upheld by per- 
 jury and subornation of perjury," to revise the rules of 
 
 (a) The state of the law with respect to proof of testamentary disposi- 
 tion of real property was not much better. Roberts on Frauds, pages 304 
 to 308.
 
 General Survey of the Statute. G9 
 
 evidence in cases where tlie temptation to fabricate a cause 
 of action was the greatest, in consequence of the difficulty 
 of detecting the falsity of the oral testimony by which it 
 would be sustained. Indeed, one is tempted to believe, 
 that there was something more than an accidental coin- 
 cidence in the suppression, by the statute of frauds, of a 
 vast field for the successful practice of perjury in the civil 
 courts, and the scandalous instances of the same crime in 
 the criminal courts, which have made the period immedi- 
 ately succeeding the passage of the statute one of the 
 most infamous in English history. 
 
 § 3. The origin of the statute of frauds has been the 
 subject of much curious inquiry, opinions having greatly 
 differed respecting the person to whom belonged the credit, 
 or, as some enthusiastically express it, the glory, of having 
 framed the act, and most contributed to its passage. 
 Common reputation upon this point was for a long time 
 divided between Sir Matthew Hale, who died before the 
 commencement of that session of parliament, Sir Francis 
 North, then Chief Justice of the Common Pleas and after- 
 wards Lord Guilford, and Sir Lionel or Leoline Jenkins, 
 an eminent civilian. And the discussion frequently turned 
 upon the internal evidence of its authorship, which the 
 statute itself affords ; that is to say, whether its provisions 
 are so wisely adapted to accomplish the ends proposed, 
 and its language so well chosen to express clearly the 
 ideas intended to be conveyed, that it is reasonable to 
 suppose it to have been the work of one or all of the great 
 jurists to whom its origin has been attributed. And while 
 there has been considerable diversity of sentiment respect- 
 ing the policy of some of its provisions, fiearly all com- 
 mentators agree in condemning the awkwardness and 
 incongruity of much of its phraseology. But this patent 
 defect should not detract from the fame of its original 
 draftsman, or militate against the argument that its 
 general plan was the product of a master mind. A bill 
 designed to accomplish the most radical changes in the 
 law, which affected the interests of every man of substance
 
 70 Geneeal Survey of the Statute. 
 
 in the kingdom, could not reasonably be expected to pass 
 through both Houses of Parliament without being sub- 
 jected to numerous amendments ; and these, being doubt- 
 less framed by different persons, some of whom were 
 inferior in mental calibre to its original author, would 
 naturally mar its symmetry of expression as well as of 
 design. And the records of parliament show, that it was 
 subjected to many alterations after its first introduction 
 into either House ; and that when its terms were finally 
 agreed upon, there was so much doubt as to the result of 
 the changes which it contemplated, that an effort was made, 
 and nearly proved successful, to render it experimental 
 merely, by limiting the time during which it should 
 operate. (5) 
 
 (b) In the note to Right v. Price, 1 Douglas, 241, A. D. 1779, it is said that 
 " the statute of frauds is generally supposed to have been made upon great 
 consideration ; on an attentive perusal, hovpever, it vr'ill not appear to have 
 been accurately penned." See to the same effect Buckeridge v. Ingram, 
 2 Vesey, 662, and per Lawrence, J., in Wain v. Warlters, 5 East, 10. But 
 the published journals of the tvs'o Houses afford abundant evidence of the 
 anxiety vs^hich its introduction occasioned, and of the care bestowed upon 
 it; and fully account for the patchwork appearance which it now presents. 
 In the House of Lords the bill was read the first time on the 17th, and the 
 second time on the 19th of January, 1676; and after the second reading it 
 was referred to a committee, to meet the next day, consisting of thirty- 
 seven temporal and ten spiritual peers, *' Lord Chief Justice Common Pleas, 
 Justice Windham, Justice Jones and Justice Scroggs, to assist; " on the 6th 
 of March, the Earl of Dorset reported, that the committee " had met several 
 times, and are of opinion that the said bill is fit to be engrossed, with some 
 amendments," which was ordered to be done accordingly, and the next day 
 it was read the third time and passed. On the same 7th of March, it was 
 sent to the Commons for concurrence, and read for the first time on the 
 13th of March, whereupon it was ordered to be read the second time, "in 
 a full house ; " the second reading was on the second day of April following 
 (1677), when the bill was referred to a committee, to meet the next day, 
 consisting of more than fifty members, including the Master of the Rolls, 
 Mr. Serjeant Seys, and Mr. Serjeant Maynard, to whom were added 
 "all the members cf this House that are of the long robe;" on the 12th 
 of April, Sir Charles Harbord reported from the committee " several amend- 
 ments agreed hy the committee to be made to the bill, which were twice read, 
 and all but the last amendment (which was to make the hill temporary) were, 
 upon the question, agreed," and the bill with the amendments was read the
 
 General Survey of the Statute. 71 
 
 § 4. But in the various discussions wliicli took place 
 respecting the origin of tliis statute, after the generation 
 which framed it had passed away, no one seems to have 
 suspected that the "father of equity" had any hand in 
 its composition, much less that he was its author ; and 
 although that fact must have been known to many of his 
 cotemporaries, and, in truth, was announced by him in 
 the Court of Chancery, it seems to have been kept a secret 
 from the general public for nearly one hundred and fifty 
 years after the act took effect. It was first revealed by the 
 publication of Mr. Swanston's Chancery Reports, about 
 the year 1821, containing, in an appendix to the current 
 decisions of Lord Eldon, transcripts of the notes of Lord 
 Nottingham, of several cases decided before him when he 
 
 third time, passed, and ordered to be returned to the Lords. On the same 
 day the amendments were agreed to in the Lords; and on the IGth of April, 
 the King being present, the bill was presented to him, and received the royal 
 assent. Lord Ellenborough's opinion in the celebrated case of Wain v. 
 Warlters, 5 East, 10, A. D. 1804, where it was held that the note or memo- 
 randum in writing required by the fourth section must contain tlie considera- 
 tion, turned chiefly upon the meaning of the word "agreement," and in 
 defending his conclusion, he remarked that the statute was said to have 
 been drawn by Lord Hale, "one of the greatest judges who ever sate at 
 Westminster Hall, who was as competent to express, as he was able to con- 
 ceive the provisions best calculated for carrying into eflfect the purposes 
 of that law." Lord Chief Baron Gilbert, in Whitchurch v. Whitchurch, 
 Gilbert's Equity Reports, 171, A. D. 1721, referring to the provisions of the 
 statute on the subject of wills of real estate, said that "Sir Matthew TIale 
 and Sir Lionel Jenkins, who prepared this statute, chose to take the plan 
 .of a Roman law : " or according to the report of the same case in 1 Strange, 
 621, that it "was contrived by the Lord Chief Justice Hale and the most 
 learned men of that time." But in Windham v. Chetwynd, 1 Burrow, 418, 
 A. D. 1757, where the question was, what was the true construction of the 
 word "credible" in the fifth section, Lord Mansfield said that this clause, 
 which, considering the time when, and the circumstances under which, men 
 were frequently called upon to follow its directions, ought to have been 
 plain to the meanest capacity, " is so loose, that there is not a single branch 
 of the solemnity defined or described with sufficient certainty to convey the 
 same idea to the greatest capacity," and that the word "credible" must 
 have slipped in, without attracting attention to its impropriety. And refer- 
 ring to the report that the statute was drawn by Lord Hale, he added: 
 "But this is scarce probable. It was not passed till after his death, and it
 
 72 General Survey of the Statute. 
 
 was chancellor, among them that of Ash v. Ahdy^ 
 3 Swanston, 664, decided in 1678, the year after the statute 
 was enacted. This was a bill to execute a parol agree- 
 ment, made before the passage of the act, but the bill 
 having been filed afterwards, the defendant demurred, 
 "supposing the new act had barred this suit," and Lord 
 Nottingham overruled the demurrer, on the ground that 
 the statute was not retrospective. He added : ' ' And I 
 said that I had some reason to know the meaning of this 
 law, for it had its first rise from me, who brought the bill 
 into the Lords' House, although it afterwards received 
 some additions and improvements from the judges and 
 the civilians. And the counsellors at the bar cited another 
 case in the King' s Bench this very term, where the same 
 point being specially found, was so likewise adjudged 
 upon argument, which I was glad to hear of; but said 
 if they had adjudged it otherwise I should not have 
 altered my opinion." 
 
 was brought in in the common way, and not upon any reference to the 
 judges." In 1 W, Blackstone, 98, this remark is quoted thus: "I can never 
 conceive, for the reasons I formerly mentioned, that this statute was drawn 
 by Lord Hale, any further than by, perhaps, leaving some loose notes behind 
 him, which were afterwards unskilfully digested." The evidence, upon 
 which rests Sir Francis North's claim to its authorship, consists mainly of 
 the statement of his brother, Roger North, who says, in the Life of Lord 
 Keeper Guilford, volume 1, page 109, that the Lord Keeper had a great hand 
 in the statute of frauds and perjuries. "But," he continues, "at that time 
 the Lord Chief Justice Hale had the pre-eminence, and was chief in the 
 fixing that law, although the urging part lay upon him. and I have reason, 
 to think it had the first spring from his lordship's motion." Mr. John 
 William Smith (author of the "Leading Cases"), in his lectures on the Law 
 of Contracts, page 32, says: "It is said to have been the joint production 
 of Sir Matthew Hale, Lord Keeper Guilford, and Sir Leoline Jenkins, an 
 eminent civilian. The great Lord Nottingham used to say of it, ' that every 
 line was worth a subsidy'" (about 50,000Z.); "and it might now be said, 
 with truth, that every line has cost a subsidy; for it is universally admitted 
 that no enactment of any legislature ever became the subject of so much 
 litigation. Every line, and almost every word of it, has been the subject of 
 anxious discussion, resulting from the circumstances that the matters which 
 its provisions regulate, are those which are of every day occurrence in the 
 course of our transactions with one another."
 
 General Survey of the Statute. 73 
 
 § 6. The subject of this work restricts us to the consid- 
 eration of the fourth and the seventeenth sections of the 
 statute, which are the only parts of it relating to verbal 
 agreements, properly so called ; for although leases, trusts, 
 land some of the other subjects of its provisions, may in 
 one sense be called agreements, inasmuch as tliey gene- 
 rally arise out of a contract, that particular feature of 
 them very rarely presents any question for the considera- 
 tion of the court as respects the application of the statute 
 thereto, unless they are brought within one of these sec- 
 tions by some peculiarity of the facts. Provisions gene- 
 rally corresponding to these sections have now the force 
 of law in all of the United States, although in a few of 
 them the seventeenth section has not been re-enacted, and 
 some of the descriptions of contracts enumerated in the 
 fourth have been omitted. They were also re-enacted in 
 Ireland in the seventh year of king William the third, 
 and corresponding legislative provisions are in force in 
 most, and perhaps all of the British dependencies. Addi- 
 tional enactments have from time to time been passed by 
 parliament, and by the legislatures of some of the United 
 States, whereby a writing is made necessary to the crea- 
 tion of other kinds of liabilities ; but these vary consid- 
 erably in the different localities ; so that for the purpose 
 of a comprehensive discussion of the rules of law, whereby 
 the validity of verbal agreements is tested, in countries 
 where the common law prevails, it is necessary only to 
 examine the principles by which the application of these 
 sections is regulated. And it results from the fact that 
 the common law enables all executory agreements to be 
 created and proved without writing, that in cases not 
 included within these sections, and where no local statute 
 expressly or by implication establishes a different rule, a 
 verbal agreement is always sufficient to enable the plaintiff 
 to recover. (c) Thus a verbal submission to arbitration is 
 good, and a verbal agreement to arbitrate entitles a party 
 
 (c) Per Selden J. in Pratt v. Hudson River Railroad Company, 21 New 
 York, 309. 
 
 10
 
 74 General Survey of the Statute. 
 
 to maintain an action thereon, when the matter in dispute 
 is of such a character that the statute of frauds permits it 
 to be proved by oral testimony. ((^) And although a con- 
 trary opinion is to be found in some works of highly 
 reputable authority, it is believed that in the countries 
 governed by the common law, a verbal contract of marine 
 or fire insurance is valid. It has been held in several cases 
 in the United States that an action at law may be main- 
 tained ujDon such a contract, even where there had been 
 no actual payment of the premium, but only a verbal, or 
 even an implied agreement to pay it.(e) 
 
 (d) Kyd on Awards, page 10; Martin v. Chapman, 1 Alabama, 278; Byrd 
 V. Odem, 9 id. 755; Valentine v. Valentine, 2 Barbour's Chancery (New- 
 York), 430; Titus v. Scantling, 4 Blackford (Indiana), 89; Walters v. Mor- 
 gan, 2 Cox's Chancery, 369 ; Winne v. Elderkin, 1 Chandler (Wisconsin), 
 219; Ditter V. Wellington, 1 Hill (New York), 319; Smith v. Douglas, 16 
 Illinois, 34; Griggs v. Seeley, 8 Indiana, 264; Houghton v. Houghton, 37 
 Maine, 72 ; French v. New, 28 New York, 147 ; McMuUen v. Mayo, 8 
 Smedes and Marshall (Mississippi), 298; Woods v. Page, 37 Vermont, 252: 
 Wells V. Lain, 15 Wendell (New York), 99. 
 
 (e) In Millar on Insurance, 30, it is said that the importance of the con- 
 tract of insurance, and the singularity of the obligations which it is intended 
 to create, have, in all commercial states, rendered a deed in writing essential 
 to its validity. In Duer on Insurance, § 5, the learned author, while admit- 
 tinsj that by the common law an unwritten contract of insurance is sufficient, 
 expresses an opinion that the usage of a written contract has prevailed so 
 long, that it has acquired the force of law, and he doubts whether an action 
 could be sustained upon one which was oral. But the rule is settled the 
 other way upon the American authorities. In Audubon v. The Excelsior 
 Insurance Company, 27 New York, 216, A. D. 1863, the plaintiflf's testator 
 sent five sets of " Audubon's Quadrupeds," in sheets, to a bookbinder's to be 
 bound ; and in the afternoon of the same day, being Saturday, he sent a per- 
 son in his employment to the defendant's office, to effect an insurance upon 
 them for a specified sum. for one month. The messenger applied to the sec- 
 retary, giving him all the necessary particulars; and the secretary assented 
 and said that he would furnish a policy on the Monday morning. No amount 
 of premium was mentioned; but there was a reference in the conversation 
 to a policy which had been previously issued by the same company, upon 
 other sets of the work, at the same place, and for the same time. The prop- 
 erty was destroyed by fire on the intervening Sunday. It was held that 
 the jury might infer a present contract to insure at the former rate of premium 
 and to furnish the written evidence of it on Monday, and a judgment for
 
 Geiteral Survey of the Statute. 76 
 
 § 6. In the course of the decisions under these two 
 sections, now extending over almost two centuries, many 
 very perplexing questions have arisen, and several 
 propositions have been from time to time laid down, 
 as law, resulting in the exclusion from the operation 
 of the statute of many cases, which, as it is now im- 
 possible to doubt, are within its terms and intent. As 
 many of these propositions depend upon such unsat- 
 isfactory reasoning that they may almost be called arbi- 
 trary, the rulings of the courts thereunder have fluctuated 
 greatly, thus leading to distressing uncertainty and to 
 much conflict of authority. The inconveniences resulting 
 therefrom have been so great that some doubts have been 
 expressed, especially of late years, and in the United 
 States, whether the efffect of those sections of the statute 
 has been, upon the whole, beneficial. (/ ) But many of these 
 
 the plaintifif rendered upon a verdict was affirmed. And see Mobile, etc., 
 Insurance Company v. McMillan, 31 Alabama, 711 ; Post v. JEtna, Insurance 
 Co., 43 Barbour (New York), 351 ; Kelley v. Commonwealth Ins. Co., 10 
 Bosworth (New York), 82 ; Union, etc., Ins. Co. v. Commercial, etc., Ins. 
 Co., 2 Curds Circuit Court, 524; S. C, 19 Howard (U. S.), 318; New Eng- 
 land, etc., Co. V. Robinson, 25 Indiana, 53G; Trustees First Baptist Church 
 V. Brooklyn Ins. Co., 19 New York, 305; Hamilton v. Lycoming Ins. Co., 
 5 Pennsylvania (Barr), 339. 
 
 (/) Chief Justice Parker, in Holmes v. Knights, 10 New Hampshire, 176, 
 said that it might well bo doubted whether the second clause of the fourth 
 section of the statute has not promoted more fraud than it has prevented. 
 Mr. Rawle, in his notes to Smith's Lectures on Contracts, third American 
 edition, published in 1853, expressed his satisfaction because the State 
 of Pennsylvania had never re-enacted the fourth section (page 1 1 8) ; and 
 Mr. Hare concluded a long and able note to Birkmyr v. Darnell, in 
 1 Smith's Leading Cases, fourth American edition, 332, published in 1852, 
 ■with the expression of an opinion that less inconvenience had resulted in 
 Pennsylvania from its absence from the statute book, than would have been 
 caused by its presence, and of a belief that the necessity for that section has 
 passed away with the change of society. He added, that " all that is prac- 
 tically useful in its provisions at the present day may perhaps be attained 
 by providing that promises for the debt of another, in consideration solely 
 of forbearance to bring suit, should be invalid unless reduced to writing." 
 But the current of opinion seems to have run in the contrary direction to 
 that of those able jurists; for in 1855 the legislature of Pennsylvania 
 adopted that portion of the fourth section against which their remarks were 
 particularly directed.
 
 76 General Suevey of the Statute. 
 
 evil consequences are directly traceable to departures 
 from the spirit and meaning of the enactment, rather than 
 to any lack of wisdom in its provisions, or any real diffi- 
 culty in determining the true construction of its lan- 
 guage. Most of the objectionable rules referred to had 
 their origin in cases decided in England, within a period 
 of time which may approximately be described as the first 
 of the two centuries elapsed since the enactment of the 
 statute ; and where they have not been modified by the 
 action of the legislature, they have generally been aban- 
 doned by the courts themselves, in consequence of a 
 change in the views of the judges respecting the spirit in 
 which the statute ought to be construed. This change 
 became quite apparent towards the latter part of the 
 eighteenth and the beginning of the nineteenth century, 
 soon after the time when the United States came into 
 existence as a separate nation ; and the same general 
 views have prevailed ever since in England, (p') But the 
 
 ((/) In the case of Proctor v. Jones, 2 Carrington and Payne, 532, A. D. 
 1826, -which arose under the seventeenth section. Best, C. J., said: "The 
 statute of frauds and the statute of limitations were both so much objected 
 to, at the time when they were passed, that the judges appeared anxious to 
 get them off the statute book ; but in later times they have become desirous 
 to give them their full effect. I think the statute of frauds is a good and 
 wholesome statute. In other countries, contracts are made in writing." 
 And see also his remarks in Howe v. Palmer, 3 Barnewall and Alderson, 
 321, A. D. 1820. It is quite noticeable that the expressions of sympathy 
 with the object ot these section* of the. statute, began to be universal with 
 the judges about the commencement of the present century. Lord Kenyon 
 on several occasions expressed his approbation of them. In Chater v. 
 Becket, 7 Term Eeports, 201, A. D. 1797, which arose under section 4, he 
 said: "I lament extremely that exceptions were ever introduced in constru- 
 ing the statute of frauds; it is a very beneficial statute, and if the courts had 
 at first abided by the strict letter of the act, it would have prevented a mul- 
 titude of suits which have since been brought." See also his remarks in 
 Rucker v. Cammeyer, 1 Espinasse, 105, A, D. 1794; and in Chaplm v, 
 Rogers, 1 East, 194, A. D. 1801, both under the 17th section. Grose, J., 
 expressed the same opinion in Cooper v. EUston, 7 Term Reports, 16, A. D. 
 1796. Sir James Mansfield, Chief Justice of the Common Pleas, m Anstey 
 V. Harden, 4 Bosanquet and Puller (1 New Reports), 124, A. D. 1804, said 
 that, upon general principles, no one could wish to restrain the operation of
 
 General Survey of the Statute. Tt 
 
 courts in the United States seem to have been deeply 
 imbued, at the commencement of the independent exist- 
 ence of this country, with tlie spirit which was then 
 disappearing in the mother country ; and fortified by 
 English precedents, they pushed on for many years after 
 the reaction had taken place there, in the direction of 
 restricting the operation of the statute, and even devised 
 new propositions for the exclusion of cases from its pro- 
 visions. Many of these doctrines, which were unable to 
 endure the test of time, have since yielded to the more 
 liberal and enlightened views, respecting the statute, 
 which now prevail here also ; but some have become forti- 
 fied by so many precedents, that their complete extinction 
 has not everywhere been accomplished. And as the effects 
 of the reaction are not yet fully developed, we are still in 
 an uncertain, and, perhaps, in a transition state, with 
 respect to many principles of constant practical applica- 
 tion ; whence results a confusion, which, in some classes 
 of cases, is almost chaotic. 
 
 § 7. But out of this evil much good has also sprung ; 
 for the reaction having taken place here later than in 
 England, it found the general principles against which 
 it operated much more developed than they had ever 
 been in that country ; and out of this development have 
 
 the statute. Lord EUenborough's remarks in Wain v. Warlters, 5 East, 10, 
 A. D. 1804, have already been quoted. And see per Buller, J., Brodie v. 
 St. Paul, 1 Vesey, 333, A. D. 1791. Lord Eldon, in Cooth v. Jackson, 6 
 Vesey, 37, A. D. 1801, in discussing a question arising under the fourth 
 section, said : " I feel all the disinclination, which has been lately expressed, 
 and strongly expressed in many cases, to carry what may be called the 
 struggles of courts of justice to take cases out of the reach of that statute 
 further than they have been carried." Lord Tenterden repeatedly expressed 
 his opinion, in cases arising under both the fourth and seventeenth sections, 
 that the statute of frauds was a wise and beneficial enactment, and should 
 be hberally construed. Howe v. Palmer, 3 Barnewall and Aldt-rson, 321, 
 A. D. 1820; Tempest v. Fitzgerald, id. G80; Baldey v. Parker, 2 Barne- 
 wall and Cresswell, 40, A. D. 1823. See also per Bayley, J., in Saunders v. 
 Wake6eld, 4 Barnewall and Alderson, 595, A. D. 1821; and Carter v. 
 Toussaint, 5 Barnewall and Alderson, 855, A. D. 1822.
 
 78 General Survey of the Statute. 
 
 sprung many really sound and valuable rules of con- 
 struction of the statute, which have held their ground by 
 common consent against the receding tide, and are now 
 well settled rules of American jurisprudence, although 
 they are known but imperfectly, or not at all, in West- 
 minster Hall. One of these principles has recently 
 been borrowed from us, and appears to be now recog- 
 nized in England as a sound rule of law, although when 
 it was first settled here, it was supposed to be in direct 
 conflict with the result of the English cases \{7i) and it 
 is believed that the omission of the English courts to 
 recognize several other principles, which stand here 
 on a very solid foundation, proceeds from the fact that 
 the questions have never been directly raised before 
 them. And while it is impossible to deny, that in many 
 respects the exclusion from the operation of the statute, 
 of cases arising under these sections, and clearly within 
 their literal meaning, has been pushed much further than 
 a correct view of its spirit and policy will justify, it is 
 equally true that the indiscriminate condemnation of rules 
 having the eifect to restrict the broad language of the 
 statute is unwise and indefensible. For the looseness and 
 incongruity of expression, of which so many complaints 
 have been made, in cases arising under other parts of the 
 statute, is equally characteristic of these sections. Mr. 
 Justice WHmot remarked, in a case arising under the 
 seventeenth section, (^) that "had the statute of frauds 
 always been carried into execution according to the letter, 
 it would have done ten times more mischief than it has done 
 good, by protecting rather than by preventing frauds." 
 And the remark is also eminently true of the fourth sec- 
 tion also, as will appear from numerous instances con- 
 tained in the following pages, where the letter of the 
 
 (A) We refer to the rule that the guaranty of a factor acting under a del 
 credere commission is not within the statute of frauds, Couturier v. Hastie, 
 8 Exchequer, 40, A. D. 1852; approved in Wickham v. Wickham, 2 Kay 
 and Johnson, 478, A. D. 1855. The subject will be fully discussed in the 
 second article of the eighteenth chapter. 
 
 (i) Simon v. Motivos, 1 W. Blackstone, 599, A. D. 1766.
 
 General Survey of the Statute. 79 
 
 enactment has been made to yield to its obvious intent, 
 from the consideration that the case was not within the 
 mischiefs against which it was aimed, and a literal con- 
 struction would lead to injustice and inconveniences 
 which the legislature could not have meant to create. 
 
 ARTICLE 11. 
 
 The statute Bnperadda the necessity of a ■writing, to the common law requirement that 
 every contract mnst be founded upon a sufficient consideration. 
 
 § 8. It was remarked, in the foregoing article, that the 
 leading object of the statute of frauds was to exclude oral 
 testimony, as a means by which the rights of litigants 
 could be determined, in certain cases, where experience 
 had shown that it was peculiarly liable to abuse ; and 
 with respect to the cases included in the fourth and seven- 
 teenth sections, such was exclusively its object and effect. 
 At the time when the statute went into operation, there 
 was no rule of the common law requiring any executory 
 contract to be manifested by a writing, or any other evi- 
 dence than that of mere words ; and we are not aware 
 that any such rule ever existed in England, although an 
 ingenious and learned writer on the law of evidence has 
 collated the substance of some early but then obsolete 
 statutes, whereby certain solemnities were rendered neces- 
 sary to tlie actual transfer of the title to personal prop- 
 erty, (a) 
 
 (a) Professor Greenleaf says that " this statute introduced no new principle 
 into the law ; it was new in England only in the mode of proof which it 
 required. Some protective regulations, of the same nature, may be found 
 in some of the early codes of most of the Northern nation?, as well as in 
 the laws of the Anglo-Saxon princes; the prevention of frauds and perjuries 
 being sought, agreeably to the simplicity of those unlettered times, by 
 requiring a certain number of witnesses to a valid sale, and sometimes by 
 restricting such sales to particular places. In the Anglo-Saxon laws, such 
 regulations were quite familiar ; and the statute of frauds was merely the 
 revival of obsolete provisions, demanded by the circumstances of the times, 
 and adapted, in a new mode of proof, to the conditions and habits of the 
 trading community." These remarks are followed up with an abstract of 
 several of the laws of the Saxon Kings requiring witnesses to render sales
 
 80 General Survey of the Statute. 
 
 § 9. But although it would seem very clear upon prin- 
 ciple that the statute left the common law untouched in all 
 respects, except where it expressly provided a different 
 rule, yet for a long time after its passage the idea was 
 entertained by many eminent English jurists, that it had 
 the indirect effect to create a new species of contracts, 
 intermediate between specialties and parol agreements, 
 which so far partook of the nature of the former, that a 
 consideration was not necessary where the contract had 
 been reduced to writing, so as to satisfy the requirements 
 of the statute. And it is, perhaps, the most remarkable 
 circumstance connected with its history, that a question 
 of su(;h great importance, and which must have arisen 
 very frequently in practice, should have remained unset- 
 tled for a century after the statute took effect. As late as 
 the year 1765, in the case of Pillans v. Van Mierop, 3 
 Burrow, 1663, we find no less a man than Lord Mansfield 
 intimating an opinion that there was no such thing as a 
 nudum pactum in writing ; because, he said, "the ancient 
 notion about want of consideration was for the sake of 
 evidence only, for when it was reduced to writing, as in 
 covenants, specialties, bonds, etc., there was no objection 
 to the want of consideration. And," he added, "the 
 statute of frauds proceeded upon the same principle." 
 In the sahie case Mr. Justice WHmot entered into quite an 
 extended argument to the same effect, concluding by 
 saying, " I cannot find that a nudum pactum evidenced 
 by writing has been ever holden bad, and I should think 
 it good, though where it is merely verbal it is bad." These 
 remarks proved to be unnecessary to the decision of the 
 case, for Lord Mansfield ultimately concluded that the 
 question did not arise, because the particular promise 
 
 valid, and an enactment of William the Conqueror to the same effect. Some 
 of these laws also render it necessary that sales should take place in cities. 
 But there is nothing in any of them prescribing any particular solemnity or 
 formality for any species of executory contracts; although these were simi- 
 larly provided for in the Roman law, and in several laws of continental 
 countries. 1 Greenleaf 's Evidence, tenth edition, note to § 262.
 
 General Survey of the Statute. 81 
 
 before the court was a mercantile conti-act, and no objec- 
 tion had been takcni at tlie trial on the ground of want of 
 consideration ; and the other judges concluded that there 
 was in fact a sufficient consideration for the promise. But 
 so decided an expression of opinion, from jurists of such 
 acknowledged eminence, could not fail to raise grave 
 doubts upon this important question, which were not set 
 at rest until the df^cision of the House of Lords to the 
 contrar}', in a case where apparently the suggestions 
 thrown out in Pillans v. Van Mierop had been adopted 
 as the true rule of law, by the judgment of the Court of 
 King' s Bench. 
 
 § 10. The case to which we allude is Rann v. Hughes, 
 decided A. D. 1778, and reported in 4 Brown's Parlia- 
 mentary Cases, 27, where the pleadings and arguments of 
 counsel are given at great length, but without any state- 
 ment of the reasoning upon which the decision proceeded ; 
 but the latter is to be found in a note to another case 
 reported in 7 Term Reports, 350. The action was brought 
 in the King's Bench, where the plaintiffs declared as 
 executors against the defendant, Isabella Hughes, indi- 
 vidually. The declaration alleged (in brief) that one 
 John Hughes was indebted to the plaintiffs' testator in a 
 specified sum ; that he died possessed of goods the value 
 of which largely exceeded the amount of the debt ; that 
 administration thereof had been granted to the defendant ; 
 that the plaintiffs were executors of the creditor ; "by 
 reason of which premises," the defendant, as administra- 
 trix, became liable to pay to the plaintiffs, as executors, 
 the said sum, etc., "and being so liable, she, the said 
 Isabella, in consideration thereof, afterwards, etc., under- 
 took and to the said John and Arthur then and there 
 faithfully promised to pay them the said sum of money, 
 etc., when she, the said Isabella, should be thereunto 
 afterwards requested." The defendant pleaded, first, non 
 assumpsit ; secondly, plene administravit ; thirdly, plene 
 administravit praeter, etc., and a bond debt sufficient to 
 absorb the balance. The plaintiffs replied to tlie pleas ; 
 11
 
 82 Geisteral Survey of the Statute. 
 
 and at the trial the jury found a verdict for the plaintiffs 
 on the first issue, and for the defendant on the second. 
 A motion for a new trial (in the King' s Bench) was denied, 
 and a general judgment entered up against the defendant. 
 Upon a writ of error in the Exchequer Chamber, the judg- 
 ment was reversed, and from the judgment of reversal a 
 writ of error was brought in the House of Lords. After 
 very full argument upon all the points, the following 
 question was put to the judges, namely, "whether suffi- 
 cient matter appears upon this declaration, to warrant, 
 after verdict, the judgment entered up against the defend- 
 ant in her personal capacity ? " In answer to which, Lord 
 Chief Baron Skynner delivered the opinion of the judges 
 in extenso, referring in detail to the remarks of the Chief 
 Justice and Mr. Justice Wilmot in the preceding case, 
 and to another case, not reported, where the same doc- 
 trines were advanced. With respect to the idea that a 
 writing rendered a contract valid without a consideration, 
 he said, that although the presumption was, after verdict, 
 that the promise was in writing, it would not help the 
 plaintiffs ; because the law of England recognized only 
 two species of contracts, specialties and parol agreements, 
 that there was no intermediate class, and a written con- 
 tract not under seal was merely a parol agreement, the 
 consideration of which must be averred and proved ; that 
 the consideration for the defendant's promise, alleged in 
 this declaration, was insufficient in law, as it consisted 
 merely of an indebtedness of the defendant in another 
 right, without forbearance or any other act which amounted 
 in law to a valuable consideration. In this opinion the 
 other judges concurred ; and the judgment of the Exche- 
 quer Chamber was accordingly affirmed. (&) 
 
 (b) The following are the material portions of this opinion : " It is undoubt- 
 edly true that every man is by the law of nature bound to fulfil his engage- 
 ments. It is equally true that the law of tliis country supplies no means, 
 nor affords any remedy, to compel the performance of an agreement made 
 without sufficient consideration ; such agreement is ' nudum pactum ex quo 
 non oritur actio;' and Avhatever may be the sense of this maxim in the 
 civil law, it is in the last mentioned sense only that it is to be understood in
 
 General Survey of the Statute. 83 
 
 § 11. This decision lias been justly regarded as setting 
 the question at rest ; and wo believe that there are no fur- 
 ther traces in common law cases, of a doctrine sanctioned 
 by judicial opinion, that the statute effected any change 
 whatever in the rules of the common law, requiring a 
 consideration for every contract, and prescribing what 
 
 our law. The declaration states that the defendant, being: indebted as 
 administratrix, promised to pay when requested, and the judgment is against 
 the defendant generally. The being indebted is of itself a sullicient con- 
 sideration to ground a promise, but the promise must be coextensive with 
 the consideration, unless some particular consideration of fact can be found 
 here, to warrant the extension of it against the defendant in her own capa- 
 city. If a person indebted in one right, in consideration of forbearance for 
 a particular time, promise to pay in another right, this convenience will be a 
 sufllcient consideration to war-ant an action against him or her in the latter 
 right; but here no sufficient consideration occurs to support this demand 
 against her in her personal capacity ; for she derives no advantage or conve- 
 nience from the promise here made. For if I promise generally to pay upon 
 request, what I was liable to pay upon request in another right, I derive no 
 advantage or convenience from this promise, and therefore there is not suffi- 
 cient consideration for it. But it is said that if this promise is in Avriting, 
 that takes away the necessity of a consideration and obviates the objection 
 of nudum pactum, for that cannot be where the promise is put into writing; 
 and that after verdict, if it were necessary, to support the promise, that it 
 should be in writing, it will be presumed that it was in writing; and this 
 last is certainly true ; but that there cannot be nudum pactum in writing, 
 whatever may be the rule of the civil law, there is certainly none such in 
 the law of England." "All contracts are by the laws of England distin- 
 guished into agreements by specialty, and agreements by parol ; nor is there 
 any such third class, as some of the counsel have endeavored to maintain, 
 as contracts in writing. If they be merely written and not specialties, they 
 are parol, and a consideration must be proved. It is said that the statute of 
 frauds has taken away the necessity of any consideration in this case; the 
 statute of frauds was made for the relief of personal representatives and 
 others, and did not intend to charge them further than by common law they 
 were chargeable." His lordship added that the words of the statute are merely 
 negative, "and that executors and administrators should not be liable out 
 of their own estates, unless the agreement upon which the action was brought, 
 or some memorandum thereof Avas in writing and signed by the party. But 
 this does not prove that the agreement was not still liable to be tried and 
 judged of, as all other agreements merely in writing are by the common 
 law, and does not prove the converse of the proposition that when in 
 writing the party must be at all events liable."
 
 84 General Suiivey of the Statute. 
 
 shall be a sufficient consideration to sustain an action 
 upon it. Nevertheless it has been found necessary to 
 reiterate in numerous subsequent cases (some of which 
 involve no question under the statute), the principle that a 
 writing, not under seal, will not suffice to sustain an 
 action upon a promise, without proof of a sufficient con- 
 sideration ; as will appear from an examination of the 
 various elementary works on the law of contracts. But 
 in cases arising under the statute there is a constant neces- 
 sity for keeping this princijole in mind : for the tendency 
 is very noticeable, to draw from rulings made in previous 
 adjudications relating entirely to the sufficiency of the 
 consideration, and arguments by which such rulings are 
 sustained, conclusions upon the question whether the 
 statute is applicable. The books contain many erroneous 
 decisions and unsound doctrines, which may be directly 
 traced to this species of misapprehension of prior obscure 
 cases. It must therefore be remembered, throughout all 
 the discussion which follows, that, in every instance where 
 the statute is applicable, there are two requisites to the 
 validity of an undertaking, namely, first, the common 
 law requires that it should be supported by a sufficient 
 consideration ; and secondly, the statute superadds the 
 requirement that it should be manifested by a writing, (c) 
 
 (') Tlie decisions to this effect are so numerous that we will make no 
 attempt to collate tliem all; the following are but a small portion of the 
 Avhole: Saunders v. Wakefield, 4 Barnewall and Alderson, 595; Pratt v. 
 Humphrey, 22 Connecticut, 317; Clapp v. Lawton, 31 id. 95; Mosely v. 
 Taylor, 4 Dana (Kentucky), 542 ; Semple v. Pink, 1 Exchequer, 74; Lines 
 V. Smith, 4 Florida, 47 ; Wyman v. Gray, 7 Harris and Johnson (Maryland), 
 409 ; Elliott V. Giese, 7 id. 457 ; Draughan v. Bunting, 9 Iredell (North Caro- 
 lina), 10; Sears V. Brink, 3 Johnson (New York), 210; Ballard v. Walker, 
 3 Johnson's Cases (New York), 60 ; Mills v. Wyman, 20 Massachusetts 
 (3 Pickering), 207; Stone v. Symmes. 35 id. (18 Pickering), 467; Nelson 
 T. Boynton, 44 id. (3 Metcalf), 39G; Furbish v. Goodnow, 98id. 29G; Boyce 
 V. Owens, 2 McCord (S. C), 208; Cook v. Elliott, 34 Missouri, 58G; Mallory 
 V. Gillett, 21 New York, 412 ; BarrelH-. Trussell, 4 Taunton, 117; Bank of 
 Troy V. Topping, 9 Wendell (New York), 273; Harrington v. Rich, 6 Ver- 
 mont, 6GG,
 
 PART FIRST. 
 
 OF SPECIAL PROMISES OF EXECUTORS AND 
 
 ADMINISTRATORS TO ANSWER DAMAGES 
 
 OUT OF THEIR OWN ESTATES.
 
 CHAPTER FIRST. 
 
 CONSIDERATION OF THE FIRST CLAUSE OF THE FOURTH 
 SECTION OF THE STATUTE. 
 
 AKTICLE I. 
 
 Points of similarity and dissimilarity between cases arising nnder the first and second 
 clanses respectively j whether this clause applies to promises made before the grant of 
 letters. 
 
 § 12, That part of the fourth section of the statute of 
 frauds which is to be discussed in this chapter, provides 
 that no action shall be brought upon any verbal agree- 
 ment, "whereby to CHARGE any EXECUTOR OR ADMIN- 
 ISTRATOR UPON ANY SPECIAL PROMISE TO ANSWER DAM- 
 AGES OUT OF HIS OWN ESTATE." The particular object 
 of this provision was evidently to guard executors and 
 administrators against being held to a personal liability 
 to pay debts, legacies, or distributive shares, in conse- 
 quence of wilful or mistaken perversion of expressions 
 of encouragement, which they may have used in conver- 
 sation with claimants, and which were not justihed by the 
 ultimate result of administration of the assets in their 
 hands. For obvious reasons, the cases where this clause 
 has been subjected to judicial construction are but few, 
 when compared with those depending upon that which 
 immediately follows it ; but in their limited sphere they 
 present an equal proportion of perplexing questions, and 
 conflicting authorities. As the liabilities to which the two 
 clauses relate, resemble each other in many particulars, 
 and the language of one seems to have been studiously 
 framed, so as to conform as closely as possible to that of 
 the other, it has been often said, but, we think, without due 
 reflection, that they are practically identical, and that this
 
 88 Peomises of Executors, etc. [Cli. i. 
 
 clause calls for no special examination ; because the rules 
 establislied for the construction of the second, are gene- 
 rally applicable to the first, treating the estate as the 
 original debtor^ and the executor or administrator indi- 
 vidually as the collateral promisor. Indeed, the contracts 
 embraced within the provisions of both clauses are fre- 
 quently called guaranties ; a word correctly describing 
 neither class, and peculiarly inappropriate to those within 
 the first clause, whose terms contemplate only a change in 
 form of a liability already resting upon the promisor. 
 
 § 13. So frequent is this method of treating this clause, 
 that it would almost seem that the impression prevails 
 that it was inserted only from abundant caution on the 
 part of the legislature, the second being practically suffi- 
 cient, with, perhaps, a slight change of j)hraseology, to 
 cover the cases embraced within both. There is, indeed, 
 a close similarity between some of the principles, by which 
 promises are withdrawn from the operation of one and the 
 other, occasionally amounting to a coincidence. The latter 
 is complete with respect to the cases which are taken out 
 of the statute, because they fail to satisfy some word of 
 the phrase, "any special promise to answer." As this 
 phrase is to be found in both clauses, those cases wherein 
 it has been decided that the second is not applicable for 
 that reason, are very conclusive precedents to show thai 
 the first would not be applicable under similar circum- 
 stances. And there is a class of cases under the second 
 clause, not appearing to depend upon its wording, which 
 bear a very close resemblance, with respect to the princi- 
 ple which governs them, and the facts calling for its appli- 
 cation, to a corresponding class under the first clause. 
 We refer to those where a promise to pay the debt of 
 another is held to be good without a writing, because the 
 promisor held a fund proceeding from the debtor, and 
 applicable to the fulfilment of the promise ; in contempla- 
 tion of which the promise was made. The similarity in 
 the situation of the promisor, under such circumstances, 
 and that of an executor or administrator, having sufficient
 
 Art. I.] Pkomisks of Executors, etc. 89 
 
 assets to pay the debt of the decedent, and who, in con- 
 sideration thereof, verbally undertakes to pay it, is very 
 striking. And the principle u^Don which each description 
 of promises has been held to be without the statute, is 
 substantially the same. For while the first clause expressly 
 provides that it shall be applicable only to a promise by 
 the executor or administrator, to answer damages "out 
 of his own estate," the second manifestly has the same 
 meaning, with respect to a liability incurred by one person 
 to answer for the debt, default, or miscarriage of another. 
 And the courts, construing the second clause as if these 
 words, used in the first, were incorporated therein, have 
 thereupon held, in deference to its supposed intent, 
 that where the real debtor's property would ultimately 
 reimburse the promisor, the result was the same as if the 
 debt was not to be paid in the first instance out of the 
 latter' s means. 
 
 § 14. But the principles governing many other descrip- 
 tions of cases, arising under the second clause, while they 
 appear at first sight to be equally applicable to similar 
 cases arising under the first, will be found, upon close 
 examination, to depend upon features wherein the two 
 classes of cases radically differ. The point of difference is 
 generally dependent upon the fact that altliough in each 
 class three interests are represented, questions can properly 
 arise for decision under the second clause, only where the 
 transaction concerns three persons, and under the first 
 only where it concerns two per sons. {a) For while the per- 
 son who undertakes to answer for the debt of another, 
 becomes liable only by virtue of his promise, the executor 
 or administrator is already liable, in his representative 
 capacity, for the payment of debts, legacies, or dis- 
 tributive shares ; and property to which he has a complete 
 legal title is already sub modo pledged for that purpose. 
 
 (a) Meaning, of course, that all persons jointly interested, or interested in 
 subordination to a party to the contract, are counted, with such party, as one 
 person. 
 
 12
 
 90 Pko:>iises of Executors, etc. [Cli. i. 
 
 And it will be sliown in the course of the observations 
 hereafter to be made upon the second clause, that a very 
 large proportion of the cases under it, constituting several 
 distinct classes, with many subdivisions presenting nice 
 shades of distinction, depend upon corollaries derived 
 from the general principle that a promise to pay a debt 
 for which the promisor or his property was already liable, 
 is not within the intent of the statute, although it is within 
 its terms. But where the promisor is an executor oi 
 administrator, this is the precise case where the first clause 
 unequivocally provides that he shall not be liable without 
 a writing. Again, the reasons why certain other classes 
 of promises are taken out of the statute, as not being 
 within the second clause, may be most satisfactorily found 
 in a peculiar signification given to some portion of the 
 phrase "debt, default, or miscarriages of another per- 
 son;" as, for instance, that numerous class where the 
 original debtor was discharged, before the new promisor 
 became liable. In all such cases it is manifest that the 
 grounds of the exclusion of one class from the statute, 
 are entirely inapplicable to the other, and any attempt to 
 assimilate the two will only mislead. Hence the proposi- 
 tion that the difference between the first and second clauses 
 is only of a formal character is a fallacy ; the dangerous 
 character of which is the greater, because, owing to the 
 confusion which exists in many classes of cases arising 
 under the second, it is not always immediately obvious, 
 when such was the fact, that particular decisions turned 
 upon principles inapplicable to cases arising under the first. 
 
 § 15. And the supposed analogy between the two clauses 
 has actually given rise to serious errors of this precise 
 character, which not only have appeared in the elementary 
 books, but occasionally have crept into the judgments of 
 the courts, to the extent of obscuring the real point at 
 issue, when they have not led to erroneous decisions. (&) 
 
 (li) In a work which has received very high encomiums, where it is said 
 that the distinction between the first and second clauses is more technical 
 ;|i;in substantial, and that bpth descriptions of contracts are guaranties, the
 
 Art. I.] Promises of Executors, etc. 91 
 
 § 16, Tlie first clause of the fourth section was therefore 
 inserted, not from abundant caution, or as a mere amplifi- 
 cation of the second ; but to include undertakings of an 
 entirely difierent character, and not amenable to the same 
 
 proposition is laid down, in discussing the corresponding rule under the second 
 clause, that where the estate is discharged in consideration of the executor's 
 or administrator's promise to pay a creditor of the decedent, the promise is 
 not within the statute. As authority for this proposition, three cases are 
 cited ; one of which is Harrington v. Rich (post, § 38), and the other two hold 
 that the discharge of the estate is a good consideration for an executor's 
 written undertaking, even if there were no assets. The proposition itself is 
 believed to be irreconcilable with the spirit as well as the letter of the statute, 
 and to proceed solely from the confusion to which we have referred. With 
 great deference to the learned tribunal which decided the case of Templetona 
 V. Bascom, 33 Vermont, 132, (cited fully in chapter seventeenth), it appears 
 to us that it presents another instance of the same species of confusion, 
 although without leading to an erroneous conclusion. It was decided upon 
 the hypothesis that the question arose under the second clause, and the 
 decision has consequently provoked considerable criticism; whereas, if we 
 err not, that clause had no connection with the case. The defendant, the 
 only child of a man who had died intestate, leaving an estate more than suf- 
 ficient to pay his debts, promised orally to pay a debt of the intestate to the 
 plaintiffs in consideration of forbearance against the estate. The promise 
 was repeated several times, before as well as after administration was 
 granted to the defendant; and the court held that the promise was not 
 within the second clause, by reason of the defendant's interest in the prop- 
 erty. But none of these were promises to answer for the debt of another 
 person ;^^0T before administration was granted there was no debtor, and 
 afterwards the defendant himself, in his representative character, was the 
 debtor. According to Tomlinson v. Gill, Ambler, 330, (post, § 13), the 
 promises made before administration granted were not within the first 
 clause of the statute ; and according to Ridout v. Bristow, 1 Crompton and 
 Jervis, 231, as explained by Serle v. Waterworth, 4 Meeson and Welsby, 9, 
 and Nelson v. Serle, id. 795, the forbearance was a sufficient consideration 
 to sustain them; for although not administrator, the defendant was entitled 
 to administration. The promises made after administration granted, were 
 not within the statute, under the rule laid down in Stebbins v. Smith, 21 
 Massachusetts (4 Pickering) 97, and Pratt v. Humphrey, 22 Connecticut, 317, 
 post, §§ 26 and 28. Apparently, Kershaw v. Whitaker, 1 Brevard (South 
 Carolina), 9, A. D. 1794, was also a case where the two clauses were con- 
 founded, the confusion resulting in an erroneous decision. In Harrington v. 
 Rich, G Vermont, G66, post, § 38, there was a misapplication of the principles 
 governing the second clause, to a case exclusively under this clause: but it 
 did not result in any error. And see Hackleman v. Miller, post, § 35a,
 
 92 Promises of Executors, etc. [Ch. i. 
 
 rules, although possessing considerable outward resem- 
 blance to those embraced within the other. It is quite 
 possible for cases to occur, where the facts apparently 
 bring the same promise within the terms of both clauses, 
 and then questions arise under both ; but this is merely 
 accidental, and it is matter of every day occurrence for 
 several legal propositions, having no necessary connection 
 with each other, to be presented upon the same state of 
 facts, (c) But cases where it is at all doubtful upon which 
 clause of the statute the validity of a verbal promise 
 depends, are exceedingly rare ; indeed, we have met with 
 none, where, if the report is not imperfect, a careful 
 examination will not remove all such doubts. From 
 inadvertence, some confusion has arisen upon this point, 
 where the original debtor had deceased, and no letters 
 testamentary or letters of administration had been granted 
 at the time when the defendant undertook to pay the debt. 
 It has been occasionally assumed that a promise made 
 under such circumstances was in terms a promise to 
 answer for the debt of another ; and if it could be saved 
 from the operation of the statute, when it was verbal, 
 some rule construing the second clause, according to its 
 spirit rather than its letter, must be invoked for the pur- 
 pose. But it is believed that if any question arises in 
 such a case, it is whether the first clause is applicable. 
 The promise was not to answer for the debt of ahother 
 person; for there was no person who owed the debt, 
 either individually or in a representative character ; and 
 if tlie facts are not such as to raise any question under 
 the first clause, it seems very clear that the statute does 
 not apply at all. 
 
 § 17. In cases of this kind, a question of considerable 
 nicety sometimes arises, which will now be examined. It 
 is presented where the promisor was the executor named 
 in the will of the original debtor, but no letters testamen- 
 
 (r) Chandler v. Davidson, 6 Blackford, 367; Pratt v. Humphrey, 22 Con- 
 uecticut, 317, are cases where questions fairly arose under both clauses.
 
 Art. I.] Promises of Executors, etc. 93 
 
 tary had been issued to liim when the promise was made ; 
 or where, the debtor having died intestate, tlie promisor 
 was appointed administrator of the estate after the promise 
 was made. And a distinction has been taken between the 
 verbal agreement of an executor and that of an adminis- 
 trator to pay the debt of the deceased person, when it wa** 
 made before the granting of letters. It has been said 
 that as an executor derives his title from the will of tlie 
 deceased, and the interest and ofhce are completely vested 
 in him at the instant of the testator' s death, (the probate 
 and grant of letters being the authentication and not the 
 origin of his title,) his promise is necessarily within the 
 statute, whether it is made before or after probate ; 
 whereas the administrator derives his office and title 
 exclusively from the award of letters, and consequently 
 a promise by him, before the award of letters, is merely 
 that of a person who expects to represent an intestate, 
 and for that reason not within the statute. ((^) 
 
 § 18. This doctrine is supposed to be derived from the 
 equity case of Tomlinson v. Gill, Ambler, 330, A. D. 
 1756. There, according to Mr. Ambler's report, the 
 defendant, previous to his appointment as administrator, 
 had promised the widow that, if she would permit him to 
 be joined with her in the letters of administration, "he 
 would make good any deficiency of assets to discharge 
 the intestate's debts." A bill was filed by creditors of the 
 • intestate against Gill " for a satisfaction of their debts and 
 performance of the promise," and it was insisted on the 
 part of the defendant, that the promise, not being in 
 writing, was void by the statute of frauds. But Lord 
 Hardwicke said that there were two questions, one on the 
 right and the other on the remedy. That the case was not 
 within the first branch of this section of the statute, "for 
 Gill was not administrator at the time of making the 
 promise, and it is no answer to say that he was adminis- 
 trator afterwards." That it was not within the second 
 
 {d) Roberts on Frauds, 201 ; 3 Parsons on Contracts, fifth edition, 19.
 
 94 Peomises of Executors, etc. [Ch. i. 
 
 branch because there was "a new distinct consideration," 
 The equitable jurisdiction was sustained upon the ground 
 that an action at law could not be maintained, because the 
 promise was made to the widow ; but it was a proper case 
 for equity, because the promise was for the benefit of the 
 creditors, and the widow was a trustee for them. His 
 Lordship added that the bill was for an account, "and 
 that draws to it relief like the common case of a bill to be 
 paid out of assets;" and accordingly he decreed, not 
 merely an accounting, but payment of the debt.(e) 
 
 § 19. In this case, it was only necessary, in order to 
 dispose of the objection arising under the second clause 
 of the statute, to say that as the original debtor had died 
 intestate, and no administrator had been appointed when 
 the promise was made, there was no one in being to whom 
 the expression ' ' another person ' ' could possibly apply ; 
 and the reason in fact assigned by Lord Hardwicke, is 
 believed to be entirely exploded at the present time. With 
 
 (e) It is said by Lord Northington, in Griffith v. Sheffield, 1 Eden, 73 (see 
 page 77), that the defendant Robert Gill was the father of the intestate. 
 Mr. Ambler's notorious inaccuracy (Marvin's Legal Bibliography, p. 58; 
 Preface to 1 Eden's Reports; Preface to Blunt's Ambler;) would seriously 
 interfere with the authority of this case, if Mr. Blunt had not verified it, by 
 his examination of the original roll. It appears from his note that the widow 
 and Robert Gill took out letters jointly; that the bill was filed against them 
 both, and that the decree declared the creditors to be entitled " to have 
 the benefit of the contract, entered into by the defendant Robert Gill with 
 the defendant Catharine Gill, before taking out letters of administration; " 
 and accordingly there was a decree that an account should be taken of the 
 debts of the intestate, and the property received by the defendants; and 
 after applying the personal estate, " that the defendant Robert Gill do pay to 
 the plaintiff, and the several other creditors of the intestate, so much money 
 as the personal estate should fall short to answer their several debts respect- 
 ively." So that, although some of the remarks attributed to Lord Hardwicke 
 in the commencement of his opinion, would seem obscurely to indicate that 
 it was an "argument" (agreement) that a specialty creditor should have 
 administration, on terms of paying all the debts, pari passu, there is but 
 little room for doubt, that whatever inaccuracy the report may contain lies 
 in what Lord Hardwicke is made to say, arguendo ; the facts and the decis- 
 ion being ver}"^ accurately stated.
 
 Art. I.] Promises of Executors, etc. 95 
 
 respect to the application of the first clause, his Lordship's 
 reasoning seems to be quite unanswerable. In an action 
 at law, founded upon a verbal promise to pay the debt of 
 a decedent, it would appear that the objection that the 
 promise was within this clause of the statute would 
 entirely fail, if the defendant could not show that he was 
 administrator at the time when the promise was made, 
 because it would be impossible to frame a good special 
 plea, setting forth the facts upon which it was insisted that 
 the statute avoided the promise, without making that 
 allegation in a traversable form. Upon a principle, in all 
 respects analogous, it is held that the validity of a promise, 
 under the second clause, depends upon the facts existing 
 at the time when it was made, and cannot be affected by 
 events subsequently occurring. (/) And the fiction of law 
 by which the administrator's appointment is allowed in 
 some cases to relate back to the death of the intestate, is 
 by no means of universal application ; and where it is 
 admitted it appears to be allowed for the benefit of the 
 estate, {g) It ought not, therefore, to be used for the mere 
 personal benefit of the administrator, in such a way as to 
 prevent the real facts from being shown. 
 
 § 20. But there is nothing in Lord Hardwicke' s decision 
 to warrant the conclusion that an executor' s verbal prom- 
 ise to pay a debt of the decedent is void under the statute, 
 if probate of the will had not been granted when it was 
 made. If such is the rule of law, it results from princi- 
 ples not discussed in Tomlinson v. Gill. And possibly it 
 may be found upon examination, that the distinction sup- 
 posed to exist between the promise of an executor and 
 that of an administrator may correctly be characterized 
 as "a very slight and cobweb distinction;" an epithet 
 which Lord Hardwicke very unjustly applied to the prin- 
 ciple established in Burlcmirc v. Darnell, 6 Modern, 248, 
 
 (/) See section 152. 
 
 (9) 1 Williams on Executors, sixth edition, 392, 393 ; and Morgan v. Thoma3, 
 8 Exchequer, 302, there cited.
 
 96 Promises of Executors, etc. [Cli. i. 
 
 now universally acknowledged to be a correct test of tlie 
 application of the second clause. 
 
 § 21. It is very true that the doctrine that an executor 
 derives his authority from the will, and an administrator 
 from the grant of letters, enables an executor to do many 
 things before probate, which an administrator cannot reg- 
 ularly do until letters have been issued to him ; such as 
 paying, collecting, and releasing debts due to and from the 
 estate ; taking possession of, selling, or otherwise disposing 
 of the personal property ; assenting to or even paying 
 legacies ; in short doing almost any act, except maintaining 
 an action \{h) and he may even do that, provided he obtains 
 probate before declaring, so as to be able to make profert 
 of letters in the declaration. But it is believed that this 
 is one phase of the principle of relation back to the death 
 of the intestate, which is allowed for the benefit of the 
 estate, and not of the executor or administrator individu- 
 ally. It is very evident that the executor does not derive 
 his office wholly from the will ; his own assent is a neces- 
 sary ingredient to its perfection ; and if he should 
 renounce, never having done any act of acceptance, it is 
 believed that his verbal promise to pay a debt of the tes- 
 tator, made before actual renunciation, could not, upon 
 any sound reasoning, be brought within the statute. It is 
 therefore quite possible that if the question shall be pre- 
 sented directly for decision, it may be found that the 
 samj^ principle upon which TomlinsoriY. Gill was decided, 
 or an analogous principle, will sustain an executor's verbal 
 promise to pay a debt of his testator, if there had been no 
 probate of the will at the time when it was made. 
 
 § 22. In many, and probably in most of the United 
 States, the distinction between the powers of an executor 
 and those of an administrator, before the grant of letters, 
 has been to a great extent obliterated by various statutory 
 
 (/<) Bacon's Abridgment, title Executors and Admistrators, E. 14; Went- 
 worth's Office of Executor, 14th edition, 81 et seq. ; 1 Williams on Execu- 
 tors, 6th edition, 291 et seq.
 
 Art. I. ! Promises of Executors, etc. 97 
 
 provisions, which require an executor to prove tlie will, 
 qualify (by taking an oath and sometimes also by giving 
 a bond), and take out letters, before he is authorized to act 
 in that capacity. And whatever may be the correct rule, 
 where the common law powers of executors have not been 
 taken away, it would seem that where such enactments 
 prevail, the two classes of personal representatives should 
 stand upon the same footing, with respect to promises 
 made before the actual grant of letters. That their powers 
 and privileges are substantially the same, appears from 
 the decision in Thomas v. Cameron, 16 Wendell (New 
 York), 679, A. D. 1837. There it was held that, under the 
 provisions of the Revised Statutes of New York, requiring 
 executors to qualify, and forbidding them to interfere with 
 the estate, except for its preservation, till they had pro- 
 cured letters, they could not maintain an action before the 
 actual grant of letters. The court said, "If they" (the 
 plaintiffs suing as executors) "were not executors at 
 the time the suit was commenced, letters subsequently 
 obtained would not aid them by relation. The statute has 
 introduced a new rule, by taking away the common law 
 right to sue before probate." And accordingly a plea, 
 that the plaintiffs were not executors at the time of the 
 suit, was sustained on demurrer, although the declaration 
 made profert of letters. And in another New York case, 
 In the matter of Faulkner, 7 Hill, 181, A. D. 1845, where 
 certain moneys belonging to the estate of a testator had 
 been received, before probate, by Faulkner, who was 
 named as executor in the will ; and who, after probate 
 and grant of letters, was proceeded against as an abscond- 
 ing debtor ; the question was whether the co-executor was 
 entitled to a preference in payment by the trustees, under 
 a statute providing for such preference, in case of a debt 
 owing by the debtor as executor. The trustees having 
 refused to allow the preference, a motion to direct them to 
 allow it was granted, upon tlie principle of relation back 
 to the death of the decedent, which obtains in case of an 
 administrator acting before grant of letters. Bronson, 
 C. J., said, "The objection urged against this claim is that 
 13
 
 98 Peomises of Executoks, etc. [Cli. i. 
 
 as Faulkner had not then qualified, he was not executor 
 at the time the money was received. But the answer is that 
 when Faulkner qualified as executor, his authority related 
 back, and legalized the payments which had been pre- 
 viously made to him. He afterwards held the money, and 
 it was a debt against him as executor." 
 
 ARTICLE II. 
 
 When a general promise by an executor or administrator to pay a debt of tbe deceased ia 
 without the statute, because it is not to be fulfilled " out of his own estatOi" 
 
 § 23. It has been said that a promise by an executor or 
 administrator, in his representative capacity, to pay a 
 debt of the deceased, is a mere nudum pactum if he has 
 no assets, and if he has assets, that the extent of the 
 promise is measured by the extent of the assets, "or, 
 in other words, the promise superinduces no obliga- 
 tion upon the original representative liability ." (a) But 
 whatever may be the legal effect, or the consequences 
 to either party, of such a promise, apparently it is entirely 
 unaffected by the statute of frauds. This would seem to 
 be clear, although occasionally the distinction has not 
 been noticed, (S) from the fact that the language of the 
 statute expressly confines its application to a promise 
 "to answer damages out of Ms own estate^ Indeed a 
 question might arise, whether these words would be satis- 
 fied by any thing except an undertaking which in express 
 terms bound the promisor to apply his own means to its 
 fulfilment ; and consequently whether a general promise 
 to pay, although it might enable the promisee to maintain 
 an action against the promisor individually, and thus 
 obtain a personal judgment against him, was within the 
 statutory provision. But it appears to have been assumed 
 by common consent, that in that respect the form of the 
 promise is immaterial. It may therefore be stated, as a 
 
 (a) Roberts on Frauds, page 207. 
 
 {h) As in Hay v. Green, 66 Massachusetts (12 Gushing), 282, post § 45 ; 
 and see §§ 46 to 48.
 
 Art. II.] Promises of Executors, etc. 99 
 
 general rule, that no verbal special promise of an executor 
 or administrator to pay any demand for which he is liable 
 only in his representative character, will sustain an action 
 against him individually. 
 
 § 24. However, some American authorities, entitled to 
 great respect, hold that an exception to this rule arises 
 where the promisor was possessed of assets of the estate, 
 applicable to the fulfilment of the promise. We find no 
 trace of this exception in England ; for although there are 
 some English cases holding that the possession of assets 
 is a sufficient consideration for the promise of an executor 
 or an administrator to respond personally, it does not 
 appear that the courts of that country aff*ord any sanction 
 to the idea that it is thereby taken out of the statute, (c) 
 And it is difficult to determine, upon either principle or 
 authority, at what period of time it must appear that the 
 assets existed, in order to create the exception recognized 
 by the authorities referred to: that is, whether it will 
 suffice to show that at the time of the promise there were 
 assets ; or whether they must be still in existence and 
 applicable to its fulfilment, at the time of the trial. The 
 embarrassment in settling the question upon principle, 
 grows out of the fact that the doctrine itself rests upon 
 questionable reasoning. In general terms, it may be said 
 to depend upon the idea, that if the executor or adminis- 
 trator has the means to discharge the liability out of the 
 estate, the promise will not be ultimately fulfilled out of 
 his own property, although such may be the immediate 
 eff'ect of the judgment against him. And in order to give 
 full eff'ect to this reasoning, it is quite clear that there must 
 be sufficient assets in his hands at the time of the trial : 
 and consequently it would seem that proof that such was 
 
 (c) 2 Williams on Executors, Glh edition, 1646, 1647, citing Reech v. Ken- 
 negal, 1 Yescy, Sr., 126; Atkins v. Hill, Cowper, 284; Hawkins v. Saimders, 
 id. 289; per Lord Cotienham in Barnard r. Pomfrett, 5 Mylne and Craig, 
 71; Trewinian v. Howell, Croke Elizabeth, 91. But see Rann v. Huphes, 4 
 Brown's Parliamentary Cases, 25, and 7 Term Reports, 350, note, cited at 
 length, ante, § 10 and note.
 
 100 Promises of Executors, etc. [Cli. i. 
 
 the condition of the estate at the time of the promise, is 
 material only as raising a presumption that it continues 
 to be in the same condition, which the defendant is at lib- 
 erty to disprove. And if in fact there are no assets at the 
 time of the trial, which are applicable to the payment of the 
 plaintiff's demand, it is difficult to discover any ground 
 upon which the plaintiff can recover, whether the deficiency 
 has been caused by the discovery of prior claims, or by 
 the loss of the assets, even by a subsequent devastavit of 
 the defendant. This leads to the anomaly of avoiding an 
 unconditional promise, valid at the time when it was made, 
 by the subsequent act of the promisor, to which the prom- 
 isee was no party : and practically renders the promise to 
 respond individually, equivalent, for most purposes, to a 
 promise to respond in a representative character. But if 
 it be said that the legal effect of the promise is that the 
 promisor undertook to apply the assets then in his hands 
 to the payment of the plaintiff's demand, so that he is 
 responsible in damages for its breach, if they are for any 
 cause applied otherwise, this would cover a case where 
 they subsequently became deficient, even without the fault 
 of the promisor, and thus expose him "to answer damages 
 out of his own estate." 
 
 § 25. Tliere is also great obscurity upon another import- 
 a,nt point in the same connection, namely, whether the 
 assets must suffice to discharge all prior claims upon 
 them, and all other claims standing upon the same footing 
 as that of the promisee. Upon the plainest principles, 
 there should be no doubt upon the first branch of this 
 proposition ; for if the fund was liable to be exhausted 
 by claims having a preference, the whole reasoning, 
 whereby the promise was taken out of the statute, falls to 
 the ground. But suppose that after paying prior claims, 
 the fund would have sufficed only to pay a dividend to 
 the promisee, and all others having claims of equal degree. 
 Manifestly the recovery ought to be limited to the amount 
 of the dividend. But if the promise is to be construed, 
 according to its terms, as an absolute engagement to pay
 
 Art. II.] Promises of Executors, etc. 101 
 
 the debt, how can the damages for its breach be reduced be- 
 low the actual damages sustained by the promisee ? These 
 do not depend upon the amount of the dividend to which he 
 would be entitled ; that is only an element by which to meas- 
 ure the loss which the promisor sustains in consequence of 
 his promise. So that it would appear that for this reasou 
 also, a verbal promise to respond personally is only prac- 
 tically equivalent to a promise to respond in a representa- 
 tive character, except for the purpose of avoiding some 
 statutory bar to the maintenance of the action, in conse- 
 quence of lapse of time. And it is easy to see that if the 
 promise of the executor or administrator will have that 
 effect, cases will sometimes arise where he will either be 
 compelled to respond out of his own means, or else to 
 deprive other creditors of a preference to which they have 
 acquired a legal right, [d) 
 
 (d) Some of these difficulties pressed upon the mind of the court in Moar v. 
 Wright, 1 Vermont, 57) A. D. 182G, in the examination of the question whether 
 the possession of assets, more than sufficient to pay all the debts and legacies, 
 was a sufficient consideration for an executor's promise to pay a debt of his 
 testator to an assignee thereof, upon which an action could be maintained 
 to charge the defendant de bonis propriis. The point was whether the 
 declaration, which contained those allegations, was sufficient to enable the 
 pl!iiTitifr to sustain a demurrer, which he had interposed to an insufficient 
 plea; and the court, with considerable hesitation, decided the question in the 
 affirmative, laying stress, however, on the fact, that as the plaintiff was an 
 assignee of the debt, there was already an equitable obligation on the part 
 of the defendant to pay him, which formed an essential ingredient of the con- 
 sideration. In the course of the opinion, Royce, J., said that Forth v. Stan- 
 ton, 1 Saunders, 210, was distinguishable from this case, because there the 
 allegation was that the debt was 100^., and that the defendant had received 
 a.«!sets to the amount of 100?., but it was not alleged " tnat at the time of 
 making the promise to the plaintiff, she had assets legally applicable to that 
 demand ; " so that the promise, if enforced, might have subjected her to per- 
 sonal loss; and he added: "A difficulty has been started, by supposing that 
 before the execution of the promise, the defendant had died, or had been 
 removed from the office of executor. To this the following answer would 
 seem sufficient. If upon accepting the personal undertaking of the executor, 
 the creditor discharged the estate, the promise would remain in force, .ind 
 the estate would be holden to refund the sum paid upon it; and if no dis- 
 charge was given, the promise might become invalid, when the fund which
 
 102 Promises of Executors, etc. [Ch. i. 
 
 § 26. The subject is full of difficulties, and the decisions 
 do but little towards removing them. The whole of this 
 doctrine appears to derive its origin from the case of 
 Stehbins v. Smit/i, 21 Massachusetts (4 Pickering), 97, 
 A. D. 1826. The declaration contained a count upon an 
 insimul computassent, and the other money counts ; and 
 on the trial it was proved that the defendant and one 
 Alexander Smith were residuary legatees and executors 
 of Jonathan Smith ; that they gave a bond to the judge 
 of probate to pay the debts and legacies of the deceased ; 
 that afterwards the plaintiff and the defendant made an 
 examination of the plaintiff' s demands against the estate, 
 and found $1,186 to be due to the plaintiff, which the 
 defendant agreed to pay, and then gave the plaintiff his 
 negotiable note for $1,286, payable on demand, with inter- 
 est ; and that the plaintiff then discharged the accounts 
 and gave up the notes which he held against the deceased. . 
 It was admitted "that the defendant received some estate 
 by devise from the deceased," and that the note for 81,286 
 had been avoided by him on account of usury. Under 
 the directions of the judge, the jury returned a verdict 
 for the plaintiff, upon which judgment was rendered after 
 hearing the exceptions. Wilde, J., delivering the opinion 
 of the court, said that the note appeared to have been 
 given subsequent to the promise, and that fact was estab- 
 lished by the verdict : that the note would have discharged 
 the debt and the promise had it not been avoided ; but the 
 avoidance restored the plaintiff to his former demand ; 
 that the discharge of the accounts and notes against the 
 deceased was a sufficient consideration for the promise, 
 the defendant being bound to pay them, as he had given 
 a bond in place of returning an inventory ; and that 
 this discharge would be sufficient even if it had not extin- 
 guished the plaintiff' s remedy on the bond, which appeared 
 
 made its principal consideration, was taken out of the promisor's hands." 
 In this case there could be no question under the statute of frauds, as the 
 Vermont act was not passed till after the promise had been made ; but had 
 it been then in force it would not have affected the result, inasmuch as the 
 pleadings did not show that the promise was verbal,
 
 Art. II."] Promises of Executojis, etc. 103 
 
 to be its legal effect. He added : "Tl^e suggestion that 
 the promise is void by the statute of frauds is clearly 
 unfounded. It is not a promise by an executor to answer 
 damages out of his own estate ; for the bond given to tlie 
 judge of probate is an admission of sufficient assets which 
 the defendant is estopped to deny." 
 
 § 27. But only four years afterwards, we find the same 
 court, in Sllshee v. Ingalls, 27 Massachusetts (10 Picker- 
 ing), 526, A. D. 1830, giving utterance to a dictum appar- 
 ently in conflict with the principle upon which Stehhlns v. 
 Smith was taken out of the statute ; and the question 
 does not seem to have arisen again in that state, (e) 
 
 (e) This was a bill in equity filed against an administratrix, wherein the 
 phiintiff alleged, that she had repeatedly promised to pay a debt due by her 
 intestate to the plaintiff, admitting that she had assets to pay all the debts; 
 and that in consequence of relying upon the promise, the plaintiff forbore 
 to prosecute for the debt, till it was barred by the statute of limitations. It 
 was further alleged, that she obtained an order from the judge of probate to 
 sell certain real estate of the intestate, in order to pay his debts, which had 
 been sold accordingly, and the proceeds paid to her; that before and after 
 the sale she had promised to pay the plaintiff out of tiie proceeds; and that 
 she had rendered an account to the probate court, in which she had credited 
 herself with the amount of the plaintiff's debt. Upon the whole case made 
 by the bill, it was insisted that she had become a trustee of the pro- 
 ceeds of the sale for the plaintiff, and the plaintiff prayed for relief 
 accordingly. There was a demurrer to the bill, which the court sustained 
 on the ground of want of equity, because the plaintiff once had an adequate 
 remedy at law, and the intervention of the statute bar did not make the 
 demand the subject of equity jurisdiction. But the court added: "It is 
 alleged, however, that there was a promise by the defendant to pay the 
 plaintiff. But sucii promise, not being in writing, is witliin the statute of 
 frauds; and if it were in writing, it would only prove that there is an ade- 
 quate remedy at law." This doctrine is of but little weight against the 
 authority of Stebbins v. Smith, if that ca.se really holds that the possession 
 of assets is sHifficient to take the executor's promise out of the statute. But 
 there the defendant had already made the debt his own, by giving the bond ; 
 and the language of the court may be referable to the fact that he was bound 
 to pay the debt out of his own estate, independently of the verbal promi.>;e. 
 This would make the analogy perfect between this case and one arising 
 under the second clause, where the defendant, before making the promise,
 
 104 Peomises of Executors, etc. [Cli. i. 
 
 § 28. In Pratt v, Humphrey, 22 Connecticut, 317, A. D. 
 1853, the action was against the defendants in their indi- 
 vidual capacities, and the plaintiff declared on their prom- 
 ise to pay a certain sum, in a manner mentioned in the 
 declaration, in consideration of the plaintiff's forbearance 
 to present to them as administrators, for allowance and 
 payment, within the time fixed for that purpose by the 
 judge of probate, a debt due to him by their intestate ; 
 whereby under the law of Connecticut the debt was lost. 
 The defendants pleaded that there was no writing within 
 the statute of frauds, to which plea there was a demurrer. 
 The demurrer was overruled in the court below, and the 
 defendants brought error to this court, where the judgment 
 was affirmed. In deciding the question which we are now 
 considering, the court, Storrs, J., delivering the opinion, 
 said: "If the defendants are not to be deemed to have 
 assets of the estate which they represent, it would be a 
 very embarrassing question, whether this promise is within 
 the first branch of the statute of frauds, which relates to 
 a ' special promise ' (by an executor or administrator) ' to 
 answer damages out of his own estate.' In that case it 
 would be difficult to resist the claim, that it is a promise 
 to answer damages out of their own estate. But if they 
 are to be considered as having such assets, they would 
 have a right to charge to the estate they represent, the 
 amount of the damages recovered of them in this suit, and 
 it would seem, therefore, that those damages would not 
 come out of their own estate. They would not, ultimately 
 at least, although they might in the first instance. For, 
 although the judgment would be against them personally, 
 they would be indemnified against it, by the funds of the 
 estate in their hands. Hence the damages would substan- 
 tially be answered out of the estate of their intestate ; and 
 
 had received a fund from the debtor for the purpose of paying the debt. 
 There can be no doubt as to the general principle that a bond for payment 
 of debts and legacies conclusively admits assets. It vs^as so ruled again in 
 Colwell V. Alger, 71 Massachusetts (5 Q-ray), C7, A. D. 1855, an action by a 
 legatee against an executor and residuary legatee for a general legacy and 
 the value of a specific legacy.
 
 Art. II.] Promises of Executors, etc. 105 
 
 the promise, in such case, would appear to be one which 
 was not contemplated, by tliat branch of the statute. ' ' After 
 stating the substance of the case of Stehhhis v. Smith, the 
 learned judge proceeded : "The principle determined in 
 that case is, that where an executor or administrator has 
 assets, a promise by him to pay a debt due by the person 
 he represents, is not within that branch of the statute. 
 We are induced, although not without some hesitation, 
 to adopt the same construction. Whether he would be 
 liable on such promise, beyond the amount of such assets, 
 it is not necessary to decide ; the question before us is as 
 to the right, and not the extent of the recovery. "(/) 
 
 § 29. The doctrine, that the possession of assets "will 
 suffice to render the statute inapplicable, seems to rest 
 entirely upon the authority of Stebhins v. SmltJi and 
 Pratt V. Humplirey \{g) and in view of the doubtful char- 
 acter of the reasoning by which it is sustained, and the 
 difficulties to which its practical application will lead, 
 they are hardly sufficient to establish it as a settled rule 
 of American jurisprudence. It finds, however, a very 
 close analogy, as was stated in the preceding article, in 
 
 (/) The court proceeded further to determine that, upon the pleadings 
 before them, the presumption was that the defendants had assets, and if the 
 fact was otherwise, they should have expressly averred it. It was held, that, 
 upon the principle adopted by the court, the mere fact that there was no note or 
 memorandum, etc., in writing, did not necessarily or even prima facie bring 
 the case within the statute, because the declaration was complete, without 
 stating the fact that the defendants were adminstrators; which was properly 
 matter for them to allege in their plea, in order to enable them to raise the 
 defence of the statute. The effect of the plaintiff having stated that the 
 defendants were administrators, was merely to relieve them of the necessity 
 of so stating in their plea; they must still set forth "such facts and circum- 
 stances as amount to a complete defence," one of which was that, as admin- 
 istrators, they had not assets enough to pay the plaintiff's demand. There 
 was still another question arising under the second clause of this section of 
 the statute, with reference to which the case is again cited in a subsequent 
 section. 
 
 (jr) And see Collins v. Row, 10 Leigh, 114, cited in § 47, and comments 
 thereon in § 48, post. 
 14
 
 106 Promises of Executors, etc. [Ch. i. 
 
 the principle that when the promisor controls a fund pro- 
 ceeding from the debtor, applicable to the fulfilment of the 
 promise, and in contemplation of which the promisor un- 
 dertook to pay an antecedent debt of a third person to 
 the promisee, the case is not within the second clause of 
 tills section. But in some of the phases which that prin- 
 ciple assumes, it is sustained upon the idea, that by the 
 receipt of the fund the promisor became liable, in 
 some form, to pay the debt out of his own means, inde- 
 pendently of the promise ; whereas the duty of an executor 
 or administrator is always confined to the legal appro- 
 priation of the fund in his hands. Still, if the amount of 
 the recovery is limited to the amount of assets in the 
 hands of the defendant, applicable to the payment of the 
 plaintiff, there is no greater violation of the intent of 
 the statute in one case than in the other, whatever may 
 be the embarrassments in reconciling such a limitation 
 with other principles. But it is quite remarkable that 
 this doctrine should rest entirely upon decisions in Massa- 
 chusetts and Connecticut. For the courts of the former 
 state stand alone, among all those in the United States 
 which have spoken upon the subject, in repudiating the 
 analogous doctrine arising under the second clause \{?i) 
 and the Supreme Court of Connecticut, although it has 
 not directly decided the point, has nevertheless, in a re- 
 cent case, intimated an opinion the same way, and ex- 
 pressed its satisfaction with one of the Massachusetts 
 decisions, where the rule has thus been laid down.(i) 
 
 § 30. Tliere are a few cases in other states, the tendency 
 of which is towards the contrary doctrine, although they 
 are not at all decisive upon either side of the question, (y) 
 
 {h) Curtis V. Brown, 59 Massachusetts (5 Gushing), 488, and Furbish v. 
 Goodiiow, 98 Massachusetts, 296. 
 
 (0 Clapp V. Lawton, 31 Connecticut, 95, approving Curtis v. Brown. 
 
 (j) In Harrington v. Rich, 6 Vermont, 666, cited in § 38, it is very probable 
 that the defendant had some assets out of which a dividend could have been 
 made on the plaintiff's demand; but the report does not so expressly state, 
 and the declaration contained an averment that the estate was "represented
 
 Art. ir.] Promises of Executoks, etc. 107 
 
 In Cliandler v. Davidson, 6 Blackford (Indiana), 367, 
 A. D. 1843, the plaintiff sued upon a verbal promise 
 made by the female defendant, before her marriage with 
 the other defendant, to pay a debt due to him by her 
 deceased husband. It appeared that the first husband 
 died in North Carolina, having bequeathed his property to 
 his wife, and an administrator with the will annexed was 
 then appointed, who sold the personalty. The widow 
 removed to Indiana, bringing with her some personal prop- 
 erty, part of which she said had been bought with means 
 derived from the estate, and part of which formerly 
 belonged to her husband, but it did not appear how she 
 acquired title to it. Soon afterwards she made the promise 
 upon which this suit was brought. The plaintiff having 
 recovered in the court below, an appeal was taken to the 
 Supreme Court. The. opinion, after stating that the facts 
 showed no reason why the promise was not within the 
 second clause of the fourth section, proceeded: "The 
 plaintiff further says, that the wife may be viewed as an 
 executrix de son tort, on the ground of her having wrong- 
 fully taken possession of some of the goods, and brought 
 them to this state ; and that her express promise, there- 
 fore, would support the suit. But assuming her to have 
 been such executrix, and that she would have been 
 bound in her own right, in consideration of assets, were 
 the promise in writing, to pay the debt in question, still 
 there can be no doubt, we think, that the parol promise 
 was not obligatory on her personally. The having assets 
 was not of itself sufficient to render the promisor liable to 
 a suit in her own right." For these reasons, as well as 
 upon a technical objection to the pleadings, the judgment 
 below was reversed. But it may be doubted whether the 
 clause applies to an executor de son tort.(/t) 
 
 to be insolvent." The point whether tlie possession of such assets would 
 sustain the verbal promise, either to the extent of the plaintiff's proportion, 
 or for the full amount of the debt was not taken. And see Robinson v. 
 Lane, 14 Smedes and Marshall, 161, in the note at the end of this article. 
 
 (Jt) In this case a question was fairly presented whether either clause ap- 
 plied: the first, bec"use the widow was entitled to administration in Indiana ; 
 the second, because it was a debt due by the North Carolina administrator.
 
 108 Promises of Executors, etc. [Ch. i. 
 
 § 31. From tlie ruling in Sidle v. Anderson, 45 Pennsyl- 
 vania, 464, A. D. 1863, it would appear tliat if the doctrine 
 under examination enunciates a correct rule of law, it is 
 essential to its application to show possession of assets by 
 the promisor at the time of the promise ; and although the 
 executor or administrator might be ultimately made liable 
 to pay the demand out of his property, in consequence 
 of a previous devastavit, no action will lie on an express 
 verbal promise founded upon that consideration. This 
 action was to recover upon certain notes of the defendants, 
 and the only question material here, was whether a set-off 
 was properly allowed. Tliis arose upon a sealed order, 
 executed by the plaintiff' s son, directed to one Morrison, 
 and requiring him to pay a certain sum to one of the 
 defendants, which Morrison had refused to accept or pay. 
 The plaintiff was the administrator of his son' s estate ; and, 
 as the son had died without issue, he was entitled by law to 
 half the property, after payment of debts, the other half 
 belonging to the widow ; but he had settled his adminis- 
 tration account in ignorance of the defendants' claim, and 
 had paid the whole to the widow without taking any bond 
 to refund. Afterwards, as the jury found upon the evi- 
 dence, he promised to settle or pay the order, by applying 
 it upon the notes in suit. Under the instructions of the 
 judge at the trial, that the promise was not within the 
 statute of frauds, the jury allowed the set-off. The judg- 
 ment upon this verdict was reversed in the Supreme Court 
 upon a writ of error. The opinion, delivered by Thomp- 
 son, J., commenced by discussing the question whether 
 the order imported an indebtedness on the part of the son 
 to the payee, upon which point he concluded, that, as it 
 was under seal, and not negotiable, and did not purport 
 to be for value received, it was not alone sufficient evidence 
 10 charge the plaintiff with the amount. The opinion then 
 proceeded to consider the question arising under the 
 statute of frauds. After saying that the proof of payment 
 to the widow, -without a refunding bond, was introduced to 
 establish a devastavit, the learned judge continued: ''It 
 was, therefore, not possible to claim that the promise was
 
 Art. II. J Promises of ExECUTOiis, etc. 109 
 
 made on account of assets. The proof showed there was 
 none. But it rested upon the supposed proof of a devas- 
 tavit, which it was assumed was the consideration for the 
 promise to pay the order. If there was a promise by the 
 administrator to be personally liable, it had no other con- 
 sideration than that implied in the allegation of an existing 
 devastavit. Tliere was no express promise to pay on any 
 such ground, and the case of Wilson v. Lonff, 12 S. & R. 
 68, very clearly determines that no implied contract to pay 
 arises out of a devastavit. This would be decisive of the 
 case on grounds independent of the statute. But suppose 
 the promise rested on this ground expressly. It would be 
 a promise by the administrator to ' answer the damage 
 out of his own estate,' for 'the debt of another;' and this 
 would certainly be within the statute, and not binding for 
 want of writing to that effect." 
 
 § 32. In Okesoji's. Appeal, 69 Pennsylvania, 99, decided 
 A. D. 1808, it was held that an executor was not liable 
 upon a verbal promise to pay a debt of his testator, beyond 
 the promisee's proportionate part of the assets in his 
 hands, although the question whether the promise created 
 any personal liability, was not properly before the court. 
 This was an appeal taken by Nicholas A. Okeson, admin- 
 istrator of Samuel Okeson, from a decree of the Orphan's 
 Court, reducing a credit in his accounts, for a sum paid to 
 Margaret Okeson. It appeared that Samuel had been the 
 executor of his father's will, by which a legacy of three 
 hundred dollars was given to Margaret ; but the assets in 
 Samuel's hands, after payment of debts, were found, upon 
 a settlement of his accounts made in 1843, to be only 
 $106.96. Samuel died in 1866, without having paid Mar- 
 garet ; but evidence was offered, to the effect that he had 
 orally promised to pay her. Nicholas paid her $803, 
 being the full amount of her legacy and interest ; and the 
 widow of Samuel filed exceptions to this item. It was 
 insisted on the part of Nicholas, that, by the terms of the 
 will, the legacy was charged upon the lands devised to 
 Samuel; but the Orphan's Court thought otherwise, and
 
 110 Promises of Executohs, etc. [Ch. i. 
 
 reduced the credit to Margaret' s pro rata share, with the 
 other legatees, of the balance found to have been in the 
 hands of Samuel, at the time of the settlement of his 
 accounts. This decree was affirmed upon appeal. The 
 opinion of the Supreme Court, delivered by Sharswood, 
 J., after holding that the legacy was not charged upon the 
 land, proceeded to say that there was no consideration for 
 Samuel' s promise, beyond the amount of personal assets 
 in his hands, and that the cases appear to hold that where 
 an executor or administrator promises to pay, in consid- 
 eration of assets, the consideration and the promise must 
 be co-extensive. "However that may be," added the 
 learned judge, "it is clear that the executor cannot be 
 made liable de bonis propriis, on an oral promise, on the 
 mere consideration of assets. That would be 'to charge 
 him upon a promise to answer damages out of his own 
 estate,' and therefore within the Act of April 26, 1855. "(?) 
 
 (?) It seems to be yet unsettled in England, whether the possession of 
 assets suffices as a consideration to support a promise by an executor or 
 administrator to pay a debt of the decedent, although Mr. Justice Williams 
 inclines to think that it is sufficient, and that if the promise was in writing, 
 he may be sued thereon in his individual capacity, and the judgment will be 
 de bonis propriis. 2 Williams on Executors, sixth edition, 1646, 1647. And 
 forbearance to sue him as executor, at his request, is also a sufficient con- 
 sideiation for the same purpose, whether he had assets or not; and hence in 
 declaring upon such a promise, it is not necessary to aver that he had assets. 
 Id. 1642. Consequently a promise by an executor, to pay a debt of the 
 testator at a future day, makes it his own. Id. 1644, 1645. So supplying the 
 executor individually with goods, or delivering up to him deeds upon which 
 the plaintiff had a lien for his debt, forms a sufficient consideration for hid 
 individual promise to pay the debt, whether he had assets or not. Id. 1646, 
 The leading American case, respecting the sufficiency of the consideration for 
 an executor's or administrator's undertaking, to respond personally for a debt 
 of the deceased, and his light to defend an action thereon on the ground of 
 want of assets, is The Bank of Troy v. Topping, 9 Wendell (New York), 
 273, A. D. 1832. This was an action against the defendants individually, 
 upon a promissory note payable sixty days after date, executed by them as 
 the administrator and administratrix of the estate of John Topping, deceased. 
 At tlie trial, the defendants offered to show, that the note in suit was the last 
 of five successive notes, made by the defendants in renewal of a note held 
 ny the plaintiffs against the intestate, at the time of his decease; and that the
 
 Art. III.] Promises of Executoks, etc. Ill 
 
 ARTICLE III. 
 
 When this clause of the statute does not apply, because the suhject-malter or the form 
 of the promise, does not answer the statutory description of the liabilities embraced 
 within it. 
 
 § 33. The first and second clauses of the fourth section 
 use precisely the same words, to describe the form of the 
 promises, to which they severally apply; and to that 
 extent the decisions under the one are applicable to cases 
 arising under the other. Upon the same authorities and 
 
 defendants having, in due course of .idministration, exli.nusted tlie personal 
 property in their hands, obtained from the surrogate an order to si'll all the real 
 estate of the intestate, for the payment of debts, which -was done accordingly; 
 and one of tiie credits upon the note consisted of a dividend paid to the 
 plaintiffs, out of the proceeds of the sale. This evidence was rt-jected, and 
 the plaintiffs had a verdict fur the balance due upon the note; which was set 
 aside by the Supreme Court, and a new trial granted upon exceptions. 
 Savage, C. J., delivering the opinion of the court, after examining the previous 
 authorities, concluded that they show that assets in the hands of execulors 
 or administrators, constitute a sufficient consideration to support an express 
 promise, which will bind them personally, to pay a debt of the deceased; 
 that forbearance to sue ihem in iheir representative capacity, is also a suffi- 
 cient consideration for the same purpose ; and that, inasmuch as a promissory 
 note imports a sufficient consideration, but as between the original parties 
 the consideration may always be inquired into, the note in suit w.as prima 
 facie evidence of the possession of assets sufficient to pay it; but that the 
 defendants might rebut that presumption, by showing that they had no a.«!sets; 
 in which case the note would be void for want of consideration, inasmuch 
 as an agreement to forbear could not be inferred, from the fact that the note 
 was payable sixty days afterdate. The cause having been fried anew, and 
 the second trial having also resulted in a verdict for the plaintiffs, it came 
 again before the Supreme Court in the year 1835, the decision upon the 
 second argument being reported in 13 Wendell, 557. The conclusions 
 which the court reached upon the former hearing, were reiterated upon this 
 occasion; and in addition it was expressly determined, that the onus of 
 proving want of assets rested upon the defendants, the point not having been 
 necessary to the decision upon the former hearing ; the ground taken here 
 being that the note was prima facie evidence of assets, because they are the 
 legal consideration, upon which such a promise ought to be and is presumed 
 to be founded. And in Robinson v. Lane, 14 Smedes and Marshall (Missis- 
 sippi), ICl, A. D. 1850, the defendant's testator had assigned to the plaintiff 
 a note given to him individually, and indorsed upon it his written guar
 
 112 Promises of Executors, etc. [Cli. i. 
 
 for the same reasons, which exclude from the operation 
 of the second clause implied promises, (a) liabilities which 
 grow out of some act other than a promise, (5) and promises 
 to do some act tending to the discharge of the promisee' s 
 demand, other than to pay the same,(c) no doubt similar 
 liabilities could be enforced against an executor or admin- 
 istrator, without written evidence. Neither of these is a 
 "special promise to answer" for any debt; and although 
 this peculiar phraseology has not received much attention 
 in the cases decided under the first clause, there are a few, 
 which seem to present questions arising upon some of these 
 words, or at least are proper to be considered in connection 
 with them. 
 
 § 34. With respect to implied promises of executors 
 and administrators, it is quite obvious that the facts upon 
 which the law would imply a promise to respond individu- 
 ally, will very rarely occur. But it has sometimes hap- 
 pened that a liability incurred in a representative capacity, 
 without any express promise, has been enforced by the 
 courts against the individual property of the defendant, 
 
 anty of the consideration, but not of the solvency of the makers; and 
 the declaration stated that the plaintiff had sued the makers, and had been 
 defeated, on the ground that the note was without consideration. The 
 defence was, first, that the consideration of the guaranty was a debt due from 
 the estate of one Moore, of whose will the defendant's testator was executor, 
 and tliat there were no assets of that estate ; and, secondly, that the plaintiff's 
 demand against the estate of Moore was not a valid one, and so there was 
 no consideration for the guaranty. The court held that the first defence 
 could not be sustained, because the undertaking was in writing, and so satis- 
 fied the statute of frauds, and it was founded upon a sufficient consideration, 
 namely, the discharge of the estate of Moore ; and that after the defendant 
 had thus personally undortaken to pay, it was immaterial whether there were 
 assets or otherwise ; but, that the second defence was good in law, because 
 it went to the consideration of the guaranty ; and the judge, at the trial, 
 having ruled out testimony offered by the defendant, tending to prove that 
 the plaintiff's demand against the estate of Moore was not a just claim, the 
 judgment of the court below was reversed for that reason. 
 
 (a) Chapter fourth, article first. 
 
 (5) Id., article second. 
 
 (c) Id., article third.
 
 Art. III.] Promises of Executors, etc. 113 
 
 upon principles and under circumstances which led to its 
 being practically treated as an implied promise, although 
 it was not so called in terms. As the question whether 
 the executor or administrator had assets applicable to the 
 payment of the plaintiff's demand, has been made the 
 turning point of his personal liability, where the plaintiff 
 relies upon an express promise not in writing; so the 
 cases to which we refer are those where the possession of 
 assets, and a consequent liability to pay the plaintiff, have 
 been inferred from some act other than an express promise, 
 or direct evidence of funds in the defendant's ha-nds.(rf) 
 Thus, although the payment by an executor or adminis- 
 trator of interest upon a debt due by the deceased, or even 
 payment of part of the principal, will not generally amount 
 to a conclusive admission of assets, (e) yet payments of 
 interest, continued for a length of time, will be regarded as 
 such evidence ; and under certain circumstances they will 
 be deemed conclusive to fix the executor or administrator 
 with a personal liability. And so where the question is 
 whether a legatee is entitled to be paid his legacy. 
 
 § 35. This is well illustrated by the case of TTie Attorney 
 General v. Joseph Chapman, 3 Beavan, 255, A. D. 1840. 
 This was an information against the defendant, who was 
 executor of Daniel Chapman, to compel him to purchase 
 such a sum of stock as would produce 20Z. per annum for 
 a charity, which it was insisted he had made himself per- 
 sonally liable to do. Tlie charity was first created by the 
 will of one Terkins, who died in the year 1800, having 
 directed his executors to purchase and stand possessed 
 of government stock to an amount sufficient to produce 
 
 (d) And in Connecticut, and some others of the United States, it is held 
 that the possession of assets raises an imphed promise to pay a legacy, upon 
 which an executor or administrator may be sued in assumpsit. See post § 43 
 
 (e) Savage v. Lane, 6 Hare, 32, andPostlethwaite v. Mounsey, in note to id. 
 33 ; Severs v. Severs, 1 Smale and Giffard, 400; Cleverley v. Brett, cited per 
 Buller, J., in Pearson v. Henry, 5 Term Reports, 8; Payne v. Little, 22 
 Beavan, Gl\ 
 
 15
 
 114 Promises of Executoes, etc. [Cli. I 
 
 201. per annum, for that purpose ; and making this the 
 lirst charge on his personal estate, before debts and lega- 
 cies, which he charged on his real estate, if the personalty 
 should not be sufficient to pay them, after making that 
 investment. He then devised his real estate, so charged, 
 and also bequeathed his personal property to William 
 Chapman and Daniel Chapman, and appointed them his 
 executors. William Chapman died in 1804, and Daniel 
 Chapman in 1820, ' ' having regularly paid the 201. down 
 to the time of his death," but it did not appear whether 
 any investment had ever been made ; but no such invest- 
 ment existed. The defendant was a son of Daniel Chap- 
 man, who devised his real estate to his other sons, making 
 the defendant his executor. The devisees, considering 
 the 201. a year to be a charge upon the real estate, con- 
 tinued to pay it down to the year 1826 ; when they refused 
 to pay it any longer. From that time till 1833 the defend- 
 ant paid it ; but after 1833 he refused to pay it. Upon 
 the hearing it was insisted, in behalf of the Attorn-ey-gene- 
 ral, that the defendant had admitted assets, and thus made 
 himself personally liable ; and in behalf of the defendant 
 that he was entitled to an accounting, and that his liability 
 was limited to the balance of assets of Daniel Chapman 
 possessed by him. But the Master of the Rolls held that 
 the defendant, having commenced six years after the tes- 
 tator' s death to pay the 201. per annum, and having con- 
 tinued that payment for seven years afterwards, had ample 
 time to ascertain the state of the assets ; and that under the 
 circumstances, this must be deemed an admission of assets; 
 so that he "is no longer entitled to have any account of 
 them, but must be declared to make good the fund."(/) 
 
 § 35a. In Hackleman v. Miller., 4 Blackford (Indiana), 
 322, A. D. 1837, the plaintiff sued as administrator of the 
 estate of one Moffitt, upon a note given for the purchase 
 price of goods of the estate, by one of the defendants, with 
 
 (/) See also Whittle v. Henning, 2 Beavan, 396; Attorney General v. 
 Higham, 2 Younge and CoUyer, Chancery, 634; Corporation of Clergymen's 
 Sons V. Swainson, 1 Vesey, Sr., 75.
 
 Ai-t. III.] Promises of Executors, etc. 116 
 
 the other as his surety; and the principal defendant liled as 
 a set off an assignment made before the commencement of 
 the action by one Whitemore to him, of a demand against 
 the estate in favor of Whitemore, which had been adjusted 
 by the plaintiff as administrator. It appear(!d that the de- 
 fendant, before he received the assignment, was informed 
 by the plaintiff that "it was good," and that if he pur- 
 chased it he would receive the full face of it, in set off 
 against the note on which the suit was brought. The court 
 below gave judgment for the defendant, and, on error, the 
 question was whether the set off was admissible. The Su- 
 preme Court held that the plaintiff was suing in his own 
 right, the words "administrator," &c., being only matter of 
 description ; and that the set off, in order to be admissible, 
 must be a demand against him personally : that the ques- 
 tion, therefore, was whether the case was within that por- 
 tion of the statute of frauds, relating to the promise of an 
 executor or administrator, to answer personally for a debt 
 of the estate ; that inasmuch as the purchase was made 
 upon the faith of the plaintiff's promise, that the debt 
 should be paid, the transaction was similar, in principle, 
 to one where a bill of exchange had been purchased upon 
 the faith of a promise to accept it, which had been con- 
 strued to be an original promise to the purchaser, and 
 hence that the set off should be allowed. The judgment 
 of the court below was therefore affirmed. Apparently 
 the first and second clauses of the section were confounded 
 in this case, and we doubt whether the decision can be 
 sustained ; but perhaps it may rest upon the ground that 
 'there was a representation, as well as a promise, or a 
 promise to do something else than to " ansicer dam- 
 ages.'^ff) 
 
 (/) But in Hay v. Green, 66 Massachusetts (12 Gushing), 282, the defendant 
 was present at the auction sale, when the plaintiff purchased the distributive 
 share of one of the sons in the intestate's property, for which the action 
 was brought, and he then " made a statement of the supposed value of the 
 distributive share." After the plaintifiF's purchase, and the subsequent set- 
 tlement by the probate court of the amount of the distributive share, the 
 defendant insisted upon his right to. deduct therefrom a sum of money, which
 
 116 PitOMisES OF Executors, etc. [Cli. i. 
 
 § 36. The promise must be to the effect that the executor 
 or administrator will "answer damages" to the promisee, 
 that is, that he will pay the demand ; and consequently 
 the statute has no application to a promise, the fulfil- 
 ment of which will not, in whole or in part, discharge the 
 demand, or at least necessarily place the promisee in a 
 position where he can compel the executor or administrator 
 to discharge it. Doubtless it was for that reason that a 
 submission to arbitration of a demand against the estate 
 was held not to be within the statute, in the case of Ailing 
 V. Munson, 2 Connecticut, 691, A. D. 1818. This was an 
 action brought by an administrator to recover a sum 
 awarded to him by arbitrators, upon submission of a con- 
 troversy growing out of a claim in favor of the plaintiff's 
 intestate against the defendant; and upon the trial it 
 appeared that the submission was verbal, although the 
 award was in writing. The plaintiff had a verdict, and the 
 defendant moved for a new trial on the ground of misdirec- 
 tion of the jury ; and also in arrest of judgment. Upon 
 the argument it was contended, mth other objections to 
 the recovery, that the submission on the part of the 
 defendant was void for want of mutuality, or for want of 
 consideration ; because, if an award had been made against 
 the plaintiff, he would have been personally liable to pay 
 it, and hence it was a promise to answer damages out of 
 his own estate. But the objection seems to have received 
 but little attention, being briefly referred to in one only of 
 the opinions delivered, and overruled without assigning 
 any reasons for the decision in that respect. Both appli- 
 cations of the defendant were denied, (p') 
 
 he had paid several months before the sale took place, by reason of a note signed 
 by the intestate as surety for the son, and he offered to pay the plaintiff the 
 amount of the share, if he would deduct the sum paid upon the note. The 
 couit held that the defendant could avail himself of the fact that the offer 
 was conditional, to defeat the action. See the case more at length, post, § 45. 
 (a) That a submission to arbitration does not amount to an admission of 
 assets, and so subject the administrator to personal liability to discharge the 
 award, was decided in Pearson v. Henry, 5 Term Reports, 6, A. D. 1792. 
 This was an action of assumpsit against the defendant as administrator for
 
 Art. III.] Piio.MisES OF 'Executors, etc. 117 
 
 § 37. But, on the other liand, altliough a verbal submis- 
 sion to arbitration is not open to the objection that it is 
 void because it may result in fixing the executor or admin- 
 istrator witli a personal liability, an express promise to 
 pay the award, accompanying the submission, is clearly 
 
 goods sold and delivered to his intestate, and the defendant pleaded plene 
 admiiiistravit. In order to prove assets, the plaintiff's gave in evidence a 
 submission to arbitration made by the defendant as administrator, and an 
 a^v^l^d that a certain sum vi^as due to the plaintifls from the intestate's estate, 
 but "without saying by whom it was to be paid." The plaintiflf was non- 
 suited, and a rule nisi to set aside the nonsuit was discharged after argument. 
 Lord Kenyon expressly held, and the other judges substantially agreed with 
 him. that the submission to arbitration did not of itself amount to an ad- 
 mission that the administrator had assets; and that the award, as it did not 
 direct the defendant to pay the amount awarded, was not a decision that he 
 had assets. And in Love, executor, v. Honeybourne, 4 Dowlingand Ryland, 
 814, A. D. 1824, the cause had been referred by a judge's order to arbitration, 
 and an award had been made against the plaintiff, that a certain sum was due 
 from his testator to the defendant, and that the executor should pay it on a 
 certain day "out of the assets in his hands as executor." On a motion in behalf 
 of the plaintiff to set aside the award, the court held that it was not void for 
 uncertainty, the amount of the debt being ascertained and fixed. And 
 Abbott, C. J., thought that the award left the question of assets open ; but 
 Holroyd, J., said that the executor would not be bound to pay, if he had 
 full}^ administered at the day mentioned. On the other hand it has been 
 repeatedly held that the submission is a reference of the question of assets, 
 as well as of the cause of action ; and therefore an unqualified award that 
 the executor or administrator shall pay the sum awarded is conclusive upon 
 the question of assets, and subjects him to personal liability for the amount; 
 so that a plea of plene administravit, in an action founded thereon, will be 
 held bad on demurrer. Barry v. Rush. 1 Term Reports, 691, A. D. 1787; 
 Worthington v. Barlow, 7 Term Reports, 453, A. D. 1797; Riddell u. Sutton, 
 5 Bingham, 200, A. D. 1828. See also, for parallel cases, Wansborough v. 
 
 Dyer, 2 Chitty, 40, A. D. 1815; and Robson v. , 2 Rose, 50, A. D. 1813. 
 
 The result of these cases would seem to be that a submisvsion to arbitration 
 may result in personal liability to pay the award ; because the arbitrators 
 may, if they see fit, take into consideration the question of assets. But, if 
 they determine that the executor or administrator is to pay personally, the 
 result is caused by their determining that he had assets; for which reason, 
 and more satisfactorily, because the submission is not a promise, and 
 will not necessarily result in a personal liability, or indeed in any liability, 
 it would seem to be clear that a submission to arbitration is not within the 
 Statute. Perhaps the same may be said of a promise to arbitrate.
 
 118 Pkomises of Executors, etc. [Ch. i. 
 
 within the statute. This was one of the features of the 
 case of Pearson v. Henry, 5 Terra Reports, 6, A. D. 1792 ; 
 but the court, although they sustained the decision at 
 nisi prius, rejecting testimony tending to prove an under- 
 taking to pay the award, and nonsuiting the plaintiff, 
 made no reference to the statute ; and indeed the testi- 
 mony was apparently offered only for the purpose of 
 showing assets in the hands of the defendant. Lord 
 Kenyon gave no reason for rejecting it; but BuUer, J., 
 said that it would not avail the plaintiffs, because the 
 action was against the defendant as administrator. 
 
 § 38. And the question was fairly presented in Harring- 
 ton V. UlcJi, 6 Vermont, 666, A. D. 1831. There the 
 declaration alleged in substance, that the plaintiff was the 
 assignee of a debt due by one Samuel Rich deceased, of 
 whose estate the defendant was administrator ; that, after 
 the expiration of the time allowed by the court of probate 
 for the presentation of claims against the estate, but before 
 the expiration of the period allowed by law, within which 
 the judge of probate might open the commission for the 
 allowance of other claims, the plaintiff applied to him to 
 open the same ; that he was about to act upon said appli- 
 cation, when the defendant, in consideration that the 
 plaintiff would withdraw it, and would submit his claim 
 to arbitration, promised to pay the demand to the plaintiff 
 "if it was decided to be justly due ;" that the application 
 was accordingly withdrawn, and the claim submitted to 
 arbitration, and after the arbitrators had entered upon 
 their duties, the defendant revoked their powers, whereby 
 the claim against the estate was lost. The defendant 
 pleaded non assumpsit, and several objections to a recovery 
 were taken by him upon the trial ; among them that his 
 promise was within the statute of frauds, as being a prom- 
 ise to answer for a third person' s debt, and a. promise by 
 an administrator to answer damages out of his own estate. 
 But the plaintiff had a verdict, and the judgment thereon 
 was reversed upon exceptions. In the opinion of the 
 Supreme Court, the question arising under the statute
 
 Art. III.] Promises of Executors, etc. 119 
 
 was discussed, as if the first and second clauses were 
 equally applicable to the case ; and after holding that this 
 promise was not within several classes of exceptions to the 
 operation of the second clause, the court proceeded to 
 consider the argument on the part of the plaintiff, that the 
 disci large of the estate took it out of the statute. The 
 decision of the question whether such a discharge would 
 suffice, for the purpose, was not, it was said, necessary to 
 the decision ; because there was no discharge of the estate 
 at the time of giving the promise; for an agreement to arbi- 
 trate is not a discharge of the cause of action, because the 
 right to revoke is mutual. Nor was the case within the 
 rule, that a new and original consideration moving between 
 the parties would suffice, because the consideration did 
 not move to the defendant, but only to the estate. 
 
 §39. The word "damages," as used in this clause of 
 the statute, appears to be a superfluity, as the sense would 
 be equally clear, and perhaps even clearer, had it been 
 omitted. Nor is the phraseology much improved by the 
 use of the phrase "debt or damages," which has been 
 substituted for it in several of the enactments in the 
 United States. In two of the latter, (7i) the descriptive 
 phrase of the sentence corresponding to this clause is, 
 "promises by executors to pay the debt of their principals 
 from their own estate," which, in addition to other limita- 
 tions, confines the statutory requirement to debts of the 
 deceased. But in general the American statutes have 
 copied the language of the English act, or used words of 
 like import ; and these are construed to include all liabili- 
 ties resting upon the executor or administrator strictly in 
 his representative character ; and which, but for the prom- 
 ise, he would have been liable to discharge only in due 
 course of the administration of the estate ; but not those 
 which were originally incurred by him, in consequence of 
 some act of his own, even although it was an official act. 
 
 (A) The Iowa and Nebraska statutes ; and see the Oregon statute.
 
 120 Promises of Executoes, etc. [Cli. i. 
 
 § 40. An instance of the species of liability, whicli is 
 not within the statute for this reason, although the point 
 is not mentioned in the report, was presented to the Court 
 of Common Pleas in Ifeert v. MoesSard, 1 Moore and ' 
 Payne, 8, A. D. 1827. There the defendant was one of the 
 administrators (doubtless with the will annexed) of one 
 Peter Defreene, who had left an annuity to his widow, 
 secured by 2,000^. of government stock, which was to be 
 divided among his children after her death. Tlie widow 
 having died abroad, the plaintiff, who had married one of 
 the daughters, defrayed all the funeral expenses, to the 
 payment of which all the children agreed to apply a half- 
 year' s dividend of 60Z., then due upon the stock. After 
 the defendant and the other administrator had sold out 
 the stock, for the purpose of dividing it, the defendant 
 proposed to keep 40Z. of the half-year's dividend for the 
 purpose of paying the plaintiff, dividing the 10^. among 
 the children, "to which all the other branches of the 
 family assented;" and the mone}^ was retained accordingly, 
 the defendant not being satisfied with the amount of the 
 charges, which the plaintiff had stated at Qll. But it 
 would appear, from the argument of counsel and what is 
 said by the court, that the defendant made no express 
 promise to the plaintiff at the time, and the action was for 
 money had and received. The objection of the statute of 
 frauds is not stated in the report to have been distinctly 
 taken; but the plaintiff having obtained a verdict, the 
 defendant applied for a rule nisi to set it aside, on the 
 ground that there had been no communication between 
 the parties ; and no promise, express or implied, to render 
 him liable for the funeral expenses of the widow, he 
 having received the money as administrator of Peter 
 Defreene. (?■) The rule was refused, the court being of 
 
 (t) If it had been received as administrator of the widow, he would have 
 been Hable for the funeral expenses. From the fact that the case cited was 
 Rann v. Hughes, ante, § 10, it is probable that the defendant relied upon the 
 statute.
 
 Art. III.] Promises of Executors, etc. 121 
 
 opinion that, as the money was left in the defendant's 
 hands, wdth the assent of all parties, for the purpose of 
 paying the plaintiff, the action could be maintained. 
 
 § 41. The point was very clearly taken in a recent 
 American case, Chambers v. bobbins, 28 Connecticut, 544, 
 A. D. 1859. There the allegations of the declaration, as 
 far as they are material to this subject, were, in substance, 
 that the probate court had rendered a judgment admitting 
 to probate the will of one Mary Robbins, deceased, and 
 appointing the defendant her administrator with the will 
 annexed ; that the plaintiff and others, who were heirs at 
 law, appealed from such decision of the probate court ; 
 that, wliile the appeal was pending, it was agreed between 
 the plaintiff and the defendant, that it should be settled 
 and discontinued, and that the defendant would pay the 
 costs in the cause ; but that he had not j3aid the costs, etc. 
 At the trial in the court below, the plaintiff introduced 
 evidence tending to prove a verbal promise to the effect 
 stated in the declaration ; and the defendant having 
 objected to the evidence, the damages were assessed con- 
 ditionally, subject to the opinion of the court; and this 
 and another question were reserved for the advice of the 
 Supreme Court. After argument, the court below was 
 advised to render judgment for the plaintiff. Upon the 
 question whether the promise was within the statute, 
 Hinman, J,, delivering the opinion, after saving that the 
 defendant's promise was not within the statute, unless it 
 was to answer damages out of his own estate, added: 
 "But the promise was made in the defendant's private 
 capacity, and was itself the foundation of his liability in 
 this action ; and so far as the costs in the action that had 
 been pending constituted the basis of his liability, they 
 accrued against him personally, and not against the estate. 
 Whether he would have a right to charge them to the 
 estate, when paid, is unimportant. Most of the personal 
 obligations of an executor, contracted in the course of his 
 administration, are proper charges against the estate in 
 the final settlement of his account; but they are none the 
 16
 
 122 Promises or Executors, etc. [Cli. i. 
 
 less his private debts, for which he is alone liable in his 
 private capacity. Tliere is no more reason for saying that 
 the promise set up in this case is within the statute, than 
 there is for saying that the services of a laborer or of an 
 attorney, which may be required in the course of the set- 
 tlement of an estate, must be contracted for in writing ; or 
 the statute will preclude any recovery for them against 
 the executor. We have no doubt, therefore, that the 
 parol evidence was proper to prove the promise. "(/) 
 
 § 42. With respect to an express promise by an executor 
 to pay a general, that is, a pecuniary legacy, or by an 
 administrator to pay a distributive share, the rule seems 
 to be settled in England, that no action at law will lie 
 against either, in his representative capacity, upon such a 
 promise ; but, if there was a distinct and adequate con- 
 sideration to sustain a promise to pay out of his own 
 means, and the promise was in writing, it is dilhcult to 
 discover any good reason why the action will not lie to 
 charge him de bonis propriis. It may be doubted whether 
 the English cases, which are, at the best, quite obscure 
 and unsatisfactory, go any further than to say, that where 
 there is no new consideration, the action at law will not lie 
 upon proof of assets merely. It was at one time held 
 that a legatee might recover in an action against an execu- 
 tor, founded upon an express promise, made in considera- 
 tion of assets ',{7c) but it was ruled otherwise in a subse- 
 quent case ;( Z) and, although there the executor had made 
 no express promise, and the action was founded on Ms 
 having sufficient assets, it is said by the leading elementary 
 
 (j) See as to the persorital liability of a trustee for costs and other expenses 
 incurred in the discharge of his trust, Taylor v. Mygatt, 26 Connecticut, 184; 
 McKay v. Royal, 7 -Jones (North Carolina), 426 ; per Welles, J., Noyes v. 
 Blakeman, 6 New York (2 Selden), 580; Bowman v. Tallman, 2 Robertson 
 (New York), 385. 
 
 (k) Atkins v. Hill, 1 Cowper, 284, A. D. 1775; Hawkes v. Saunders, id. 
 289, A. D. 1782. 
 
 (0 Deeks v. Strutt, 5 Term Reports, 690, A. D. 1794.
 
 Art. TIT.] Promises of Executors, etc. 123 
 
 writers on that subject, that it is generally understood in 
 England that this decision holds unqualifiedly that no 
 such action will lie, either for a legacy or a distributive 
 share. {7?i) But the rule is different with respect to a specific 
 legacy, the title to which passes directly to the legatee 
 upon the executor s assenting thereto, (ti) However, the 
 rule that the executor is not liable to an action at law, is 
 restricted to cases where nothing has been done to separate 
 the legacy from the common stock ; so that whenever, by 
 arrangement with the legatees, he ceases to hold the money 
 bequeathed in his character of executor, he may be sued 
 as in other cases, (o) 
 
 § 43. In several of the United States a legatee may main- 
 tain an action at law against an executor to recover a 
 general legacy. This has been settled by a series of decis- 
 ions in Massachusetts, where, although the courts concede 
 that the common law rule is otherwise, the action is main- 
 tained by virtue of certain statutory provisions, commenc- 
 ing with a provincial statute of the 5th of William and 
 Mary, and continued by subsequent enactments to the 
 present time ; the effect of which seems to be that after 
 the expiration of a specified time, if the executor has 
 assets applicable to the payment of the legacy, an action 
 may be maintained to recover the amount of the legacy de 
 
 (m) 2 Williams on Executors, sixth edition (A. D. 1867), page 17S5, oiling 
 per Littledale, J., in Jones v. Tanner, 7 Barnewall and Cresswoll, 542 ; and 
 referring also to Johnson v. Johnson, 3 Bosanquet and Puller, 169; Parish 
 V. Wilson, Peake's Nisi Prius, 73 ; Nicholson v. Sherman, T. Raymond, 23, 
 and Siderfin, 45; per V. Ch. Knight Bruce, Holland v. Clark, 1 Younge and 
 Collyer, Chancery, 167. And see Roper on Legacies, fourth edition, 1797, 
 1798. 
 
 (n) 2 Williams on Executors, sixth edition, p. 1278; citing Williams v. 
 Lee, 3 Atkyns, 223; Dix v. Burford, 19 Beavan, 409; Westwick v. Wyer, 
 4 Coke, 28, b ; Doe v. Guy, 3 East, 120; Barton's Case, 1 Freeman, 289; 
 Bastard v. Stukely, 2 Levinz, 209; Paramour v. Yardley, Plowden, 539: 
 Young V. Holmes, 1 Strange, 70. 
 
 (o) Gorton V. Dyson, Gow, 78, A. D. 1819; Hart v. Minors, 2 Crompton 
 and Meeson, 700 (1834) ; Gregory v. Harmanj 1 Moore and Payne, 209 (1828).
 
 124 Peomises of Executors, etc. [Cli. i. 
 
 bonis propriis, upon demand and refusal of payment. (^) 
 In Connecticut, the existence of a similar right of action 
 has been obscurely inferred, without any statutory pro- 
 vision, from two early cases ;( q ) but it is fully recognized 
 by the more modern decisions, wliich rest the action upon 
 an implied assumpsit, raised by the possession of assets, 
 and the expiration of the time within which the legacy 
 should have been paid, without any express promise ; the 
 objection which the English courts make to sustaining 
 the action, namely, the impracticability of making suitable 
 provisions for married women, etc., being regarded as 
 obviated by the extensive jurisdiction of the probate 
 courts ;(r) and it has been accordingly said that an action 
 will not lie in equity without the existence of sj)ecial cir- 
 cumstances to confer equity jurisdiction, as in other cases 
 where that jurisdiction is invoked, {s) In some of the other 
 states it has been held that the action lies, without an 
 express promise; either by virtue of some statutory pro- 
 vision, or because, as in Connecticut, the reasons assigned 
 by the English courts are regarded as inoperative ;(^) 
 while in others, an express promise only will sustain it, 
 made either in consideration of assets, or upon a new con- 
 sideration, (i^) 
 
 (/)) Farwell v. Jacobs, 4 Massachusetts, 634, A. D. 1808; Prescott v. 
 Parker, 14 Massachusetts, 429 (1817) ; Miles v. Boyden, 20 Massachusetts 
 (3 Pickering), 213 (1825); Hapgood v. Houghton, 39 Massachusetts (22 
 Pickering),480 (1839) ; Brooks v. Lynde, 89 Massachusetts (7 Allen), 64 (1863). 
 
 (5'; Lannb v. Smith, 1 Root, 419, A. D. 1792; Spalding v. Spalding, 
 2 Root, 271 (1795). 
 
 (r) Goodwin v. Chaffee, 4 Connecticut, 163, A. D. 1822; Knapp v. Han- 
 ford, 6 Connecticut, 170 (1826), and 7 Connecticut, 132 (1828); Adams v. 
 Spalding, 12 Connecticut, 350 (1837). 
 
 (s) Colt V. Colt, 32 Connecticut, 422, A. D. 1865. 
 
 (i) Pickering v. Pickering, 6 New Hampshire, 120, A. D. 1833; Paynes. 
 Smith, 12 New Hampshire, 34 (1841); Cowell v. Oxford, 1 Halstead (New 
 Jersey), 432 (1798); Bellerjeau v. Kotts, 1 Southard (id.) 359 (1817); Pet- 
 tigrew V. Pettigrew, 1 Stewart (Alabama), 580 (1828). 
 
 (w) McNeil V. Quince, 2 Haywood (North Carolina), 153, A. D. 1801 ; 
 Clark V. Herring, 5 Binney (Pennsylvania), 33 (1812). Per Johnson, Chan- 
 cellor, Lark v. Linstead, 2 Maryland Chancery Decisions, 163 (1850).
 
 Art. irr. ] Promises of Executors, etc. 125 
 
 § 44. But wliatever may be, in general, the correct rule 
 as to the rigltt to maintain an action at law for a legacy or 
 distributive share, it is ck^ar that the statute applies to an 
 express promise to pay it, when the action is foun(l<'d 
 upon such a promise, and its object is to charge the 
 defendant personally. Such was assumed to be its con- 
 struction in the English case, already referred to as having 
 been subsequently overruled, of Hawlces y. Saunders^ 1 
 Cowper, 289, A. D. 1782, where the question came before 
 the King's Bench, upon a motion in arrest of judgment, 
 the plaintiff having recovered a verdict. The declaration 
 stated that the plaintiff was a legatee of George Saunders, 
 and the defendant was his executrix ; that assets more 
 than sufficient to pay all debts and legacies came to her 
 hands ; and that in consideration thereof she promised to 
 pay the plaintiff' s legacy. It was held, after argument, 
 that the plaintiff was entitled to judgment in this form of 
 action, although it would necessarily be a judgment de 
 bonis propriis, and the rule was discharged accordingl}^. 
 Lord Mansfield, near the beginning of his opinion, said : 
 "It is admitted at the bar that after verdict it must be 
 taken to have been a 'promise in writing, and that there 
 were assets." 
 
 § 45. And it has been said in a Massachusetts decision, 
 although apparently the statute of frauds does not provide 
 for such a case, that a promise to pay a legacy or distribu- 
 tive share, when it was made in a representative capacity, 
 and when the action is against the defendant in the same 
 capacity, is not valid unless it was reduced to writing. 
 Such appears to have been one of the points decided in Hay 
 V. Green,, administrator jQQ Massachusetts (12 Gushing), 282, 
 A. D. 1853. There the defendant was sued as the adminis- 
 trator of the estate of Thomas Green, to recover the amount 
 of the distributive share of Martin Green, a son of Thomas, 
 in his father's estate, as decreed in the probate court. It 
 appeared that Martin had become insolvent, and tlie 
 plaintiff had purchased his share at a sale by his assignee, 
 before it had been settled by the probate court ; but he
 
 126 Peomises of Executors, etc. [Ch. i. 
 
 claimed to recover upon a promise by the defendant, 
 made after the settlement in the probate court, contained 
 in an offer to pay to the plaintiff the sum at which the 
 share had been settled, if he would deduct the amount of 
 a note which the deceased had signed as Martin's surety, 
 and which the defendant had paid before the plaintiff pur- 
 chased the share ; but the plaintiff declined the offer, and 
 brought this action to recover the whole of the distributive 
 share. The plaintiff had a verdict, under the ruling of the 
 judge that the action could be maintained ; and the verdict 
 was set aside upon an exception to that ruling. The court 
 held that Martin' s distributive share passed to the assignee 
 under the insolvent law ; but that although the assignee 
 might maintain an action therefor, his vendee could not. 
 Upon the point that the plaintiff could maintain the 
 action by reason of the express promise, the court said 
 that the doctrine would not help him ; first, because the 
 promise was subject to the set-off; and secondly, because 
 "the promise, whatever its terms or conditions may have 
 been, was oral only ; and the defendant, being administra- 
 tor, and sued as such, is not liable on his promise unless 
 it is in writing." * 
 
 § 46. But it is probable that the learned judge's remark 
 with respect to the statute of frauds was inadvertent, for 
 it is very evident that a promise which, in terms only, 
 binds the executor or administrator to pay out of the 
 assets of the estate, is not within the statute, whatever may 
 be the other legal objections to maintaining an action 
 upon it. Thus in Oreening v. Brown, Minor (Alabama), 
 353, A. D. 1824, it was held that in an action against an 
 executor in his official character, upon a note given by his 
 testator, where the defendant pleaded the statute of limi- 
 tations, a replication of a special promise by the executor 
 was good upon special demurrer, although it was not 
 averred to have been in writing, the court saying : "If the 
 action had been on a promise by the executor to pay the 
 debt out of his own estate, the statute of frauds would 
 require that the promise should be in writing ; but, in order
 
 Art. iir.] Pkomises of Executor=i, etc. 127 
 
 to take the case out of the statute of limitations, it was not 
 necessary that the promise of the executor should be in 
 writing. "(^) 
 
 § 47. Apparently a similar principle controlled the 
 decision of tlie case of Collins v. RoiD,\i) Leigh (Virginia), 
 114, A. D. 1839. There an executor was sued in the County 
 Court in his individual capacity, the declaration alleging 
 a general promise to pay for goods sold and delivered to 
 him for the use of the widow and legatees ; and upon the 
 trial the plaintiff proved the sale and delivery of the goods 
 to the defendant for the use of the widow and legatees ; 
 and a verbal promise to pay for them out of the testatof s 
 estate, and that there were assets sufficient for the 
 purpose. The defendant's counsel asked the judge to 
 instruct the jury, that if the promise was to pay out of the 
 testator' s estate, and not out of his own estate, the promise 
 was not binding unless it was in writing. The judge 
 refused to give the instruction prayed for. The plaintiff 
 had a verdict; and the judgment thereon was reversed in 
 the Superior Court, with directions to give the instructions 
 prayed for, if the plaintiff should give evidence that the 
 goods were delivered to the family of the testator, or of 
 the value or amount of assets which came to the defend- 
 ant' s hands. The plaintiff then brought error to the Court 
 of Appeals, where the judgment of the Superior Court was 
 reversed and that of the County Court affirmed. 
 
 § 48. The report of this case omits the arguments of 
 counsel, and the grounds upon which the decision in 
 either court proceeded, and it is consequently somewhat 
 obscure ; but, if we understand it rightly, the defendant 
 assumed no individual liability, notwithstanding tlie use 
 of words in the statement of tlie allegations made in the 
 declaration, and of the facts proved at the trial, which 
 would imply that he became primarily n^sponsible for the 
 price of the goods. No doubt the transaction was meant to 
 
 (v) And see Martin v. Black, 20 Alabama, 309, A. D. 1852.
 
 128 Promises of Executoks, etc. [Ch. i. 
 
 be a sale to the widow or legatees, and an agreement by the 
 defendant, at their request, to pay- the price out of funds ap- 
 plicable to the payment of their legacies ; and the struggle 
 on the defendant' s part appears to have been to bring the 
 case within the second clause of this section. But if, accord- 
 ing to the legal effect of the transaction, the sale was made 
 exclusively upon the defendant' s promise to pay out of 
 the estate, there was no primary liability of any person to 
 which the promise could be collateral ; and if the defend- 
 ant himself assumed a primary liability in his individual 
 capacity, his collateral promise in the capacity of exec- 
 utor was without the second clause, because it was to 
 answer for the debt, not of anotlier person, but of the 
 promisor in another capacity. The case, therefore, 
 seems then to have turned entirely upon the question 
 whether the promise was within this clause of the stat- 
 ute ; and, from the language of the request for instruc- 
 tions, it is to be inferred that the particular point dis- 
 cussed was, whether a promise in terms to pay out of 
 the estate was within the statutory prohibition. The 
 proof of sufficient assets may have been introduced with a 
 view of bringing the case within the principle of Stehhins 
 V. Smith, and PrattY. Humphrey ;{io)'bui it W2i^ necessary, 
 without reference to any question under the statute, for 
 the purpose of showing that the condition had happened, 
 upon which the defendant's promise depended, whereby 
 he became personally liable for its breach. 
 
 {w) Ante §§ 26 and 28.
 
 PART SECOND. 
 
 OF SPECIAL PROMISES TO ANSWER FOR THE 
 
 DEBT, DEFAULT OR MISCARRIAGES OF 
 
 ANOTHER PERSON.
 
 CHAPTER SECOND. 
 
 OBSERVATIONS INTRODUCTORY TO THE CONSIDERATION OF 
 THE SECOND CLAUSE OF THE FOURTH SECTION OF THE 
 
 STATUTE. 
 
 AETICLE I. 
 
 Explanation of the terms nsed in treating tliis snljeot. 
 
 § 49. The second clause of the fourth section of the statute 
 of frauds has given rise to more perplexing questions and 
 contradictory decisions, than any other clause of that part 
 of the statute which forms the subject of this treatise. 
 It describes the species of contract embraced within its 
 provisions as "any special promise to answer for the 
 
 DEBT, DEFAULT, OR MISCARRIAGES OF ANOTHER PI:RS0N ; " 
 
 and the same expression, with slight verbal alterations, 
 has been copied into the various acts upon the same sub- 
 ject, in force in the United States. It is sometimes said 
 that the contract to which this clause of the statute applies 
 is a guaranty, and that word has been defined in the lan- 
 guage of the statute, (a) But properly speaking, a guar- 
 anty is a contract to respond, only in case of the default 
 of a person primarily liable for the payment of the same 
 debt, or the performance of the same duty ;{b) whereas the 
 
 (a) Chitty on Contracts, 8th English edition, p. 4G9. In some standard 
 treatises and digests this part of the statute is treated under the head of 
 Guaranty. 
 
 (h) " A. guaranty is a promise to answer for the payment of some debt, or 
 the performance of some duty, in case of the failure of another person, who 
 is in the first instance liable to such payment or performance." Fell on 
 Guaranty and Suretyship, page 1. "Guaranty is held to be the contract by 
 which one person is bound to anotlier, for the due fulfilment of a promise
 
 132 Collateral Undertakings. [Ch. ir. 
 
 statute includes also contracts to respond in the first 
 instance, that is without reference to a default on the 
 part of the other person. Guaranty, in a derivative or 
 primary sense, is identical with warranty ; this being a,n 
 instance, of which there are some others, of the inter- 
 change of the Celtic prefix W, with the French prefix G, 
 in the formation of our language ; both prefixes being 
 sometimes retained to form distinct words, having slight 
 shades of difference in meaning, (c) 
 
 § 50. As the exact meaning of the statutory definition is 
 imperfectly conveyed by the word "guaranty," the term 
 ' ' collateral promise' ' is more commonly used, in the discus- 
 sions to which this clause of the statute has given rise, to 
 designate the species of contract to which it applies ; and 
 this term has also the advantage of admitting an antithet- 
 ical expression, to designate an undertaking not within the 
 provisions of the statute. Such an undertaking is com- 
 monly styled an original promise. (tZ) The use of these 
 
 or engagement of a tliird party." 2 Parsons on Contracts, 5th edition, p. 3. 
 "A guaranty is an engagement to be responsible for the debts or duty of a 
 third person, in the event of his failure to fulfil his engagement." 2 Story 
 on Contracts, 4th edition, § 852. " Guaranty. — A promise made upon a good 
 consideration, to answer for the payment of some debt, or the performance 
 of some duty, in case of the failure of another person, who is, in the first 
 instance, liable to such payment or performance." Bouvier's Law Diction- 
 ary, 8th edition, vol. I, p. 570. 
 
 (c) Thus guard and guardian are retained together with ward and warden ; 
 guerre is changed to war; and among proper names William and Walter are 
 substituted for Guillaume and Gautier (anciently Gaultier). The word guar- 
 anty is commonly written guarantie in the modern English books, and some- 
 times guarantee; though the latter orthography is objectionable, as it prop- 
 erly designates the correlative of guarantor. 
 
 (d) We cannot fix the precise date when the terms "original promise " and 
 "collateral promise" acquired the meaning now generally ascribed to them. 
 We find the word "collateral" erroneously used as late as 1730, in Elkins v. 
 Heart, Fitzgibbon, 202, where counsel contended that a promise that a 
 debtor should not go beyond the kingdom, without paying the plaintifi^, was 
 not within the statute of frauds, because it was "a collateral promise." But 
 in Stevens v. Squire, Comberbach, 362, A. D. 1696, Holt, C. J., used the
 
 Art. I,] Collateral Undertakings. 133 
 
 expressions is not restricted to cases arising under the 
 statute of frauds ; on the contrary they are habitually 
 employed to designate the contracts of princijjal and 
 surety respectively, in all appropriate cases. But they are 
 so peculiarly associated in the law with the statute of 
 frauds, that they may almost be said to have been incor- 
 porated into the statute by universal consent. And, as it 
 is rare to find any two expressions which are exactly 
 synonymous, it has happened sometimes that the constant 
 use of the term "collateral promise,'' to designate th'e 
 species of contract, indicated by the rather cumbrous 
 phraseology of the statute, and of the term ' ' original prom- 
 ise " to designate one of the opposite species, has given rise 
 to confusion and even to error. Thus Comstock, C. J., in the 
 course of his opinion in Mallory v. Gillett, 21 New York, 
 412, which will be hereafter frequently referred to, says : 
 "There is sometimes danger of error creeping into the 
 law through a mere misunderstanding or misuse of terms. 
 The words ' original ' and ' collateral ' are not in the statute 
 of frauds ; but they were used at an early day ; the one 
 to mark the obligation of a principal debtor ; the other that 
 of the person who undertook to answer for such debt. 
 This was, no doubt, an accurate use of language ; but it 
 has sometimes happened that, by losing sight of the exact 
 ideas represented in these terms, the word ' original ' has 
 been used to characterize any new promise to pay an 
 antecedent debt of anotiier person. Such promises have 
 been called original, because they are new ; and then, as 
 original undertakings are agreed not to be within the 
 statute of frauds, so these new promises, it is often argued, 
 
 word " original " in iWmodern sense, and in Birkmyr v. Darnell, 1 Salkeld, 27 ; 
 6 Modern, 248; and 2 Lord Raymond, 1085, A. D. 1704, he employed the 
 word " collateral " to designate its antithesis. The distinction between the two 
 forms of expression, with direct reference to the application of the statute 
 of frauds, was taken by Lee, C. J., in Read v. Nash, 1 Wilson, 305, A. D. 
 1751 ; and we believe that Elkins v. Heart is the latest case where the term 
 "collateral promise" was used as descriptive of a promise not within the 
 statute; although in some American cases we have met with the expression 
 "an original collateral promise."
 
 134 Collateral Undertakings. [Ch. ii. 
 
 are not within it. If the terms of the statute were adhered 
 to, or a more discriminating use were made of words not 
 contained in it, there would be no danger of falling into 
 errors of this description, "(d) 
 
 § 51. For the purpose of avoiding circuity or redundancy 
 of expression, we shall, in the discussion under this clause, 
 always use certain words in a particular and somewhat 
 conventional sense ; except where a different meaning is 
 indicated in the passage where they appear. Thus the 
 term ' ' promisor ' ' will be employed specifically to designate 
 the person whose liability, under a verbal promise, which 
 is supposed to be to answer for the debt, default, or mis- 
 carriage of another, is the subject of discussion. Of course 
 the person to whom the promise was made will be gene- 
 rally styled the "promisee ;" but occasionally the word 
 "creditor" will be used to designate him ; and the words 
 ' ' debt " or " indebtedness ' ' to designate the liability which 
 the promisor has assumed to discharge, without reference 
 to the question whether such liability arises out of a con- 
 tract to pay money, or to perform some other act ; or 
 whether it arises out of a tort. And when we speak of 
 "the third person," we always mean him for whose debt, 
 default or miscarriage, the promisor has undertaken, or 
 is supposed to have undertaken, to answer ; except of 
 course when the language of others is quoted, wherein 
 that term is used, as frequently happens, to denote the 
 person whom we style the promisor. The peculiar appro- 
 priateness and precision of the expression ' ' the third per- 
 son," in the sense in which we use it, will appear hereafter. 
 
 (e) See also Buller's Nisi Prius, page 281 ; and per Grover, J., in Brown 
 V. Weber, 38 New York, 187, on page 190.
 
 Art. II.] Collateral Undertakings. 136 
 
 ARTICLE 11. 
 
 How &r the consideration of a Terbal promise affects its Taliditji 
 
 § 52. A few general suggestions upon this subject will be 
 useful here ; although, as the question enters into nearly 
 every discussion arising under this branch of the statute, 
 they will necessarily be merely prefatory to a more com- 
 plete examination hereafter. A vast amount of error has 
 been predicated upon, and defended by arguments, grow- 
 ing out of the nature and character of the consideration 
 of the promise. A struggle was commenced, almost sim- 
 ultaneously with the enactment of the statute, to with- 
 draw from its operation, undertakings which were clearly 
 nothing but promises to answer for the debt, default, or 
 miscarriages of another person, but which were founded 
 upon meritorious considerations of different kinds ; and 
 it has been maintained ever since, with great persistence 
 and ingenuity, and at times with considerable success. 
 In England, the rule is now generally admitted to be that 
 the character of the consideration is immaterial ;(«) and 
 we believe that the courts in this country are tending to 
 the same conclusion ; but the contrary opinion has had 
 great prevalence among us, and its extinction has been a 
 work of time and difficulty. At one period of our legal 
 history, the doctrine that any new and original considtTa- 
 tion, whether of benefit to the promisor or harm to the 
 promisee, sufficed to sustain a verbal promise to pay the 
 debt of another, was generally recognized as a settled 
 
 (a) The correct rule, as recognized in England, is contained in the follow- 
 ing extract from Messrs. Patteson and Williams's note to Forth v. Stanton, 
 1 Williams's Saunders, 211 : "The question, indeed, is, what is the promise? 
 whether it be a promise to answer for the debt, default, or miscarriage of 
 another, for which that other remains liable ; not what the consideration for 
 the promise is ; for it is plain that the nature of the consideration cannot 
 Rffect the terms of the promise itself, unless, as in the case of Goodman v. 
 Chase, it be an extinguishment of the liability of the original party." Seo 
 Fitzgerald v. Dressier, 7 Common Bench, N. S., 374, cited in full hereafter.
 
 loO COLLATEEAL UNDERTAKINGS. [Cll. n. 
 
 principle of American jurisprudence, (5) and even to the 
 present day, a rule not essentially different may be found 
 laid down in some cases of very higli authority, (c) 
 
 § 63. But it is believed that the proposition can now be 
 maintained upon principle and upon the weight of 
 authority, that, although the nature and effect of the 
 consideration are frequently material elements in deter- 
 mining the question, whether a particular case is 
 within the statute, they are so only as far as they 
 shed light upon the character of the promise ; that is, 
 whether it is an undertaking to answer for another' s debt 
 or default, in the sense contemplated by the statute, as the 
 latter is construed by the rules generally recognized for 
 that purpose. For instance, if the foundation of the prom- 
 isor' s engagement to pay money appears to have been the 
 delivery of goods, by the promisee, to the third person ; 
 prima facie it is a sale to the latter, and he is liable for 
 the price ; and, therefore, the express undertaking of the 
 promisor to respond for the price, is collateral to the im- 
 plied undertaking of the purchaser to the same effect. 
 But if it be alleged that in fact there was no sale to the 
 person to whom the goods were delivered, the delivery 
 having been upon the credit of the defendant' s promise 
 only, although the nature and character of the considera- 
 tion then become the turning points of the case, their 
 
 (b) In Meech v. Smith, 7 Wendell (New York), 315, A. D. 1831, Savage, 
 Ch. J., said: " Was the contract within the statute of frauds? It is a parol 
 agreement to pay the debt of a third person, and is therefore within the 
 terms of the statute. The rule, however, has long been settled, that though 
 such. a promise be by parol, if it arises out of some new and original con- 
 sideration of benefit or harm, moving between the newly contracting parties, 
 it is not a case within the statute; it then becomes a new and original con- 
 tract. Such a promise is void in such cases only, when the debt of the third 
 person is the only consideration, or when the new consideration is not suffi- 
 cient to support the contract." " This rule has been recognized by all writers 
 on contracts, and has been recognized by the highest court in this state; 
 it is, therefore, as mvch the law of the land as the statute itself." 
 
 (c) This question is fully discussed in the seventeenth chapter.
 
 Art. II.] Collateral Undertakings. 137 
 
 importance is not due to any eflficacy attaching directly to 
 the consideration itself, but to ttie light which they shed 
 upon the character of the promise. For if the third per- 
 son was not liable, the promise must have been original 
 in its character ; because there was no debt of another to 
 which it could have been collateral. So when a promise 
 to pay a debt due from a third person is taken out of the 
 statute, because it is to be fulfilled out of a fund placed by 
 him in the hands of the promisor, the existence of such a 
 fund, as a part of the consideration, is material only 
 because it shows that the promisor was already in some 
 form liable to pay the debt, or that the promise was not 
 to be fulfilled out of his own means, or that for some other 
 reason his engagement was in reality of a different charac- 
 ter from a promise to pay out of his own means, as in form 
 it purported to be. So, also, if the consideration was the 
 release or surrender of some lien upon property, available 
 to the promisee for the collection of his debt ; the rule, as 
 now understood, is that the promise is without the statute, 
 only when the promisor was the owner of some title to or 
 interest in the property, so that he acquired whatever was 
 surrendered by the promisee ; the nature of the consid- 
 eration, therefore, becomes material, as showing that the 
 promise was in reality an undertaking to pay a charge 
 already resting upon the promisor' s property ; and hence 
 that he undertook merely for the payment of that which, 
 in a qualified sense, was already his own debt. (<^) 
 
 (d) As will be seen hereafter (chapter xvii), we deny the soundness of the 
 general proposition, which some of the most respectable American authorities 
 yet maintain, that a promise is without the statute, when the leading object 
 of the promisor was to subserve some interest of his own; and the discharge 
 of the third person was only to be incidentally accomplished by the fulfil- 
 ment of the promise. Where the consideration of the promise was the 
 simultaneous discharge of the third person from an antecedent debt, the 
 promise is without the statute, for the same reason which obtains when the 
 consideration of the promise was goods, etc., then delivered to the third 
 person upon the credit of the promise only ; namely, because there was no 
 debt to which the promisor's undertaking could be collateral. Those two 
 classes o. cases illustrate the proposition stated in the text quite as forcibly 
 18
 
 138 Collateral Undertakings. [Ch. n. 
 
 § 54. In these cases, the nature, character and effect of 
 the consideration are merely circumstances which show 
 what was the substantial, as distinguished, (if necessary,) 
 from the formal character of the promise. But if the cir- 
 cumstances fail to show that the promise was not to 
 answer for the debt, default or miscarriage of another, 
 within some of the settled rules of construction, whereby 
 undertakings, although in form of that character, are 
 regarded as promises to answer for the debt, default or 
 miscarriage of the promisor ; no consideration, however 
 meritorious, or whatsoever may be its nature, character 
 or effect, will suflace to enable the promisee to recover, 
 unless he cJin produce, as evidence of the promise, a writ- 
 ing satisfying all the requirements of the statute. This 
 remark will be further illustrated by a reference to the 
 general rules for testing the application of the statute, con- 
 tained in the fourth article of this chapter ; in which, when- 
 ever any mention is made of the consideration, it is referred 
 to rather as descriptive of the transaction, than as a 
 material element affecting the question whether the case is 
 within the statute. 
 
 § 55. Therefore no amount of hardship to the promisee, 
 not even the fact that he has lost all remedy upon a meri- 
 torious cause of action, in consequence of his reliance 
 upon the promise, will save it from the operation of the 
 statute. In Trustees of Free Schools, etc., v. Flint, 54 
 Massachusetts (13 Metcalf ), 589, A. J). 1847, the plaintiffs 
 proved at the trial that the defendant was a member of a 
 corporation which was indebted to the plaintiffs, and had 
 become insolvent ; that the members had adopted a by-law 
 
 as the others ; but the latter is not specially referred to with the rest, 
 because the fact that the discharge was the consideration of the promise is 
 believed to be immaterial. For the rule is equally applicable, when the con- 
 sideration of the promise was something else ; provided that the debt was 
 in fact discharged when the promise was made, or was to be discharged 
 under such circumstances that an agreement to discharge it will suffice to 
 satisfy the rule; a question discussed in a subsequent chapter
 
 Art. ri.] Collateral Undertakings, 139 
 
 pledging themselves to be individually liable for the debts 
 of the corporation ; that the defendant himself had repre- 
 sented to other creditors that the members were personally 
 liable for the debts, and had handed them printed copies 
 of the by-laws, upon which assurance they had advanced 
 money to the corporation ; and that the defendant as treas- 
 urer of the corporation, executed the note upon which the 
 plaintiffs' demand was founded, in consideration of money 
 advanced to it by the plaintiffs, through the defendant, as 
 their treasurer ; but it was held, upon a case reserved, that 
 he was not liable under the statute. 
 
 § 66. And in Rogers v. Roger s^ 6 Jones (North Carolina), 
 300, A. D. 1859, the defendant's son had been imprisoned 
 at Wilmington upon a charge of forgery ; and the plaintiff, 
 at the son's request, went from his home, at a distance, to 
 Wilmington ; procured a person at Raleigh, named Buf- 
 falow to consent to unite with him in becoming bail for 
 the son, provided the defendant would indemnify him ; 
 and went to the defendant's house, at a distance in another 
 direction, to procure him to execute the bond of indemnity. 
 While there, the plaintiff expressed a fear that he would 
 lose a debt which the son owed him ; whereupon the 
 defendant replied "that if the plaintiff would go to Wil- 
 mington with Buffaiow and become the bail of his son, he 
 should lose nothing by what he had done or might do for 
 him;" and afterwards, on the plaintiff requesting him to 
 put this promise in writing, he answered that his word 
 was as good as his bond, and called upon a witness present 
 to take notice ; and then repeated the promise, \Ai\\ the 
 addition that all the debts which the son owed the plaintiff 
 should be paid. The plaintiff went to Wilmington with 
 Buffaiow, and they became bail accordingly for the son; 
 and the son being detained by writs in civil cases, which 
 had been issued in the mean time, the defendant sent an 
 agent, who, acting under a power of attorney from the 
 plaintiff, compromised the debts upon which he was 
 arrested, so that the son was discharged ; whereupon he 
 left the State and did not return. In an action upon the
 
 140 Collateral Undertakings. [Ch. ii. 
 
 promise, it was held that so much of the promise as related 
 to the debt then due by the son was within the statute, 
 and there having been a payment of forty or fifty dollars 
 made by the defendant, on account of the expenses of the 
 journey, which, for aught the court could see from the 
 evidence, was sufficient for that purpose, no notice to 
 the contrary ever having been given to the defendant ; it 
 was held that the judge at the trial correctly charged the 
 jury that the defendant was not liable ; and a judgment 
 for the defendant was accordingly affirmed on appeal. 
 
 § 67. So in Hill v. Doughty, 11 Iredell (North Carolina), 
 195, A. D. 1850, the two defendants and their sister 
 were equitably liable to refund to the plaintiff, a creditor 
 of their father, so much of the distributive shares of their 
 father' s estate received by them, as might be required to 
 pay the* plaintiff' s demand ; and in consideration of for- 
 bearance on the part of the plaintiff, to take proceedings 
 to compel the defendants so to refund, they verbally prom- 
 ised to pay the debt ; and it was held that the promise of 
 each was void as to all but his one-third of the debt, and 
 a joint promise by both was void in toto.(e) 
 
 § 58. Of the numerous cases where the promise was held 
 to be within the statute, when founded upon a considera- 
 tion moving to the third person, it will be sufficient to cite 
 only a few. Thus, where the consideration was an exten- 
 sion of the time for payment of the debt, by the third 
 person, or forbearance to sue him, either generally, or for 
 a limited time,(/)or forbearing to distrain for rent upon 
 
 (e) Compare this case with Templetons v. Bascom, 33 Vermont, 132. 
 Both are fully cited hereafter. 
 
 (/) Caston V. Moss, 1 Bailey (South Carolina), 14 ; Kirkham v. Marter, 
 2 Barnewall and Alderson, 613; Rothery v. Curry, Buller's Nisi Prius, 281; 
 Bennett v. Pratt, 4 Denio (New York), 275; Simpson v. Patten, 4 Johnson 
 (New York), 422 ; Jackson v. Rayner, 12 Johnson (New York), 291 ; But- 
 ton V. Thrailkill,-5 Jones (North Carohna), 329 ; Dexter i;. Blanchard, 93 
 Massachusetts (11 Allen), 365; Musick v. Musick, 7 Missouri, 495; Scott v. 
 Thomas, 1 Scammon (Illinois), 58; Kins,' v. Wilson, 2 Strange, 873; Smith 
 V. Ives, 15 Wendell (Ne\^ York), 182; Packer v. Willson,15 Wendell (New 
 York), 343.
 
 Art. II.] Collateral Undertakings. 141 
 
 Ms property (the defendant having no personal interest 
 therein), (^) or forbearing to issue an attachment against 
 h.im,{7i)eveTi although in consequence of such forbearance, 
 upon the faith of the promise, the debt was ultimately lost 
 to the promisee ;{i) or discontinuing or staying a suit 
 already commenced against him,(^") or forbearing to issue 
 an execution upon judgment recovered against him, (A:) 
 or releasing the levy of an execution or attachment against 
 his property,(Z) or surrendering to him a pledge, or a lien 
 upon his property ;(m) in each of these cases, the consid- 
 eration, however meritorious, has been held to be insuffi- 
 cient to enable the promisee to maintain an action upon 
 
 (y) Thomas v. Williams, 10 Barnewall and Cresswell, 664. 
 
 (h) Jones V. Walker, 13 B. Monroe (Kentucky), 356; Watson v. Randall, 
 
 20 Wendell (New York), 201. 
 
 (i) Westheimer v. Peacock, 2 Iowa, 528 ; Rogers v. Rogers, 6 Jones 
 (North Carolina), 300; but see Larapson v. Hobart, 28 Vermont, 697, and 
 Templetons v. Bascom, 33 Vermont, 132, commented upon in chapter xvii. 
 
 (j) Tomlinson v. Gell, 6 Adolphus and Ellis, 564; Saunders v, Wakefield, 
 4 Barnewall and Alderson, 595 ; Cole v. Dyer, 1 Crompton and Jervis, 461'; 
 Rowe V. Whiltier, 21 Maine, 545; Nelson v. Boynton, 44 Massachusetts 
 (3 Metcalf), 396; Chater v. Beckett, 7 Term Reports, 201; Fish v. Hutchin- 
 son, 2 Wilson, 94. 
 
 (Je) Russell v. Babcock, 14. Maine, 138, as explained in Hilton v. Dinsmore, 
 
 21 Maine, 410; Durham v. Arledge, 1 Strobhart (South Carolina), 5; Alls- 
 house V. Ramsay, 6 Wharton (Pennsylvania), 331; Caperton v. Gray, 4 
 Yerger (Tennessee), 563. 
 
 (!) Boyce v. Owens, 2 McCord (South Carolina), 208; Nelson v. Boynton, 
 44 Massachusetts (3 Metcalf), 396; Lieber v. Levy, 3 Metcalfe (Kentucky), 
 292 ; Stern v. Drinker, 2 E. D. Smith (New York), 401. But there is a 
 question whether the release of a sufficient levy, under an execution, would 
 not have the effect to discharge the debt and to take the promise out of the 
 statute for that reason ; which is discussed in a subsequent chapter. And it has 
 been said in one case that such was the effect of the release of a levy under 
 a domestic attachment, Tindal v. Touchberry, 3 Strobhart (South Carolina), 
 177 ; but doubtless this remark is based upon some peculiarity of the local 
 law. 
 
 (m) Per Gray, J., Furbish v. Goodnow, 98 Massachusett<!, 296; Corkins v. 
 Collins, 16 Michigan, 478; Clancy v. Piggott, 4 Nevile and Manning, 496; 
 Mallory v. Gillett, 21 New York, 412.
 
 142 Collateral Undertakings. [Ch. n. 
 
 the promisor' s verbal undertaking to pay the debt, either 
 generally or within a limited time. 
 
 § 59, Nor will it suffice to take out of the statute a prom- 
 ise to answer for the debt of another, that the promisor 
 himself received the benefit of the consideration, even if it 
 enured to his benefit exclusively. Thus in Fowler v. 
 Moller, 4 Bosworth, 149, the. New York Superior Court 
 held that a promise made by the assignee of a lease, to the 
 landlord, in consideration that the latter would allow him 
 to remain upon the premises, until he could dispose of a 
 stock of goods also assigned to him by the lessor ; to the 
 effect that he would pay the arrears of rent due from his 
 assignor, was within the statute, and void because not in 
 writing. So in Emmet v. DewJiurst, 3 MacNaghten and 
 Gordon, 587, the consideration of the promise was an act 
 which had a direct tendency to reduce the amount of 
 money for which the promisor had become liable. So, in 
 Blake v. Parlin, 22 Maine, 395, the defendant lived with 
 her son, who had verbally hired a house from the plaintiff; 
 and while they were moving in, the plaintiff called at the 
 house, and refused to allow them to go in, unless the 
 defendant would agree to see that the rent was paid, to 
 which she verbally assented, and her promise was held to 
 be within the statute. But it is unnecessary to multiply 
 these citations, as similar cases will be found scattered in 
 great profusion throughout the succeeding pages under 
 nearly every rule hereafter to be discussed. 
 
 § 60. On the other hand, where the promise is of such a 
 character, and made under such circumstances, that it is 
 deemed an original promise, the fact that the promisor 
 derived no benefit whatever from the consideration, and 
 that it enured, with the knowledge of the promisee, exclus- 
 ively to the benefit of the third person, will not bring the 
 case within the statute. The circumstance is only material 
 in its bearing upon the question whether the promise was 
 in fa.ct original or collateral. The principles regulating 
 this class of promises form the subject of discussion in
 
 Art. III.] Collateral Undertakings. 143 
 
 those chapters of this work, devoted to the consideration 
 of the third and fourth general rules, which are so 
 crowded with cases illustrating the doctrine just adverted 
 to, that it would be useless to attempt to collect them again 
 in this place. (ti) 
 
 ARTICLE III. 
 
 General classification of oases, apparently or actually within the terms of this clause of the 
 statute, where verbal promises are nevertheless valid 
 
 § 61. There have been very few attempts to classify the 
 cases arising under the second clause of the fourth section 
 of the statute of frauds, so as to arrange those which are 
 akin to each other, under the distinctive principles or 
 rules upon which they respectively depend. This has 
 been partly the cause, and partly the effect of the con- 
 fusion which now prevails in this branch of the law ; and 
 it is much to be regretted that the task was not attempted 
 at an earlier day, when the cases were fewer and less dis- 
 cordant than they now are. It might then have been 
 practicable for a judge or a commentator, possessing the 
 requisite ability and reputation, to lay down a series of 
 principles regulating the application of the statute, which 
 would have commanded general recognition, as a standard 
 by which cases would be tested ; and under which they 
 would have been ranged by the courts in their proper 
 places, as they should subsequently present themselves 
 for examination and decision ; thereby avoiding much of 
 the incoherence of argument and conflict of authority 
 which has now become incurable. For want of such a 
 standard, many causes have been decided without due 
 consideration, upon grounds which, although apparently 
 satisfactory in the particular case, would not bear expan- 
 
 (n) In the following cases the principle, which is involved, without being 
 always specially mentioned, in the numerous others cited in the chapters 
 referred to, is expressly laid down: Faires v. Lodanc, 10 Alabnma, 50; 
 IBackus V. Clark, 1 Kansas, 303 ; Proprietors Upper Locks v. Abbott, 14 
 New Hampshire, 157; Brown v. George, 17 New Hampshire, 128.
 
 144 COLLATEEAL UNDERTAKINGS. [Ch. II, 
 
 sion into a general principle. Every such case has, of 
 course, added to the existing confusion. Hence it has 
 resulted that nearly all the rules appertaining to this sub- 
 ject, which may be called settled, have been very slowly 
 developed ; and most of them have been adopted, only after 
 great fluctuation of opinion, amounting frequently to a 
 complete reversal of the course of decision which prevailed 
 for a long time ; many principles upon which the solution 
 of the most important questions depends, are to this day 
 obscure and uncertain in their terms and in their applica- 
 tion ; and, with respect to other questions of vital import- 
 ance, and of constant practical occurrence, the cases are 
 still so discordant and conflicting that no principle is defi- 
 nitely settled. To some extent this is true in every depart- 
 ment of legal science ; but in none other are these incon- 
 veniences and disorders so numerous or so glaring, as in 
 that of which we are now treating. The evil has now 
 become so great that it is in a great measure remediless ; 
 for it is no longer possible that this branch of the law 
 should be thoroughly and systematically digested. 
 
 § 62. Mr. Roberts' s work, which is the only treatise exclu- 
 sively devoted to the statute ever published in England, 
 although in many respects valuable, really contains only 
 one correct and well defined principle regulating the appli- 
 cation of the statute to collateral undertakings ; namely, 
 that where the promise does not relate to a precedent 
 liability of the third person, the question whether it is 
 original or collateral, depends upon whether the third 
 person incurred any liability, concurrently with the prom- 
 isor \{a) and to this day the recognized standard in England 
 is the collection of notes, written at diflferent times, ap- 
 pended to the case of Forth v, Stanton, on page 211 of the 
 first volutoe of Saunders' s Reports, an annotated edition 
 of which was first prepared by Mr. Serjeant Williams, 
 
 (a) ''In discussing this critical part of the statute, though much has of 
 necessity been left to float on the facts and circumstances of the particular 
 cases, one anchorage has at least been gained, viz. : that the person under, 
 taken for must be or become liable at the time the promise by the third ' 
 person is made." Roberts on Frauds, page 224.
 
 Art. III.] Collateral Undertakings. 145 
 
 and has since been continued from time to time by Mr. 
 Justice Piitteson and Mr. Justice Williams. The case itself 
 is so far from being an authority under the statute of frauds, 
 that it was d(H;ided before tlie statute was enacted ; and the 
 notes, though written by very distinguished jurists, and 
 well deserving the high estimation in which they are lield, 
 make no pretence of classifying the cases, or even of an 
 orderly and systematic arrangement of the authorities 
 cited, or the subjects considered. 
 
 § 63. In the United States, Mr. Chief Justice (afterwards 
 Chancellor) Kent rendered the profession a signal service, 
 by a classification of the cases made in the course of his 
 opinion, delivered in Leonard v. Vreclenhurgh, 8 Johnson 
 (New York), 23, A. D. 1811. The favor with which it was 
 received, notwithstanding its -incompleteness, proved how 
 urgent was the need which it supplied. For a long series 
 of years, the test of the application of the statute, through- 
 oiit the United States, was to ascertain in which of Chan- 
 cellor Kent's three classes the particular case belonged. 
 The following extract contains the entire classification 
 referred to: "There are, then, three distinct classes of 
 cases on this subject, which require to be discriminated ; 
 1. Cases in which the guaranty or promise is collateral to 
 the principal contract, but is made at the same time, and 
 becomes an essential ground of the credit given to the 
 principal or direct debtor. Here, as we have already seen, 
 is not, nor need be, any other consideration, than that 
 moving between the creditor and original debtor. 2. Cases 
 in which the collateral undertaking is subsequent to the 
 creation of the debt, and was not the inducement to it, 
 though the subsisting liability is the ground of the prom- 
 ise, without any distinct and unconnected inducement. 
 Here there must be some further consideration shown, 
 having an immediate respect to such liability, for the con- 
 sideration for the original debt will not attach to this sub- 
 sequent promise. 3. A third class of cases, and to which 
 I have already alluded, is when the promise to pay the 
 debt of another arises out of some new and original con- 
 19
 
 146 Collateral Undertakings. [Cli. ii. 
 
 sideration of benefit or harm, moving between the newly 
 contracting parties. The two first classes of cases are 
 •within the statute of frauds, but the last is not." 
 
 § 64. This classification, however, falls short of including 
 a large number of cases, and the principle which is stated 
 as governing the third class has led to considerable error, 
 and has not stood the test of time, at least not in the lan- 
 guage of the learned Chief Justice. A much more com- 
 plete classification is to be found at the conclusion of the 
 opinion of Comstock, C. J., delivered in the year 1860, in 
 Mallory v. Gillette 21 New York, 412, on pages 432 and 
 433, as follows: "Without pursuing this discussion fur- 
 ther, the general rule is, that all promises to answer for the 
 debt or default of a third person must be in wiiting, 
 whether the promise be made before, at the time, or after 
 the debt or liability is created. Such is the rule, because 
 so is the statute of frauds. The statute makes no excep- 
 tion of any promise which is of that character. The 
 courts have made no exceptions ; as clearly they should 
 not. But a considerable variety of undertakings, having 
 points of resemblance and analogy to such promises, have 
 been held not to be within the statute. These may be 
 chiefly, if not wholly, arranged in the following classes : 
 1. Where there was no original debt to which the auxiliary 
 promise could be collateral ; for example, where the prom- 
 isee was a mere guarantor for the third person to some one 
 else, and the promisor agrees to indemnify him ; or where 
 his demand was founded in a pure tort. 2. Where the 
 original debt becomes extinguished, and the creditor has 
 only the new promise to rely upon ; for example, where 
 such new undertaking is accepted as a substitute for the 
 original demand ; or where the original demand is deemed 
 satisfied by the arrest of the debtor's body or a levy on 
 his goods, the arrest or levy being discharged by the cred- 
 itor' s consent. 3. Where, although the debt remains, the 
 promise is founded on a new consideration which moves to 
 the promisor. This consideration may conie from the 
 debtor, as where he puts a fund in the hands of the prom-
 
 Art. III.] Collateral Undertakings. 147 
 
 isee" (promisor), • "either by absolute transfer, or upon a 
 trust to pay the debt ; or it may be in his hands, charged 
 with the debt as a prior lien, as in the case of Williams 
 V. Lepei\ and many others. So the consideration may 
 originate in a new and independent dealing between the 
 promisor and the creditor, the undertaking to answer for 
 the debt of another being one of the incidents of that 
 dealing. Thus A, for any compensation agreed on 
 between him and B, may undertake that C shall pay his 
 debt to B. So A, liimself being the creditor of C, may 
 transfer the obligation to B upon any sufficient considera- 
 tion, and guaranty it by parol. If we go beyond these 
 exceptional and peculiar cases, and withdraw from the 
 statute all promises of this nature, where the debtor alone 
 is benefited by the consideration of the new undertaking, 
 and the debt still subsists ; then we leave absolutely 
 nothing for the statute to operate upon." 
 
 § 65. This classification, unlike Chancellor Kent's, which 
 includes cases within as well as without the statute, is con- 
 fined entirely to the latter ; but it is, of course, sufiicient to 
 classify either kind of cases alone, provided the work is 
 done so exactly and comprehensively, as to leave all those 
 not embraced in the classification, to fall within the other 
 kind. With respect to the classification in question, 
 it is believed to be so far complete, that there is a place 
 within it for every case where a verbal promise is sufficient 
 to lay the foundation of an action ; but it is open to the 
 objection, inseparable, perhaps, from the condensation 
 necessary in a judicial opinion, that the language is so 
 general, as not only to prevent it from being of much 
 practical use, but also to leave room for some cases to 
 creep in where the true construction of the statute requires 
 the promise to be m writing. Indeed, a closer examination 
 of the terms of this classification will reveal the fact, that 
 its completeness is owing to the great elasticity of the 
 definition of the first class, which is very far from being 
 equivalent to Mr. Roberts's proposition, or to the third of 
 the general rules, under which the cases are arranged in
 
 148 Collateral Uis^dektakings. [Ch. ii. 
 
 this volume ; but on tlie contrary is scarcely more definite, 
 either with respect to the language used, or the meaning 
 of its learned author, than if he had repeated the words 
 of the statute itself. (5) 
 
 (6) It is a striking illustration of the extreme difficulty of classifying the 
 cases, that, while the body of this long and important opinion has received 
 the highest encomiums in subsequent cases, the illustrations, whereby the 
 learned Chief Justice explains the terms upon which his classification depends, 
 have already been dissented from in two cases cited fully hereafter. FuUam 
 V. Adams, 37 Yermont, 391, expressly overrules one of the propositions 
 of the third class; and in Baker v. Dillman, 12 Abbott's Practice Reports, 313, 
 and 21 Howard's Practice Reports, 444, the New York Supreme 
 Court, refused to be bound by the proposition illustrating the first class, 
 holding that it was obiter, and not sustained by the authorities. Another 
 instance of an attempt at classification by -a very able writer, based upon 
 that of Chief Justice Kent, but which was afterwards abandoned by its author, 
 is to be found in the first edition of the American notes to Smith's Leading 
 Cases, vol. 1, page 329, as follows: "The most natural division of the cases 
 which arise under the statute of frauds, is into those in which the engage- 
 ment of the promise is given at or before the creation of the debt, and those 
 in which it is given subsequently. The second class has again been subdi- 
 vided into two others; those in which the promise is given upon a consid- 
 eration growing out of the debt itself, and those in which the considera- 
 tion is new and distinct in its nature." But in the sixth edition the 
 author merely says that the cases have been so classified, and he adds: 
 " But although this classification has been frequently cited with approbation, 
 and may be used to group and methodize the decisions, we may doubt 
 whether any valid distinction exists, so far as the operation of the statute is 
 concerned, between those cases where the debt agreed to be paid is ante- 
 cedent, and those where it is contemporaneoue." An enumeration, rather 
 than a classification, of cases not within the statute, is also to be found in the 
 opinion of Bell, C. J., delivered in Robinson v. G-ilman, 43 New Hampshire, 
 48-5, as follows: "In the following cases the promise has been held binding 
 without writing: (1) Where the debtor has put into the hands of the prom- 
 isor the amount of his debt; (2) or transferred to him property equivalent; 
 (3) or something of equivalent advantage to himself, as a license to keep a 
 public house ; (4) or where the promisee has transferred or released to the 
 promisor some interest in the property of the debtor ; as a lien given by law 
 to the seller for the price of goods sold, but not delivered"; or to a landlord upon 
 the goods of his tenant for rent ; or of a bailee for services ; or of an insurance 
 agent on policies in his hands ; (5) or where the promisee has released to the 
 promisor and holder of the property an attachment; or a trustee process; 
 (6) or where he has released to the promisor the right to attach property of 
 the debtor ; or to bring a suit in the admiralty to enforce a lien ; or to biing 
 a trustee suit against a party having funds of the debtor in his hands,''
 
 Art. III.] Collateral Undertakinos. 149 
 
 § 66-. As these attempts at classification have proved to 
 be faulty, notwitli standing the acknowledged learning and 
 ability of their framers, perhaps the difficulty may be in a 
 measure traceable to the fact, that the basis of each of them 
 consisted, at least in part, of incidental features of the 
 cases, rather than the distinctive principles which take 
 certain promises out of the statute. Chief Justice Kent' s 
 classes depend, first, upon the time when each promise 
 was made with respect to the other, and secondly, upon 
 the nature of the consideration or the persons between 
 whom it moved. Whether the second promise was made 
 simultaneously with, or subsequently to the making of 
 the first, is entirely immaterial upon the question wliether 
 the statute is applicable ; and the same is true of all ques- 
 tions appertaining to the consideration, as was stated in 
 the last article, except so far as they may shed light upon 
 the character of the promise. The classification of Chief 
 Justice Comstock, on the other hand, whatever may be its 
 imperfections of detail, commences very correctly with 
 adopting, as the basis of its first two terms, principles 
 upon which promises are taken out of the statute ; but it 
 fails in its third term, which depends upon something 
 connected with the immaterial feature of the consideration. 
 
 § 67. Possibly, therefore, a nearer approach to the desid- 
 eratum may be reached, by means of a classification of 
 %ases without the statute, depending entirely upon the 
 principles by which they are respectively regarded as 
 being excluded fi*om its provisions ; using the incidental 
 characteristics, such as the order of time in whicli the 
 promise was made, with respect to the supposed original 
 liability, and all questions connected with the considera- 
 tion, with other convenient matters, as grounds for the 
 formation of sub-classes, or as illustrations of the applica- 
 tion of a general principle, or as the distinguishing features 
 of limitations or exceptions to its operation. It would be 
 idle, however, to expect a perfect and homogeneous sys- 
 tem, as the result of the adoption of that or any otlier 
 principle ; for the materials with which the work must bo
 
 160 COLLATEEAL UNDERTAKINGS. [Ch. IL 
 
 done, render sncli result impossible of attainment, what- 
 ever ability, patience and industry may be brought to the 
 task. 
 
 § 68. The fundamental principles, upon which cases, 
 having a resemblance to those described within the clause 
 of the statute now under consideration, or exactly answer- 
 ing that description, are excluded from the operation of the 
 statutory prohibition of oral evidence to sustain the prom- 
 ise, may be said, in a general and comprehensive way, to 
 be three in number. And thereupon we propose to base 
 
 THREE GENERAL DIVISIONS OF CASES NOT WITHIN THE 
 
 STATUTE, each with its appropriate subdivisions into 
 classes, as follows : 
 
 § 69. First general division. Cases which are not 
 governed by this clause of the statute of frauds, although 
 they fall within its termS; These consist of those cases 
 where the construction and validity of the promise depend, 
 I. Upon the law merchant ; or, II. Upon the provisions of 
 some other statute. There is no room for construction 
 of the statute in cases of this description, as they are 
 entirely outside of it. 
 
 § 70. Second general dimsion. Cases which are not 
 within this clause of the statute, because the terms of the 
 statutory description of the promises to which it applies 
 are only partially satisfied. These are naturally dis- 
 tributed into classes, depending upon the particular term 
 which is not satisfied, some of which admit of still further 
 subdivision. They are, I. Cases where the promise is not 
 " special ;" II. Cases where the liability, which the action 
 is brought to enforce, grows out of something else than a 
 ' ' promise ; ' ' III. Cases where the promise, although it 
 relates to the liability of a third person, was not to 
 "answer" therefor; IV. Cases where there was no origi- 
 nal liability for a "debt, default or miscarriage," to 
 which the undertaking of thepromisor could be collateral, 
 either (1) because the third person had inciirred no corres-
 
 Art. III.] Collateral Ui^dertakings. 151 
 
 ponding liability, at tlie time when the promise took effect ; 
 or (2) because a previous corresponding liability, incurred 
 by him, had been discharged before thepromise took effect ; 
 V. Cases where there was nobody in the transaction to 
 whom the term "another person" could apply; either 
 (1) because the promise was to pay the debt, or answer 
 for the default or miscarriage of the promisee, to a person 
 not a party to the contract ; or (2) because the promise 
 was to answer for the payment of a debt or the fulfilment 
 of a duty to some person, other than the promisee, by one 
 who. was not a party to the contract, (c) 
 
 § 71. Third general dimsion. Cases which are not 
 within this clause of the statute, although aU the terms of 
 the statutory description of the promises to which it 
 applies are literally satisfied, because they are not within 
 its spirit and intent. Here we are met at almost every 
 step by decisions, which clash so irreconcilably, that even 
 
 (c) Upon principle we would add two additional subdivisions to this class, 
 namely: (3) because the promise was to answer for the debt, default or 
 miscarriage of some person to be thereafter designated by the promisor; and 
 (4) because the promise w.as to answer for the debt of a deceased person. 
 The first of the subdivisions mentioned in the text, is the only one where 
 the rule is settled by common consent, as depending upon the principle 
 which characterizes the class; and there is considerable conflict of authority 
 whether particular kinds of cases come within that subdivision, as we shall 
 see in the discussion under the fifth general rule. The second subdivision 
 consists of the cases where the promise was to indemnify the promisee, against 
 a liability to be incurred by him, at the request of the promisor only, but as 
 security for the fulfilment of a third person's engagement to a fourth (see 
 chapter xiii, article ii), which, we think, are shown not to be within the 
 statute, by the weight of principle and authority. Our proposed third sub- 
 division of this class would embrace cases involving the liability of a factor, 
 acting for the promisee under a del credere commission; and all other 
 similar cases where the promisor is thereafter to select the persons for 
 whose fidelity to their engagements he undertakes to be responsible. But 
 with respect to factors' contracts, a sufficient reason may be assigned, as will 
 appfear in the proper place, for putting them in the third general division; 
 and they will accordingly be found there, in accordance with what seems 
 to be the inclination of the courts. The fourth subdivision would comprise 
 the cases already referred to in § 16.
 
 152 Collateral Undertakings. [Ch. ii. 
 
 tlie principles upon which the different classes depend are 
 open to doubt. But we regard the following statement of 
 the classes within this division, as defensible upon the 
 weight of reasoning and authority, viz. : I. Cases where 
 the promisor was, or had been previously liable for the 
 same or a similar debt or duty, although his liability may 
 have been in another form, or to another person ; II. Cases" 
 where the promise was to be fultiUed out of the means of 
 the debtor ; III. Cases where the debt assumed by the - 
 promise was already a charge upon the property of the 
 promisor ; IV. Cases where the promisor guarantied 
 the payment by a third person of a debt transferred by 
 the promisor to the promisee ; V. Cases where the debt 
 guarantied was thereafter to be contracted by the prom- 
 isor, acting as a factor for the promisee, under a del credere 
 commission, {d) 
 
 (d) The writer having framed this classification, without any suspicion 
 that it was not entirely original ; and adopted it as the framework of this 
 part of his undertaking with great hesitation, lest it should be regarded as 
 too fanciful ; is gratified in finding most of its essential principles declared, in 
 the opinion of a learned and able judge, delivered before this work was 
 planned, but pubhshed as the present volume was approaching completion. 
 In Furbish v. Groodnow, 98 Massachusetts, 296, decided A. D. 1867, Gray, 
 J., said: "By the estabhshed construction of this clause 'a special promise,' 
 in order to fall within the statute, must be express, and not merely implied 
 by law ; ' to answer for a debt,' for which the promisor's person or estate is 
 not already Uable ; ' of another ' than either of the parties to the promise ; and 
 who, if already liable for the debt, continues so liable. Even when all these 
 elements concur, still if the principal and immediate object of the transaction 
 is to benefit the promisor, not to secure the debt of another person, the 
 promise is considered, not as collateral to the debt of another, but as creating 
 an original debt from the promisor, which is not within the statute, although 
 one effect of its payment may be to discharge the debt of another." (See 
 the case abstracted in § 563, 564.) We are compelled, however, to dissent 
 fi'om the learned judge, with respect to the class of cases, which he apparently 
 regards as the only one, where the promise is without the intent of the 
 statute, although it is embraced by its terms. The diffidence which accom- 
 panies this dissent is diminished, but not entirely removed, by the fact, that 
 in confining the principle to one class, he concedes. that he is following local 
 precedents, in opposition to the current of the other American authorities ; and 
 also, as we conceive, by the failure of the English courts to recognize, in the 
 broad terms stated by him, the rule which he considers to be the only correct 
 one; and its repudiation in two recent and well considered American cases.
 
 Art. IV.] Collateral Undertakings. 153 
 
 § 72. This classffication constitutes the frame- work of all 
 tlie subsequent remarks upon the clause of the statute now 
 under examination ; but we have not regarded its preser- 
 vation in a tabular form, throughout the succeeding pages, 
 as essential or even desirable. For several reasons, it is 
 more convenient to jjreserve the distribution of the text into 
 chapters, with appropriate subdivisions ; and in order to 
 avoid the confusion inseparable from two distinct tabular 
 schemes, only the three general divisions will be retained 
 in that form. But all the features of the classification will 
 be preserved, as the next article will show, in the general 
 rules for testing the application of the statute, in subor- 
 dination to which the chapters have been arranged. And 
 these features will moreover be. constantly kept before the 
 reader by incidental references in the text. 
 
 ARTICLE IV. 
 
 Rules by whicli to determine the validity of verbal promises under tbis clause of the 
 
 statute. 
 
 § 73. The general rules referred to in the preceding sec- 
 tion, by wliich it is proposed to test the application of this 
 clause of the statute, in accordance with the principles 
 upon which our classification is based, constitute a series, 
 nine in number. It is believed that every case giving rise 
 to any WeU. founded doubt, in which a correct decision 
 has been rendered, excluding a promise from the operation 
 of the statute, can be successfully defended, only upon a 
 principle embodied in some one of these rules ; and will 
 find its appropriate place as an illustration of the applica- 
 tion of the rule, either directly, or in some of the ramifica- 
 tions to which its doctrine leads. If this proposition is 
 correct, the corollary follows, that all cases, which main- 
 tain and necessarily depend upon principles not contained 
 in any rule of the series, have been erroneously decided; and 
 if they have not been overruled by subsequent decisions, 
 that they are of local authority merely, and cannot main- 
 tain a permanent footing in a general system of jurispru- 
 dence. These rules are designed to include directl}", only 
 20
 
 154 Collateral Undertakings. [Qh. ii. 
 
 cases without tlie statute ; but in discussing tliem, cases 
 which have been held to be within the statute, will be 
 cited in connection with the others, either as having 
 been erroneously decided ; or, when they were correctly 
 decided, because they forcibly illustrate the principle upon 
 which those not within the statute depend. And for the 
 latter reason it has been found expedient to embrace 
 both descriptions of cases within the terms of one of the 
 rules. 
 
 § 74. Pursuing the system of classification indicated in 
 the preceding article, we commence with the first general 
 division of cases not within this clause of the statute, 
 being those which are not . governed by it, although they 
 fall within its terms. They consist of two classes, both 
 of which are embraced within the terms of the first rule, 
 namely : 
 
 EULE FIRST. 
 
 Contracts, the construction, validity, and evidence of which depend upon so much of the law 
 merchant as the common law reoognizes, or the provisions of some other statute, are excep- 
 tions to the operation of this clause of the statute of frauds. 
 
 § 75. The second general division, being cases which are 
 not within this clause, because the terms of the statutory 
 description of the promises to which it applies are only 
 partially satisfied, consists of several classes. The first 
 class, comprising those where the promise was not 
 "special;" the second, those where the liability wliich 
 the action is brought to enforce, grows out of something 
 else than a "promise;" and the third, those where the 
 promise, although it relates to the liability of a third per- 
 son was not to "answer" therefor, maybe conveniently 
 included in one rule, which is as follows : 
 
 RULE SECOND. 
 
 The statute does not apply to implied promises j or to liabilities for deceitful representations^ 
 whereby the third person gained credit ; or to promises to do some act for the security of a 
 creditor of a third person, other than the absolute or contingent assumption of the debt by 
 the promisor. 
 
 § 76. The fourth class of the second general division 
 consists of cases where there was no original liability for
 
 Art. IV.] Collateral Undertakings. 155 
 
 a "debt, default or miscarriage," to which the. under- 
 taking of the promisor could be collateral. These are 
 very numerous, and present several perplexing and 
 some unsettled questions ; hence a full examination of 
 this subject will consume much time and space. It was 
 said that this class admits of two subdivisions depend- 
 ing upon the different circumstances, which prevented 
 the simultaneous existence of an original and collateral 
 liability ; and to each of these subdivisions a separate 
 rule is assigned. 
 
 § 77. Those cases where the question is whether the third 
 person had incurred any liability corresponding with that 
 assumed by the promisor, are governed by 
 
 RULE THIRD. 
 
 Where there was no antecedent liability of the third person, and the promise was founded upon 
 a consideration moTing to him, it is without the statute if the third person did not become 
 liable to the promisee, together with the promisor ; and vice versa, if he did so become 
 liable, it is within the statutOi 
 
 § 78. Those cases where the third person had previously 
 incurred a liability corresponding with that assumed by 
 the promisor, but such liability had been discharged before 
 the promise took effect, are governed by 
 
 RULE FOURTH. 
 
 A promise to assume an antecedent liability of a third person is without the statute, if the 
 third person's liability had become extinct, at the time when that of the promisor came 
 into existence I 
 
 § 79. The fifth class of the second general division 
 consists of those cases where there was nobody in the 
 transaction, to whom the term "another person" could 
 apply. They are taken out of the statute by the opera- 
 tion of a rule, the terms of which are well settled, 
 although its practical application is attended with con- 
 siderable embarrassment in some particular kinds of cases. 
 It is as follows : 
 
 RULE FIFTH. 
 
 A promise to discharge the debt or duty of another is not within the statute, unless it was 
 made to the person to whom the debt or duty was to be discharged.
 
 156 COLLATEEAL UNDERTAKINGS. [Ch. II. 
 
 § 80. We now come to the third general division, which 
 embraces cases not within this clause of the statute, 
 although all the terms of the statutory description of the 
 promises to which it applies are satisfied, because they 
 are not within its spirit and intent. The classes which we 
 have assigned to this general division, after a careful 
 examination of the many conflicting decisions thereon, 
 are five in number. The first consists of those cases where 
 the promisor was, or had been previously liable for the 
 same or a similar debt or duty ; and they depend upon 
 the following rule : 
 
 RULE SIXTH. 
 
 A promise is without tie statutei if its effect was merely to remove some impediment to 
 the enforcement hy the promisee, of a liability already resting upon the promisor, in the 
 same or some other form ; although its fulfilment will necessarily result in the discharge 
 of the precedent liability of a third person to the promisee. 
 
 § 81. The second class of the third general division com- 
 prises cas?^s where the promise was to be fulfiled out of 
 the means of the debtor; and the principle applicable 
 thereto is embodied in 
 
 RULE SEVENTH. 
 
 A promise to pay the pre-existing debt of a third person to the promisee is not within the 
 statute, if the substantial effect of its fulfilment will be to discharge the debt, out of a 
 fund furnished to the promisor by the debtor, in contemplation of which the promise was 
 made, 
 
 • 
 
 ^ 82. The third class has been limited, contrary to 
 opinions expressed in a large number of the most respecta- 
 ble American authorities, which favor a much greater 
 amplification of its terms, to cases where the debt 
 assumed by the promise, was already a charge upon the 
 property of the promisor. We think that, upon principle, 
 all such cases are without the statute, whatever may have 
 been the consideration of the promise ; and such is, 
 according to our understanding, the doctrine of the Eng- 
 lish decisions. But the American authorities seem to 
 agree, in regarding the abandonment of the charge as a 
 material element of the validity of the promise, and the 
 rule has consequently been framed, in deference to this 
 opinion, in the following terms :
 
 Art. IV.] CoLLATEEAL Undeetakings. 157 
 
 RULE EIGHTH. 
 
 A promise to pay tie debt of another is not within the statnte, if its consideration was the 
 abandonment to the promisor of a security for the payment of the debt, consisting of a lien 
 upon or interest in property, to which the promisor then had a subordinate title. 
 
 § 83. The fourth class of the third general division con- 
 sists of cases where the promisor guarantied the payment 
 by a third person of a debt transferred to the promisee by 
 the promisor ; and the fifth class, of those where the debt 
 guarantied was thereafter to be contracted through the 
 agency of the promisor, acting as the factor of the prom- 
 isee, under a del credere commission. Both of these kinds 
 of promises, being pure guaranties, have been included in 
 one rule, namely : 
 
 RULE NINTH. 
 
 A guaranty is not within the statute, if it was made upon a consideration moving wholly 
 between the parties to it, and related to the payment of a debt or the performance of a duty 
 by the third person to the promisee, the right to enforce which then first passed, or by the 
 terms of the contract was thereafter to pass to him from or through the guarantor,
 
 FIRST GENERAL DIVISION. 
 
 CASES WHICH ARE NOT GOVERNED BY THIS CLAUSE OP THE 
 STATUTE OF FRAUDS, ALTHOUGH THEY FALL WITHIN ITS 
 TERMS. 
 
 § 84. It was said by a learned jurist, in an opinion from 
 which an extract was copied in a previous section, that 
 neither the statute nor the courts had made any exception 
 of a promise which was an undertaking to answer for the 
 debt or default of another. («) This remark is doubtless 
 true of all those cases governed by the system of jurispru- 
 dence, which the statute was designed to affect ; for even 
 where the courts have excluded from its operation prom- 
 ises clearly within its letter, this was done by the process 
 of construction, and in pursuance of the familiar maxim 
 "cessante ratione, cessat lex." But this part of the 
 statute contains intrinsic evidence, that it was designed to 
 effect a change in the common laio only ; and the rights 
 and liabilities, depending upon that other system of juris- 
 prudence, known as the law merchant, which, in a limited 
 sphere, has been permitted by the courts to create a class 
 of exceptions to the common law, naturally form also a 
 class of exceptions to the statute. To these must be added 
 those depending upon some subsequent statute, which in 
 terms or by necessary implication, furnishes the only rule 
 to determine their extent, and the sufficiency of the evi- 
 dence required to establish their existence. The legislature 
 having the same power to repeal the statute of frauds 
 which it had to enact it, may clearly provide for the exclus- 
 ion of particular contracts from the operation of its pro- 
 visions. These two classes of cases, constituting the only 
 exceptions to the statute, will now be briefly considered. 
 
 {(x) Per Comstock, C. J., in Mallory v. Gillett, ante § 64.
 
 CHAPTER THIRD. 
 
 CASES GOVERNED BY THE LAW MERCHANT, OR THE PRO- 
 VISIONS OF SOME OTHER STATUTE. 
 
 § 85. The two classes of cases belonging to this general 
 division are governed by the first of the rules, by which 
 the application of the statute is determined, as follows : 
 
 RULE FIRST. 
 
 Oontracts, the construction, validity, and evidence of which depend upon so much of the law 
 merchant as the common law recognizes, or the provisions of some other statute, are excep- 
 tions to the operation of this clause of the statute of frauds. 
 
 ARTICLE I. 
 
 Contracts governed hy the law merchant. 
 
 § 86. The text books and the decisions have very little to 
 say, respecting the effect of the statute of frauds upon liabili- 
 ties regulated by the law merchant. It seems to have been 
 assumed, rather than expressly held, that so much of that 
 system as the common law recognized, remained unaffected 
 after the passage of the act of the 29th of Charles the Second. 
 But it is very evident that many of the liabilities created 
 thereby, which the courts have continued to enforce, Avitli- 
 out requiring evidence of the character provided for in 
 that act, come within its precise terms. Of this character 
 is the liability of the acceptor by parol of a bill of exchange ; 
 who clearly undertakes by his acceptance to answer for 
 the debt of the drawer. But it is well settled, that in the 
 absence of a statute specially requiring the acceptance to be 
 in -wTiting, a verbal accei3tance will bind ; the cases so hold- 
 ing ignoring altogether the statute of frauds, (a) Many 
 
 (a) Lumley v. Palmer, Cases tempore Hardwicke, 74, and 2 Strange, 1000; 
 Per Lord Kenyon, C. J., Johnson v. CoUings, 1 East, 98; Per Gray, J., in 
 Exchange Bank v. Rice, 98 Massachusetts, 288; Ontario Bank v. Worthing- 
 ton, 12 Wendell (New York), 593; Julian v. Shobrooke, 2 Wilson, 9.
 
 160 Collateral Undeetakings. [Ch. iii. 
 
 other still more unequivocal instances, of liabilities created 
 by the mercantile law, which are daily enforced by the 
 courts, in direct coniiict with the provisions of the statute 
 of frauds, may be suggested ; for instance that of an 
 accommodation indorser, particularly of an unaccepted 
 bill of exchange. 
 
 § 87. All attempts to reconcile the principles, upon which 
 many of these mercantile liabilities depend, with the statute 
 are merely specious ; and with respect to some of them 
 the effort has not been made. Generally commentators 
 and judges content themselves with simply adverting to 
 the fact, that they are not within the statute, without 
 assigning any reason for this opinion. Thus a standard 
 work, speaking of a bill of exchange, says : "This security 
 is in some respects preferable to many others of a more 
 formal nature ; for each of the parties to a bill, by merely 
 writing his name upon it, as drawer, acceptor, or indorser, 
 thereby impliedly guaranties the due payment of it at ma- 
 turity, and the consideration, in respect of which he became 
 a party to it, can rarely be inquired into ; whereas, in the 
 case of an ordinary guaranty, the statute against frauds 
 requires the consideration to be expressed, and other mat- 
 ters of form, which frequently render an intended guaranty 
 wholly inoperative." (&) But the principle that contracts 
 of this character are not governed by the statute, is the 
 only one, upon which their exclusion from its provisions 
 can firmly rest, and it is entirely satisfactory in all 
 respects. 
 
 § 88. It would be useless to cite at length cases illustrating 
 the rule, as the enforcement of such liabilities is matter of 
 daily occurrence. In the authorities collected in the note, 
 the principle that they constitute a class of exceptions to 
 the statute of frauds, is eitlier expressly stated or neces- 
 sarily to be inferred, (c) 
 
 (b) Chitty on Bills, page 4. 
 
 (c) Bayley on Bills, 149 (2d American edition) ; Chitty on Bills, 4 ; 1 Par- 
 sons on Notes and Bills, 282, note; 2 id. 23; Casey v. Brabason, 10 Abbott's
 
 Art. II.] Collateral Undertakings. 161 
 
 ARTICLE 11. 
 
 i Oontraots governed by the provision of some other statntei 
 
 § 89. Upon a similar ground, a contract executed in 
 accordance with the terms of another and subsequent 
 statute, which is clearly designed to furnish the only rule, 
 by which its sufficiency shall be tested, and its existence 
 established, will be regarded as not being within the pro- 
 visions of the statute of frauds. Thus in Thompson v. 
 Blanchard, 3 New York (3 Comstock), 335, A. D. 1850, a 
 motion was made to dismiss an appeal, taken from the 
 Supreme Court to the Court of Appeals ; upon the ground 
 that the undertaking, given for that purpose, under the 
 code of procedure of 1848, was not valid within the statute 
 of frauds. The instrument was executed by three sureties 
 and contained all the matters required by the code of pro- 
 cedure to be contained in such undertakings ; but it was 
 not under seal, nor did it express any consideration, it 
 being a simple undertaking to pay costs, damages, etc., 
 *'in the language of the code. The majority of the court 
 held (Bronson, C. J., dissenting,) that the undertaking 
 was sufficient, and the motion was accordingly denied. 
 Gardiner, J., delivering the prevailing opinion, referred 
 to the fact that it was expressly provided in the code of 
 procedure, that when an appeal was perfected in accord- 
 ance with the section reciting the contents of the undertak- 
 ing, the proceedings should be stayed ; and he added that 
 the word "undertaking," used in the statute, meant, not 
 an agreement but a promise, so that the decisions holding 
 
 Practice Reports (N. Y.), 368; Pillans v. Van Mierop, 3 Burrow, 1663 ; Zell- 
 weger V. Caffe, 5 Duer (N. Y.), 87; Spann v. Baltzell, 1 Florida, 301; 
 Turnbull v. Trout, 1 Hall (New York), 336 ; Parks v. Brinkerhoff, 2 Hill 
 (New York), 663; Manrow v. Durham, 3 Hill (New York), 584; Barker v. 
 Prentiss, 6 Massachusetts, 430, 433 ; Storer v. Logan, 9 Massachusetts, 55, 
 58; Spaulding V. Andrews, 48 Pennsylvania, 411; O'Donnell v. Smith, 2 
 E. D. Smith (New York), 124; Strohecker v. Cohen, 1 Spears (South Caro- 
 lina), 349; Wilkinson v. Lutwidge, 1 Strange, 648; Fisher v. Beckwith, 19 
 Vermont, 31 ; Leonard v. Mason, 1 Wendell (New York), 522; Oakley v. 
 Boorman, 21 Wendell (New York), 588. 
 21
 
 162 Collateral Undertakings. [Ch. in. 
 
 that the statute of frauds required the consideration to bo 
 expressed in writing, were not applicable because they 
 expressly proceeded upon the ground that the statute 
 used the word "agreement," instead of "promise" or 
 "undertaking." He then added: "The legislature, in 
 the section referred to, have said that an undertaking, to 
 the effect prescribed, shall be effectual. We have no 
 authority to add other conditions. If it be said that such 
 an instrument would not be obligatory by the statute of 
 frauds, the very obvious answer is, that the legislature of 
 1848 had the same power to restore the common law, as 
 to this class of securities, that their predecessors had to 
 abolish it. 2d. The undertaking prescribed by the 335th 
 section is a statute security and not a common law agree- 
 ment. Agreements which derive their obligation from the 
 common law, and no others, are enumerated in our 
 statute, and required to be made in writing, expressing a 
 consideration. The objection I am considering, assumes 
 tliat the undertaking in question falls within one of the 
 classes of agreements there specified. It has however 
 been generally supposed, that the assent of more than 
 one party was essential to the validity of an agreement at 
 common law." He concluded as follows : "The only con- 
 sideration that can be imagined, for the undertaking of 
 the defendant and his sureties, is the stay of proceedings 
 upon, and the right to review the judgment obtained by 
 the plaintiff. But this delay and privilege is the act of 
 the law, against the wishes and in spite of the opposition 
 of the respondent. What possible application, therefore, 
 has the statute, designed to prevent frauds and perjuries 
 in reference to common law contracts, to an undertaking, 
 the contents and legal effect of which are written on the 
 face of the statute \ What fraud is to be suppressed or 
 perjury avoided, by making this appellant certify, under 
 his signature, to a consideration, which, if it exist at all, 
 did not arise from the agreement of the parties, but from 
 a law which this court, and all others, are bound judici- 
 ally to notice % At most, it would be but cumulative evi- 
 dence of the provisions of a statute."
 
 Art. II.] Collateral Undertakings. 163 
 
 § 90. The question came again in another form before the 
 same court in DooUttle v. Dininny, 31 New York, 350, 
 A. D. 1865. This was an appeal from a judgment of the 
 Supreme Court, recovered in favor of the plaintiif in an 
 action founded upon an undertaking given on an appeal 
 from a justice's judgment, in pursuance of another section 
 of the code of procedure, containing substantially the 
 same provision as the section under consideration in the 
 preceding case. Among other objections to the judgment 
 of the court below, the appellant insisted that the under- 
 taking was void by the statute of frauds. The judgment 
 was unanimously affirmed ; Davies, J., who delivered the 
 opinion, referring to Thompson v. Blancliard as decisive 
 of this point. He said: "It was there held .... 
 that the statute of frauds applied only to common 
 law agreements, where the consideration was the subject 
 of mutual agreement between the parties ; and not to 
 instruments created under and deriving their obligation 
 from special statutes, without the acceptance or assent of 
 the party, for whose ultimate benefit they were given." 
 
 § 91. The decision in Thompson v. Blanchard was fol- 
 lowed in Johnson v. Noonan^ 16 Wisconsin, 687, A. D. 
 1863, upon substantially the same facts, and under a statute 
 similar to that of New York ; but no reasons were specially 
 assigned by the court, except that they preferred the 
 opinion of the majority in the former case, to that of the 
 chief justice.
 
 SECOND GENERAL DIVISION. 
 
 CASES WHICH ARE NOT WITHIN THIS CLAUSE OF THE STATUTE, 
 BECAUSE THE TERMS OF THE STATUTORY DESCRIPTION OF 
 THE PROMISES TO WHICH IT APPLIES, ARE ONLY PARTIALLY 
 SATISFIED. 
 
 § 92. The system upon which this part of our work is 
 based, now leads us to the consideration of those cases 
 which are excluded from the provisions of the statute, 
 because they fail to satisfy some term of the phrase, "any 
 special promise to answer for the debt, default, or miscar- 
 riages of another person." It must, however, be said, at 
 the outset, that this reason for holding that the promise is 
 valid, without writing, will very rarely be found expressly 
 declared in the cases themselves. The want of any recog- 
 nized system of classification, to which allusion was made 
 in the proper place, has compelled us to frame one, based 
 upon our own deductions from the grounds upon which 
 the decisions were placed ; and in doing so we have, in 
 most instances, been compelled to infer from the reasons 
 assigned, to what general principle of construction, 
 whether relating to the terms or the spirit of the act, each 
 decision is to be referred. Sometimes it happens that the 
 opinion delivered in a particular case, belonging to a class 
 which we have assigned to this general division, purports 
 to place the decision upon the general scope of the act, 
 and the mischiefs against which it was directed, without 
 regard to the fact, that in truth the terms of the statute 
 were not satisfied. And the contrary state of things also 
 occasionally occurs, in cases which we have placed in the 
 third general division. Sometimes also two cases, neces- 
 sarily depending upon the same principle of construction, 
 will be made by their respective decisions to depend, the 
 one upon the letter, the other upon the spirit of the act.
 
 Collateral Undertakings. 165 
 
 But these are simply phases of the confusion, prevailing 
 upon nearly every question, arising in connection with the 
 subject which we have undertaken to discuss ; an under- 
 taking which implies a duty, not only to endeavor to 
 reconcile all conflicting opinions, but also, when they 
 cannot be reconciled, to select those which are regarded 
 as indicating the better rule ; and, when necessary, to 
 point out and correct errors, (a) 
 
 § 93. It only remains to be said, by way of completing 
 these prefatory remarks, that the course of the discussion 
 will sometimes make it necessary to consider in this gene- 
 ral division, cases, and perhaps classes of cases, which 
 properly depend upon the spirit, rather than the terms of 
 the statute. For in pursuing the examination of the prin- 
 ciples involved, throughout theii' various ramifications, 
 and the corollaries resulting from them, as well as the 
 qualifications, limitations, and exceptions to which they 
 may be subjected, the discussion will occasionally shift 
 from the letter to the spirit of the act, and then back 
 again. 
 
 (a) Instances of the prevailing confusion and conflict of authority, which 
 render the task of classification so arduous, and its result so unsatisfactory, 
 ■will occasionally be given in the text or in the notes. As peculiarly germane 
 to one of the observations contained in the foregoing section, we will here 
 refer to Pratt v. Humphrey, 22 Connecticut, 317, a case which has already 
 been cited upon one point involved, and will be hereafter cited at length 
 upon the other. Upon the latter point the decision was quite remarkable; 
 as a promise by executors to pay certain creditors of the plaintiff, made in 
 consideration of his forbearance to collect a debt due to him from the estate, 
 was excluded from this clause of the statute, because it was made to the 
 plaintiff, and not to his creditors ; but the court put the decision chiefly upon 
 the ground, that the object and intention of the statute showed that it vraa 
 not intended to embrace such promises. But in no class of cases is it so 
 clear, that the reason for the prevailing rule is, that the words of the act do 
 not embrace the promise, as in those where it was made to the debtor; and 
 the conflict respecting the effect of that ruling in particular cases, grows 
 entirely out of the fact, that it is contended that the spirit of the act does 
 embrace them.
 
 CHAPTER FOURTH. 
 
 CASES DEPENDING UPON THE WORDS "ANY SPECIAL 
 PROMISE TO ANSWER." 
 
 § 94. The cases included within the first three classes of 
 the second general division, being those where it has been 
 held that the statute does not prevent a recovery upon 
 oral evidence, because the circumstances do not satisfy 
 some one of the first five words of the phrase under exam- 
 ination, are comparatively few in number ; so that they 
 may all be conveniently considered together in one chap- 
 ter, and governed by one rule, namely : 
 
 RULE SECOND. 
 
 The statute does not apply to implied promises ; or to liabilities for deceitful representations, 
 whereby the third person gained credit i or to promises to do some act for the security of a 
 creditor of a third person, other than the absolute or contingent assumption of the debt by 
 the promisor. 
 
 ARTICLE 1. 
 
 Where the promise was not " special," 
 
 § 95. The term " special promise," has a well recognized 
 meaning in the law : it is synonymous with express prom- 
 ise, and denotes a promise which has been, in fact and in ex- 
 press terms, made by the promisor, as contradistinguished 
 from an implied promise. Implied promises arise, with- 
 out the actual assent of the promisor, by operation of law, 
 being ' ' such as reason and justice dictate, and which, 
 therefore, the law presumes that every man has contracted 
 to perform, and upon this presumption makes him answer- 
 able to such persons as sufi'er by his non-performance. "(a) 
 The object of inserting the qualifying adjective in the 
 statute, seems to have been to leave implied promises 
 
 (a) 3 Blackstone's Commentaries, 158.
 
 Art. 1.] Collateral Undertakings. 1G7 
 
 unaffected by its provisions. (&) However, one learned 
 judge has adopted the scliolastic, rather than the legal 
 definition of the expression, for he says: "The word 
 'special,' according to Walker, means ' denoting a sort, 
 or species, particular, peculiar, appropriate, designed for a 
 particular purpose.' The statute was designed to avoid only 
 such promises as are especially and particularly to answer 
 for the debts of others, not those which, while incidentally 
 assuming the responsibility for such debts, are wholly or 
 principally for the purpose of performing some distinct 
 obligation of the promisor, "(c) But, although the con- 
 clusion to which the learned judge was led by his definition 
 is unobjectionable, the profession are generally agreed 
 that the expression " special promise •' is used in the stat- 
 ute merely in contradistinction to an implied promise ; and 
 upon that understanding some distinctions have been 
 made, which in their day were, and in some cases may yet 
 be important, though, in most of the particular instances 
 presently cited, the action would be now sustained upon 
 other principles. 
 
 § 96, The point was thus adjudged in one of the earliest 
 reported American cases, Smith v. Bradley, 1 Root (Con- 
 necticut), 150, decided by the Superior Court in the year 
 1790, as follows : "Action of the case declaring — That on 
 the 29th of April, 1781, the defendant received of the 
 plaintiff a pay-table order for 200^. in state bills, which he 
 received of Col. Champion, and was accountable to liim 
 for ; that the defendant, in consideration thereof, prom- 
 ised to account to Col. Champion for it ; that he hath 
 
 (/)) Furbish v. Goodnovv, 98 Massachusetts, 296. In Elder v. Warfield, 1 
 Harris and Johnson, 391, Buchanan, C. J., said, that where the question 
 arose in the case of goods, etc., furnished to the third person, the promise is 
 within the statute, if the action cannot be sustained upon the common counts, 
 but the plaintiff must declare specially upon the promise; and this appears 
 to have been the view of Serjeant Williams, according to the original note 
 to the case of Forth v. Stanton, 1 Saunders, 210. 
 
 (c) Per Strong, J., in Durham v. Manrow, 2 New York (2 Comstock), 
 638.
 
 168 Collateral Undertakings. [Cli. iv. 
 
 never accounted to said Champion for it ; but the plaintiff 
 hath been compelled to pay said Champion for said order ; 
 damage 133^. Issue to the jury on the plea of non- 
 assumpsit, and verdict for plaintiif. Defendant moves in 
 arrest the insufficiency of the declaration, being upon a 
 parol promise made in A. D. 1781, more than three years 
 before the date of the plaintiff' s writ. And, by the statute 
 against frauds and perjuries said action is not maintain- 
 able. Judgment — That the motion in arrest is insufficient. 
 By the Court. — It is no cause of arrest that the jury have 
 found their verdict upon insufficient evidence, for they are 
 judges of the weight of evidence. The consideration of 
 the promise is laid to have been in April, A. D. 1781 ; but 
 the promise did not arise until the plaintiff was compelled 
 to pay Col. Champion said order, and it was a promise or 
 obligation which the law raised from the natural equity 
 of the transaction, and not within said statute." 
 
 § 97. So in Goodwin v. Gilbert^ 9 Massachusetts, 510, 
 A. D. 1813, the plaintiffs had assigned and conveyed to 
 the defendants, by deed-poll, certatQ indentures and inter- 
 ests in real estate, by the terms of which the plaintiffs 
 were to pay certain sums of money to a third person, the 
 deed specifying that it was subject to all the conditions, 
 etc., mentioned in the conveyances to the plaintiffs ; and 
 the defendants had taken possession of the premises. An 
 action of assumpsit was brought to charge the defendants 
 with the payment of the moneys ; and, on a verdict taken 
 for the defendants, subject to the opinion of the court, it 
 was insisted in their behalf, that the promise was within 
 the statute of frauds. But the Court, after saying that 
 when the grantee enters under a deed-poll, certain duties 
 being reserved to be performed, although no action lies 
 upon the deed, the grantor may maintain assumpsit for the 
 non-performance of the duties reserved, added: "It was 
 objected that this was an agreement concerning an interest 
 in lands ; and that no memorandum being signed by the 
 party, the case was within the statute of frauds. But 
 where the law raises the promise, it is not within the stat-
 
 Alt. I.] Collateral Undertakings. 16.^ 
 
 ute. The same answer may be made to the objection that 
 it was a promise to pay the debt of another, and not in 
 writing." So the verdict was set aside, and a verdict 
 entered for the plaintiffs. 
 
 § 98. A similar decision was made in PiJce v. Broion^ 61 
 Massachusetts (7 Gushing), 133, A. D. 1851. There it was 
 held that where a deed describes the land conveyed, as 
 being subject to a mortgage previously executed by the 
 grantor, and expresses that the amount due upon the 
 mortgage is part of the consideration, and that the deed is 
 on condition that the grantee shall assume and pay the 
 debt secured by the mortgage ; an action of assumpsit can 
 be maintained by the grantor who has been compelled to 
 pay the mortgage debt ; the objection that the promise of 
 the grantee was within this clause of the statute, not 
 being tenable because it was made to the debtor himself. 
 "Besides," the Court added, "promises implied bylaw 
 are not within the statute." 
 
 § 99. And it would seem, although the question arose 
 under a kindred statute, (c?) that the decision in The Cabot 
 Bank v. Morton, 70 Massachusetts (4 Gray), 156, A. D. 
 1855, turned in part upon the same point, the court hold- 
 ing there that the warranty of genuineness of the signature 
 of the indorser of a promissory note, which arose in favor 
 of the bank, against a person who offered the note for dis- 
 count was an implied promise, and therefore not within a 
 statutory provision, requiring certain representations and 
 assurances respecting third persons, to be in writing. 
 
 § 100. So in Allen v. Pryor, 3 A. K. Marshall (Kentucky), 
 305, A. D. 1821, it appeared that the plaintiffs had sold 
 goods to the firm of GUI and Bainbridge, and by the terms 
 of sale the purchase-price was to be secured by an indorsed 
 note, which they were to furnish ; and that they had made 
 a note, payable to the defendant, which he "assigned" to 
 
 (d) The Massachusetts statute referred to, post, § 105, note. 
 23
 
 170 Collateral Undertakings. [Ch. iv. 
 
 the plaintiff in payment of the purchase-price ; and the 
 question was whether this "assignment" created a liabil- 
 ity. The majority of the court, affirming a judgment for 
 the plaintiff, held that the law would imply from .the 
 assignment a promise that the assignor would pay the 
 amount of the note, if it could not be collected from 
 the makers ; and that inasmuch as this liability of 
 the defendant "does not arise from any express prom- 
 ise of his, but it results from a promise which the law 
 implies, from the fact of his having assigned the note on a 
 sufficient consideration, the statute of frauds never has, 
 and we suppose never ought to be construed to apply to 
 such a promise." (e) 
 
 § 101. And in Stoclcing v. Sage, 1 Connecticut, 519, A. D. 
 1816, the defendants were owners of a vessel, of which the 
 plaintiff was the master; and while in a foreign port, 
 the plaintiff contracted with K. & Co. to go to another 
 place, and there purchase and transport certain cattle for 
 them, upon which contract he received an advance from 
 them ; and on the return voyage he was compelled to put 
 into another port, where he sold the cattle to pay freight 
 and charges, and returned to his home port. When he 
 had arrived there, the plaintiff claimed the right to retain 
 the proceeds of the cattle, until he could settle with K. & 
 Co. ; but the defendants insisting that they were entitled 
 to the money, he paid it to them on their verbal promise 
 to indemnify him against any liability to K. & Co., 
 including costs and expenses ; and they having sued 
 the plaintiff at the foreign port, he was put to large 
 expenses in defending the suit, in which he was finally 
 
 (e) In some of the United States, the mere assignment of an evidence of 
 debt is construed as implying a guaranty of payment or collection, under 
 conditions more or less restricted. Other instances of this rule -will appear 
 hereafter. In the particular case, it would appear, from the statement of facts, 
 that the defendant actually indorsed his name upon the note, but, a? it was 
 not negotiable, the court treated the transaction as a mere assignment. 
 Throughout the whole case, the words '-'assignment" and "indorsement" are 
 used as convertible terms.
 
 Art. II.] Collateral Undertakings. 171 
 
 successful ; and now brought this action for reimburse- 
 ment, and recovered in the court below. The judgment 
 was affirmed upon a writ of error, the prevailing opinion 
 holding, with respect to the question arising under the 
 statute of frauds, that the law would imply an agreement 
 on the part of the principal, to reimburse the agent, in such 
 a case as this, and that "such implied agreement is not 
 within the statute of frauds and perjuries." (/) 
 
 ARTICLE 11. 
 
 Where a liability for a third person's debt or default arises out of a deceitfol representation 
 and not out of a " promise." 
 
 § 102. The statute, being confined in terms to promises, 
 has no application to an action sounding in tort, and 
 founded upon a deceit practised upon the plaintiff, by a 
 false and fraudulent representation, made by the defendant, 
 concerning the character or pecuniary circumstances of 
 another, whereby the plaintiff was induced to give him 
 credit. As the result of a recovery, in such an action, will 
 always practically charge the defendant with the debt of 
 another, or with damages for his default or miscarriage, a 
 
 (/) Another instance of an implied promise, which is not witliin tlie 
 statute, is that of an assignee for the benefit of creditors. Drakeley v. 
 Deforest, 3 Connecticut, 272 ; Hitchcock v. Lukens, 8 Porter (Ala.), 
 333; Hughes v. Stringfellow, 15 Alabama, 324. Perhaps, also, some 
 of the questions, 'to be considered in the next volume respecting the 
 effect of performance of a special promise which is within the statute, 
 may in part depend upon the same principle. Thus in Gray v. Hill, 
 Ryan and Moody, 420, A. D. 1826, the plaintiff declared specially upon an 
 agreement to assign to him a lease of certain premises, in consideration of 
 his putting them in repair, averring that he did repair them, etc., and there 
 were also counts for work and labor and money expended. At the trial, it 
 appeared that the promise was verbal, and it was objected that the plaintiff 
 could not recover under the statute of frauds; but Best, C. J., said, that 
 although the fourth section of the statute was decisive against the 
 plaintiff upon the special count, he might recover upon the others; that the 
 law would "imply a promise, not touched by the statute, nor within 
 the danger of perjury guarded against by it." In Kelsey v. Hibb.<!, 13 Ohio, 
 N. S. 340, cited in a subsequent chapter, the court appear to have overlooked 
 the statutory requirement that the promise must be special.
 
 172 Collateral Ukdektakings. [Ch. iv. 
 
 grave question arose, coeval with what is generally 
 regarded as the establishment of the principle, that an 
 action could be maintained for a false recommendation, 
 whether the statute of frauds did not require, if not in 
 terms, at least by necessary implication, that the recom- 
 mendation should be proved by some writing. The first 
 adjudged case in which this species of action was sus- 
 tained is Pasley v. Freeman, 3 Term Reports, 51, decided 
 in 1789, where each of the judges delivered opinions seri- 
 atim and at great length. There is no allusion in the 
 prevailing opinions to the statute of frauds ; but Grose, J., 
 founded one of his arguments against sustaining the action, 
 upon this provision of the statute. 
 
 § 103. But in Eyre v. JDunsford, 1 East, 318, A. D. 
 1801, the point that the statute did not apply was dis- 
 tinctly determined. This was an action for falsely and 
 fraudulently representing one Thompson, to be a per- 
 son whom the plaintiflfs might safely trust, in conse- 
 quence of which they sold him goods upon credit; 
 and the plaintiffs having had a verdict, a rule nisi 
 was obtained for a new trial, and was supported in part 
 on the ground, that the action was calculated to trench 
 upon the statute of frauds. But the rule was discharged ; 
 and Lord Kenyon, in his opinion, held that the statute 
 has no relation to such cases. "It raises," he said, "cer- 
 tain legal presumptions of fraud, from the want of certain 
 formalities in contracts and other transactions, against 
 which it guards by avoiding them ; but that has no appli- 
 cation to actions founded on actual fraud and deceit, in 
 order to recover damages by the party grieved." 
 
 § 104. The question came again before Lord Kenyon and 
 the other justices of the King' s Bench at a subsequent term 
 in the same year, (1801,) in the case of Hay craft v. Creasy, 
 2 East, 92. There the defendant was clearly the dupe of 
 a female adventurer named Robertson, who had induced 
 him not only to lend her his acceptances to the amount of 
 2,000?., but to recommend her to the plaintiff as worthy
 
 Art. II.] COLLATEEAL UNDERTAKINGS. 173 
 
 of credit ; and the only ground upon which the action 
 could be maintained, with any plausibility, was, that in 
 answer to inquiries whether he had any knowledge of her 
 affairs, except from hearsay, he had said that he knew of 
 his own knowledge that she was a lady of rank and fortune, 
 whom the plaintiff might safely trust ; whereas in fact he 
 had known her as a poor school mistress, and relied entirely 
 upon her own statements, respecting her sudden accession 
 to wealth. The plaintiff having recovered a verdict, a rule 
 nisi to set it aside was argued on each side by four of the 
 most distinguished counsel at tlie English bar, among 
 them. Sir Edward Law, afterwards Lord Ellenborough, for 
 the defendant; who argued that if a particular phrase 
 would render a man liable for the debt of another, it mili- 
 tated as much against the spirit of the statute, as if words 
 of direct guaranty were used ; and all the mischief would 
 be let in which the statute was made to prevent, if a verbal 
 representation could be made the foundation of such an 
 action, {a) But Lord Kenyon repeated what he had said 
 upon this point in Eyre v. Dunsford ; and although he 
 was in the minority in this particular case, the other judges 
 holding, against his opinion, that the action could not be 
 maintained, the decision was put upon the ground that 
 there was no mala fides in the defendant, his assertion 
 being evidently intended only as a very strong expression 
 of his confidence in the woman ; and it is now well settled 
 that the statute does not apply to such cases. (Z*) 
 
 (a) According to the report in East, the counsel for the defendant insisted 
 thai no action of this character should be sustained. But Lord Campbell, in 
 the third volume of his Lives of the Chief Justices (page 87 of the American 
 edition), states the argument of Law to have been, that to make the defendant 
 liable without actual deceit, would be to treat him as a surety for Miss 
 Robertson, without any written guaranty. Lord Campbell adds that the 
 mortification which Lord Kenyon suffered at being overruled in this case by 
 the puisnes, was supposed to have hastened his death. 
 
 (6) See the cases cited, post, §§ 106, 107, 110, 111, and alsoAdamsv. Ander- 
 son, 4 Harris and Johnson ^Maryland), 558; Upton v. Yail, 6 Johnson 
 (New York), 181; Ewins v. Calhoun, 7 Vermont, 79.
 
 174 Collateral Undertakin-gs. [Ch. iv. 
 
 § 105. There has been a great diflference of opinion among 
 the English judges, upon the question whether this ruling 
 stands upon a solid foundation of reason and expediency ; 
 and some of them have expressed a very decided opinion, 
 in favor of the interference of the legislature, to require 
 that no such representations shall be actionable, unless 
 they were made in writing ; (<?) which opinion in the course 
 of time prevailed. In the year 1828 was enacted by 
 parliament the statute, 9 George IV, chapter 14, commonly 
 called Lord Tenterden's act, designed to bring this class 
 of cases, as well as others, to which it was thought that 
 the same rule might be properly applied, within the prin- 
 ciple of the statute of frauds ; by providing that a memo- 
 randum in writing should be necessary, in order to main- 
 tain an action for deceitful representations respecting the 
 ability or character of a third person ; or upon a promise 
 to pay a debt contracted during infancy ; or a debt barred 
 by the statute of limitations. And similar statutes have 
 been enacted in some of the United States, (c?) 
 
 (c) Per Lord Alvanley, C. J., and Chambre, J., in Tapp v. Lee, 3 Bosan- 
 quet and Puller, 367, post, § 106. Per Lord Eldon, Chancellor, in- Evans v. 
 Bicknell, G Vesey, 172, on page 186, and in Ex parte Carr, 3 Vesey and 
 Beames, 108. 
 
 {d) Alabama, Indiana, Kentucky, Maine, Massachusetts, Michigan, Mis- 
 souri, Oregon, Vermont, and Virginia. For these statutes, and section six 
 of Lord Tenterden's act, see the schedule prefixed to this volume. 
 It is foreign to the purpose of this work, to enter into any detailed 
 examination of the provisions of these statutes, or of the cases under 
 them, as they have nothing in common with that part of the statute 
 of frauds, which forms the subject of our examination, except that they 
 require a memorandum in writing. Still they are sometimes spoken of 
 as provisions of the statute of frauds; and they are generally contained in 
 the same chapter as the sections of the statute of which this work treats. 
 The following cases have been decided, upon those parts of the statutes in 
 question, which refer to false and fraudulent representations, viz. : In Eng- 
 land, Lyde v. Barnard, Tyrwhitt and Granger, 250 ; Haslock v. Ferguson, 7 
 Adolphus and Ellis, 86; Svvann v. Phillips, 8 Adolphus and Ellis, 457; 
 Turnley v. McGregor, 6 Scott, N. R. 906, 1 Bowling and Lowndes, 506, 
 and 6 Manning and Granger, 46; Wade v. Tatton, 18 Common Bench, 371, 
 2 Jurist, N. S., 491, and 25 Law Journal, C. P., 240; Sheen v. Bumpstead,
 
 Art. II.] Collateral Undertakin-gs. 175 
 
 § 106. But before the passage of tlie act in question, the 
 courts had been required to exercise no little vigilance, to 
 prevent the happening of the result, which was predicted 
 by the opponents of the rule established in Pauley v. 
 Freeman, to wit, that it would lead to an evasion of the 
 statute of frauds, by suing on verbal guaranties, under 
 the pretence of bringing actions for deceit. Such an 
 action, or at least one which was very strongly open to the 
 suspicion of being such an action, was brought in the 
 Common Pleas, almost in the infancy of the doctrine, and 
 was decided in 1803. It is reported under the title of 
 Tapp and another v. Lee, 3 Bosanquet and Puller, 367. 
 The declaration counted upon a fraudulent representation, 
 concerning tlie character and credit of one Brunei ; and it 
 appeared upon the trial that Brunei, having purchased 
 goods from the plaintiffs on credit, on three previous 
 occasions, to the amount of 28Z., applied for more 
 goods to the amount of 2Sl. 4:S. 9d. ; and the plaintiffs, 
 being unwilling to trust him further, without an ^inquiry 
 into his character and circumstances, sent their servant to 
 make inquu'ies from the defendant, who thereupon made 
 the representations complained of; and upon the servant's 
 report, the plaintiffs gave Brunei credit for the goods. 
 Soon afterwards, the defendant inquired from the servant 
 if the plaintiffs had trusted Brunei ; and on being answered 
 that he had been trusted, in consequence of what the 
 defendant had said, replied, "I did not think you was 
 such a cake." It was further shown, that the defendant 
 himself had refused to trust Brunei, who was an uncertifi- 
 
 8 Jurist, N. S., 702, 10 Weekly Reporter, 740, 2 Hurlstone and Coltman, 
 193, 10 Jurist, N. S., 242, 32 Law Journal, Exch., 271, 11 Weekly Reporter, 
 734, and 8 Law Times, N. S., 832. In the United States, Warren v. Barker, 2 
 Duvall (Kentucky), 155; Jasigi v. Brown, 17 Howard (U. S.). 183; Hearn 
 V. Waterhouse, 39 Maine, 96 ; Gabot Bank v. Morton, 70 Massachusetts (4 
 Gray), 156; Norton v. Huxley, 79 Mass. (13 Gray), 285; Kimball v. Corn- 
 stock, 80 Mass. (14 Gray), 508; Wells v. Prince, 81 Mass. (15 Gray), 562; 
 Mann v. Blancbard, 84 Mass. (2 Allen), 386 ; McKinney v. Whiting, 90 Mass. 
 (8 Allen), 207; Huntington v. Wellington, 12 Michigan, 10; Crown v, 
 Brown, 30 Vermont, 707.
 
 176 COLLATEEAL UfDEETAKINGS. [Ch. TV. 
 
 cated bankrupt, as tlie defendant knew. The jury found 
 a verdict for the plaintiffs, and a rule nisi to set it aside 
 having been obtained and argued, all the judges delivered 
 opinions. Lord Alvanley, C. J., before whom the cause 
 had been tried, after expressing a wish that the legislature 
 would provide that in such cases the representations must 
 be in writing, which, he said, it was clearly settled by the 
 previous cases, was not necessary ; remarked, that at the 
 trial he had pointed out the circumstances, from which it 
 appeared probable that the inquiry made by the plaintiffs 
 was intended as a trap ; but the jury had passed upon the 
 question, and it could not be called a verdict against evi- 
 dence ; still he was not satisfied with it, and thought that 
 the defendant ought to have a new trial on payment of 
 costs. And with him all the judges agreed, Rooke, J., 
 and Chambre, J., saying, that there was reason to believe 
 that the plaintiffs intended to practice a trick upon the 
 defendant, and that he ought to be allowed to take the 
 opinion of another jury upon terms ; and the rule was 
 accordingly made absolute upon payment of costs. 
 Undoubtedly the cii'cum stance which made the most 
 impression upon the minds of the judges was, that the 
 plaintiffs had previously given Brunei credit ; and in fact 
 it is to be inferred from the report, that the former debt 
 was unpaid,at the time when the purchase in question was 
 made. 
 
 § 107. The next case was Hamar v. Alexander^ 5 Bosan- 
 quet and Puller, 241, decided A. D. 1806, also in the 
 Common Pleas. It presented the feature that the fraudu- 
 lent representation was coupled with a verbal guaranty 
 of payment of the debt, which the plaintiff was permitted 
 to separate from the guaranty so as to recover upon the 
 representation alone. The declaration stated that the 
 defendant falsely, fraudulently, and deceitfully repre- 
 sented to the plaintiff "that one Leo was a good man, and 
 might be trusted for any amount;" averring that he 
 knew it to be false, and that on the faith of the represen- 
 tation the plaintiff had sold Leo goods. At the trial the
 
 Art. II.] COLLATEEAL UNDERTAKINGS. 177 
 
 plaintiff proved the representations as laid in the declara- 
 tion ; and that the defendant added, "that if Leo did not 
 pay for the goods he would." It was also proved that the 
 defendant knew that Leo was in bad circumstances, and 
 that he procured the credit for him, in order that the goods 
 might be consigned to a house with which the defendant 
 was connected ; and one Crompton was also concerned in 
 the purchase, as a broker. On the part of the defendant it 
 was objected, that the representations having been accom- 
 panied by a promise to pay, which was void under the 
 statute of frauds, the action could not be sustained for 
 the deceit ; because the injury might have arisen from the 
 void promise, and not from the false representations. But 
 the plaintiff had a verdict, and the defendant obtained a 
 rule nisi for a nonsuit on that ground. Sir James Mans- 
 field, C. J., delivered the opinion of the court, in which 
 he said, that, although it was true that it was impossible 
 to determine how much mischief was done by the repre- 
 sentations, and how much by the void promise, he was 
 nevertheless of the opinion that, upon the whole, the ver- 
 dict ought to stand. "Independent of the promise," he 
 said, "I think this is clearly a case, upon -v^hich an 
 action might be maintained, if the case of Pasley v. Free- 
 iiian had never been heard of. Here a gross cheat was 
 meditated, and I am by no means certain that the parties 
 might not have been indicted for a conspii*acy." Tlien, 
 after dwelling further upon the fraudulent character of the 
 conduct of aU the parties to the cheat, he added : "The 
 only question then is, whether the addition of this prom- 
 ise, that if Leo did not pay, the defendant would, will 
 prevent the plaintiff from having a right to support this 
 action. I think that it will not. There is no proof that 
 the plaintiff ever considered the defendant as his debtor, 
 or ever called on him for the money, or relied on his 
 promise in the least degree. In the next place, we must 
 suppose every man to know the law ; and if the plaintiff 
 was acquainted with the law, he must have kno\vn that 
 the defendant's promise was worth nothing, and could 
 have given no credit to him upon it. He cannot have con- 
 23
 
 178 Collateral Undeetakings. [Ch. iv 
 
 sidered it in any other light than as a mode of expression 
 by which the defendant intended more strongly to express 
 his opinion of Leo's circumstances. There being, there- 
 fore, no objection on the ground of this promise being 
 added to the other circumstances, we are of opinion that 
 the verdict .is right." 
 
 § 108. It would seem from the remarks of the Chief Jus- 
 tice, that the test of the right to recover in such a case, is 
 whether the plaintiff relied upon the guaranty, or upon 
 the representation alone. Much stress was laid upon the 
 circumstance that this particular verbal guaranty was 
 void as matter of law, being conditional by its terms ;(e) 
 but, upon the whole, it is fairly to be inferred from the 
 opinion, that in all cases of this character the guaranty 
 may be separated from the representation, and the ques- 
 tion left to the consideration of the jury, whether the 
 plaintiff relied upon the guaranty, or upon the representa- 
 tion, even in a case where the statute did not render the 
 former void. But in Oallager v. Brunei, 6 Cowen, 346, 
 and in Shaw v. Stine, 8 Bosworth, 157, (/) the New York 
 courts have held that even if the plaintiff relied upon the 
 guaranty, he is entitled to maintain the action, if he relied 
 also upon the false representations. 
 
 § 109. The next case, which arose in the King's Bench, 
 was Smith v. Harris, 2 Starkie, 47, tried at nisi prius 
 in 1817, before Lord Ellenborough. As this case has ap- 
 parently been misunderstood by some commentators, we 
 transcribe the language of the report, omitting only some 
 matter irrelevant to this inquiry. "This was an action on 
 the case against the defendant, for a fraudulent represen- 
 tation that one Hollingwood was a trustworthy man and 
 a man of property, and that his wife had an annuity of 
 50^. ; in consequence of which the plaintiff was induced 
 to give Hollingwood credit ; whereas he was in insolvent 
 circumstances." Hollingwood being called as a witness, 
 
 (e) See post, chapter vii. 
 (/) Post, §§ 110, 111.
 
 Art. n.] Collateral Undertakiiigs. 179 
 
 there was an objection to Ms competency, which the Chief 
 Justice overruled, and he then testified "that the defend- 
 ant had told the plaintiff, that he might lend him (Ilolling- 
 wood) 201. or 30Z., and that he would be perfectly safe ; 
 and that he (the defendant) would see the plaintiff paid. 
 Lord Ellenhorough. These cases come out almost always 
 according to the truth. A promise having been made to 
 guaranty the plaintiff, which is within the statute, there 
 being no note in writing, he brings an action for the mis- 
 representation. This is nothing more than a guaranty 
 within the statute of frauds. Plaintiff nonsuited." There 
 is nothing in this case, as reported, to indicate that Lord 
 Ellenborough intended in the slightest degree to question 
 the rule as laid down in the previous cases, particularly 
 Hamar v. Alexander. It would be sufficient to distin- 
 guish the two cases, that there appears to have been no 
 proof of a scienter in Smith v. Harris ; but, apart from 
 that criticism, the language of the defendant, as given by 
 the witness, indicates rather an expression of opinion 
 respecting his circumstances, or his honesty, than the 
 affirmation of an existing fact ; and it is evident that the 
 so called representation was entirely subordinate to the 
 guaranty, instead of being independent thereof, so as to 
 be capable of being made the foundation of a distinct 
 remedy. 
 
 § 110. The case of Oallager v. Brunei, 6 Cowen (New 
 York), 346, decided A. D. 1826, presents features in some 
 respects similar to those of each of the two cases last 
 cited, although neither of them was referred to in the 
 argument or in the opinion ; which is the more remarkable, 
 because the second count of the declaration appears to 
 have been framed, with the hope of bringing the case 
 within the opinion of Sir James Mansfield, in Hamar v. 
 Alexander. There the first count of the declaration 
 averred, in substance, that C. and H. proposed to purchase 
 from the plaintiffs a quantity of cotton, at a certain price, 
 part to be paid for in cash, and part by their notes, 
 indorsed by the defendant at four months ; that they were
 
 180 COLLATEEAL UxDEETAKIITGS. [Ch. IV. 
 
 then unable to pay for tlie cotton, and that the plaintiffs 
 were unwilling to sell it on their sole credit ; and that the 
 defendant, well knowing these facts, but contriving, etc., 
 falsely and deceitfully represented to the plaintiffs, that he 
 was willing to indorse the proposed note ; and thereby 
 induced the plaintiffs to sell and deliver them the cotton ; 
 whereas, in truth, he was not willing, and did not mean or 
 intend to indorse the note, whereby, etc. The second 
 count was in substance the same, except that it averred, 
 that C. and H. were in bad credit, and unfit to be trusted ; 
 that the defendant, well knowing this, and fraudulently 
 intending to enable C. and H. to obtain possession of the 
 cotton, and convert it to their own use, withoiit paying 
 the plaintiffs for it, falsely, fraudulently, and deceitfully 
 represented to the plaintiffs, that if they would sell the 
 cotton to C. and H., the defendant would become answer- 
 able to the plaintiffs for so much of the price as should 
 be unpaid, by indorsing the notes of C. and H., etc. The 
 defendant demurred to the declaration, and the court gave 
 judgment for the defendant upon the demurrer. Wood- 
 worth, J., delivering a per curiam opinion. He said that 
 the declaration was bad in substance, for not averring that 
 a note was ever made by C. and H., and presented to the 
 defendant for indorsement ; but, as the decision upon that 
 point alone would only postpone the question, he would 
 consider it upon its merits. Even supposing, he said, 
 that the contract was in writing, the plaintiffs cannot say 
 that they have the election to turn the action into one for 
 deceit ; unless the case is such, as not only to render the 
 party liable, upon the contract, but also to sustain an 
 action for deceit. "For example," the learned judge 
 said, "suppose A represents B to be solvent, knowing it 
 to be false, whereby B obtains credit ; but notwithstanding 
 this representation, the seller takes from A his written 
 stipulation to guaranty the payment. In this case I per- 
 ceive no objection to a creditor's election of the remedy." 
 But, he added, the intention of the party not to fulfil 
 the contract, is not one of the fraudulent acts which 
 render him liable in an action for deceit ; in such cases the
 
 Art. II.] Collateral Undertakings. 181 
 
 general ground of liability rests upon the affirmation of a 
 fact as true, which, at the time, he knows to be false, and 
 by means whereof, credit is obtained. Here there was no 
 necessity of relying upon the representation or promise 
 of the defendant. The plaintiffs had only to insist that 
 the note should be drawn and indorsed, pari passu with 
 the delivery of the goods ; hence if they suffer, it is owing 
 to their own negligence and misplaced confidence. He 
 then cites several of the previous cases, in all of which the 
 gravamen of the action was the false affirmation of an 
 existing fact ; not a promise to do a future act, at that 
 time not intended to be performed, and which, notwith- 
 standing the intent, might or might not be performed. (^) 
 
 § 111. The rule intimated in the opinion of Woodworth, 
 J., in the case last cited, was fully recognized and adopted 
 in Shaw v. Stine, 8 Bosworth, 157, decided in the New 
 York Superior Court, A. T>. 1861. There the action was 
 to recover the value of goods sold by the plaintiffs to 
 Cohen & Mendel, of Cincinnati, upon fraudulent repre- 
 sentations of the defendants respecting their responsibility, 
 and the proof showed that after the representations were 
 made, one of the plaintiflTs, who transacted the business 
 on behalf of his firm, said that he was not satisfied ; and 
 the defendants then offered and agreed to indorse Cohen 
 & Mendel' s note, on being paid two and a-half per cent 
 therefor. The goods were then delivered, but the note 
 given by Cohen & Mendel therefor was not paid, nor was it 
 indorsed by the defendants. Upon the trial, the judge 
 charged the jury that if the plaintiffs relied on the indorse- 
 ment, and not on the representations, they should find for 
 the defendants ; but if the goods were sold upon the faith of 
 the representations, they should find for the plaintiffs ; 
 and he refused to charge, as requested by the plaintiffs' 
 counsel, that if the representations in any degree contrib- 
 
 (g) See Boyd v. Stone, 11 Massachusetts, 342, A. D. 1814, where there 
 ■was a similar ruling in a case arising under the fourth clause of this 
 Eection.
 
 182 Collateral Undertakings. [Ch. iv. 
 
 uted to induce the plaintiffs to sell the goods, the plaintiffs 
 were entitled to recover. The defendants had a verdict, 
 and the judgment thereon was reversed upon an excep- 
 tion taken to the refusal to charge ; the Court saying that 
 the charge seemed to contain an intimation to the jury, 
 that the plaintiffs could not recover, unless they sold the 
 goods solely upon the faith of the defendants' representa- 
 tions ; and to leave it to the jury to determine, upon which 
 one of the inducements the plaintiffs parted with their 
 property. The opinion (per White, J.) states the rule as 
 follows : "A true test in such cases may be found in the 
 inquiry, whether the plaintiff would have sold the goods 
 if the false representations had not been made ? If he 
 would, then the false representations did not contribute to 
 the sale, for he would have made the sale without them. 
 But if he would not have sold them without the repre- 
 sentations, then they contributed to the sale ; and the 
 party making them is responsible for the damage which 
 the plaintiff suffered, notwithstanding that other equally 
 powerful motives may have influenced his mind at the 
 same time in the same direction, and without the exist 
 ence of which he would not have come to the conclusion 
 to sell. It is plain that each one of several concurring 
 considerations or motives, may be so necessary to induce 
 the performance of an act, that, in the absence of any one 
 of them, the act would not be done ; and when they are all 
 thus necessary, and all concur, each one of them must be 
 deemed to have aided in producing the act and its conse- 
 quences. In the case before us, the two things, the represen- 
 tations made by the defendant respecting the responsibility 
 of Cohen & Mendel, and the supposed security furnished Dy 
 the indorsement of Stine & Mendel (the defendants), may 
 have hotli heen necessary to the conclusion to which the 
 plaintiffs finally came, to sell the goods to the Cincinnati 
 firm. Neither separately might have been a sufiiciently 
 powerful inducement, while both united would be. "(A) 
 
 (7?) See also Thompson v. Bond, 1 Campbell, 4, where it was held that 
 a fraudulent representation that the party to whom goods have been 
 delivered was authorized to pledge a third person's credit therefor, will 
 not prevent a recovery in assumpsit against the party himself, if the seller in 
 fact gave credit to the person to whom the delivery was made.
 
 Art. III.] Collateral Undertakings. 183 
 
 ARTICLE III. 
 
 Where a promise has been made to do some act, tending to the discharge of a liability of a 
 third person to the promisee, bat not directly " to answer for " the same. 
 
 § 112. The expression "to answer for," apparently 
 implies that the cases for which the statute intended to 
 provide, are those where the promisor enters into a direct 
 undertaking, to assume a liability resting upon a third 
 person, either absolutely or in case of the latter' s default. 
 Consequently a promise is not within the language of the 
 statute, which does not in terms bind the promisor to dis- 
 charge such a liability, although it contemplates the per- 
 formance of some act tending to effect such a discharge, 
 and the damages for its breach would be measured by the 
 amount of the demand. Whether such promises, although 
 not strictly -within the letter, are not so far within the 
 meaning of the statute, as to be included within its provis- 
 ions, is a question of considerable diflBculty, which has 
 been much debated ; but the weight of authority appar- 
 ently favors the negative conclusion. 
 
 § 113. Thus, in a nisi prius case which has been much 
 criticised, Jarmain v. Algar, 2 Carrington and Payne, 
 249, and Kyan and Moody, 348, decided A. D. 1826, the 
 declaration stated that one Flack was indebted to the 
 plaintiff ; and for the purpose of recovering his debt by 
 action, the plaintiff had caused to be issued against him 
 a latitat, indorsed for bail for 34Z. ; whereupon, in consid- 
 eration that the plaintiff would forbear to arrest Flack 
 upon that writ, the defendant undertook to execute a bail 
 bond for Flack, upon process to be issued to Sussex or 
 Middlesex at the suit of the plaintiff, when tendered to 
 him, within one week from the time of making the promise. 
 The declaration then averred the issuing of process to 
 Middlesex ; the tender of a bail bond to the defendant ; and 
 his refusal to execute it. At the trial, the plaintiff proved 
 a written undertaking of the tenor stated in the declara- 
 tion ; but it contained no expression of the consideration. 
 The defendant's counsel asked for a nonsuit on two
 
 184 Collateral Undertakings. [Ch. iv. 
 
 grounds, namely, that the writing was insufficient within 
 the statute of frauds, and that the plaintiff had failed to 
 prove a sufficient tender of a bail bond for execution by 
 the defendant. Abbott, C. J., said: "As at present 
 advised, I think this undertaking is not within the statute 
 of frauds, and is not a promise to answer, etc., within the 
 meaning of its provisions." With respect to the other 
 point he thought that it had better be reserved till after 
 the verdict ; and the jury having found for the plaintiff, 
 he held that the plaintiff had failed to prove the tender, 
 and on that ground directed that a nonsuit should be 
 entered, with leave to the plaintiff's counsel to move to 
 enter a verdict for the plaintiff; but the report states that 
 no motion was ever made, (a) 
 
 § 114. The case of BusTiell v. Bea-^an, 4 Moore and Scott, 
 622, and 1 Bingham' s ISTew Cases, 103, decided in the English 
 Common Pleas in 1834, involves a similar principle ; and 
 it is of much greater weight as authority than the preced- 
 ing ; as it was elaborately argued, and carefully considered 
 by a full court. The action was brought to recover dam- 
 ages, for the failure to procure the signature of one 
 Macqueen to a written guaranty ; and also upon a guar- 
 anty of the same general tenor signed by the defendant 
 himself ; but, as the court were with the defendant upon 
 the last mentioned cause of action, the first only will be 
 referred to here. At the trial it appeared that the plaint- 
 iffs were the owners of the ship Warrior ; and she, needing 
 some repairs, had gone into the dock for the purpose of 
 having them made; the plaintiffs and one Sempill hav- 
 ing previously entered into a charter-party for the hire of 
 
 (a) The case of Elkins v. Heart, Fitzgibbon, 202, A. D. 1731, was similar 
 to this, being an action upon a promise that J. G. should not go beyond the 
 kingdom without paying a debt due from hira to the plaintiff, made in con- 
 sideration of forbearance in an action brought against the said J. G. by the 
 plaintiff. The plea was that there was no note in writing, etc., to which the 
 plaintiff demurred. The report says: The court " inclined that there was a 
 new consideration, and therefore it was not for the debt of J. G., and so not 
 within the statute j sed adjurnatur."
 
 Art. III.] Collateral Undertakings. 185 
 
 the ship to Sempill, after the repairs should be completed. 
 In fact the ship was not ready for sea within the time pro- 
 vided for by the charter party ; and for that and other 
 reasons a dispute arose between the plaintiffs and Sempill, 
 in consequence of which the plaintiffs refused to allow the 
 ship to go to sea. After considerable negotiation, the dis- 
 pute was finally settled, Sempill securing the plaintiffs 
 satisfactorily for six months hire of the ship ; and in 
 addition it was one of the terms of settlement, that the 
 defendant should procure T. P. Macqueen to sign a cer- 
 tain document, which was drawn up and assented to by the 
 parties ; by the terms of which, after reciting that the char- 
 ter party had been entered into ; that Sempill had secured 
 the payment of the freight for the six months, and was 
 about to leave England in the ship ; Macqueen, in con- 
 sideration thereof, agreed to guaranty "the due and faith- 
 ful payment of all freight, for the use or hire of the said 
 ship, which shall or may become due and payable from 
 the said H. C. Sempill, for any period beyond the said six 
 months." The defendant at the foot of a copy of the 
 written guaranty, prepared for Macqueen' s signature, 
 wrote and signed this undertaking: " I undertake to get 
 a copy of the above guaranty duly signed by Thomas 
 Potter Macqueen, Esq., M.P., and within a week delivered 
 to Mr, Brittan" (the attorney for the plaintiffs). This 
 settlement was made on the 6th of October, 1829 ; and in 
 consequence of it, the plaintiffs suffered the Warrior to 
 proceed to sea, and she sailed accordingly on the 10th of 
 the same month. The guaranty was not executed by 
 Macqueen, although the defendant was repeatedly applied 
 to for that purpose ; and in this action the plaintiffs 
 claimed damages to the amount of upwards of 1500^., 
 being the amount unpaid by Sempill for the hire of the 
 ship after the six months. A verdict was found for the 
 plaintiffs, upon a case subject to the opinion of the court ; 
 and upon the argument the defendant' s counsel insisted, 
 among other things, that the memorandum at the foot of 
 the letter, did not satisfy the statute of frauds, as it did 
 not contain any expression of the consideration ; and also 
 24
 
 186 Collateral Undertakings. [Ch. iv. 
 
 ttiat as the proposed guaranty, to be signed by Macqueen, 
 contained no expression of the consideration, the defend- 
 ant was at most liable only for nominal damages, by reason 
 of his failure to procure Macqueen to sign it. 
 
 § 115. But on the point that the defendant' s agreement 
 was not sufficient within the statute, Tindal, C. J., 
 delivering the opinion of the court, after reciting the 
 facts, said : ' ' Under these circumstances the contract 
 appears to us not to be a contract to answer for the 
 debt, default or miscarriage of any other person ; but a 
 new and immediate contract between the defendant 
 and the plaintiffs. If Mr. Macqueen had signed the 
 guaranty, that guaranty would indeed have been within 
 the statute of frauds ; for his is an express guaranty to be 
 answerable for the freight due under the charter-party, if 
 SempUl did not pay it. But no person could be answer- 
 able upon the promise to procure his signature, but the 
 defendant. Sempill had never engaged to get the guaranty 
 of Macqueen, nor had Macqueen engaged to give it. 
 There was therefore no default of any one for which the 
 defendant made himself liable ; he did so simply upon 
 his own immediate contract. For as to any default of 
 Sempill in paying the freight, the action on the undertak- 
 ing of the defendant, could not be dependent on that event ; 
 for it would have been maintainable, if the guaranty were 
 not signed at any time after the day, on which the defendant 
 engaged it should be given ; that is, long before the time 
 when the freight became payable." The learned Chief 
 Justice next considered the question arising on the terms 
 of the intended guaranty of Macqueen ; as to which he 
 said, that there was no consideration upon the face of it, 
 either directly expressed, or to be supplied by fan- and 
 necessary inference. The inducement related entirely to 
 past events ; the entering into the charter-party ; the pay- 
 ment of the six months freight by Sempill; and his intended 
 departure in the ship. All this, he said, is "past and 
 by gone consideration." So that if the guaranty had been 
 executed, an action upon it would have necessarily failed,
 
 Art. HI. J Collateral Undertakhstgs. 187 
 
 and the defendant is therefore liable to nommal damages 
 only. The verdict was therefore ordered to stand for tlie 
 plaintiffs, but the damages were reduced to one shilling. (J) 
 
 § 116. The decision in Towne v. Grover^ 26 Massachu- 
 setts (9 Pickering), 306, A. D. 1830, presents a very good 
 illustration of the same general principle. The declara- 
 tion was to the effect that the defendant had entered into 
 a contract with one Newell, whereby Newell was to build 
 a house for the defendant, for a specified sum, payable 
 when the house should be completed ; that Newell, being 
 indebted to the plaintiff, desired to procure from him 
 more lumber to finish the house ; and on the plaintiff 
 refusing to sell him any more, the defendant, in consider- 
 ation that he would do so, promised the plaintiff that ' ' if 
 he would sell and deliver to Newell, the lumber necessary 
 to finish the house, he, the defendant, would not settle 
 with Newell for the house, until he had given the plaintiff 
 sufficient notice, after the completion of the house, so that 
 the plaintiff might secure himself by process of attach- 
 ment upon the defendant, as trustee of Newell, for the whole 
 of the debt which should be then due from Newell to the 
 plaintiff ; " that the plaintiff thereupon gave Newell credit ; 
 but the defendant had settled with Newell before the com- 
 pletion of the house, without giving the plaintiff notice. 
 At the trial the plaintiff was permitted to prove the prom- 
 ise by oral testimony, notwithstanding the defendant's 
 objection ; and he had a verdict, which the court refused 
 to set aside. The opinion of the Court upon this branch 
 of the case was as follows : "We think the promise is not 
 within the statute of frauds. It is a separate, independ- 
 
 (6) See Mallett v. Bateman, 35 Law Journal, N. S., C. P., 40, abstracted 
 hereafter. The cases of Jarraain v. Algar, and Bushell v. Beavan, are severely 
 criticised by Cowen, J., in his opinion in Carville v. Crane, 5 Hill, 483; 
 and he apparently finds it necessary to overrule them both, in order to 
 sustain his decision in that case. But there the promise was to become 
 contingently liable for the debt itself, which creates a very broad distinction. 
 See the case, cited at length, in chapter vii.
 
 188 Collateral IlNDEETAKiisrGS. [Cli. iv. 
 
 ent agreement, having no reference to tlie debt of Newell, 
 except as to the measure of damages. The defendant was 
 not to pay the debt of Newell, but was to give notice pre- 
 viously to making a settlement with him, which would 
 enable the plaintiff to obtain payment of his demand. 
 Whether Newell paid the debt or not, the promise of the 
 defendant would remain, to be performed, "(c) 
 
 § 117. But a decided expression of opinion, against the 
 doctrine that a promise can be taken out of the statute, 
 because it had only indirectly the effect to render the 
 promisor answerable for the debt of another, may be found 
 in Scott V. Thomas, 1 Scammon (Illinois), 58, A. D. 1832. 
 There the question arose upon demurrer to a plea of the 
 statute, interposed as an answer to certain counts of the 
 declaration, founded upon a promise to foreclose a mort- 
 gage, which the defendant held upon certain lands of the 
 plaintiffs' debtor ; to permit the plaintiff to buy in the 
 property at a certain price, if it would not sell for more ; 
 and, after satisfying his own debts, to pay the surplus, 
 if any, to the defendant. The Court, rendering judgment 
 for the defendant upon the demurrer, said : "In the argu- 
 ment of this case, a distinction was attempted to be drawn 
 between a promise to pay the debt of another, and a 
 promise to do some collateral act by which such payment 
 might be obtained. No such distinction, however, is 
 recognized by any of the cases relied on, nor does any 
 such exist. If the act promised to be done is, in its con- 
 sequences, to operate as a discharge of the debt of another, 
 the circuity of the process by which that object is pro- 
 posed to be effected, does not vaij the principle of the 
 case."(^ 
 
 (c) It may be doubted whether the last sentence, which weakens the 
 force of what goes before, contains a sound legal proposition. 
 
 (d) Sec also the cases in chapter vii, article ii, subdivision 2 ; and the fol- 
 lowing cases upon another branch of the statute : Rice v. Peet, 15 Johnson 
 (New York), 503 ; Goodrich v. Nickols, 2 Root (Connecticut), 498. It must 
 be conceded that the question is involved in considerable obscurity.
 
 Art. III.] COLLATEEAL UNDERTAKINGS. 189 
 
 § 118. It was also held by the English Court of 
 Common Pleas, in Anstey v. Marclen, 4 Bosanquet 
 and Puller (1 New Reports), 124, A. D. 1804, that where 
 the fulfilment of the promise will result, not in the dis- 
 charge of the debt, but in its assignment to the promisor, 
 it could not be said to be a promise to "answer for" the 
 debt of another within the meaning of the statute. The 
 defendant, in an action of assumpsit, to recover a debt 
 of 1,OOOZ., pleaded specially to all of the cause of action 
 except 525^., in substance, that he, being indebted to 
 the plaintiff and others, was unable to pay them in 
 full ; and they (the creditors) computed and agreed 
 among themselves, that the defendant's estate would 
 pay not more than ten shillings in the pound ; where- 
 upon it was proposed and agreed between such cred- 
 itors and one Thomas Weston, by the defendant's pro- 
 curement, "that the said Thomas Weston should and 
 would pay, out of his own proper moneys, to the plaintift 
 and the said several other creditors of the defendant, a 
 sum of money equivalent to 105. in the pound on the 
 amount of their respective debts, in full satisfaction and 
 discharge thereof," which they would respectively accept 
 in full satisfaction and discharge of the said debts ; fur- 
 ther averring that Weston had, out of his own moneys, 
 but for and on account of the defendant, subsequently 
 tendered to the plaintiff 525Z. , being ten shillings on the 
 pound of his demand, and that he had always been ready, 
 etc. There was another special plea, in substance the 
 same, except that the agreement was stated to have been 
 made between the plaintiff, the defendant, and Weston. 
 
 § 119. The defendant paid into court the 525Z. At the 
 trial, it was shown that an agreement was made between the 
 plaintiff and three other creditors, to accept from Weston 
 105. in the pound, "in satisfaction of the debts due to 
 them from the defendant, and to assign those debts to the 
 said T. Weston ' ' ; and tliat the others had signed a writ- 
 ten agreement to that effect, and had been paid the amount 
 of the composition by Weston ; that the plaintiff at one time
 
 190 Collateral Undertakings. [Cli. iv. 
 
 authorized one of the others to sign for him, but after the 
 others had signed, he refused to sign it, and withdrew the 
 authority. It was contended, that the promise of Weston, 
 being within the statute of frauds, formed no consideration 
 for the plaintiff' s promise ; but, under the ruling of the 
 Chief Justice, the defendant had a verdict ; and, after 
 argument of a rule nisi, the court refused a new trial. Sir 
 James Mansfield, in the opinion delivered by him, said, 
 that when he made his ruling at the trial, he did not see 
 how one person could undertake for the debt of another, 
 when the debt for which he was supposed to undertake 
 was discharged by the very bargain ; and he does not 
 appear to have retracted that opinion. But he put his 
 decision upon all the circumstances of the case ; saying 
 that the object of the transaction was to assign the debts 
 to Weston ; and, after dwelling upon the plaintiff's "ex- 
 tremely bad" conduct, he concluded by saying that, upon 
 the whole, he thought this was a purchase of the plaintiff' s 
 demand, and for that reason a new trial ought not to be 
 granted. Rooke, J., also said that it was a purchase of a 
 debt. Chambre, J., said that it was a contract to purchase 
 the debts ; and that "it was of the substance of the agree- 
 ment that the debts should remain in full force to be 
 assigned to Weston ; " and he had a right to use the names 
 of the creditors to collect the full amount, so that "instead 
 of being a contract to discharge Marden from his debts, it 
 was a contract to keep them on foot;" but, as Weston 
 wished to sustain the verdict, in the exercise of the discre- 
 tionary power confided to them, the court ought not to set 
 it aside. He added, that if the agreement was as repre- 
 sented by the pleas, he should have thought that the case 
 was within the statute.
 
 CHAPTER FIFTH. 
 
 GENERAL OBSERVATTONS UPON THE CASES DEPENDING UPON 
 THE WORDS "debt, DEFAULT, OR MISCARRIAGES." 
 
 AKTICLE I. 
 
 Meaning and effect of tiese words, as used in this clause of the statute. 
 
 § 130. We now enter upon the examination of tlie cases 
 within the fourth class of the second general division, being 
 those "where there was no original liability for a 'debt, 
 default or miscarriage,' to which the undertaking of the 
 promisor could be collateral. ' ' {a) They are very numerous 
 and present many difficult questions, some of which are yet 
 entirely unsettled, and several chapters wUl be required 
 to complete the discussion. At the outset, we propose 
 briefly to inquire what is the precise significance to be 
 attached to the expression " debt, default or miscarriages." 
 
 § 121. In Castling v. Auhert, 2 East, 325, A. D. 1802, a 
 case which we shall have occasion to cite at length in 
 a subsequent chapter. Lord EUenborough apparently 
 regarded the words "default" and "miscarriage" as 
 synonymous, or nearly so. There the question arose upon 
 the defendant' s verbal promise, made in consideration of 
 the surrender to him of certain policies of insurance issued 
 in favor of one Grayson, to provide for the payment of 
 certain bills drawn by Grayson upon the plaintiff*, and 
 accepted by the latter for Grayson' s accommodation, as 
 indemnity against which the plaintiff" held the policies. 
 At the time of the agreement one of the acceptances had 
 matured, and an action had been commenced thereon against 
 the plaintiff" and Grayson ; and this action was brought to 
 
 (a) Ante, § 70.
 
 192 COLLATEEAL UjSTDERTAKUSTGS. [Ch. V. 
 
 recover damages for the failure to provide for that accept- 
 ance. Lord Ellenborough, C. J., said: "lam clearly of 
 opinion that this is neither an undertaking for the debt, 
 default or miscarriage of another within the statute. 
 It could not be for the debt, but rather for the credit qf 
 another ; for when the promise was made, no debt was 
 incurred from Grayson to the plaintiff ; therefore, if at all 
 within the statute, it must be for the default or miscar- 
 riage of another." 
 
 § 122. The distinction suggested by his lordship between 
 a debt and a default is undoubtedly correct, as the former 
 word indicates a liability arising out of a contract, express 
 or implied, to pay money to the promisee, whether the 
 time for payment had then passed or was yet to come ; 
 whereas the latter word is more appropriate to designate 
 a breach of some duty to the promisee, other than to pay 
 money, whether it arose from an express contract, or from 
 some liability created by law. Therefore "default" forms, 
 in one aspect, a connecting link between "debt" and 
 "miscarriages," of which one relates exclusively to con- 
 tracts and the other peculiarly to torts, "default" being 
 applicable with equal propriety to either ; but, in another 
 aspect, it serves to remove a doubt, which might have 
 arisen, whether the statute was not confined to past trans- 
 actions ; inasmuch as ' ' debt ' ' and ' ' miscarriages ' ' are 
 peculiarly applicable, and might have been construed to 
 refer exclusively to such ;(&) whereas "default " can mean 
 nothing but the breach of a duty or the non-payment of a 
 debt yet to be discharged. The sentence is therefore exceed- 
 ingly comprehensive ; and the three words, taken together, 
 seem to include every act for which the third person might 
 be subjected to an action, either at the time of the promise 
 or subsequently, (c) 
 
 (h) In fact there was an effort made to exclude from this clause of the 
 statute a promise to answer for a "debt" thereafter to be contracted, as we 
 shall see in the next chapter. 
 
 (c) It will be seen upon an examination of the schedule prefixed to thia 
 volume, that in several of the acts in force in the United States, the legisla- 
 tures have substituted " doings " or " misdoings " in place of " miscarriages."
 
 Aii;. 1.] Collateral Undertakixgs. 193 
 
 § 123. And yet considerable doubt was at one time 
 expressed, whether the words of the statute included a 
 promise to answer for a tort committed by another. This 
 doubt appears to have arisen partly from the decision in 
 Read v. Nasli^ 1 Wilson, 305, although there is nothing 
 in that case to justify it,(<^) and partly from some remarks 
 of the court in Buckmyr v. Dariiall, (e) as contained in 
 the reports in 2 Lord Raymond, 1085, and 6 Modern, 248. 
 There it is said, that one of the difficulties which the judges 
 found, upon consultation, in holding the statute to be ap- 
 plicable to the defendant' s promise, (which was that a third 
 person should redeliver to the plaintiff, a horse hired to 
 him by the plaintiff, at the defendant' s request) grew out 
 of the argument that, if the original bailee did not rede- 
 liver the horse to the plaintiff on demand, he would be 
 liable only in trover or in detinue, founded upon a subse- 
 quent tort, and not upon any promise. And the decision 
 was finally placed upon the ground, that the bailee was 
 liable on the bailment, in detinue on the original delivery. 
 
 § 124. But whatever doubts may have arisen upon any 
 thing said in these cases, they were set at rest by the 
 decision in Kirkham v. Ifarter, 2 Barnewall and AMer- 
 son, 613, A. D. 1819, where the language of the statute 
 was subjected to a close criticism. There the question 
 was, whether an action would lie on the defendant' s verbal 
 promise, to the effect that he would pay the plaintiff a 
 certain sum in consideration of his not bringing an action 
 against the defendant's son for wrongfully riding his 
 horse to death. (/) Upon an application for a rule to set 
 aside a nonsuit, counsel contended that the statute did 
 not apply to a promise to be answerable for another's 
 tortious act; but Abbott, C. J., said that this was a case 
 clearly within the mischief intended to be remedied by the 
 statute, and he thought the words of the statute were 
 
 (d) See the case abstracted in § 130. 
 
 (e) Section 143. 
 
 (/) The substance of the declaration is given, post, § 133. 
 25
 
 194 COLLATEKAL UNDERTAKINGS. [Ch. V. 
 
 sufficiently large to comprehend it. After quoting the 
 words, he added : ' ' Now the word ' miscarriage ' has not 
 the same meaning as the word 'debt' or 'default'; it 
 seems to me to comprehend that species of wrongful 
 act, for the consequences of which the law would make 
 the party civilly responsible. The wrongful riding the 
 horse of another, without his leave and license, and 
 thereby causing his death, is clearly an act for which the 
 party is responsible in damages, and, therefore, in my 
 judgment, falls within the meaning of the word 'miscar- 
 riage.'" Holroyd, J., said: "I think the term 'miscar- 
 riage' is more properly applicable to a ground of action 
 founded upon a tort, than to one founded upon a con- 
 tract ; for in the latter case the ground of action is that 
 the party has not performed what he agreed to perform ; 
 not that he has misconducted himself in some matter, for 
 which, by law, he is liable. And I think that both the 
 words ' miscarriage ' and ' default ' apply to a promise to 
 answer for another, with respect to the non-performance 
 of a duty, though not founded upon a contract." Best, 
 J., said that the case was within the spirit and princi- 
 ple, as well as the words, of the act ; that there was nothing 
 to restrain these words, 'default' or 'miscarriage'; and it 
 appeared to him that each of them was large enough to 
 comprehend this case.(p') 
 
 § 125. Very similar to KirTcliam v. Marter, is the recent 
 American case of Combs v. Harsliaw, 63 North Carolina, 
 198, A. D. 1869. There it appeared that, in 1864, the 
 
 (j7) See also Tarner v. Hubbell, 2 Day (Connecticut), 457. In Smith v. 
 Fall, 15 B. Monroe (Kentucky), 443, A. D. 1854, the court held that a 
 promise that a third person, in whose hands the plaintiff had placed a note 
 for collection, should collect the same and pay over the amount to the 
 plaintiff, was void, because not in writing; but the provision of the statute 
 cited and commented upon is the one corresponding with the sixth section 
 of Lord Tenterden's act. (See ante, page 44.) It is singular that the court 
 should have put the decision upon the construction of that provision, for its 
 application is quite doubtful, while the fourth section of the statute of frauds 
 applies unmistakably.
 
 Art. II.] COLLATEEAL UNDERTAKINGS. 195 
 
 defendant' s son, who was under age, and a soldier in the 
 confederate service, met the plaintiff, and forcibly took 
 from him his horse. After the war was ended, the son, in 
 consequence of this and other acts, left his father's house ; 
 and the defendant, upon the plaintiff demanding payment 
 for the horse, promised "that if the former would allow 
 his son to come home," he would refer the matter to some 
 neighbors, who should say what ought to be done. The 
 defendant afterwards refused to refer, and thereupon this 
 action was brought ; and the plaintiff had a verdict, the 
 judge holding, at the trial, that the promise was not 
 within the statute, because it was new, and supported by 
 a sufficient consideration. The verdict was set aside U]Don 
 appeal, the Supreme Court holding that the promise was 
 within the statute, it having been simply superadded to 
 the son' s liability, without any release of the latter. 
 
 ARTICLE II. 
 
 The statute does not apply, unless the promisor and the third person hecame concurrently liable, 
 for the same debt, default, or miscarriage. 
 
 § 126. The general principle which governs all the cases 
 depending upon the words "debt, default, or miscar- 
 riages," is, that in order to set the statute in motion, there 
 must have been, at the time when the promise took effect, 
 TWO CONCURRENT LIABILITIES. Indeed, this principle 
 may be said to lie at the very foundation of every inquiry, 
 whether a case is or is not within the provisions of the 
 second clause of the fourth section ; and, in that respect, 
 the distinction between the class now under examination, 
 and the other, classes, is that the latter are clearly within 
 the condition of the principle ; so that, if the promise can 
 be saved from the operation of the statute, some rule must 
 be invoked for that purpose, which applies to a case where 
 there were two concurrent liabilities. 
 
 § 127. It is quite evident that the principle requires that 
 the liability, to which that of the promisor is supposed to 
 be collateral, should be one which can be enforced by pro-
 
 196 COLLATEKAL UnDEKTAKINGS. [Ch. V, 
 
 ceedings at law or in equity; and therefore, unless it 
 appears that some person, other than the promisor, has 
 incurred an actual liability with respect to the subject- 
 matter of the promise, the agreement is not within the 
 statute, although the third person may be under an imper- 
 fect, or merely moral obligation to respond. Thus, in 
 Downey v. Hincfiman, 25 Indiana, 453, decided A. D. 
 1865, the action was to recover upon a mutual agreement 
 between the three plaintiffs, the defendant, and four other 
 persons, (eight in all,) whereby the parties agreed to con- 
 tribute equally towards the expense of procuring eight 
 substitutes, to take the places of the minor son of the 
 defendant and the seven parties to the agreement, other 
 than the defendant ; all of whom had been drafted into the 
 service of the United States. The plaintiffs were appointed 
 a committee to procure the substitutes, and this action was 
 brought to recover one-eighth of the expenses incurred by 
 them in so doing. The grounds of the defence were, that 
 the agreement was without consideration, and that it was 
 within the statute of frauds ; both of which were overruled. 
 Upon the latter point the court said: "To make the 
 promise collateral, the party for whom the promise is 
 made must be liable to the party to whom it is made." 
 "In the case in judgment, Archibald Downey, the minor 
 son of the defendant, was in no way liable to the plaintiffs. 
 If the plaintiffs had procured a substitute for him without 
 his request, there would have been no liability thereby 
 created from him to them. The substitute was procured 
 by the plaintiffs upon the promise and agreement of the 
 defendant, and he alone is liable therefor." 
 
 § 128. So in Smith v. Mayo, 83 Massachusetts (1 Allen), 
 160, A. D. 1861, the defendant had drawn an order on the 
 plaintiffs for SlOO worth of lumber, to be delivered to one 
 Savage, who was building an addition to the defendant' s 
 house, under a contract to furnish all the materials and 
 do the work for a specified sum ; by mistake the plaintiffs 
 delivered to Savage $160 worth, and charged it to the 
 defendant. When they discovered their mistake they
 
 Art. II.] Collateral Undertakings. 197 
 
 presented tlieir bill to the defendant, and he, with full 
 knowledge of the facts, orally promised to pay it. It 
 appeared, also, that the plaintiffs had stated that they 
 regarded Savage as their debtor for the amount ; and they 
 had taken an order from him on the defendant for the 
 balance of $60, which they presented to the defendant for 
 acceptance ; but the latter had paid Savage in full. It 
 was held that the promise was made upon sufficient con- 
 sideration ; and, also, that it was not within the statute, 
 doubtless upon the principle now under examination, 
 although the court assigned no specific reasons for its 
 decision upon this point. 
 
 § 129. And the two liabilities cannot be called concur- 
 rent^ even if the third person was liable for some debt 
 or duty, unless it was the same debt or duty which the 
 promisor undertook to discharge. This proposition, 
 which is, in theory, very obvious and easy of application, 
 has nevertheless sometimes led to considerable perplexity. 
 There are a few cases, where the promise grew out of a 
 claim of precedent liability against the third person, and 
 the practical effect of its fulfilment would be to relieve the 
 latter, wholly or in part, from that claim ; and yet, it was 
 held, that the promise was without the statute ; either 
 because the third person' s discharge was not expressly 
 stipulated for ; or because it did not appear, either from 
 affirmative proof, or from any admission contained in or 
 implied by the contract between the parties, that the claim 
 of liability against him could have been enforced by an 
 action. These cases have led to considerable discussion, 
 which has not yet relieved some of them from obscurity ; 
 and we will proceed to examine them in this place ; for we 
 regard them as properly depending upon the general 
 principle just stated, notwithstanding the expression of a 
 contrary opinion from several sources entitled to great 
 respect. 
 
 § 130. The most important of those cases, and one of the 
 most celebrated of the early decisions under the statute, is
 
 198 Collateral Ukdertakings. [Ch. v. 
 
 Beady. JVasTi, 1 Wilson, 305, decided in the King's Bench 
 in the year 1751. («;) There the plaintiff sued as executor 
 of one Tuack, who, the report says, had "brought an 
 action of assault and battery against one Johnson. The 
 cause being at issue, the record entered, and just coming 
 on to be tried, the defendant Nash, being then present in 
 court, in consideration that Tuack would not proceed to 
 trial, but would withdraw his record, undertook and 
 promised to pay Tuack 501., and the costs in that suit, to 
 be taxed till the time of withdrawing the record ; in which 
 taxation all such sums of money were to be allowed as 
 Tuack had paid, and was liable to pay, to his attorney and 
 witnesses who attended the trial. Tuack, relying upon 
 this promise, did withdraw the record, and no further 
 proceeding was had in that cause." Tuack being dead, 
 his executor brought this action upon the special promise 
 by Nash ; and the defendant pleaded non assumpsit, and 
 specially "that there was never any agreement in writing 
 touching this promise, or any memorandum thereof' 
 To the special plea the plaintiff demurred, and the defend- 
 ant joined in demurrer. The cause was twice argued, 
 and as the opinion of the court is short, it shall be given 
 in full. Lee, C. J. : "The single question is, whether this 
 promise, which is confessed by the demurrer not to have 
 
 (a) The precise state of facts which was presented to the court in Read v. 
 Nash was suggested, and the rule with respect thereto stated obiter, by 
 Lord Chief Justice Holt, in Stevens v. Squire, Comberbach, 362, A. D. 1696. 
 (S. C, 5 Modern, 205.) The case is a direct authority only upon the question 
 whether, where the promise admits that the promisor was liable in another 
 action, independently of the promise, the fact that another person was also 
 alleged to be liable in the same action, brings the promise within the statute; 
 but the Chief Justice having stated that such a promise was original, counsel 
 for the defendant asked him whether it would not have been within the stat- 
 ute, if the defendant had not been a party to the original action. Holt 
 replied: "Put that case when it comes; but if A saith do not go on against 
 B, eic, this being to be performed within a year, it will bind hira ; 'tis like the 
 case of buyinw goods for another man, which is every day's practice. But 
 if A saith, do not go on against B, and I'll give you ten pounds in full satis- 
 fadion of thr.t action, that might be within the statute; but here he appears 
 to be a f ^' ty concerned in the former action."
 
 Art. II.] Collateral Undertakings. 199 
 
 been in writing, is within the statute of frauds and per- 
 juries ; that is to say, whether it be a promise for the 
 debt, default or miscarriage of another person ? And we 
 are all of opinion that it is not, but that it is an original 
 promise, sufficient to found an assumpsit upon against 
 Nash, and is a lien upon Nash, and upon him only. 
 Johnson was not a debtor ; the cause was not tried ; he 
 did not appear to be guilty of any default or miscarriage : 
 there might have been a verdict for him if the cause had 
 been tried, for any thing we can tell ; he never was liable 
 to the particular debt, damages or costs. The true differ- 
 ence is between an original promise and a collateral 
 promise ; the first is out of the statute ; the latter is not, 
 when it is to pay a debt of another which was already 
 contracted. Judgment for the plaintiff." 
 
 § 131. It is very clear from this opinion, that the cause 
 was decided upon the solitary ground that, with respect 
 to the particular moneys which the defendant under- 
 took to pay, the third person, who was benefited by the 
 promise, did not incur at the time it was made, and had 
 not previously incurred, any liability whatever ; and there- 
 fore the only purpose to which the case can be legitimately 
 put, is to determine how close may be the connection 
 between a claim of precedent liability and a new promise, 
 without bringing the latter within the statute. The prom- 
 ise was in two parts, namely, to pay the 501. and to pay 
 the costs. The court must have thought it a valid promise 
 as to both parts, otherwise the demurrer would have been 
 sustained. (J) With respect to the promise to pay the 50^. 
 there is but little difficulty, as the plaintiff would have 
 been under no obligation to credit that sum upon his 
 claim for damages, or upon any verdict or judgment which 
 he might have recovered against Johnson ; hence, as to 
 that part of it, the promise was entirely unconnected with 
 Johnson' s liability. But the engagement to pay the costs, 
 80 nomine, was assuming a liability which would have 
 
 (6) See Chater v. Beckett, 7 Term Reports, 201, A. D. 1797.
 
 200 COLLATEKAL UNDERTAKINGS. [Ch. V. 
 
 rested upon Jolmson, if lie had been defeated in tlie action ; 
 and consequently tlie payment of that amount of money 
 would have relieved him so much. It seems, therefore, 
 incorrect to say that the cause was decided, as has been sup- 
 posed by an eminent writer, on the ground that Johnson's 
 liability would continue the same after the performance 
 of the promise as before. But probably it was rightly held 
 that the promise respecting the costs was not an under- 
 taking for the debt of Johnson ; because, at the time of the 
 promise, he was liable for them only in a future contin- 
 gency, of uncertain occurrence. The principle is analogous 
 to that whereby if the third person was not liable, when a 
 verbal promise was made, it cannot be affected by a liabil- 
 ity subsequently accruing, (c) 
 
 (c) See post, § 152. There was, however, one feature in the case which 
 appears to have been entirely overlooked by the court and counsel : namely, 
 that although no part of the promise might have been an engagement to 
 answer for the debt or default oi Johnson, that part of it relating to the 
 costs was a promise to answer for the debt of Tuach to his attorney. In 
 these days such an objection would not be sustained, because the promise 
 was not made to the creditor (chapter xi); but, as will be shown in the 
 proper place, no such distinction was recognized till many years after Read 
 V. Nash was decided. And, if that objection had been taken, probably the 
 decision would have been otherwise, and much subsequent perplexity would 
 have been avoided thereby. Perhaps it would be no exaggeration to say, 
 that Read v. Nash was discussed in half of the cases which arose under the 
 second clause of the fourth section of the statute of frauds, for three quarters 
 of a century after the decision was made. But we call to mind but six, 
 where any promise was taken out of the statute upon its authority : namely, 
 Bray v. Freeman, 2 Moore, 114; Harris v. Huntbach, 1 Burrow, 371; 
 Edwards v. Kelley. 6 Maule and Selwyn, 204; Bird v. G-ammon, 3 Bingham's 
 New Cases, 883, in each of which it controlled the opinion of one judge; 
 Tomlinson v. Gill, Ambler, 330, where, if the decision was correct on this 
 question, the reason assigned was probably erroneous; and Chapin v. Merrill, 
 4 Wendell, 657, where it was referred to with Tomlinson v. Gill. All these 
 cases are abstracted elsewhere in this volume, and in each of them the 
 application of Read v. Nash was very remote. If we were governed 
 entirely by our own views of the practical importance of Read v. Nash, it 
 would not occupy as large a portion of our space as we have felt bound to 
 assign to it; but, although the fashion, which prevailed so long and so uni- 
 versally, of citing it, for the purpose of distinguishing it from the particular
 
 Art. II.] Collateral Undertakings. 201 
 
 § 132, The Court of Common Pleas took an early occa- 
 sion to limit the effect of the ruling in Read v. Nash, by 
 its decision in Fish v. Hutchinson, 2 Wilson, 94, A, D. 
 1759. There, according to the report, the plaintiff declared 
 "that, whereas one Yickars was indebted to him in a cer- 
 tain sum of money, and he had commenced an action for 
 the same ; the defendant, in consideration that the plaintiff 
 would stay his action against Vickars, promised to pay 
 plaintiff the money owing him by Vickars." Probably 
 the declaration stated the promise to have been verbal, for 
 otherwise the court must have presumed it to have been 
 in writing. There was a demurrer and joinder in demur- 
 rer ; and the question whether the statute applied was 
 alone argued. The plaintiff's counsel contended that, 
 
 case under discussion, is no-w growing obsolete, it fills, nevertheless, too 
 conspicuous a position in the text books and the reports, to justify us in 
 passing it over without careful attention ; and besides, an explanation of the 
 case may be necessary to avoid misapprehensions of its effect. The authori- 
 ties are quite at variance as to the principles which it establishes. In the 
 note to Forth v. Stanton, in the sixth edition of Williams's Saunders, vol. 1, 
 p. 211, b, the opinion is expressed that Read v. Nash is overruled by Kirk- 
 ham V. Marter, 2 Barnewall and Alderson, 613, on the ground that, in 
 Kirkham v. Marter, it did not appear that the son was liable for the death 
 of the horse, except by the admission of the defendant, contained in his 
 request to the plaintiff to forbear to sue; while in Head v. Nash, the admis- 
 sion that the third person was liable, contained in the request to the plaintiff 
 not to continue the suit, was equally strong. And in Chitty on Contracts, 
 eighth edition, p. 478, the same opinion is expressed. But in Kirkham v. 
 Marter, the declaration alleged that the third person had, in fact, committed 
 the tort; and the agreement upon which the action was brought wa^, that 
 the plaintiff should accept the amount undertaken for in satisfaction of his 
 claim; the distinction between the two cases being precisely the one sug- 
 gested by Holt, C. J., in Stevens v. Squire. And it is very clear that, in 
 Kirkham v. Marter, the court did not suppose that they were overruling 
 Read v. Nash. The latter case was followed in those already mentioned, 
 and it continues to be cited as authority to the present day. Professor 
 Parsons, in his Treatise on Contracts, vol. 3, fifth edition, p. 23, and note, 
 says, that the true rule established by that case and Stevens v. Squire is, 
 that, if the liability of the third person will continue, notwithstanding the 
 performance of the promise, the agreement is not within the statute, a con- 
 clusion which is commented upon in the text. Mr. Roberts, in his Treatise 
 26
 
 202 Collateral Undeetakifgs. [Ch. v. 
 
 under the decision of Read v. NasJi, the promise was not 
 within the statute. "But per totam curiam : This case at 
 bar is very clearly within the statute, for here is a debt of 
 another person still subsisting, and a promise to pay it : 
 and it is not like the case of Read v. HasJi, for that was," 
 etc., (giving a statement of the facts). " So in that case 
 there was no debt of another, it being an action of bat- 
 tery ; and it could not be known, before trial, whether the 
 plaintiff would recover any damages or not ; but, in the 
 present case, here is a debt of another still subsisting and 
 a promise to pay it. Judgment for the defendant." 
 
 § 133. And in Kirliliam v. Matter^ 2 Barnewall and 
 Alderson, 613, A. D. 1819, which was cited a few pages 
 
 on the Statute of Frauds, p. 233, classes it with Tomlinson v. Gill, Ambler, 
 330, and some other cases, as establishing the rule, that, if the consideration 
 of the promise takes its root in a trans;' ction distinct from the original lia- 
 bility, the case is not within the statute, a doctrine which, in the broad 
 terms stated by him, was long ago exploded. (See post, chapters xvi and xvii.) 
 In Browne on the Statute of Frauds, § 157, it is said, that the case proves that 
 the statute does not apply where it does not appear m point of fact that 
 any debt or liabihty has been incurred ; which is substantially the same view 
 taken of it in the text. Mr. Fell, in his Treatise on Guaranty and Surety- 
 ship, p.. 10, also cites the case as showing that the debt of the third person 
 must be subsisting, and not a mere demand for which the party may cr may 
 not be liable. Among the numerous reported comments of judges and 
 counsel upon the case, we find distinguished counsel saying, in the course 
 of the argument of Turner v. Hubbell, 2 Day (Connecticut), 457, "In 
 England, a withdrawment of the record is a bar to another action. It might 
 hence seem as if the 50Z. was paid as damages." If such was, in truth, the 
 effect of withdrawing the record, the promise would be now sustained on 
 the ground that the defendant in the original action was discharged in 
 consideration of its being made (chapter ix) ; a prmciple which was not 
 generally recognized even as late as 1807, when that case was argued. 
 But we have searched the English books of practice in vain for any such 
 rule. Under the old common law practice in New York, a withdrawal of 
 the nisi prius record had no other effect than to put the cause over the term. 
 Such, we doubt not, was also the rule in England. Still, it is to be noted 
 that Sir Fletcher Norton, commenting upon the case, in the course of his 
 argument in Williams v. Leper, 3 Burrow, 1886, speaks of it as if Johnson 
 had been discharged.
 
 Art. II.] Collateral Undertakings. 203 
 
 back, the ruling of the last case was applied to a promise, 
 founded upon forbearance to prosecute an action, to 
 recover damages for a tort. There the declaration stated 
 that the son of the defendant had, without the plaintiff's 
 leave, wrongfully ridden the plaintiff's horse, in conse- 
 quence whereof the horse died ; that the plaintiff had 
 threatened to commence an action against the son therefor, 
 and, in consideration that he would not do so, "and that 
 the plaintiff would be content to take, for and on account of 
 the said horse," certain sums, to be ascertained as therein 
 particularly mentioned, the defendant agreed to pay those 
 sums ; and they having been so ascertained, this action 
 was brought upon that promise to recover the amount 
 thereof. At the trial, the plaintiff proved a verbal promise 
 as laid in his declaration, and was nonsuited. Upon a 
 motion for a rule for a new trial, it was argued that 
 the statute did not apply to cases of tort ; and that as the 
 son owed no debt to the plaintiff, a verbal promise was 
 good, under the decision in Read v. Nash ; but after over- 
 ruling the first proposition, Abbott, C. J., said: "The case 
 of Read v. Nash is very distinguishable from this ; the 
 promise there was to pay a sum of money as an induce- 
 ment to withdraw a record, in an action of assault brought 
 against a third person. It did not appear that the 
 defendant in that action, had ever committed the assault, 
 or that he had ever been liable in damages ; and the 
 case was expressly decided on the ground that it was an 
 original and not a collateral promise. Here the son had 
 rendered himself liable by his wrongful act, and the 
 promise was expressly made in consideration of the 
 plaintiff's forbearing to sue the son. I think therefore 
 the nonsuit is right." 
 
 § 134. The two latter cases confine the ruling in Read v. 
 Nash within narrow and tolerably well defined limits. 
 They hold, that whenever the promisor undertakes to 
 respond for any debt or damages, for which it is conceded 
 that the third person is also liable, the promise is within 
 the statute ; though it may be for the payment of a definite
 
 204 Collateral XlKDERTAKmes. [Ch. v. 
 
 sum, while the debt or damages for which the third person 
 is liable are indefinite in amount, or even grow out of a 
 wrong committed by him. The only promises to which, 
 under those limitations, the decision in Read v. Nasli will 
 apply, are those where it clearly appears, in the language 
 of the case itself, that the third person "never was liable 
 to i\iQ particular debt," although the promise related to, 
 and is closely connected with, some debt or demand which 
 the promisee is, or claims to be entitled to enforce against 
 him. 
 
 § 135. The case of Read v. Nash is said to have been 
 followed in Bray v. Freeman, 2 Moore, 114, decided in 
 the Common Pleas, A. D. 1818. There the plaintiff, in his 
 first count, declared upon a promise by the defendant to 
 accept a bill of exchange particularly described, to be 
 drawn by the plaintiff upon him, for a debt due to the 
 plaintiff by his father, for which he "intended and was 
 about to sue" the father; and, in consideration that he 
 would forbear to do so, the defendant made the promise 
 in question ; concluding with averments of forbearance by 
 the plaintiff against the father ; of a special request to, and 
 refusal by the defendant, to accept such a bill of exchange 
 as the promise contemplated ; and that the debt from the 
 father was still due and unpaid. In his second count, 
 the plaintiff averred the acceptance of a bill of exchange 
 by the defendant for the debt. To these were added the 
 money counts. At the trial the plaintiff proved a letter 
 from the defendant to him in the following words : "Mr. 
 Bray — If you will draw a bill at six weeks' date for my 
 father' s balance, dating it to-day, due 26th next month, I 
 will accept it. S. W. Freeman;" and that a bill was 
 accordingly tendered for acceptance, and acceptance 
 refused. The defendant moved for a nonsuit, on the 
 ground that, as no consideration was mentioned in the 
 letter, the case came within the statute of frauds ; and also 
 because there was a trifling variance between the declara- 
 tion and the proof, touching the amount of the debt due 
 from the father. But the plaintiff had a verdict, and the
 
 Art. II.] Collateral Undertakings. 205 
 
 defendant moved for a rule to show cause wh}^ it should 
 not be set aside, on both objections. "But," the report 
 says, "the court referred to the case of Ready. Nash, 
 where it was decided that a parol promise to pay a certain 
 sum to the plaintiff, in consideration of his forbearing to 
 sue a third person in an action of assault, was not within 
 the statute ; because there was no debt, default or miscar- 
 riage of another for which to be answerable ; and therefore 
 granted the rule on the ground of variance alone ; ' ' which 
 question was subsequently argued at length, and the case 
 decided without any further allusion to the statute of 
 frauds; the result being that the rule was discharged. (rZ) 
 
 § 136. But a recent American case, JepJierson v. Hunt, 
 84 Massachusetts (2 Allen), 417, A. D. 1861, well illustrates 
 the kind of promises which are saved from the operation 
 of the statute by the principle of Read v. Nash, although 
 that case was not cited in the opinion. This was an action 
 to recover interest on the agreed value of damages to the 
 plaintiff's lands, which had been taken by a railroad com- 
 pany for the purpose of its road. It appeared that the 
 plaintiff and the company had agreed in writing upon the 
 valuation of the land at one hundred and fifty dollars ; 
 and, as a part of the arrangement, the defendant orally 
 agreed with the plaintijQT to pay him interest on tha.t 
 amount, until the circumstances of the company should 
 enable it to pay the money. But the agreement with the 
 company, so fixing the amount to be awarded to the 
 plaintiff, was dependent upon the approval of the county 
 
 {d) The case is also reported in 8 Taunton, 197, but that report contains 
 no allusion to the question arising upon the statute. The report in 2 Moore, 
 as far as that point is concerned, is incomprehensible, and must be inaccurate. 
 The declaration alleged, and the proof showed, that there was a debt due 
 from the father to the plaintiff; and that fact is assumed and commented upon 
 in discussing the question of variance, the decision being put upon the 
 ground that the plaintiff intended to set forth the debt due from the father, and 
 the amount was only stated under a videlicit. On the motion for the rule 
 nisi, counsel cited the case of Fish v. Hutchinson (ante, § 132), which is 
 exactly in point to show that the promise was within the statute.
 
 206 Collateral Undeetakings. [Cli. v. 
 
 commissioners, by an award to be made, in a proceeding 
 ■vvliicli had been instituted to appraise the damages to the 
 land owners, pursuant to the statute ; and that award had 
 not been procured at the time the suit was commenced ; 
 in fact it would seem that no action had been taken in the 
 proceeding for the appraisal of damages, since the agree- 
 ment was entered into. It was objected that the defend- 
 ant' s agreement was within the statute ; but the court held 
 otherwise, for the reason that until the award was made, 
 the company was under no liability to pay interest, either 
 as a matter of contract, or as damages resulting from the 
 withholding a sum of money justly due to the plaintiff, (e) 
 
 § 137. The recent case of Prentice v. WilMnson, 5 
 Abbott's Practice Reports, N". S., 49, decided in the New 
 York Common Pleas, A. D. 1868, also appears to corre- 
 spond very closely with Bead v. Wash, and to depend upon 
 the same principle ; although neither of the members of the 
 court placed his decision upon that ground. The action 
 was to recover for the services of the plaintiff, as the 
 attorney for one Mrs. Wilkinson, in an action for a divorce 
 against her husband, the defendant' s brother ; and it 
 appeared at the trial that an application for alimony had 
 been made in that action ; that, while it was pending, there 
 was a meeting between Mrs. Wilkinson, her husband, and 
 the plaintiff and the defendant in this action ; that the 
 divorce suit was then settled ; and in consideration of the 
 settlement, and as a part of the terms thereof, the defend- 
 ant agreed to pay the plaintiff seventy five dollars for his 
 services in that action. The plaintiff had a judgment, 
 which was afiirmed on appeal by a majority vote. Various 
 reasons were assigned by the judges for their respective 
 
 (e) The decision was also partly put upon the ground that the main object 
 of the promisor was to secure a benefit to himself; a doctrine which is dis- 
 cussed in chapter xvii. But the foregoing is the ground upon which the 
 court seem principally to have relied, and it is more satisfactory than the 
 other, which, even if it is tenable, implies that the company was liable to pay 
 the interest; as very clearly it was not.
 
 A it. II.] COLLATEEAL UnDEETAKINGS. 207 
 
 opinions, none of wliicli are entirely satisfactory. But it 
 seems very evident that the promise was not within the 
 statute, because there was no ascertained debt for which 
 any person except the defendant was liable to the plaintiff; 
 Mrs. Wilkinson being protected from liability by her 
 coverture, and her husband not being liable for this debt, 
 precisely as Johnson was not liable for the particular debt 
 assumed by the defendant in Read v. JSfash.^f) 
 
 (/) Daly, First Judge, thought that the promise was not within the statute 
 because "it was a direct promise to pay to the phiintiff a certain sum of 
 money for an object to be effected, and which constituted the consideration 
 of the promise; namely, the settlement and discontinuance of the suit." 
 And he said that it was immaterial whether the promise was made to Mrs. 
 Wilkinson or the plaintiff; for if it was made to her, the plaintiff could 
 recover upon it, within the principles discussed in chapter xii of this volume. 
 Brady, J., said, that although the defendant in the divorce suit was not 
 indebted to the plaintiff in this suit, "the latter had an inchoate claim, rest- 
 ing upon the a^nost universal practice of allowing the wife, when plaintiff 
 in a divorce suit, a sufficient sum to employ counsel to conduct her case; and 
 the plaintiff, by consenting to discontinue, yielded his right to apply for it 
 against the defendant in that suit." The learned judge thought that these 
 circumstances brought the case within the principle, that when the original 
 debt was extinguished the promise is not within the statute. Barrett, J., 
 dissented, holding that the promise was within the statute, because the con- 
 sideration did not move to the defendant. He said that the new undertak- 
 ing was not accepted as a substitute for an original demand; for if the 
 plaintiff had any remedy against the wife for his fees, it was still in full 
 force; while the right to apply for a counsel fee in the divorce suit, was not 
 an original and vested debt or demand, the extinction of which would take 
 the case out of the statute. He added that it did not distinctly appear from 
 the evidence that the action had been discontinued, or that the right to apply 
 for a counsel fee had been lost; and he compared the case to Tomlinson v. 
 Gell, 6 Adolphus and Ellis, 564 (cited in chapter xvi). For these reasons he 
 thought that the statute prevented a recovery. But in Tomlinson v. Gell, 
 the plaintiffs client was clearly liable for the costs. Undoubtedly the 
 extinguishment of a contingent claim for alimony or counsel fees, in a divorce 
 suit, would not take out of the statute a promise which otherwise would be 
 within it; even if it was a claim which the attorney could assert against the 
 opposite party. But the very fact that it is not a legal demand, shows, that 
 in this case there was no original liability, to which the defendant's promise 
 could be collateral.
 
 208 COLLATEEAL UNDERTAKINGS. [Ch. V. 
 
 § 138. With these preliminary explanations, we proceed 
 to the examination of the two subdivisions, into which, as 
 was stated in indicating the classification adopted in treat- 
 ing tJiis subject, the cases depending upon the failure of 
 the two liabilities to concur, have been divided, (g) These 
 SuVQ, first: Cases where the third person had incurred no 
 corresponding liability at the time when the promise took 
 eftect ; and, secondly : Cases where a previous correspond- 
 ing liability, incurred by him, had been discharged before 
 the promise took effect. 
 
 (gr) See ante, § 70.
 
 CHAPTER SIXTH. 
 
 OASES WHICH ARE NOT WITHIN THE STATUTE, BECAUSE 
 THE THIRD PERSON HAD INCURRED NO LIABILITY COR- 
 RESPONDING WITH THAT OF THE PROMISOR, AT THE 
 TIME WHEN THE PROMISE TOOK EFFECT. 
 
 § 139. The cases within this subdivision of the fourth 
 class, are those which most affect the daily business inter- 
 course of mankind, especially among persons but little 
 versed in the technicalities of the law. They have almost 
 invariably this feature in common : that one person has 
 parted with his money, his property, or his labor, to 
 another, in whose responsibility he had little or no confi- 
 dence, for which reason he exacted and received an under- 
 taking from a person, other than the one so benefited, that 
 he should receive the consideration agreed upon. Conse- 
 quently they are very numerous, and present a great 
 diversity of detail in the facts upon which they depend ; 
 whence have sprung many rules and distinctions, subor- 
 dinate to or qualifying the general principle which governs 
 them all, and giving rise to several questions of doubt and 
 difficulty. The rule, by which to determine the applica- 
 tion of the statute to this class of cases, is contained in 
 the following proposition, being the third of the nine 
 general rules of our series : 
 
 RULE THIRD. 
 
 Where tiere was no antecedent liability of the third person, and the promise was fonnded upon 
 a consideration moving to him, it is without the statute if the third person did not become 
 liable to the promisee, together with the promisor ) and vice versa, if he did so become liable, 
 it is within the statute. 
 
 § 140. This rule may be said to admit of no exceptions, 
 unless one arises where the promisor and the third person 
 assumed a joint liability. Of late a strenuous effort has 
 been made to introduce that exception, which has appar- 
 ently been partially successful ; and we shall have occasion 
 to examine the question carefully, both upon authority 
 27
 
 210 COLLATEEAL UnDEETAKINGS. [Cll. VI. 
 
 and upon principle, in a subsequent chapter, (a) But 
 although this rule has received the sanction of a very large 
 number of authorities, extending through a long series of 
 years, it is of a highly technical character ; especially in 
 the corollary deduced from it, that if the consideration is 
 a sale of property or the like, made at the request of the 
 third person, and for his immediate and direct benefit, the 
 promisor is not liable, if any credit whatever was given to 
 the third person. For upon principle it would seem, that 
 if each of two persons, concerned in the purchase of prop- 
 erty, undertakes to respond to the seller for the price, 
 directly, absolutely and unqualifiedly ; or, in other words, 
 if each agrees that Tie will pay the price, without reference 
 to the question whether the other fulfils his promise or not, 
 the undertaking of each is for himself, and not for the 
 other; so that whether the promises be called joint or 
 several, each of them is original, and only to answer for 
 the debt of the person who makes it. And accordingly, 
 much dissatisfaction has been from time to time expressed, 
 with the principle of the rule, although the dissentients 
 have invariably ended by conceding that the question is 
 no longer open.(&) And the modern attempt to introduce 
 an exception in the case of a joint undertaking, finds its 
 justification in this incongruity. 
 
 § 141. We have not observed, either in the cases or in the 
 text-books, any defence of this rule upon principle. It 
 had its origin at an early Deriod, and it is to be found laid 
 down in the cases without argument, so that we are left to 
 conjecture the course of reasoning by which it commended 
 itself to its originators. But doubtless the theory of its 
 framers was, that although both of the promisors may 
 have agreed to pay, it is evident that none of the parties 
 contemplated that both of the promises should be fulfilled ;, 
 
 (a) Chapter viii, article i. 
 
 (6)1 Smith's Leading Cases, sixth American edition, pp. 470. 471. Per 
 Story, J , in D'Wolf v. Rabaud, 1 Peters, 476. post, § 165. Several American 
 judges have referred to Judge Story's criticism of the rule with approba- 
 tion, but no one has attempted to found a decision upon it.
 
 Art. I.] Collateral Undertakings. 211 
 
 on the contrary, fulfilment of one would, as matter of law, 
 discharge the other ; and hence it is clear that the 
 promisor, who was not benefited by the transaction, in fact 
 undertook as the surety of the other, however absolute in 
 form his undertaking might have been. No doubt due 
 weight was given to the consideration, that if the courts 
 should recognize the validity of both the undertakings, 
 the spirit of the statute would be sacrificed to a matter 
 of form, and its evasion in this class of cases would 
 become very easy. 
 
 ARTICLE I. 
 
 Origin of the rnle | English cases firom which it is derived. 
 
 § 142. The principle embodied in the foregoing rule will 
 be found correctly stated as early as 1697, in the nisi prius 
 case of Watkins v. Perkins, 1 Lord Raymond, 224. The 
 following is a copy of the report of the case. Per Holt, 
 Chief Justice : " If A promise B, being a surgeon, that if 
 B cure D of a wound, he will see him paid, this is only a 
 promise to pay if D does not, and therefore it ought to be 
 in writing by the statute of frauds. But, if A promise 
 in such case that he will be B' s paymaster, whatever he 
 shall deserve, it is immediately the debt of A, and he is 
 liable without writing." {a) 
 
 § 143. And in Buckmyr v. Darnall, decided in 1704, the 
 question was examined and discussed with such fullness 
 that the case divides with Matson v. Wharam (to be pres- 
 ently cited), the distinction of being the leading case upon 
 this branch of the sta.tute. It is reported in 2 Lord Ray- 
 mond, 1085, and again, under the title of Burkmire v. 
 Darnell, in 6 Modern, 248. Many of the questions 
 
 (a) It will be noticed, in several of the oases subsequently cited, that 
 opinions have fluctuated as to the legal effect of a promise to the other party 
 to " see him paid " for goods, etc., supplied to a third person. But it seems 
 to be settled now, in accordance with Holt's doctrine, that the expression 
 imports a collateral promise ; but it is open to explanation, and a jury 
 may find that the words were spoken and received as an original undertak- 
 ing. See chapter vii, article i, subdivision (2).
 
 212 COLLATEEAL UNDERTAKINGS. [Cll. VI. 
 
 involved in the decision grew out of the principles appli- 
 cable to the now obsolete action of detinue, and at this late 
 day it is hardly worth while to take up the space, which a 
 full statement of the case would occupy. It is also to be 
 found reported, this time under the title of BirJcmyr v. 
 Darnell, in 1 Salkeld, 27, in such a compact form that the 
 report may be copied here, as follows : ' ' Declaration. 
 That in consideration the plaintiff would deliver his geld- 
 ing to A, the defendant promised that A should redeliver 
 him safe ; and evidence was that the defendant undertook 
 that A should redeliver him safe, and this was held a col- 
 lateral undertaking for another. For where the under- 
 taker comes in aid only, to procure a credit to the party, 
 in that case there is a remedy against both, and both are 
 answerable according to their distinct engagements ; but 
 where the whole credit is given to the undertaker, so that 
 the other party is but as his servant, and there is no 
 remedy against him, this is not a collateral undertaking. 
 But it is otherwise in the principal case ; for the plaintiff 
 may maintain detinue upon the bailment, against the origi- 
 nal hirer, as well as an assumpsit upon the promise, against 
 this defendant. This was upon a case stated at the trial 
 for the opinion of the court ; judgment was given for the 
 defendant. Et per cur. If two come to a shop and one 
 buys, and the other, to gain him credit, promises the seller 
 if Tie does not pay you I will ; this is a collateral under- 
 taking, and void without writing by the statute of frauds 
 but if he says let him Jiave the goods, I will he your pay- 
 master, or / will see you paid, this is an undertaking as 
 for himself, and he shall be intended to be the very buyer, 
 and the other to act but as his servant. "(&) 
 
 § 144. This case was succeeded by Mead v. Nashy 
 decided in 1751, and Fish v. Hutchinson, decided in 1759, 
 cited and commented upon in the foregoing chapter ; the 
 first of which, for reasons there stated, we regard as a 
 
 (h) The case is also reported, to the same eflfect, under the title of Burk- 
 mire v. Darnel, in Holt's Eeports, 606 ; and as Bourkmire v. Darnell, in 3 
 Salkeld, 15.
 
 Art. I.] Collateral Undertakings. 213 
 
 mere illustration of the same general principle. Next fol- 
 lowed, in the year 1778, a nisi prius case, not regularly 
 reported, but cited in Cowper, 227, and 2 Term Reports, 80, 
 under the title of Mawbrey v. CunninghaTn. There, goods 
 were delivered to a third person by the plaintiff, at the 
 request of the defendant, who said "he would see them 
 paid for, ' ' and Lord Mansfield held, that, as the promise was 
 before the delivery of the goods, it was not within the stat- 
 ute, "because, at the time of the promise, there was no debt 
 at all." And in Jones v. Cooper, Cowper, 227, decided 
 the following year, the goods had been delivered and 
 charged to one Smith, upon the order of the defendant, 
 and a verbal promise in these words, "I will pay you, if 
 Smith will not." The defendant having had a verdict. 
 Lord Mansfield, on a motion for a new trial, although he 
 agreed that this promise was within the statute, adhered 
 nevertheless, to his ruling in Mawhrey v. Cunningham, 
 that an unconditional promise, made before delivery, was 
 good without writing. He said : "The general distinction 
 is a clear one, and upon that distinction the case which 
 has been cited was determined. Where the undertaking 
 is before delivery, and there is a direction to deliver the 
 goods and I will see them paid for, it is not within the 
 statute of frauds. But there may be a nicety where 
 the undertaking is before delivery, and yet conditional as 
 this is. It turns singly upon the undertaking being in 
 case the other did not pay. We will look into it." The 
 next day Lord Mansfield delivered the unanimous opinion 
 of the court, as follows: "We are all of opinion, upon 
 the authority of the cases in the books, that the promise 
 by the defendant in this case to pay if Smith did not, is a 
 collateral undertaking within the statute of frauds ; and it 
 is so clear that it would only be misspending time to go 
 through the cases, or to say much about it. Rule for a 
 new trial discharged." 
 
 § 145. But in deciding the case of Peckham v. Farm, 
 3 Douglas, 13, A. D. 1781, Lord Mansfield himself aban- 
 doned the distinction which he had endeavored to 3stab-
 
 214 Collateral Undertakings. [Ch. vi. 
 
 lisli in Mawhrey v. Cunningliam. There an action was 
 brought upon a promise, made before delivery of the 
 goods to a third person, and conditional in form (being 
 "I will pay you, if he does not "), for which reason it was 
 held to be within the statute, although it was conceded 
 that little or no credit was given to the third person ; but, 
 in delivering the opinion, the Chief Justice said : "Before 
 the case of Jones v. Cooper, I thought there was a solid 
 distinction between an undertaking after credit given, and 
 an original undertaking to pay ; and that in the latter case 
 the surety, being the object of the confidence, was not 
 within the statute : but in Jones v. Cooper, the court was 
 of opinion that whenever a man is to be called upon only 
 in the second instance, he is within the statute ; otherwise, 
 when he is to be called upon in the first instance." In 
 this recession from his original opinion, he doubtless refers 
 to what took place in the judges' consulting room, for on 
 the day of the argument, Lord Mansfield, as we have 
 seen, still adhered to the doctrine of Mawirey v. Cun- 
 ningJiam. (c) 
 
 § 146. And in 1787 was decided the celebrated leading 
 case of Matson v. WJiaram, 2 Term Reports, 80, where 
 the modern rule, which Lord Mansfield failed completely to 
 recognize in Peckham v. Faria, was distinctly laid down ; 
 and the doctrine of Maiohrey v. Cunningham received its 
 finishing stroke. Since then, all traces of it have dis- 
 appeared in the opinions of the English judges, although 
 
 (c) In a note to Peckham v. Faria, there is a short report of Parsons v. 
 "Walter, decided in 178L There, the plaintiff had agreed with one Hol- 
 broke, a butcher, for six oxen ; five were delivered, and the sixth was refused 
 unless the money for it was paid, on which the defendant said that he would 
 pay the plaintiff for it next week at Bristol fair. On this promise the 
 plaintiff delivered the sixth ox, which Holbroke, in company with the 
 defendant, drove away. Buller, J., held the case within the statute of frauds, 
 upon the authority of Jones v. Cooper. But probably the rule would now 
 be the other way in such a case, if the jury should find that the plaintiff 
 intended to abandon his contract with Holbroke, and rely exclusively upon 
 the defendant. See post, chapters ix and x.
 
 Art. I.] Collateral Undertakings. 215 
 
 it continued for some time to be occasionally cited by 
 counsel. There the defendant had applied to one of the 
 plaintiffs, to know if they were willing to serve one R. C. 
 with groceries ; and on his replying that they did not 
 know R. C, the defendant said : "If you do not know 
 him, you know me, and I will see you paid." The 
 plaintiff thereupon said he would serve him, and the 
 defendant said : "He is a good chap ; but I will see you 
 paid.'' The goods were subsequently sent to R. C, upon 
 his order by letter, and charged to him by the plaintiffs ; 
 who, after applying to him for payment, by letter, without 
 receiving an answer, applied to the defendant, who refused 
 to pay ; whereupon this action was brought for goods sold 
 and delivered to the defendant ; and a verdict was found 
 for the plaintiffs, subject to the opinion of the court. 
 Upon the argument the plaintiffs' counsel relied upon the 
 distinction in Mawbrey v. Cunningham., but the court 
 were clearly of opinion that that distinction had been 
 overruled ; and Mr. Justice Buller, who was counsel for 
 the plaintiff in Jones v. Cooper, stated that in Mawhrey 
 V. Cunningfiam, Lord Mansfield had said: "This is a 
 promise, made before the debt accrues, and what is the 
 reason of the tradesman' s requiring that promise \ it is 
 because he will not trust the person for whose use the 
 goods are intended ; " and the plaintiff had a verdict. He 
 added, that the reasoning of Lord Mansfield struck him 
 very forcibly, and that if it was a new question the leaning 
 of his mind would be that way. "But," he continued, 
 "the authorities are not now to be shaken ; and the gene- 
 ral line now taken is, that if the person for whose use the 
 goods are furnished be liable at all, any other promise by 
 a third person to pay that debt must be in writing, other- 
 wise it is void by the statute of frauds." So, judgment 
 was given for the defendant without hearing his counsel.
 
 216 Collateral Undertakings. [Ch. vi. 
 
 AETICLE 11. 
 
 Where the consideration consisted of money, property, or services furnished to the third person 
 at his request, but he made no express promise to pay for them, the test of the promisor's 
 liability is, whether any credit was given to the third person. 
 
 % 14:1.' Mats on v. Wliaram, being the case where the 
 rule was finally settled, that if the third person was liable 
 at all, the promisor' s undertaking is collateral, and vice- 
 versa, it is generally regarded as the starting point of the 
 principle ; although, as has been already shown, the doctrine 
 was very clearly stated eighty-three years earlier in BirTc- 
 myr v. Darnell. In the latter case is also to be found the 
 germ of the rule, by which the application of the general 
 principle is regulated, in cases where the consideration of 
 the promise consisted of something furnished by the prom- 
 isee, directly to the third person, and, at the time of the 
 completion of the transaction, no express promise to 
 respond for the price had been made by the latter ; or 
 where such a promise was tendered, but the facts are such 
 as to leave it in doubt whether it was accepted by the 
 other party. It is manifest, that if an express promise to 
 pay has been made by him who received, and accepted by 
 him who furnished the consideration, no question can 
 possibly arise respecting the liability of the former ; and 
 therefore, upon the principle already stated, the promise 
 of any other person to respond for the same debt, only 
 "comes in aid" of the original debtor's ; that is to say, 
 it is a collateral promise, and can only be proved by a 
 writing which will satisfy the statute. 
 
 § 148. But althoiigh the distinction between a promise 
 which is merely tendered, and" one which is tendered and 
 accepted, is very sharply defined in theory, its practical 
 demarkation is frequently a matter of difiiculty. For 
 cases of this kind generally present a state of facts, where 
 an express promise was tendered by the person benefited, 
 and the conduct of the promisee leaves room for doubt 
 whether it was or was not accepted. In very many of 
 them, the person whom we style the promisor was called in, 
 only after the third person had unsuccessfully endeavored
 
 Art. II. 1 Collateral Undertakiis^gs. 217 
 
 to obtain the money, property or services bargained for, 
 upon his own express promise to pay ; and the promise, so 
 tendered, although the promisee declined to receive it as 
 his only reliance for the price, was not withdrawn, expressly 
 or impliedly, at any time during the subsequent negotia- 
 tions. The question then aiises, did the promisee abso- 
 lutely and permanently reject the third person's promise, 
 or was the first rejection only temporary ; that is to say, 
 until it was fortified by the additional promise of another, 
 in whose ability to pay he had sufiicient confidence, to 
 induce him to part with the consideration, upon the secur- 
 ity of hotJi promises % And in all other cases of doubt, the 
 facts generally present similar features, at least to the 
 extent that the third person has so conducted himself, 
 that the question whether he is liable to the promisee, 
 depends entirely upon an acquiescence by the latter, suffi- 
 cient to create the "aggregatio mentium" which completes 
 a contract. 
 
 § 149. It is evident that in such cases, the matter of 
 inquiry relates to an operation of the mind of the prom- 
 isee ; that is, whether he ga^oe credit to the third person, as 
 well as to the express promisor. The rule in such cases 
 is therefore said to be, that, if the promisee gave any credit 
 whatever, however small and secondary, to the third per- 
 son, the undertaking of the other is collateral and must 
 be in writing. In order to make it an original promise, 
 the fact must appear, that as between the promisee and the 
 person expressly undertaking for the price, the sale or 
 loan was made, or the services rendered, exclusively upon 
 the latter' s credit; so that in the eye of the law, the third 
 person was but a conduit, through which the promisor 
 received the subject-matter of the contract, from the prom- 
 isee ; although in fact it may have enured entirely to the 
 third person's benefit. (a) 
 
 (a) This principle is very clearly laid down in the report in 1 Salkeld, of 
 Birkmyr v. Darnell (ante § 143), but the cases which most satisfactorily illus- 
 trate it in practice are Simpson v. Penton, 2 Crompton and Meeson, 430, and 
 28
 
 218 Collateral Undertakings. [Ch. yl 
 
 § 150. It would seem to be hardly necessary to say, that 
 whether any credit was given to the third person, is a 
 question of fact to be passed upon by the jury, if the evi- 
 dence leaves room for any doubt upon that subject ; and 
 yet, in some of the English and American cases, includ- 
 ing those of comparatively modern date, the court 
 has undertaken to decide the question, under circum- 
 stances which left it open to considerable doubt. (5) But 
 notwithstanding these anomalies, it may be said to be a 
 rule now universally recognized, that in all cases of this 
 kind, except those where the language of the promise 
 implies, that the third person is to be resorted to in the 
 first place, the jury are to pass upon the question to whom 
 credit was given, if the conduct of the promisee is at all 
 equivocal ; and in so doing, they are bound to take into 
 consideration all the attending circumstances. Several 
 illustrations of this principle will be given in the subse- 
 quent portions of this and the following chapters, (c) 
 
 § 151. This elementary analysis of the principles upon 
 which the doctrine depends, will materially assist us in 
 determining, not only the application of the doctrine itself 
 
 Pearce v. Blagrave, 3 Common Law Reports, 338, both of which will be 
 found cited at length in the third article of this chapter. The case of 
 Leggat V. Reed, 1 Carrington and Payne, 16, A. D. 1823, also very forci- 
 bly illustrates the propositions contained in the text, although no question 
 under the statute of frauds arose therein. It was an action for work and 
 labor in putting up a door in a house belonging to one Earl, and it was 
 shown that the defendant had given the order for the work, but he con- 
 tended that he had only acted in behalf of Earl, and it appeared that the 
 plaintiff had made out his bill against Earl, which he had left at the house. 
 Park, J., said, " that if the plaintiff had once given credit to Earl, he could 
 never shift his claim, to charge the defendant or any other person." He 
 then left it to the jury to say to whom the credit was given, and they found 
 a verdict for the defendant. See also several cases cited in the fifth article 
 of this chapter. 
 
 (b) See Parsons v. Walter, in note to § 145, also Croft v. Smallwood, and 
 Rains v. Storry, in the next succeeding article. 
 
 (c) The question how far the jury are entitled to pass upon the character 
 of the promise will be more fully discussed in the fifth article of this chapter.
 
 Art. III.] Collateral Undertakings. 219 
 
 to several of tlie border cases, but also the solution of 
 some perplexing questions, wliicli incidentally arise in 
 the course of the trial of actions founded upon verbal 
 promises of this character. For that purpose we shall 
 have occasion to refer to it again, hereafter. 
 
 § 152. But before leaving this subject, it is necessary to 
 say, that although some of the expressions used in the 
 cases, may at times seem to imply, that the promisor's 
 liability depends upon vrhether the third person became 
 liable to the promisee, at any time before actual payment 
 of the debt, they are inadvertently, or for brevity' s sake, 
 made more comprehensive with respect to time, than is 
 strictly consistent with accuracy. Manifestly such lia- 
 bility depends only upon what had taken place, when the 
 contract was consummated ; and if at that time, it was not 
 within the statute, the result cannot be affected by events 
 which may have subsequently happened ; even if these 
 should have the effect, to render the third person also 
 liable to the promisee for the same dLeht.{d) 
 
 ARTICLE III. 
 
 English cases upon the qnestion of credit to the third person. 
 
 § 153. Resuming the consideration of the English cases 
 upon this branch of our subject, where we left it at the 
 conclusion of the first article of this chapter, the next case 
 in chronological order was Anderson v, Hayman, 1 Henry 
 Blackstone, 120, decided A. D. 1789. There the defendant 
 had applied verbally to the plaintiff to supply his son, a 
 trader to the West Indies, with goods on his (the defend- 
 ant' s) credit, and he added, " Use my son well, charge him 
 as low as possible ; and I will be bound for the payment 
 of the money, as far as 800^. or lOOOZ." Afterwards the 
 son received from the plaintiff goods to the amount of 
 
 {d) Roberts on Frauds, 223; Browne on Frauds, § 164; Elder v. Warfield 
 7 Harris and Johnson (Maryland), 391; Tarr v. Northey, 17 Maine, 113; 
 Mease v. Wagner, 1 McCord (South Carolina), 395.
 
 220 COLLATEEAL UnDBKTAKINGS. [CIl. VI. 
 
 800?., wMcli were delivered to him in consequence of the 
 father's engagement, and the goods were charged to the 
 son in the books of the plaintiff. The plaintiff, having 
 applied to the son for payment, was put off with a letter, 
 insisting that a further term of credit had been agreed 
 upon, and promising to pay at the expiration of that 
 term ; and, the son having become bankrupt, the plaintiff 
 sued the father for the value of the goods. Mr. Justice 
 Heath, who tried the cause, directed the jury to con- 
 sider whether the plaintiff gave credit to the defendant 
 alone, or to him together with his son ; and that if any 
 credit whatever was given to the son, the promise was 
 within the statute. The jury found a verdict for the 
 defendant ; which the court, upon a rule nisi for a new 
 trial, refused to set aside, holding that, "this promise, 
 not being in writing, was void by the statute of frauds, as 
 it appeared from the evidence of the lettet of Hayman 
 the younger, that credit was given to him, as well as to 
 the defendant." 
 
 § 164. In Oroft v. Smallwood, 1 Espinasse' s Reports, 
 121, A. D. 1793, the plaintiff, who was a tailor, had made 
 some clothes for one Foster, and they had been sent home 
 by the plaintiff's foreman, he being out of town; but 
 Foster, not having paid for them, as he promised, the 
 foreman had prevailed upon him to return the clothes ; 
 whereupon the defendant came to the plaintiff's shop, 
 and said that if the plaintiff would send the clothes again 
 to Foster, he (the defendant) would pay for them, and 
 they were sent accordingly. It was objected that this 
 was within the statute, because Foster was liable, and the 
 original credit was given to him ; and Matson v. Wharam 
 was cited for the defendant. But Lord Chief Justice Eyre 
 held, "that the case was not within the statute of frauds ; 
 that the whole credit was given to the defendant, and he 
 was liable." Tlie report concludes here, and it would, 
 therefore, appear that the Chief Justice left nothing to the 
 jury upon this branch of the case.
 
 Art. III.] Collateral Undertakings. 221 
 
 § 155. The next case, Keate v. Temple, 1 Bosanquet and 
 Puller, 158, decided in 1797, is a striking illustration of 
 the rule, that all the circumstances of the case are to be 
 taken into consideration, in determining the question 
 whether the credit was given to the defendant alone. 
 There the plaintiff was a tailor and slop seller at Ports- 
 mouth ; and the defendant, who was the first lieutenant 
 of the Boyne, a ship of war, applied to him to supply the 
 crew with new clothes, saying, "I will see you paid at 
 the pay table; are you satisfied?" to which the plaintift' 
 answered, "Perfectly so;" and the goods were supplied 
 accordingly. It appeared that some of the men were 
 unwilling to take the clothes, but were told by the defend- 
 ant that unless they did so, he would punish them. Soon 
 after the delivery the ship was burned, and the crew 
 dispersed into different ships ; after which the defendant 
 again promised that he and the captain would see the 
 plaintifi" paid. The commissioner having come on board 
 a vessel in port to pay the crew of the Boyne, the defend- 
 ant attempted to take out of each man' s pay the value of 
 the clothes which he had received; but, although they 
 were threatened with being put in irons, the men refused 
 to part with their pay to the plaintiff, whereuj)on the 
 defendant applied to the commissioner to stop the pay of 
 the crew, which the latter refused to do. Tlie plaintiff 
 thereupon sued the lieutenant, and recovered a verdict for 
 676Z. Is. 8d., upon a charge, leaving it to the jury to 
 determine, whether the goods were advanced upon the 
 credit of the defendant as immediately responsible, or 
 upon the expectation, on the part of the plaintiff, to get 
 his money from the crew, with the defendant' s assistance. 
 
 § 156. There was a rule nisi for a new trial, aga^ist 
 which cause was shown that the question had been left to- 
 the jury upon a proper charge. But the court directed 
 a new trial, being dissatisfied with the finding of the jury 
 upon the evidence. Eyre, C. J., said that the amount of 
 the plaintiff' s demand was so large, that it could hardly 
 be supposed that a lieutenant in the navy intended to
 
 222 Collateral Undertakings. [Ch. vi, 
 
 make himself responsible for goods of tliat value, or that 
 a slop seller would furnish them upon his credit. He 
 also said that it was apparent, from the nature of the case, 
 that the men were to pay in the first instance ; and such 
 was the meaning of the defendant' s promise. The ques- 
 tion was, he continued, whether the plaintiff did not rely 
 upon the defendant' s power over the fund out of which 
 the men were to be paid, and did not prefer giving credit 
 to that fund, rather than to the lieutenant, "who, if we are 
 to judge of him by others in the same situation, was not 
 likely to be able to raise so large a sum." Considering, 
 therefore, the whole bearing of the evidence, and that the 
 judge who tried the cause had not expressed himself 
 satisfied with the verdict, he thought the case a proper 
 one for a new trial ; and with him the other judges con- 
 curred. 
 
 § 157. The next case was TJiompsouY. Bond, 1 Campbell, 
 4, decided A. D. 1807. There the plaintiff, a publican, 
 sued to recover the sum of 45?. for having at an election 
 employed himself in canvassing for Mr. Sheridan' s elec- 
 tion as member of parliament, and opened his house for 
 the entertainment of voters in that interest, at the instance 
 of the defendant, and upon the defendant' s promise to see 
 him paid. The promise was not denied ; but it was con- 
 tended on the part of the defendant, that the plaintiff had 
 given credit in the first instance to Mr. Sheridan' s com- 
 mittee, and that the defendant's promise was therefore 
 within the statute. It was proved that the defendant said 
 that he had authority from the committee to open the 
 house ; and that, before making any demand upon the 
 defendant, the plaintiff sent in his bill to the committee, 
 and^ wrote the defendant a letter, requesting his good 
 offices to get the bill discharged. The plaintiff also 
 showed, on cross-examination of one of the defendant's 
 witnesses, that the committee did not authorize the defend- 
 ant to engage the plaintiff or to open the house ; and his 
 counsel contended that as they were not liable, the defend- 
 ant was liable for the demand. But Lord Ellenborough
 
 Art. III.] Collateral Undertakings. 223 
 
 held that the undertaking of the defendant was merely 
 that he would see the plaintiff paid, which in law is only 
 a collateral promise to pay the debt of another ; and had 
 he been authorized by tlie committee, so that they would 
 have been liable, it would have been void for not being in 
 writing. But, although it appeared that he was not author- 
 ized, the debt could not be considered as that of the 
 defendant ; because, when one induces another to deal with 
 him, on the credit of a third, he is liable for the deceitful 
 representation ; but the person with whom he dealt cannot 
 recover, as upon a contract which was never entered into. 
 The Chief Justice, however, left it to the jury to say 
 whether the refreshments, which the defendant himself 
 consumed, were furnished to him on his own credit, or upon 
 the representation that the committee desired the house to 
 be opened for the candidate' s friends ; saying that in the 
 latter case, which seemed the more probable, the defend- 
 ant was entitled to a verdict on the whole declaration ; but 
 the jury found for the plaintiff with 101. damages. (a) 
 
 § 158. And in Darnell v. Tratt., 2 Carrington and 
 Payne, 82, A. D. 1825, there was an absence of all direct 
 proof of an original undertaking by the defendant ; but 
 it was left to be inferred by the jury from all the cir- 
 cumstances of the case. The case was as follows. The 
 plaintiff was a schoolmaster, and sued the defendant for 
 the board and tuition of the latter' s nephew. It appeared 
 that the boy was left at the school by his mother, during 
 the father's life-time (the father having died soon after- 
 wards), and that the plaintiff and the mother had an inter- 
 view at the time ; but there was no evidence of what took 
 place at the interview. After the boy had been some time 
 at the scliool, the plaintiff sent a bill to the defendant, who 
 said, "that it was quite right to send him the bill, for he 
 was answerable for young Jeremy ; " that he could not con- 
 fa) The next case, in chronological order, upon this question, was Coleman 
 V. Eyles, 2 Starkie, 62, A. D. 1817, but it presents no features requiring par- 
 ticular comment. 
 
 «
 
 224 COLLATEEAL UNDERTAKINGS. [Oil. VI. 
 
 veniently pay it then ; but when the next bill became due 
 he would settle them both together. The judge left it to 
 the jury to say to whom the credit was given ; and the 
 plaintiflf having recovered a verdict, with leave to the 
 defendant to move to enter a nonsuit, the defendant's 
 counsel moved accordingly. He contended that there was 
 nothing to go to the jury, as the presumption was that the 
 credit was originally given to the mother, the defendant 
 not appearing to have been a party to the original con- 
 tract ; and hence that the defendant' s promise was collat- 
 eral. But all the judges held that it was a fair question 
 for the jury, whether the mother was not originally acting 
 as the agent for the defendant, and therefore refused the 
 rule. 
 
 § 159. The same principle was applied, although the 
 court seems to have interfered with the province of the 
 jury, in the nisi prius case of Rains v. Storry, 3 Carring- 
 ton and Paine, 130, decided A. D. 1827. There the declara- 
 tion was in assumpsit for goods sold and delivered to the 
 defendant ; and the evidence showed that they were ordered 
 by a Mrs. Stoker from one Evelyn, a bankrupt, whose 
 assignees were the plaintiffs. Evelyn's traveller, who 
 received the order, called upon the defendant, whom she 
 had named as her reference, saying that he would not 
 send the goods without the defendant's authority. The 
 defendant, after some inquiry as to the amount, terms, etc., 
 of the order, said: "You may send them, and I'll take 
 care that the money shall be paid at the time." The 
 goods were delivered to Mrs. Stoker, and Evelyn soon 
 afterwards wrote to the defendant asking him to accept a 
 bill for the price ; to which he answered that he was not 
 in the habit of accepting bills, but that the money would 
 be paid when due. At this stage of the case the defend- 
 ant' s counsel insisted that the evidence showed the prom- 
 ise to be collateral, apparently for the purpose of objecting 
 that the declaration should have been special ; but Best, 
 C. J., held that there was some evidence of a direct under- 
 taking ; and counsel then insisting that it should be in
 
 Art. III.] COLLATEEAL UNDERTAKINGS. 225 
 
 writing, he said that, if the defendant could show that any 
 credit was given to Mrs. Stoker, the case would be brought 
 within the rule in Matson v. Wharam ; and if a bill had 
 been sent to her, he would nonsuit the plaintiff. The 
 defendant then put in a letter from the plaintiffs' attorney 
 to Mrs. Stoker, calling on her for payment, and threatening 
 a suit ; and two from the bankrupt to the defendant, speak- 
 ing of the demand as one which he had guarantied. 
 Whereupon the Chief Justice nonsuited the plaintiff, 
 giving his counsel leave to move ; but the report adds that 
 no motion was ever made.(&) 
 
 § 160. The case of Simpson v. Penton, 2 Crompton and 
 Meeson, 430, and 4 Tyrrwhitt, 315, A. D. 1834, is one of the 
 most interesting and instructive upon this branch of the 
 statute ; as it pushed the principles which we have been 
 considering to their extreme logical consequences. It was 
 an action by the promisor against the third person, to 
 recover the amount' paid by him, upon an undertaking 
 similar to those which have been held valid, in the cases 
 previously cited. The plaintiff had introduced the defend- 
 ant to one Ovenston, an upholsterer, and had asked the 
 latter to supply the defendant Avitli some furniture, adding, 
 that he (the plaintiff) "would be answerable for it," and 
 "would see it paid at the end of six months."- Upon this 
 undertaking the goods had been delivered to the defend- 
 
 (b) It would seem that this nonsuit was erroneous, according to the modern 
 cases in England and the United States. If the case turned solely upon the 
 question to whom credit was given, upon the original contract of purchase 
 and sale, supposing it to have been incomplete when the traveller called upon 
 the defendant, the judge clearly erred in taking it from the jury; for the 
 letters. were all written after the transaction, and were only evidence of 
 what it was originally; the weight of which it was the province of the jury 
 to pass upon. The only doubt arises upon the the terms of the original 
 transaction with Mrs. Stoker. The language of the report, and still more 
 the argument of the defendant's counsel, leave room for the inference (hat 
 the traveller agreed with her to send the goods before he saw the defendant. 
 But it would seem that that question was disposed of, when the judge 
 refused to nonsuit on the point of pleading. 
 
 29
 
 226 Collateral Undeetakings. [Ch. vi. 
 
 ant on a credit of six months, and charged to "Mr. Penton 
 per Mr. Simpson." (c) The defendant not having paid at 
 the expiration of the six months, the upholsterer, without 
 applying to him, called upon the plaintiff; who settled the 
 demand, and sued the defendant for the amount. At the 
 trial the defendant took the objection, with others, that 
 the plaintiff's undertaking to the upholsterer was a mere 
 guaranty, and therefore void by the statute of frauds; 
 and hence the payment, without any special request of 
 the defendant, raised no implied promise on the part of 
 the latter to repay. But the judge overruled the objection, 
 and, in substance, left it to the jury to say whether the 
 goods were furnished upon the credit of the plaintiff 
 exclusively, to be paid for by him in the first instance, 
 and they found a verdict for the plaintiff. 
 
 § 161. Leave having been reserved for that purpose, the 
 defendant subsequently moved for a rule tO enter a non- 
 suit, which the court refused. Bayley, B., after saying 
 that the expressions, "I'll be answerable," and "I'll see 
 you paid," are equivocal, and that the court must look 
 into the circumstances to ascertain whether the contract 
 was original or collateral, added, "Here it is quite clear 
 that the goods were furnished for Penton' s benefit ; but it 
 does not appear that he said one word by which he pledged 
 himself, so as to give Ovenston a right to call upon him." 
 "It was left to the jury to say whether he" (Simpson) 
 "was the original debtor, and they have found that he was. 
 I think the jury were warranted in that finding. My opin- 
 ion is founded substantially upon the facts of the case, 
 and not on the equivocal expressions, as I consider the 
 words capable of being explained by other circumstances. 
 I am satisfied, that, although Ovenston was willing to see 
 if Penton would pay, he never had a legal claim upon 
 him, but upon Simpson only. ' ' The other judges delivered 
 
 (c) The reports differ as to whether the order was given by the plaintiff or 
 the defendant, but they agree that the defendant directed the goods to be 
 sent to his house.
 
 Art. III.] COLLATEEAL UNDERTAKINGS. 227 
 
 brief opinions, to the effect that tlie goods having been 
 furnished upon the credit of Simpson, and the defendant 
 having stood by and allowed Simpson to pledge his 
 credit for him, he became liable to repay the money paid 
 by Simpson on his account, (c?) 
 
 § 162. The principle under consideration was again 
 recognized in 1836 by the decision in Andrews v. Smithy 
 2 Crompton, Meeson and Roscoe, 627, which, however, 
 chiefly turned on another point, in connection with which 
 it is cited elsewhere. We will conclude these citations 
 from the English reports with an abbreviation of a modern 
 case in the Common Pleas, which shows how puzzling the 
 application of this apparently simple principle, sometimes 
 becomes in practice. The discussion between the court 
 and counsel, (who made a heroic but unavailing struggle 
 for his client against overwhelming odds,) will, it is 
 believed, shed much light, not only upon this question, but 
 upon some others nearly akin to it, which we shall here- 
 after have occasion to consider. 
 
 § 163. In Pearce v. Blagrane, 3 Common Law Reports, 
 338, decided in 1855, the action was for money lent and 
 paid ; and the proof was that a fieri facias had issued in 
 favx)r of one Jones against one Sayre, under which the 
 sheriff' s officer had levied upon Sayre' s goods ; and Sayre 
 desired the plaintiff to lend him the money to pay off the 
 execution. This the plaintiff declined to do ; and soon 
 afterwards the defendant (but not in Sayre' s presence) 
 said to the plaintiff, "Well, pay it for me, and I will 
 repay you." Thereupon the plaintiff paid the money to 
 the sheriff's officer, and this action was brought to recover 
 
 (d) It seems to have been assumed, that, if the original contract was within 
 the statute, the action could not be maintained. But it has been ruled in 
 Massachusetts, in a very parallel case, that the objection arising out of the 
 statute is personal to the guarantor; and, if he chooses to waive it, and pay 
 the amount of the debt, the principal cannot object that he might have suc- 
 cessfully resisted the creditor's claim, on the ground that the promise was 
 not in writing. Beal v. Brown, 95 Massachusetts (13 Allen), 114.
 
 228 COLLATEEAL UnDEETAKINGS. [Cll. VI. 
 
 it. It was objected that the promise was within the stat- 
 ute ; but the plaintiff had a verdict, which the defendant 
 moved to set aside. Serjeant Byles in his behalf, insisted 
 that the payment of the money created a debt against 
 Sayre, on the ground that it was done in pursuance of 
 a precedent request by him. To which Maule, J., 
 answered, that the advance to Sayre was declined; and 
 the case was the same as if Sayre had asked the plaintiff 
 to lend him the money, and the latter had declined ; and 
 then the defendant had borrowed the money from the 
 plaintiff, and paid it to the officer. The counsel replied, 
 that the plaintiff refused to make the advance on Sayre' s 
 request alone, but it was made after that request, and not 
 the less upon Sayre' s request because it was also made 
 upon another's. Whereupon Maule, J., asked if there 
 was a joint liability ; and the counsel disclaiming the idea 
 of a joint liability, and insisting that one liability was 
 express and the other implied, and that the plaintiff could 
 have sued Sayre, because Sayre assented to the advance ; 
 Cresswell, J., said, that he could not have sued Sayre, 
 anless there was a request from him, and an advance of 
 money upon his request ; that mere assent was not suffi- 
 cient ; it was evidence of a request, but not equivalent to 
 it. Jervis, C. J., added, that, upon all the facts, no action 
 could be maintained against Sayre ; that the advance was 
 not even in his presence. Counsel still insisting that 
 Sayre was liable, Cresswell, J., concluded by saying that 
 he could not be liable before the advance ; and, when it 
 was made, it was made upon the defendant' s request, as 
 he said, " Pay it for me ;" and so the rule was refused. 
 
 ARTICLE IV. 
 
 Amerioan cases establishing and illustrating the general rule, and npon the question of credit 
 
 to the third person. 
 
 § 164. In treating of the American cases governed by 
 the third rule, we find ourselves embarrassed with the 
 abundance of materials at our command. Not only are 
 the cases very numerous, but there is a great variety in
 
 Art. IV.] Collateral Undertakings. 229 
 
 the facts which they present, raising many nice shades 
 of distinction respecting the correct application of the 
 general rule ; and also various scarcely less important 
 questions of evidence, construction, and the like, peculiar 
 to this class of cases. In making a selection among them, 
 the earlier cases will be given, with sufficient fullness to 
 show the origin, growth, and general application of the 
 rule in the United States; and among the more recent 
 cases, we shall endeavor to present those, where a similar 
 state of facts is likely to recur most frequently, or where 
 the case also presents one or more of the incidental ques- 
 tions, which we shall be called upon to discuss, before 
 taking leave of this branch of our subject. 
 
 § 165. But first we have to notice a dictum, which, 
 though proceeding from an eminent source, and referred 
 to with approbation by several judges, is at war with the 
 principle settled by a great number of cases, and has 
 never been accepted as authority. In i)' Wolf v. Rabaud, 
 1 Peters, 476, A. D. 1828, (a) the question arose as to the 
 sufficiency of a written agreement to satisfy the statute 
 of frauds, and the admissibility of parol evidence to 
 supply its deficiencies ; but, in pronouncing judgment. 
 Mr. Justice Story took occasion to express his dissatisfac- 
 tion with the doctrine, that the statute applies to every 
 case, where the collateral promise (so called) was a part 
 of the original agreement, and founded upon the same 
 consideration. (5) But the learned Justice at the same 
 
 (a) S. C. in the court below, 1 Paine's Circuit Court, 580. 
 
 (6) He said, "Whether by the true intent of the statute, it was to extend 
 to cases, where the collateral promise (so called) was a part of the original 
 agreement, and founded on the same consideration, moving at the same time 
 between the parties; or whether it was confined to cases where there was 
 already a subsisting debt and demand, and the promise was merely founded 
 upon a subsequent and distinct undertaking, might, if the point were 
 entirely new, deserve very grave consideration. But it has been closed 
 within very narrow limits by the course of the authorities, and seems scarcely 
 open for examination; at least in those states where the English authorities 
 have been fully recognized and adopted in practice. If A agree to advance
 
 230 Collateral Undertakings. [Ch. yi. 
 
 time admitted that the course of the authorities was 
 against him, and, as we have already stated, the case 
 went off upon the other points. In Townsley v. Sumrall^ 
 2 Peters, 170, A. D. 1829, the same Justice referred to the 
 opinion in the preceding case, in these words: "In cases 
 not absolutely closed by authority, this court has already 
 expressed a strong inclination, not to extend the operation 
 of the statute of frauds, so as to embrace original and 
 distinct promises, made by different persons at the same 
 time, and upon the same consideration, "(c) 
 
 § 166. In New York the principle established by the 
 English cases, seems to have been first presented for direct 
 adjudication, in Chase v. Day, 17 Johnson, 114, decided 
 in 1819.(6^ ) The action was to recover the value of certain 
 
 B a sum of money, for which B is to be answerable, but at the same time it 
 is expressed upon the undertaking that C will do some act for the security 
 of A, and enter into an agreement with A for that purpose, it would scarcely 
 seem a case of a mere collateral undertaking, but rather, if one might use 
 the phrase, a tri-lateral Contract. The contract of B to repay the money is 
 not coincident with, nor the same contract with C to do the act. Each is 
 an original promise, though the one may be deemed subsidiary or secondary 
 to the other. . . . The credit is not given solely to either, but to both, 
 not as joint contractors upon the same contract, but as separate contractors 
 upon co-existing contracts, forming parts of the same general transaction." 
 
 (c) The distinguished tribunal, in which the foregoing remarks were made, 
 has not since had occasion, it is believed, to affirm or deny their correctness 
 by its decision. But an expression in the opinion of Mr. Justice Clifford, in 
 Emerson v. Slater, 22 Howard, 28, indicates that it is prepared to follow the 
 rule now so generally recognized, with respect to promises of this character, 
 even in cases not arising in states, whose courts have, in express terms, 
 adopted the English rule. He says: "Cases in which the guaranty or 
 promiie is collateral to the principal contract, but is made at the same time, 
 and becomes an essential ground of the credit give to tic principal debtor, 
 are. in general, within the statute of frauds." Although in a few instances, 
 opinions have been expressed in some of the state courts approving, upon 
 principle, Judge Story's suggestion of a tri-lateral contract, the author's 
 researches have not enabled him to find a solitary case where such a theory 
 has been practically applied to a decision. 
 
 (d) But it is recognized as law. in the opinion of Kent, C. J., in Leonard 
 V. Yredenburgh, 8 Johnson, 23, A. D. 1811.
 
 Art. IV.] Collateral Undertakings. 231 
 
 newspapers delivered by the plaintiff, a printer, to the 
 nephew of the defendant, who was a news-carrier, and the 
 proof was that the defendant called at the plaintiff's office, 
 in his nephew's absence, and after inquiring the terms, 
 said, "If my nephew should call for papers, I will be re- 
 sponsible for the papers that he shall take." Soon after- 
 wards the nephew called for newspapers, and said that 
 his uncle would be responsible for them, and the plaintiff 
 furnished them to him then, and for several weeks after- 
 wards ; no regular charge for the papers was made to 
 any person upon the plaintiff's books; but he kept a 
 memorandum of the number delivered to the nephew, 
 under the latter' s name, as he did with other news-carriers. 
 The plaintiff recovered (in a justice's court), and the Su- 
 preme Court on certiorari affirmed the judgment ; holding 
 that the evidence warranted the inference, that "the credit 
 was given originally and solely to the defendant;" and 
 ' ' that this never was the debt of the nephew. His uncle 
 made the contract ; and the nephew, when he took the 
 papers, explained that his uncle would be responsible for 
 them." 
 
 § 167. In Brown v. BradsTiaw, 1 Duer, 199, A. D. 1852, 
 a verdict for the plaintiffs, rendered under a proper charge 
 of the judge at the trial, was set aside by the New York 
 Superior Court, as against the weight of evidence. The 
 complaint claimed to recover for lumber delivered to the 
 defendant ; and the evidence showed that it was delivered 
 upon the application of one M., to be used in the construc- 
 tion by him of certain houses, upon land belonging to the 
 defendant, but which the defendant had contracted to sell 
 to M. at a specified price. The contract between the defend- 
 ant and M. also provided, that the defendant should make 
 advances to him, to aid in the erection of the buildings ; the 
 advances and the purchase price of the land to be paid when 
 the deed was given ; audit also contained a clause providing 
 that all bills for materials for the houses, which the defend- 
 ant might pay or incur, should be deemed part of the ad- 
 vances. The evidence, in its most favorable aspect, tended
 
 232 Collateral Undertakings. [Ch. vi. 
 
 to show that the plaintiffs delivered the lumber to M. upon 
 the defendant' s promise to one of the plaintiffs, ' ' that he 
 would see him paid for all the lumber delivered at those 
 buildings." A bill for the first seven items of the account 
 had been made out by the plaintiffs in the name of M. ; and 
 a payment made by the defendant upon the general account, 
 had been rec:4pted by them, as paid by the defendant for 
 M. There was some evidence that after the debt had been 
 contracted, the defendant agreed with M. to pay all the 
 outstanding bills, as part of the consideration of an assign- 
 ment of his contract to another person ; but the court dis- 
 regarded it, on the ground that it did not sustain the cause 
 of action stated in the complaint, which was a sale of the 
 lumber to the defendant. With respect to the original 
 transaction, the court held that the evidence established, 
 "that the lumber was furnished to M. on his application 
 and on his credit," because it showed, that "the lumber 
 was charged to M. , and not to the defendant ; that the 
 moneys paid by the latter to the plaintiffs were paid by 
 the defendant, and accepted by the plaintiffs, as a payment 
 on account of a debt owing to them by M. ;" and "that 
 there is no evidence which authorizes a court or jury to 
 find that no credit was given to M., but that it was given 
 exclusively to Bradshaw and with his assent." 
 
 § 168. In another case decided on the same day, Flan- 
 ders V. Crolius, 1 Duer, 206, A. D. 1852, the same court 
 refused to set aside a referee's report in favor of the 
 plaintiff, as against the weight of evidence. The action 
 was for the balance due upon an account for goods fur- 
 nished to the defendant's brother, upon the defendant's 
 saying that the plaintiff might deliver goods to his brother, 
 "and he himself would be responsible for the amount of 
 all bills for goods sold and delivered." The goods were 
 originally charged to the defendant, and the defendant 
 having heard from his brother that the latter was buying 
 goods from the plaintiff in his name, had only answered, 
 " Joe, mind and pay Flanders." It was held that this evi- 
 dence justified the conclusion of the referee, that the
 
 Art. IV.] Collateral Undertakings. 233 
 
 goods were purchased by, and the credit was given exclus- 
 ively to the defendant. 
 
 § 169. The following cases were decided in the New 
 York Common Pleas : In Dixon v. Frazee, 1 E. D. Smith, 
 32, A. D. 1850, goods had been delivered at different 
 times by the plaintiff to tlie defendant's son, at the request 
 of the defendant and on his promise, made at the time the 
 account was opened, "that he would see that the plaintiff 
 was paid ;" but they were charged to the son, or a firm of 
 which he was a member, and from time to time the 
 accounts were settled by notes of the son or of the firm. 
 The action was brought for goods delivered since the last 
 settlement by note, but notes of the son had been taken on 
 account for part of the amount. A verdict having been 
 rendered for the plaintiff, the court on appeal reversed the 
 judgment; the charge having been indefinite, and the 
 court holding that the jury should have been positively 
 instructed to find for the defendant, as the evidence sliowed 
 clearly that the son was liable, and that the plaintiff relied 
 on him for payment. On the other hand in Briggs v. 
 Emns, 1 E. D. Smith, 192, A. D. 1851, the plaintiff's 
 assignors had manufactured certain furniture on the order 
 of a third person, to be paid for in cash, and had made out 
 a bill to him ; but, on his requesting credit, they refused to 
 deliver the goods ; whereupon the defendant took the bill, 
 requested them to deliver the goods, and promised to pay 
 the bill in two weeks ; relying upon which promise, the 
 goods were delivered to the third person, and charged to 
 the defendant. The court, holding that the whole credit 
 was given to the defendant, affirmed a judgment (of the 
 Marine Court) in favor of the plaintiff, (e) 
 
 (e) Woodruff, J., in delivering the opinion of the Court in this case, said: 
 "The promise was in form absolute, and was relied upon as such. Where 
 the promise in such case was absolute in form to pay, the court must, as 
 matter of law, hold it to be original, unless it further appears as matter of 
 fact that it was made and intended as collateral." "The bill " (in the name 
 of the third person) "was therefore made, before the contract was made 
 upon which the plaintiff relies, and proves nothing respecting the character 
 of that contract." 
 
 30
 
 334 Collateral IJNDERTAKmGS. [Ch. vi. 
 
 § 170. In Pennell v. Pentz, 4 E. D. Smith, 639, A. D. 
 1855, in the same court, the plaintiff's assignor was 
 applied to by one B. to furnish stone, to enable B. to fulfil 
 a paving contract with the city of New York, which he 
 declined to do, unless B. would procure "guaranty for 
 payment of the amount;" and on the defendant being 
 applied to, he said he would not "guaranty" to pay, 
 unless B. assigned to him the contract. B. having 
 assigned the contract to the defendant, the latter said 
 to the plaintiflT, "You can now go on and furnish 
 the materials for those contracts, and I will pay you ; 
 as no other person can draw the money from the 
 corporation but me." The plaintiff's assignor there- 
 upon furnished the stone, and after he had done so, he 
 made out the bills to B. ; but it appeared that this was 
 done by the direction of the defendant, to enable him to 
 secure certain commissions. It was held by a majority 
 of the court that the promise was original, the entire 
 credit having been given to the defendant ; and the bills 
 having been made out to B. by his direction, and for his 
 accommodation ; and a judgment for the defendant in the 
 Marine Court, was accordingly reversed on appeal. 
 
 § 171. In the earliest Massachusetts case in which the 
 doctrine now under consideration came in question, Perley 
 V. Spring, 12 Massachusetts, 297, decided in 1815, Chief 
 Justice Parker recognized the distinction suggested by 
 Lord Mansfield in Mawbrey v. CunningTiam, and after- 
 wards repudiated by him. In deciding that the plaintiff 
 was entitled to judgment upon a verdict, subject to the 
 opinion of the court, the Chief Justice distinctly stated, as 
 one of the grounds of the decision, that the promise was 
 prospective, to pay a debt which might accrue in conse- 
 quence of the very promise which was made, and which 
 did not exist at the time of the promise, and therefore, it 
 was not affected by the statute. 
 
 § 172. But in Tileston v. Nettleton, 23 Massachusetts (6 
 Pickering), 609, decided in 1828, the same court, apparently
 
 Art. TV.] Collateral Undertakings. 235 
 
 with the assent of the Chief Justice, laid down the correct 
 rule. The defendant was the commanding officer of a militia 
 company, and also a member of the committee of arrange- 
 ments for a celebration of the fourth of July, which 
 included a public dinner provided by the plaintiff. The 
 members of the company partook of the dinner, as well as 
 the other citizens present ; and while they were eating, the 
 plaintiff sent two persons around, to collect one dollar 
 from each of those present, to pay for his dinner. When 
 they were proceeding to collect the money from the mem- 
 bers of the company, the defendant stopped them, and 
 said that they need not call upon the members of the com- 
 pany, as he would be responsible for them ; to which the 
 plaintiff assented, and no money was collected from them. 
 The evidence was submitted to the jury upon a proper 
 charge ; and the court, affirming a judgment for the defend- 
 ant, stated that the members of the company w^ere the 
 original debtors, and might have been sued severally upon 
 an implied promise ; and their original liability proved 
 that the defendant's engagement was only collateral. (/) 
 
 § 173. And in Cahill v. Bigelow^ 35 Massachusetts (18 
 Pickering), 369, A. D. 1836, Chief Justice Shaw said, that 
 Perley v. Spring was overruled by Tileston v. Nettleton. 
 The question, which arose on a trustee process, was 
 whether Hatch, the alleged trustee, was liable to the 
 defendant, for board furnished by her upon his credit to 
 his laborers. At the time when she opened the boarding- 
 house, he had verbally agreed with her, and with other 
 persons, who subsequently furnished her with provisions 
 and supplies, that the latter should deliver the supplies 
 to her and charge her therefor, and at the end of each 
 quarter he would see them paid ; and the demands against 
 him by reason of this promise exceeded the amount of 
 the defendant' s bills for board. The court held, that if the 
 
 (/) There was however, a question in this case, whether the members of 
 the company had not already become liable, when the defendant's promise 
 was made.
 
 236 CoLLATEEAL Undeetakings. [Ch. VI. 
 
 trustee chose to interpose the defence of the statute of 
 frauds, against the demands in favor of those who fur- 
 nished the supplies, it would constitute a defence ; because 
 credit was given to the defendant, the supplies having 
 been in the first instance charged to her, and she being 
 debtor therefor. But it was also held that it was optional 
 with the trustee, whether he would avail himself of the 
 protection of the statute ; and as he chose not to insist 
 upon it, he was discharged from the trustee process. 
 
 § 174. The same principle had been, however, distinctly 
 recognized in the previous case of Loomis v. Newhall, 32 
 Massachusetts (15 Pickering), 159, A. D. 1833, which was 
 not cited, either by the counsel or the court, in CaMll v. 
 Bigelow. There the action was against an administrator, 
 upon a promise of his intestate. It appeared that the 
 son of the intestate, who was about forty years old, and 
 a man without means, and of bad habits, had boarded 
 for several months with the plaintiff, who was his uncle 
 by marriage ; and that, after the board had been so fur- 
 nished, the intestate requested the son to continue to 
 remain at the plaintiff' s house, and said to the plaintiff, 
 "For what you have already done, and what you shall 
 do for my son, I will see you paid hereafter for your 
 services, expenses, and trouble;" but the son remained 
 only one day after this promise. The next day after the 
 promise, the intestate requested the plaintiff to pay a tax 
 against the son, promising to refund the amount, and the 
 plaintiff paid it accordingly. The court decided that, as 
 to the board which had already been furnished, the prom- 
 ise was within the statute, there being no evidence that it 
 was furnished at the father' s request ; but that the prom- 
 ise would not have been within the statute, as to the one 
 day's board furnished afterwards, had that been separable 
 from the promise to pay for the board previously fur- 
 nished; and that the promise respecting the tax was 
 original, and without the statute, {g) 
 
 (g) The decision was that the plaintiff should recover only the amount paid 
 for the tax, as the pronaise to pay for the board was held to be void as to 
 that furnished subsequently as well as previously, because it was entire, and
 
 Art. IV.] Collateral Undertakings. 237 
 
 § 175. So in Hill v. Raymond, 85 Massachusetts (3 
 Allen), 540, A. D. 1862, tlie same court decided, as matter 
 of law, that no action could be maintained for necessaries 
 furnished to the defendant's brother, (a dissipated man,) 
 by the plaintiff, upon a verbal promise in these words : " I 
 don't want my brotlier to go ragged or hungry; for any 
 necessaries of life you may furnish him, I will see you 
 paid:" it appearing by the testimony in behalf of the 
 plaintiff, that the plaintiff held the brother responsible for 
 the bill and presented it to him, and took from him an 
 order upon the defendant, which the latter refused to 
 accept. Notwithstanding that the plaintiff, (who was 
 sworn in his own behalf,) testified that he did not receive 
 the order in payment of the bill, it was held at the trial, 
 that the action was not maintainable as matter of law ; and 
 an exception to this decision was overruled, the court 
 holding that "the defendant's promise was clearly collat- 
 eral. "(7i) 
 
 § 176. In Swift V. Pierce, 95 Massachusetts (13 Allen), 
 136, decided A. D. 1866, the action was to recover upon 
 the defendants' verbal promise to pay for certain goods 
 delivered to one Hoar ; and it appeared that they had 
 been charged to Hoar upon the plaintiff's books, and that 
 the plaintiff had commenced an action for the value of the 
 
 within the statute as to a part of it; but the court subsequently granted a 
 new trial, or^ the suggestion that the previous board was furnished as a matter 
 of charity. However, in Rand v. Mather, 65 Massachusetts (11 Gushing), 1 
 A. D. 1853, the court overruled so much of the decision in Loorais v. New- 
 hall, as holds that a contract void in part under the statute of frauds is 
 necessarily void in toto. There the defendant had agreed to pay for the 
 work previously done, and the work to be done, to complete a contract 
 between the plaintiflf and a third person, and it was decided that he might 
 recover for work done after the promise, but not for that done previously. 
 The case is cited again hereafter. 
 
 (/i) The report does not state in what manner, if any, beyond presenting 
 the bill, it appeared that the plaintiff held the person to whom the supplies 
 were furnished, responsible for the bill; but the fact is so stated in general 
 terms in the syllabus and in the opinion.
 
 238 CoLLATEEAL Undeetakikgs. [Ch. VI. 
 
 goods against Hoar, in which he had summoned the pres- 
 ent defendants as trustees ; but the defendants had been 
 discharged in the trustee proceeding, and the plaintiff had 
 thereupon discontinued the action against Hoar. It was 
 held that the jury was entitled to judge upon these facts, 
 whether the credit was given to the defendants or to Hoar, 
 and a verdict for the plaintiff upon a charge to that effect 
 would not be disturbed ; but a new trial was granted 
 because, although the judge charged the jury that if the 
 plaintiff gave credit to Hoar alone, the defendants' prom- 
 ise was collateral, he refused to charge that the same 
 result would follow if any credit was given to Hoar ; the 
 court holding that there was some evidence, tending to 
 show, that the plaintiff relied upon the responsibility of 
 both. 
 
 § 177. So in the case of Wallcer v. Richards, 41 New 
 Hampshire, 388, A. D. 1860. There the declaration con- 
 tained several special counts, claiming to recover for goods 
 sold and delivered by the plaintiff, to one Davis and two 
 other persons, in the emplojrraent of the defendant, on 
 credit, and upon a promise of the defendant, to be respon- 
 sible and see him paid ; and also a general count for goods 
 sold and delivered to the defendant. It appeared that 
 the plaintiff had charged the goods to the several persons 
 to whom they were respectively delivered ; but he proved 
 that he had done so at the request of the defendant, in 
 order that the latter might, from time to time, see whether 
 they were taking up their pay for their labor, faster than 
 they were earning it. The judge charged the jury, that if 
 the goods were delivered to Davis and the others, at the re- 
 quest of the defendant, and upon his absolute promise to 
 pay for them ; and if the whole credit was given to him, 
 and no credit was given to the workmen, the plaintiff was 
 entitled to recover ; and a motion to set aside a verdict for 
 the plaintiff upon exceptions to the charge was denied. Bell, 
 C. J., said, that the special counts set forth that the goods 
 were sold to Davis and the others on credit ; and under 
 those counts they were the debtors, and the contract of the
 
 Art. IV.] COLLATEEAL UNDERTAKINGS. 239 
 
 defendant was entirely collateral, and could be proved 
 only by a writing ; but the declaration also contained a 
 count for goods sold and delivered to the defendant ; and 
 under that count it was proper to prove that the sale was 
 made, and the credit given, to the defendant alone. "The 
 charges on the books to Davis, etc.," continued the learned 
 Chief Justice, "are competent evidence, that the sales 
 were made to them, and upon their credit ; but they are 
 not conclusive, and are open to explanation. It is for the 
 jury to judge, upon all the evidence, to whom the credit 
 was given ; and whether the agreement of the defendant is 
 original or collateral." 
 
 § 178. In 3foses v. Norton, 36 Maine, 113, A. D. 1853, 
 the mother of the defendants, being in occupation of the 
 plaintiffs' house, under a lease (apparently verbal), at a 
 rent agreed upon, and the plaintiffs being solicitous about 
 their rent, the defendants verbally agreed to pay the rent 
 during the time she should occupy the house ; under 
 which agreement, she was allowed to remain for three 
 years, she paying part of the rent and one of the defendants 
 paying part. The action was brought for the remainder, 
 and although counsel for the plaintiffs insisted that the 
 entire credit was given to the defendants, (the conversation 
 amounting to a refusal to allow her to remain, and to a 
 reletting to the defendants,) the court held that the plaint- 
 iffs could not recover, on the ground that the mother was 
 liable, and could not have successfully defended an action 
 for the rent ; and therefore the defendants' promise was 
 collateral. To the same effect is Blake v. Parlin, 22 
 Maine, 395, A. D. 1843, although there the verbal lessee 
 was moving in, when the collateral promise was insisted 
 upon and obtained, as a condition of his being allowed 
 to do so. And in Walker v. McDonald, 5 Minnesota, 455, 
 A. D. 1861, the facts were almost identical with those in 
 Moses V. Norton, except that the promise was to be 
 "responsible" for the rent, which was held to be collat- 
 eral, for the same reason.
 
 240 Collateral Undertakings. [Ch. vi 
 
 " 179. These selections by no means exhaust the variety 
 of the cases furnished by the American reports, illustrating 
 the general application of this rule. From the nature of 
 the transactions to which it applies, the variety is almost 
 endless ; each case presenting some differejit feature, upon 
 which a question arises respecting the correct application 
 of the rule. Frequently also, the same facts present 
 embarrassing questions under some of the other rules, 
 either separately or in connection with this. And we 
 refer the reader, who wishes to pursue his researches fur- 
 ther, to the numerous additional authorities in the note ; 
 which maintain, with remarkable uniformity, the same 
 general principle ; although there is occasionally, as in 
 some of the cases already cited, a little difficulty, and 
 perhaps discrepancy, in its application.(i) 
 
 (i) Bates v. Starr, 6 Alabama, 697; Faires v. Lodanc, 10 id. 50; Boykin 
 V. Dolilonde, 1 Alabama Select Cases, 502 ; Kurtz v. Adams, 12 Arkansas 
 (7 English), 174; Porter v. Langhorn, 2 Bibb (Ky.), 63; Hanford v. Hig- 
 gins, 1 Bosvvorth (New York), 441 ; Hall v. Wood, 4 Chandler (Wisconsin), 
 36; Loomis v. Smith, 17 Connecticut, 115; Knox v. Nutt, 1 Daly (New 
 York), 213; Hetfield v. Dow, 3 Dutcher (New Jersey), 440; Read v. Ladd, 
 1 Edmonds (New York), 100; Weyand v. Crichfield, 3 Grant (Pennsylva- 
 nia), 113; Warnick v. Grosholz, id. 234; Price u. Combs, 7 Halsted (New 
 Jersey), 188; Elder v. Warfield, 7 Harris & Johnson (Md.) 391 ; Booker v. 
 Tally, 2 Humphreys (Tenn.) 308; Williams v. Corbet, 28 Illinois, 262; 
 Nelson v. Hardy, 7 Indiana, 364 ; Billingsley v. Dempewolf, 11 Indiana, 
 414; Backus v. Clark, 1 Kansas, 303 ; Ware v. Stephenson, 10 Leigh (Va.), 
 155; Richardson v. Richardson, 1 MacMullan (South Carolina), 280; Homan3 
 V. Lambard, 21 Maine, 308; Doyle v. White, 26 Maine, 341; Ellicott v. 
 Peterson's Exrs., 4 Maryland, 476; Cropper v. Pittman, 13 id. 190; Leland 
 V. Creyon, 1 McCord (South Carolina), 100; Mease v. Wagner, id. 395 ; 
 Waggener v. Bells, 4 Monroe (Kentucky), 7 ; Underbill v. Gibson, 2 New 
 Hampshire, 352 ; Proprietors of Upper Locks v. Abbott, 14 id. 157 ; Brown 
 V. George, 17 id. 128; Landis v. Royer, 59 Pennsylvania, 95; McCaffil v. 
 Radcliff, 3 Robertson (New York), 445; Brady v. Sackrider, 1 Sandford 
 (New York), 514; Darlington v. McCunn, 2 E. D. Smith, 411; Hazen v. 
 Bearden, 4 Sneed (Tennessee), 48 ; Hoppock v. Wilson, 1 Southard (New 
 Jersey). 149; Scudder v. Wade, id. 249; Rhodes v. Leeds, 3 Stewart & 
 Porter (Alabama), 212; Arbuckle v. Hawks, 20 Vermont, 538; Gleason v. 
 Briggs, 28 id. 135 ; Hodges v. Hall; 29 id. 209 ; Walker v. Norton, id. 226 ; 
 Bushee v. Allen, 31 id. 613; Rogers v. Kneeland, 13 Wendell (New York), 
 114 ; Turton v. Burke, 4 Wisconsin, 119. Some of these cases will also be 
 found in the third article of the ninth chapter, where a question very analo- 
 gous to that which is now under examination will be discussed at length; 
 and many of the cases there cited are also applicable here.
 
 Art. v.] Collateral Undertakings. 241 
 
 ARTICLE V. 
 
 How far the question, whether the promise was original or collateral, belongs to the jury. 
 
 § 180. It is very evident, that where the language used, 
 by the promisor, was pertinent to the creation of an abso- 
 lute and direct undertaking to respond for the price, and 
 at the same time the conduct of the third person was 
 consistent with his assumption of a concurrent liability 
 therefor ; but there is no evidence of an express assent on 
 the part of the promisee, to the third person's assumption 
 of liability, the question to whom credit was given belongs 
 exclusively to the jury, (a) So also, where the testimony 
 leaves it doubtful what was the language used by the 
 parties, it is the province of the jury to determine, under 
 the directions of the court respecting the effect of particu 
 lar modes of expression, whether the promisor in fact 
 undertook to respond absolutely, or only in case the third 
 person did not pay. Again, where there is no question 
 what were the words used, but they are susceptible of 
 two meanings, the one importing an absolute, and the 
 other a conditional promise, the question is necessarily 
 referred to the jury, to determine in what sense they were 
 in fact used and accepted. And in that respect, it is 
 believed that the rule would be the same, if the contract 
 between the parties was proved by a writing, containing 
 words of equivocal meaning, even if no question arose 
 under the statute of frauds. (&) 
 
 (a) See ante, article ii. 
 
 (6) The point has sometimes arisen in cases under the statute of limita- 
 tions, when the question was, whether a writing of equivocal meaning con- 
 tained an acknowledgment of the debt or a new promise. Thus, in Lloyd 
 V. Maund, 2 Term Reports, 760, A. D. 1788, it was held, that a general ruling 
 at the trial, that an ambiguous letter did not amount to a new promise or 
 acknowledgment was erroneous, and a nonsuit was set aside, one of the 
 judges saying, that " the jury should have put their construction upon it." 
 In Frost V. Bengough, 1 Bingham, 266, A. D. 1823, the question was, whether 
 a letter from the defendant, saying that he "must arrange matters" with the 
 plaintiflF, was suflBicient, and the court held that it was properly left to the 
 jury to say whether there were any other matters to which the letter referred. 
 
 31
 
 242 CoLLATEEAL Undeetakings. [Ch. VI. 
 
 § 181. But some of the cases decided under the statute 
 of frauds have gone further ; and expressions will occa- 
 sionally be found in the books, leading to the inference, 
 that the jury are entitled in all cases, to pass upon the 
 question, whether the words used imported an absolute or 
 a conditional promise. Thus it was said in one case, War- 
 nick V. Grosholz, 3 Grant (Pennsylvania), 234, that 
 "where words are written, the general rule is that the 
 court shall interpret them ; but, when they are merely 
 spoken, their sense and meaning intended are for the jury ; 
 their meaning being fixed by the jury, their legal eflfect 
 and consequence are determined by the court." 
 
 § 182. This question sometimes becomes of vital impor- 
 tance ; for the rights of the parties may depend entirely 
 upon the construction, to be placed upon words, concerning 
 which the witnesses do not essentially differ. As will be 
 more fully shown in the next chapter, there is a disposi- 
 tion, especially in the modern decisions, to assign to par- 
 ticular forms of expression, in most common use in 
 transactions of this kind, certain definite prima facie 
 meanings. In the case of WarnicJc v. OrosJiolz, one of 
 those expressions was used, the promise having been that 
 the defendant would see the plaintiffs paid, which, it is 
 said, upon very respectable authority, presumptively 
 imports only that the defendant would pay, in case the 
 third person did not ; and it may be that he was defeated 
 by leaving the question to the jury, without the produc- 
 tion of any evidence on the part of the plaintiff", to control 
 that prima facie meaning of his promise. 
 
 § 183. It is believed that the distinction, suggested in 
 that case, between written and spoken words, has no sub- 
 stantial foundation ; and that when the court can clearly 
 
 And in Dodson v. Mackey, 4 Nevile and Manning, 327, A. D. 1835, it was 
 held that the judge at the trial properly left it to the jury, to say whether an 
 ambiguous letter amounted to a promise to pay the debt, and if so, whether 
 the promise was conditional or absolute. See several other cases cited in 
 Angell on Limitations, § 238.
 
 Art. v.] Collateral Undertakings. 243 
 
 ascertain from the testimony, what the words really were, 
 the determination of their meaning and the nature of the 
 contract which they create, is to be made as a matter of 
 law. This proposition is subject, of course, to the excep- 
 tion already mentioned, where words of equivocal mean- 
 ing have been used ; or, what amounts to nearly the same 
 thing, where the law assigns to the words " a prima facie 
 meaning" only, and there is some evidence of their having 
 been used in a different sense. 
 
 § 184. Thus, in Robinson v. Oilman, 43 New Hampshire, 
 485, the court below, in passing upon the validity of a 
 set-off, had ruled, in substance, that a conversation, proved 
 to have taken place between the witness and the plaintiff's 
 intestate, did not amount to a promise to pay the debt ; 
 and Bell, C. J., delivering the opinion of the Supreme 
 Court, granting a new trial for that reason, with others, 
 said: "The language used does not necessarily import 
 that he would settle, or cause the notes to be settled. The 
 terms were loose and indefinite ; and the question really 
 was, whether the jury, weighing the evidence and the 
 circumstances, could rightfully understand the language 
 to be an engagement to cause the debt to be paid, or to 
 pay it." "In many cases it is not so much the question 
 what terms were used, as what was intended. Where the 
 words are certain, it is generally for the court to construe 
 them; but, where the jury must decide what was said, 
 they must also judge what was the meaning of the parties, 
 in the language they are found to have used. If the 
 evidence tends to prove an engagement inconsistent with 
 that alleged, and it is capable of no interpretation tliat 
 can be reconciled with it, the court may pronounce the 
 evidence incompetent on the ground of variance; but, 
 where the evidence admits of being understood in a sense 
 which would support the declaration, and the doubt is 
 whether it is quite sufficient to support the writ, it seems 
 generally more advisable to leave the c[uestion to the jury, 
 who are supposed to be more able to judge of the weight 
 of testimony, as to the facts, than the court."
 
 244 Collateral Undeetakiis-gs. [Ch. vi. 
 
 § 185. So, also, in Sinclair v. Richardson^ 12 Vermont, 
 33, the same idea was very clearly stated in the remarks 
 of CoUamer, J., although they were directly applicable to 
 a state of facts depending upon a different rule. In dis- 
 cussing the question, whether it belonged to the court or 
 to the jury, to determine, if proof of a certain conversa- 
 tion between the parties, tended to show an abandonment 
 by the plaintiff, of a written contract between himself and 
 a third person, and the formation of a new contract 
 between the plaintiff and the defendant ; or, on the other 
 hand, merely a guaranty by the defendant of the third 
 person's performance of the former contract, he said: 
 "If the terms used on the occasion clearly imply that the 
 former contract is to continue, and the new one be auxil- 
 iary thereto, then it is matter of law that the new con- 
 tract must be in writing. Such as the saying, ' proceed, 
 and if he does not pay you, I will.' But if the terms be 
 uncertain, equivocal or ambiguous, then it must always 
 be left to the jury, to find whether in fact the former 
 contract was to continue, or whether the whole was aban- 
 doned, and the new contract and credit substituted in its 
 place, "(c) 
 
 § 186. The distinction arising in cases where the testi- 
 mony is conflicting, is also illustrated by the case of 
 Homans v. Lambard, 21 Maine, 308, where the defend- 
 ant's counsel contended, that the judge at the trial erred, 
 in leaving it to the jury to say, whether certain timber, for 
 the value of which the action was brought, was furnished 
 bv the plaintiff upon the credit of the defendant, or of the 
 third person ; insisting that certain words, proved to have 
 been spoken by the defendant, implied a conditional con- 
 tract, and should be so construed as matter of law. But 
 Tenney, J., in his opinion, said, that although it would 
 have been the duty of the court to construe a written 
 promise in those words, there were in this case other con- 
 versations between the parties, and also between the 
 
 ('■) S.'(\ also, per Woodruff, J., in Briggs v. Evans, ante, § 169, note.
 
 Art. v.] Collateral Undertakings. 245 
 
 plaintiff and others, in tlie presence of the defendant, 
 which had a tendency "to manifest to the defendant the 
 views entertained by the plaintiff on the subject of the 
 sale of the timber ;" and that other facts were in evidence, 
 which might have had an important influence, in satisfy- 
 ing the jury of the true character of the transaction. 
 "It was," he added, "for them alone to judge, from the 
 evidence, what was said and done, and then to determine 
 therefrom the intention of the parties. It would have 
 been a manifest invasion of their rights, for the court to 
 select a partici^lar portion of the evidence, which the jury 
 might, or might not believe, and as a matter of law, 
 inform them, that their verdict must depend upon the con- 
 struction which the judge should give to that, independ- 
 ent of other facts in the case. The meaning of the 
 parties was to be gathered from all the evidence before 
 them." 
 
 § 187. So, also, in the recent case of Perkins v. Hins- 
 dale, 97 Massachusetts, 157, A. D. 1867. The action was 
 to recover for articles delivered to the nephew of the 
 defendants, who were brothers and partners. At the 
 trial, the plaintiff testified in substance, that there had 
 been dealings between him and. the nephew, but the last 
 credit he gave him was on the 16th of September, 1865 ; 
 that on the 25th of that month, one of the defendants 
 applied to him to give the nephew further credit, stating 
 various circumstances, tending to show that he would be 
 safe in doing so ; but the plaintiff refused, unless the 
 defendants "would become responsible." That thereupon 
 the parties made an oral contract, to the effect that the 
 plaintiff would deliver to the nephew such goods as he 
 wanted, and the defendants "would pay the bill;" that 
 the plaintiff would "go along with him" each month; 
 and if, by the 15th of the next month, the nephew had 
 not paid the monthly bill, the plaintiff would notify the 
 defendants, and they would pay it. That he delivered the 
 goods, and notified the defendants accordingly ; and that 
 the credit was given solely to the defendants, but the
 
 246 Collateral Undeetakings. [Cli. yi. 
 
 accounts were kept with the nephew as before. Other 
 witnesses, on the part of the plaintiff, testified that the 
 conversation was, in substance, that the nephew was to 
 be "pushed up" till the 16th of each month ; and if he did 
 not pay then, the defendants would pay the bill, or see it 
 paid. Evidence was introduced by the defendants, tend- ^ 
 ing to disprove the testimony on the part of the plaintiff, 
 as to the material points of this conversation ; but on 
 cross-examination of the defendant, with whom it took 
 place, he admitted sending a letter to the plaintiff's 
 attorney, inclosing a payment on account of the demand, 
 and saying, "I hope to see my responsibility liquidated 
 soon." Upon this evidence, the defendants contended 
 that they were entitled to a verdict, by direction of the 
 court ; but the plaintiff insisted that he had the right to 
 go to the jury, upon the question to whom the credit was 
 given. The judge directed a verdict for the defendants, 
 which was set aside on exceptions. Hoar, J., delivering 
 the opinion of the court, said that the evidence was 
 strong to show that the contract was collateral ; but the 
 plaintiff, in one part of his testimony, expressly stated 
 that the sole credit was given to the defendants ; and 
 the letter "has some semblance of an admission of an 
 original and direct responsibility." "Considering, there- 
 fore," he proceeded, "that the evidence was chiefly oral, 
 not absolutely distinct in its terms, or consistent in its 
 different parts ; and that its effect depends partly upon 
 inferences to be drawn from it ; we think, on the whole, 
 that it should have been submitted to the jury, under 
 proper instructions, to determine the question what the 
 contract was, as a question of fact, and that the court 
 should not have decided it." 
 
 § 188. And it would also seem, that in all cases where 
 the words are susceptible of more than one meaning, the 
 question is not in what sense the promisor intended to use 
 them, but in what sense the promisee received them. The 
 language having been selected by the promisor, and being 
 pertinent to either species of engagement, should be
 
 Alt. v.] Collateral Undertakings. 247 
 
 regarded as a tender of either to the promisee for his accept- 
 ance. A very striking illustration of its application in 
 this particular connection is furnished by the decision of 
 the King's Bench in Oldham v. Allen^ A. D. 1784, a case 
 mentioned by Bayley, B., in the course of his opinion in 
 Simpson v. Penton, 2 Crompton and Meeson, 430 ;((^) but 
 nowhere reported. "There," said Bayley, B., "the 
 defendant had sent for a farrier to attend some horses, 
 and said to the farrier 'I will see you paid.' The plaintiff 
 knew the parties who were owners of some of the horses, 
 and made them debtors ; but debited the defendant for 
 the others, whose owners he did not know; the court 
 held that the promise was original in respect of those 
 owners whose names he did not know, but in respect 
 of the others whom he did know, that it was collateral." 
 The same language was construed in this case to raise at 
 the same time two different contracts between the same 
 parties ; for no other reason than because it was pertinent 
 to both contracts, and the circumstances of the case showed 
 that the promisee, by the mere operation of his own mind, 
 divided the subjects of the promise into two classes, as 
 he had a right to do by the terms of the promise, (e) 
 
 (d) Ante, § 160. 
 
 (e) We append abstracts of two cases illustrating the principles discussed 
 in the text, although no question arose in either, growing out of the statute of 
 frauds. Sproat v. Matthews, 1 Term Reports, 182, A. D. 1786. This was 
 an action by an indorsee of a bill of exchange against the acceptor, and the 
 question was whether there had been a valid acceptance. The proof was, 
 that on the 24th of September, the plaintiff's clerk presented the bill for 
 acceptance, and the defendant replied that the drawer had consigned a ship 
 and cargo to him at London and to another person at Bristol; but as he could 
 not tell whether the ship would arrive at London or Bristol, ''he could not 
 accept at that time; " upon which the clerk left the bill, with the understand- 
 ing, assented to by the defendant, that if the defendant did not accept it from 
 the day when it was presented, he should be at liberty to note it for non- 
 acceptance as from. that time. On the 8th of October, the clerk called again 
 with the plaintifiF; and the defendant replied, that "the bill was a good one 
 and that it would be paid, even if the ship were lost."' The clerk thereupon 
 took the bill to a notary, and had it noted for non-acceptance, as of the 
 24th of September. Afterwards the ship arrived at London, and the defend-
 
 248 Collateral Undertakings. [Ch. vi. 
 
 ARTICLE VI. 
 
 Materiality of entries in the promisee's looks, and of other acts to which the promisor was not 
 
 a party. 
 
 § 189. One question of frequent occurrence, and which 
 has given rise to some conflict of opinion, is whether the 
 promisee is entitled to introduce testimony of certain acts, 
 to which the promisor was not a party, tending to show 
 that he was regarded by the promisee as the sole debtor ; 
 
 ant received and disposed of the cargo. Buller, J., nonsuited the plaintiflf, 
 and a rule nisi for a new trial was discharged after argument. Willes, J., 
 thought that a new trial should be granted. He said that the defendant 
 accepted the bill upon two conditions, namely, that the ship should arrive at 
 London, or that she should be lost; in either case, (she being insured,) the 
 defendant could have indemnified himself out of the cargo, but not if she had 
 arrived at Bristol; and if there was a doubt whether it was a conditional or 
 absolute acceptance, or whether (if conditional) the plaintiff had precluded 
 himself by his subsequent conduct, the question should have been left to the 
 jury. Ashurst, J., thought the nonsuit was correct. He agreed with his 
 brother Willes, respecting the meaning of the conversations, as being a con- 
 ditional acceptance, which the plaintiff afterwards waived; and he said that 
 if the parties at first understood that the matter was left unconcluded, 
 "the plaintiff is absolutely bound by his subsequent act" in protesting the 
 bill, so there was nothing to leave to the jury. Buller, J., said that the court 
 was now called upon to determine a point of law ; which was decisive that 
 the question ought not to have been left to the jury. That the defendant's 
 counsel admitted the evidence to be true, but insisted that upon that evidence 
 the defendant was not Uable in point of law, so there was nothing for the 
 jury. If he had insisted that the witness was mistaken, that might have 
 been properly left to the jury. He then agreed with the other two as to 
 the meaning of the conversations, and added : " This, therefore, was a con- 
 ditional acceptance; and in these cases the holder may choose whether he 
 will be satisfied with it or not; but here the plaintiff has waived it by pro- 
 testing the bill for non-acceptance." Thruston v. Thornton, 55 Massachu- 
 setts (I Gushing), 89, A. D. 1848. The action was to recover for services as 
 a broker on the sale of real estate ; and at the trial the principal question 
 was, whether the defendant employed and promised to pay the plaintiff. 
 Upon that point, the evidence on the part -of the plaintiff related entirely 
 to a conversation between the parties; in which the defendant expressed a 
 wish to sell the property, and the plaintiff inquired whether he would pay a 
 commission for that purpose ; to which the defendant replied, that he would 
 pay a commission to any person, who could effect a sale upon his terms.
 
 Art. VI.] Collateral Uxdektakixgs. 249 
 
 as, for instance, that the promisor, and not the third 
 person, was debited with the goods, money, or other sub- 
 ject of the contract. It will be seen that much stress 
 has been laid upon the debit entries, in several of the 
 cases, which have been abstracted in the preceding pages. 
 And it is conceded, that wherever there is doubt to 
 whom the credit was given, the fact that the third person 
 was debited in the promisee's books, with the price of the 
 subject of the contract, raises a presumption that the 
 undertaking of the promisor to respond was collateral, 
 so strong that some satisfactory explanation must be 
 given, to prevent its becoming conclusive. But it has 
 been sometimes supposed that the contrary rule would 
 not apply, when the promisor was similarly debited. 
 
 § 190. Such a suggestion was made in Cutler v. Hinton^ 
 6 Randolph (Virginia), 509, which will be cited again 
 
 The defendant's evidence was apparently confined to the question of fact, 
 whether any such conversation took place. The judge instructed the jury, 
 that if they should be satisfied that the conversation took place, then, in 
 order to determine whether the defendant was liable in this action, it would 
 be necessary for them to understand what constitutes a legal and binding 
 contract. And for that purpose he delivered to them a short disquisition upon 
 the legal definition of a contract; and added comments appropriate to the 
 evidence, the substance of which was, that when the parties are face to face, 
 one must then make an offer, and the other must then accept it; unless it 
 is expressly agreed, that the one to whom the offer was made, shall have 
 time to consider it. In view of these instructions, they were directed to 
 inquire whether "the minds of the parties met, and they made a legal and 
 binding contract; or whether the transaction was, as contended by the 
 defendant, a loose conversation not understood or intended by them as 
 an agreement." The jury having found a verdict for the defendant, the 
 plaintiff moved for a new trial on exceptions, contending that there was no 
 necessity for a formal acceptance of the defendant's offer; and that if the 
 plaintiff acted in consequence of the defendant's offer, he was entitled to 
 recover. But the exceptions were overruled, the coart sa5'ing, " It was for 
 the jury to decide what was the meaning and intention of the parties. The 
 conversation was loose and indefinite, and the jury, we think, might well 
 find as they did, that no contract was in fact made. But however this maj' 
 be, it was a question of fact for the jury, and we think they were in no 
 respect misdirected." 
 32
 
 260 Collateral Undertakings. [Cli. vi. 
 
 in tlie next chapter, (a) where Carr, J., delivering the 
 opinion of the court, after referring to the fact that the 
 goods were originally charged to the defendant, and not 
 to the third person, added: "It seems to me that such 
 entries, made in the books of merchants, are better evi- 
 dence against than for them. Where they charge the 
 goods to the person to whom they are furnished, it is 
 strong to show that they consider themselves dealing with 
 him ; and, like the admissions of a party, may be safely 
 taken against them ; but it would be of dangerous tend- 
 ency to say, that by an entry made by themselves in their 
 own books, they could change the complexion of their 
 case, and make that an original, which would otherwise 
 have been a collateral promise." In that case, however, 
 the promise was held by the court to^ be collateral by its 
 terms ; and nothing could be more proper, than a ruling 
 that the other party could not, by any act of his own, 
 change it into an original promise. 
 
 § 191. Precisely the same observation applies to the 
 remarks of the court in another case, which has also been 
 cited as authority, against the admission of evidence that 
 the goods were originally charged to the promisor ; that of 
 Kinlocli V. Brown, 1 Richardson (South Carolina), 223. (&) 
 There, also, the promise was held to be collateral by its 
 terms ; and after saying that the onl}^ evidence given, was 
 that the defendant had promised to guaranty the payment 
 of a debt contracted by one H., the court added : "This, 
 however, it is said, is not the sense in which the plaintiffs 
 understood it, and in support of it, their entries are 
 appealed to ; but, it must be remembered, that the entries 
 are evidence of nothing, save the fact of the delivery of 
 the specified articles and their prices. On whose credit, 
 where the person's liability is in question, they were 
 delivered, must appear aliunde. The testimony of H, is, 
 that he explained to Mr. Kinloch that the defendant was 
 
 (a) Section 203. 
 
 (b) Cited also in chapter vii; see § 199.
 
 Art. VI.] Collateral Undertakings. 261 
 
 to be security, and see him paid. This is enough for that 
 view of the case ; but if Brown' s promise was only collat- 
 eral, and the plaintiffs thought proper to consider it as 
 original, that will not help them. The defendant's liabil- 
 ity is to be tested by his undertaking. This is stated 
 again and again by H. to be that 'if he (H.) did not pay 
 the amount to the plaintffs, Brown would have it to pay.' " 
 
 § 192. These cases therefore prove nothing, except that 
 where a promise is collateral by its terms, the promisee 
 cannot change it into an original promise, by proof that 
 he received it as original ; a proposition which admits of 
 no question ; and, in truth, it is fairly deducible from the 
 remarks of the court in Kinloch v. Broion, that the 
 plaintiff's entries would be competent evidence of his 
 understanding of the transaction, whenever that was 
 material to the issue. But there is another criticism to 
 be made upon the remarks quoted from the South Caro- 
 lina case, which is, to some extent, applicable also to the 
 Virginia case. In the former case certainly, and probably 
 also in the latter, they apply, not to a general and common- 
 law rule of evidence, but to a local rule, established by 
 statute and custom in several states, including South 
 Carolina and Virginia ; whereby a plaintiff is allowed to 
 give in evidence entries in his books, accompanied by his 
 suppletory oath, to prove the items of an account upon 
 which an action is brought, (c) 
 
 (c) Mr. Browne, in his Treatise on the Statute of Frauds, § 198, says, that 
 "though the debiting of the third party on the plaintiff's books, or the pre- 
 sentation of the account to him, is evidence against the plaintiff, to phow that 
 he gave credit to the third party, so as to render a writing necessary to hold 
 the defendant; his debiting of, or presenting the account to the defendant, 
 is not evidence /or him to show that he trusted the defendant only, while, in 
 fact, the poods were delivered, or the services rendered to the tliird party." 
 The authorities cited are Cutler v. Hinton, and Kiuloch v. Brown, which are 
 criticised in the text; and also Noyes v. Humphreys, 11 Grattan (Virginia), 
 G36; Walker v. Richards, 41 New Hampshire, 388; and Scuddcr v. Wade, 1 
 Southard (New Jersey), 249. Of the last three cases, Noyes v. Himiphreys 
 and Walker v. Richards, are on the first branch of the proposition (tlie latter
 
 252 Collateral Undertakings. [Ch. vi. 
 
 § 193. We have already given our reasons for the opin- 
 ion, that in all cases where the words used are such, as to 
 
 is abstracted, ante, § 177) ; and with respect to the second branch, we think 
 that Scudderv. Wade holds the other way; for in both the opinions dehvered 
 in the case, the charges in the plaintiffs books against the defendant, were 
 regarded as proper evidence in his favor, that the credit was given to the 
 defendant, and not to the third person. It is true that the reporter appends 
 a note, saying that the judgment was ultimately reversed by the Court of 
 Appeals, but he was not able to ascertain on what ground the reversal pro- 
 ceeded ; it could not have been on account of the admission of the books, 
 as the report states that they were admitted without objection. In Keith v. 
 Kibbe, 64 Massachusetts (10 Gushing), 35, the plaintiffs sued for the value 
 of timber used in a dwelling-house, which was in the course of erection for 
 the defendant; and the defendant admitted the delivery, (to whom the report 
 does not state, probably only on the premises,) but contended that it was 
 sold to one Rollins, the contractor for the erection of the dwelling. The 
 plaintiffs were allowed to prove by their clerk, entries in their books, made 
 by him, charging the timber to the defendant; notwithstanding the lattcr's 
 objection that it was " incompetent evidence of the fact to whom credit was 
 originally given ; " and the plaintiffs having had a verdict, the judgment was 
 reversed, on an exception taken to the admission of the evidence. The court 
 said that it was a mere question as to the party, who was the debtor to 
 the plaintiffs for the articles; and that in the case upon which the plaintiffs 
 relied. Ball v. Gates, 53 Massachusetts (12 Metcalf), 491, there was other 
 evidence rehed upon to charge the defendant as debtor; and the book was 
 •ffered to show merely the items delivered. The case, it will be seen, turned 
 entirely upon the competency of entries of that character, under local usage 
 or special statute relating to that kind of evidence; no question having arisen 
 under the statute of frauds, doubtless, because no express promise was made 
 either by the defendant or by Rollins, it being conceded that if one was 
 liable, the other was not. It appears to the writer, that this and the numer- 
 ous kindred cases relating to the general competency of entries of that 
 character, witn or witnout the plaintiff's suppletory oath, have no appli- 
 cation to the question which we are now considering; for the reason that in 
 those cases the issue is, whether the defendant did make the promise, while 
 in cases under the statute the issue is, in what manner did the plaintiff accept 
 it. But the reader who wishes to examine the decisions referred to, will 
 find them collected, and very ably commented upon, in Messrs. Wallace's note 
 to Price v. The Earl of Torrington, 1 Smith's Leading Cases, 390, page 515 and 
 onward of the sixth American edition ; where, with other interesting matter, 
 it is shown that legal lexicography is sufficiently elastic to include, among the 
 definitions of the word book, a shingle, a notched stick, a bit of paper two 
 inahes square, and a closet door.
 
 Art. VI.] Collateral Undertakings. 263 
 
 be consistent with either an original or a collateral engage- 
 ment, the question of fact is simply in what sense the prom- 
 isee accepted them ; and that the determination of this issue 
 necessarily involves an inquiry into the operation of his 
 mind.(<rZ) If this opinion is correct, it is difficult to see 
 upon what ground his act, of so unequivocal a character 
 as a cotemporaneous entry in his books to the debit of the 
 promisor, can be excluded as part of the res gesta. With 
 respect to the presentation of a bill to the promisor, or 
 other similar act occurring after the completion of the 
 transaction, there may be more room for doubt whether 
 the evidence is admissible. Standing alone, it would per- 
 haps be incompetent ; but cases may readily be suggested, 
 where it would be so connected with the other facts of the 
 case, as to requii-e the application of the principle u pon 
 which cotemporaneous entries should be admissible. Evi- 
 dence of this kind, on the part of the promisee, or his 
 representative, has been received and regarded as material 
 in some of the cases cited in the preceding pages ; (e) 
 although in Darnell v. Tratt, and Hams v. Storry,{f) 
 it appears to have been produced, merely for the purpose 
 of laying the foundation, for proof of an admission of 
 liability by the defendant. 
 
 (d) See ante, §§ 148, 149. 
 
 ( e) See ante, §§ 158, 159, IGO, 168, 169; and see also Booker v. Tally, 2 
 Humphreys, 308; McCaffil v. Radcliff, 3 Robertson, 445; Scudder v. Wade, 
 1 Southard, 249 ; and Hodges v. Hall, 29 Vermont, 209. 
 
 (/) §§ 158, 159.
 
 CHAPTER SEVENTH. 
 
 THE SAME SUBJECT CONTINUED. — APPLICATION OF THE 
 THIKD EULE TO CASES, WHERE THE PROMISE IN TERMS 
 CONTEMPLATED A RESORT BY THE PROMISEE TO THE 
 THIRD PERSON. 
 
 § 194. It will be apparent, from what has gone before, 
 that the question to whom credit was given will rarely arise, 
 except when the words used by the promisor, imported a 
 direct and absolute engagement to respond for the consid- 
 eration. For the theory that the third person was, in the 
 eye of the law, merely the conduit through which the con- 
 sideration passed from the promisee to the promisor, is 
 generally inconsistent with the making or acceptance of a 
 promise, in terms conditional upon his default in paying 
 the price. StUl this rule admits of some exceptions ; 
 which, together with the principles by which the absolute 
 or conditional character of the promise is determined, will 
 be considered in this chapter. 
 
 AETICLE I. 
 
 Where the promisor's liability was expressly made conditional upon non-payment by the third 
 
 person. 
 
 (1 ) Where the promise was to pay if the third person did not. 
 
 § 195. All the cases agree, that where the third person was 
 a party to the transaction, and the promisor requested the 
 promisee to let him have the property, or other considera- 
 tion of the promise, and added, "I will pay, if he does 
 not," or words to that effect, the promise is within the 
 statute, as matter of law. It was so held in Birkmyr v. 
 Darnell^ and again in Jones v. Cooper, explained and 
 affirmed, in that particular, by Peclcham v. Faria ;{a) and 
 
 (a) Ante, §§ 143, 144, 145.
 
 Art. I.] Collateral Undertakings. 266 
 
 these cases have so settled the rule, that but few others are 
 found, where the point has been presented for adjudica- 
 tion ; althougli those words are frequently referred to in 
 text books and judicial opinions, as affording a perfect 
 example of a conditional promise. One of the more 
 recent cases, where they were indirectly in question, is 
 Conolly V. KettleioeU, 1 Gill (Maryland), 260, A. D. 1843. 
 There the action was to recover for goods delivered to one 
 Sterling. After the goods were selected, and debited to 
 Sterling in the day-book, the plaintiffs refused to deliver 
 them till the defendant promised to pay for them, if Ster- 
 ling did not ; when they were delivered, and a memoran- 
 dum added to the debit charge, that it was "secured" by 
 the defendant. The plaintiff having had a verdict and 
 judgment, it was held on appeal, that the promise was 
 collateral as matter of law ; and the judgment was 
 reversed in the Court of Appeals. And a like ruling was 
 made in Steele v. Towle, 28 Vermont, 771, A. D. 1856, 
 respecting the words, "he is good ; if not. I am," spoken 
 by the defendant while negotiating, in behalf of a third 
 person, with the plaintiff. (&) 
 
 § 196. But while a promise, framed in these or equivalent 
 words, imports in law a conditional undertaking, the pre- 
 sumption may be overcome by the circumstances of the 
 case. It is believed, however, that these must be of such 
 a character as to show that the third person was not a 
 party to the contract. This subject will be more fully 
 considered, together with some other descriptions of con- 
 ditional contracts, which are nevertheless regarded as 
 original, in a subsequent portion of this chapter. 
 
 (2 ) Where the promise ivas to see the promisee paid, or words to that effect. 
 
 § 197. The form of conditional promise which occurs in 
 the cases, more frequently than any other, is where the 
 promisor requests the promisee to deliver to the third per- 
 
 (h) See also Blank v. Dreher, 25 Illinois, 331 ; Stone v. Walker, 79 Mas- 
 sachusetts (13 Gray), 613 ; Dufolt v. Gorman, 1 Minnesota, 301 ; Skinner v. 
 Conant, 2 Vermont, 453 ; Sinclair v. Richardson, 12 Vermont, 33.
 
 256 COLLATEEAL UNDERTAKINGS. [Ch. VII. 
 
 son the subject of the contract, and adds, "I will see yon 
 paid," or " I will see the bill paid," or similar words. 
 The course of decisions respecting this form of expression 
 has been very singular, for in the earliest case of all, Wat- 
 Tcins V. Perkins, {c) A. D. 1697, Holt, C. J., puts this pre- 
 cise formula as the best illustration of a promise collateral 
 as matter of law, whereas in the next case, Birlcmyr v. 
 Darnell,{d) it is used as containing the words in which an 
 original promise can be most fitly couched. Lord Mans- 
 field also regarded the expression as indicating an original 
 promise, as appears from his ruling in the next succeed- 
 ing case, Mawhrey v. Cunningham, as explained in Jones 
 Y. Cooper, {e) Again, in Tliomjpson v. Bond,{f) Lord 
 Ellenborough, coinciding with Holt, said that such a 
 promise is collateral as matter of law. In several other 
 cases, English and American, among them Keate v. Tem- 
 ple and Matson v. Wharam,{g) the same expression, 
 either alone, or in connection with others, has been 
 treated sometimes as importing an original, and some- 
 times a collateral engagement, according to the other cir- 
 cumstances in evidence ; without adverting to the ques- 
 tion, in which capacity the words prima facie import 
 that the engagement was made. But in modern times, 
 especially in the United States, the rule seems to be well 
 established that these words, or their equivalents, imply 
 a collateral promise as matter of law ; and in the absence 
 of proof of a contrary intent, they will not suffice to 
 maintain an action. Thus in Thwaits v. Curl, 6 B. Mon- 
 roe (Kentucky), 472, A. D. 1846, a case, however, which 
 involved the validity of a verbal promise to pay another' s 
 precedent debt, Ewing, C. J., delivering the opinion of the 
 court, said, " The language that she would see him paid, 
 shows that the promise was a collateral undertaking to 
 answer for or see paid the debt of another ; not an inde- 
 pendent promise. To see paid imports an undertaking or 
 
 (c) Antr § 142. {d) Ante, § 143. (e) Ante, § 144. 
 
 (/) Ante, § 157. {g) Ante, §§ 155, 14G.
 
 Art. I.] Collateral Undertakings. 267 
 
 guaranty for another's debt." So in Elders. Warfield, 
 7 Harris and Johnson (Maryland), 391, A. D. 1826, 
 Buchanan, C. J., remarked that this expression imports 
 a Collateral promise. 
 
 § 198. The rule that these words imply prima facie a col- 
 lateral undertaking, was embodied in the decision of Crop- 
 per V. Pittman, 13 Maryland, 190, A. D. 1858. There the ac- 
 tion was to recover for goods furnished to John S. Cropper, 
 the brother of the defendant and appellant ; and the proof 
 at the trial was, that the defendant introduced his brother to 
 the plaintiff' s salesman, as a person who wished to pur- 
 chase a bill of goods, and said "that he" (the defendant) 
 " would see the bill paid." After this conversation, John 
 S. Cropper selected some goods ; but before they were 
 delivered, the salesman called again upon the defendant, 
 and asked if he would accept a draft for the amount, which 
 the defendant declined to do ; but he said that he would see 
 the bill paid, as he expected some consignments from his 
 brother "and he would appropriate the amount to pay 
 the bill ; he said he would see the bill paid, if John S. 
 Cropper purchased the goods of the plaintiff." The goods 
 were thereupon delivered, and the report says that ' ' at 
 subsequent periods the defendant gave witness orders for 
 goods for his brother John S. Cropper ; that the goods 
 were all charged upon the plaintiff's books to John S. 
 Cropper." The judge instructed the jury, that if the 
 goods were sold on the credit of the defendant, the plaint- 
 iff was entitled to recover ; and he refused to instruct them, 
 as requested by the defendant, that if the agreement was 
 to pay a debt contracted by John S. Cropper, if he did 
 not, the plaintiff was not entitled to recover. The plaintiff 
 had a verdict, and the judgment thereon was reversed by 
 the Court of Appeals, Tuck, J., delivering the opinion. 
 He said that John S. Cropper was liable for the goods, 
 and the plaintiff considered him as a debtor for them, and 
 that sometimes there may be a question to whom tlie credit 
 was given, depending upon inferences to be drawn from 
 all the facts and circumstances, but when the evidence is 
 33
 
 258 Collateral Undertakings. [Ch. vii. 
 
 not legally sufficient to charge the defendant, tlie parties 
 should not be sent to a jury. The learned judge added, 
 that, in this case, there was no error in the refusal of the 
 defendant' s prayer, because it assumed that the debt was 
 contracted by John S. Cropper ; when the question was, 
 whether it was the defendant's original debt. But he 
 thought that the instruction actually given was erroneous, 
 for certain reasons assigned by him, and chiefly, because 
 it was left to the jury to decide, whether the goods were 
 sold upon the credit of the defendant, when the evidence 
 was not legally sufficient to warrant such a finding. He 
 proceeded: "We do not say that in every case, where 
 the words ' I will see the bill paid ' are used, they neces- 
 sarily import a collateral undertaking, and that in no 
 such case could the plaintiff recover ; but that when they 
 stand alone, as here, they must be so interpreted. If 
 accompanied by other words or facts, sufficient to authorize 
 a jury to find from all the evidence, that credit was given to 
 the party using them, a different result might follow." 
 
 § 199. So in Kinloch v. Brown, 1 Richardson (South 
 Carolina), 223, A. D. 1845, the defendant had authorized 
 one Hieronymus, " to go to the plaintiffs to purchase hay 
 and corn," or, as the witness at another time expressed 
 himself, had "proffered his services as security;" and H. 
 had purchased the hay and corn accordingly, saying 
 to one of the plaintiffs at the time, that the defendant 
 "was to be security, and would see him paid." It 
 appeared that the plaintiffs charged the goods to the 
 defendant, and that the defendant knew that H.'s credit 
 with the plaintiffs had been stopped. Nevertheless the 
 plaintiffs were nonsuited, and on appeal the judgment 
 was affirmed, the Court of Appeals holding that the con- 
 tract, as entered into between the plaintiffs and H. as the 
 defendant' s agent, was conditional by its terms, the mean- 
 ing of the words used by H. being in substance, that the 
 defendant would pay if H. did not. {li) 
 
 {h) An extract, from the opinion in this' case will be found in § 191, ante. 
 It is to be remarked, however, that here the Word "security" was used,
 
 Art. I.] Collateral Undertakings. 259 
 
 § 200. Tlie promise proved in the following case has pre- 
 cisely the same meaning, with respect to the performance of 
 some act other than the payment of money, as an undertak- 
 ing to see the promisee paid, where the payment of money is 
 
 BO that the case is not as direct an authority as Cropper v. Pittman, for hold- 
 ing that a promise to see the promisee paid is necessarily collateral. Of the 
 efiect of the word "security," or its equivalent, "guaranty," it may be said 
 that the use of either will generally be sufficient of itself to stamp the con- 
 tract as collateral. Everett v. Morrison, Breese (Illinois), 49. See also, 
 Allen V. ScarfiF, 1 Hilton (N. Y.), 209; Bronson v. Stroud, 2 McMullan 
 (South Carolina), 372, post § 211. See also, Conolly v. Kettlewell, 1 Gill. 
 260, ante § 195; as to the effect of the entry " secured by " in the books of 
 the promisee, as descriptive of the contract of the promissor. It was 
 held in Norris v. Spencer, 18 Maine, 324, that the word " security " was 
 not necessarily equivalent to " guaranty," but, on the contrary, was 
 equivalent to "surety," unless a contrary intent appeared; so that a joint 
 action could be mairftained, where a contract in writing had been 
 executed by one of the defendants, whereby he undertook as "security' 
 for the fulfilment by the other of another contract, signed by the 
 latter, and. written on the same paper. This decision was made upon the 
 authority of Hunt v. Adams, 5 Massachusetts, 358, where it Avas held, 
 that an instrument signed by the defendant alone, and appended to another 
 person's non-negotiable note, whereby the defendant undertook as surety for 
 the payment of the note, was not a promise to answer for the debt of another, 
 within the statute of frauds, because both were joint and several promisors. 
 But a different rule was laid down in Gould v. Moring, 28 Barbour, 444, 
 decided by the New York Supreme Court in 1858. There the instrument, 
 upon which the action was brought, consisted of a short tenant's agreement, 
 of the form in common use, executed by one Heilberth to one Andrews, the 
 plaintiff's assignor, whereby Heilberth certified that he had leased from 
 Andrews a certain office at a specified rent, payable as therein mentioned, 
 and under the signature of Heilberth to that paper, the defendant had Avrit- 
 ten "security, H. E. Moring." The plaintiff recovered at the trial, but the 
 judgment was reversed upon appeal, and a new trial ordered, Davies J. say- 
 ing: "In this case, the defendant undertakes, as security for the tenant, that 
 is, that he will pay if the tenant does not. A joint action will not lie against 
 them both; they are not the same, but different contracts." Hence, as the 
 defendant's contract, comprised as it was in the single word "security," did 
 not express the consideration, as the New York statute then required, it was 
 held to be void. But when no person is bound except the promi.sor, the 
 words "secure" and " security " will be regarded as equivalent to "pay" 
 and " payment." Thus in Adams v. Hill, 15 Maine, 215, A. D. 1839, where the 
 action was on a written contract made by the defendants, agreeing to
 
 260 COLLATEEAL UnDEETAKINGS. [Ch. VII. 
 
 in question. In Billing sley v. Dempewolf, 11 Indiana, 
 414, A. D. 1858, it appeared in evidence that one Allen, 
 wishing to procure the loan of a horse from the plaintiff, 
 so informed the defendant in the presence of the plaintiff, 
 and added, "that the plaintiff wanted security for the 
 return of the horse." The defendant answered, "Any 
 agreement you and Billingsley make about the horse, 
 I will make good." The plaintiff thereupon delivered 
 the horse to Allen, to be returned in about three weeks. 
 The cause was tried by the court without a jury, and 
 judgment was given for the defendant. Upon appeal 
 the Supreme Court affirmed the judgment ; holding, 
 that although there was no conflicting evidence, the 
 question was one of fact to whom credit was given; 
 and the decision did not appear to be so flagrantly 
 wrong that it should be reversed upon the facts. The 
 opinion concluded, however, as follows : "And we think, 
 also, that the proper construction of the terms of the 
 promise is, that it was but a collateral undertaking." 
 This is manifestly the ground upon which the decision 
 should have been exclusively placed : it being impossi- 
 
 " secure " to the plaintiflf payment for certain work, to be done under 
 another contract therein referred to; which, however, had not been executed 
 so as to bind the parties thereto, it was held that the promise was original, 
 the court saying, " The terms used are a direct promise to pay, for such is the 
 effect of an agreement to secure payments which no other party was bound to 
 make." And it sometimes happens that although words unequivocally descrip- 
 tive of a collateral contract were used during the negotiations, the contract 
 itself was consummated by words importing an absolute engagement. Thus 
 in Pennell v. Pentz, 4 E D. Smith, 639, ante § 170, the plaintiff in terms applied 
 to the third person for a " guaranty for payment;" and the promisor, on being 
 applied to, declined to " guaranty to pay " unless the third person assigned to 
 him the paving contract, to fulfil which the goods were wanted; thus clearly 
 showing that the parties contemplated, in the early stages of their negotiation, 
 a mere collateral engagement. But nevertheless the promise was held to be 
 absolute, because, on the completion of the transaction by the assignment of 
 the contract, the promisor said, " I will pay, as no other person can draw the 
 money," which expression clearly showed that he agreed to provide for 
 the payment, without any resort to the third person.
 
 Art. II.] Collateral Undertakings. 261 
 
 ble to infer an original undertaking from tlie defendant' b 
 language. (^■) 
 
 ARTICLE XL 
 
 Where the promise ia collateral, beoanse its language implied that the third person was also to 
 
 become liable. 
 
 (1 ) Miscellaneous cases, depending upon the use of particular words. 
 
 § 201. There are a very few cases, turning in part upon 
 the etymological construction of the words used by the 
 promisor, in describing the arrangement contemplated 
 between the promisee and the third person ; which, it is 
 held, render the promise collateral as matter of law, 
 because they necessarily imply, that the person benefited 
 by the transaction was to assume a liability for the debt. 
 In each of those which we have at hand, there was also 
 some expression used relating to the promisor's own 
 engagement, which had its weight in determining the con- 
 struction put upon the promise ; but as the court dis- 
 tinctly held that the construction of the words, relating to 
 the third person' s engagement, was such as to render the 
 promise necessarily collateral, the cases seem to form a 
 separate class, turning upon that distinction. 
 
 § 202. Thus in Skinner v. Conant, 2 Vermont, 453, A. 
 D. 1830, it appeared that one Andrus was working the 
 
 (i) Cases where a contract had been previously entered into between the 
 promisee and the third person, for the performance of services, the furnish-, 
 ing of chattels or the like, by the promisee, in some matter wherein the 
 promisor was interested, for a price to be paid by the third person ; and 
 the promisee, being unwilling to fulfil his contract with the third person, 
 was induced to proceed by the promisor's verbal undertaking to respond ; 
 depend upon a principle so closely allied to the first rule, that they are fre- 
 quently regarded as belonging to the class now under consideration. In 
 those cases the promise is not within the statute, if the promisee entirely 
 abandoned his contract with the third person ; and the inquiry whether he 
 did so, raises generally many of the same incidental questions, respecting 
 the person to whom credit was given, the terms of the promise, &c., which 
 are presented in this class of cases. Several of those cases will be found to 
 involve the very question just examined; the reader is therefore referred to 
 the third article of the ninth chapter, where they are collected.
 
 262 Collateral Undertakings. [Ch. vii. 
 
 distillery of Skinner and Bulkely, the defendants in the 
 court below, and plaintiffs in error in the Supreme Court, 
 who "agreed, that in case Andrus would hire Conant" 
 (the plaintiff in the court below) ' ' to work in said dis- 
 tillery, they would see him paid ; ' ' that this agreement 
 was verbal ; that Andrus did hire him, and that he 
 worked the number of days charged ; and this action was 
 brought to recover for his labor. The plaintiff had judg- 
 ment in the court below, and upon error the Supreme 
 Court reversed the judgment, Hutchinson, J., saying: 
 "The agreement reported is to see Conant paid, if Andrus 
 hired him, adding that Andrus did hire him. We can 
 make nothing of this but a collateral agreement." "The 
 allegation that Andrus hired Conant, imports that it 
 was primarily Andrus' s business to run the still of Skin- 
 ner and Bulkely, in such a sense that he was debtor to 
 Conant ; and the contract of Skinner and Bulkely, that 
 they would see him paid, means that they would pay him 
 if Andrus did not." 
 
 § 203. And in Cutler v. Hinton, 6 Randolph (Virginia), 
 509, A. D. 1828, the question arose upon a bill in equity, 
 whether a promise made by Cutler, to pay for goods fur- 
 nished by Hinton to one Love, was original or collateral. 
 In commenting upon the testimony, while delivering the 
 opinion of the court, to the effect that the promise was 
 collateral, Carr, J., stated that the principal witness to the 
 .contract had given three versions of the language which 
 was used, to wit : "that Cutler desired him to say to any 
 other merchants that he would pay for any goods sold to 
 Love;" that Cutler requested him to inform any persons 
 "of whom Love might purchase goods, that he would 
 pay for Love $4,000," and the same respecting any per- 
 sons "of whom Love might Avish to purchase goods." 
 The learned judge added: "Now, take either of these 
 forms, and it seems to me that this is a collateral under- 
 taking. He promises to pay for Love to any person that 
 Love might purchase or wish to purchase goods of. 
 Love then was to purchase the goods, which of course
 
 Art. II.] Collateral Undertakings. 263 
 
 would render liim liable for them, and Cutler was to pay 
 the money for Love, not for himself. Unless I have con- 
 founded things strangely, this is clearly collateral. "(a) 
 
 § 204. The same word "purchase" was used in the prom- 
 ise construed to be collateral in Cropper v. Pittman, 13 
 Maryland, 190,(5) although the court seems to have con- 
 fined its observations upon the words used, to the promise 
 to see the plaintiffs paid. 
 
 § 205. In WalJcer v. Richards, 41 New Hampshire, 388, 
 A. D., 1860, (c) it was also held that the corresponding 
 word "sold," used in the description of the transaction 
 between the promisee and the third person, imported that 
 the latter had become liable to the former, and that 
 the promise was consequently collateral. The plaintiff in 
 that case was allowed to recover, only upon the common 
 counts alleging a sale and delivery to the defendant ; he 
 having proved an original verbal promise to pay for goods 
 delivered to the others. But the court held that the special 
 counts called imperatively for a writing. 
 
 (2 ) Where the promise was to become a party to a note or bill of exchange to 
 be made by the third person. 
 
 § 206. The question under what circumstances a verbal 
 promise to accept a bill of exchange is valid, belongs 
 more properly to mercantile law. We have already seen 
 that the liabilities, which the common law leaves to be 
 regulated by that system, constitute a class of exceptions 
 to the provisions of the statute of frauds ;(<^) and it is 
 settled, independently of the statute, that a valid prom- 
 ise to accept is equivalent to an acceptance, and may 
 be so treated, even in declaring, (e) While it is clear 
 that a verbal acceptance of an existing bill is valid by 
 
 (a) See another extract from this opinion, ante, § 190. 
 
 (b) Ante, § 198. 
 
 (c) See the case fully abstracted, ante, § 177. 
 
 (d) Ante, chapter third. 
 
 (e) Ontario Bank v. Worthington, 12 Wendell (New York), 593.
 
 264 Collateral Undertakings. [Ch. vii. 
 
 the law mercliant, there has been considerable doubt to 
 what extent a verbal promise to accept a bill is binding. 
 The case- of Pillans v. Van Mierop, 3 Burrow, 1663, A. D. 
 1765, seems to have been generally regarded as authority 
 for the proposition, that a verbal promise to accept a bill 
 of exchange, thereafter to be drawn, is always equivalent 
 to an acceptance ; but, if this was the meaning of the 
 decision, other cases, following soon afterwards, shook its 
 authority ;(/) and even before the Mercantile Law Amend- 
 ment Act of 1856 (19 and 20 Victoria, chapter 97), the rule 
 seems to have been settled in England, that a promise to 
 accept a non-existing bill, although in writing, would not 
 amount to an acceptance, even in favor of one who had 
 discounted the bill on the faith of the promise, (p') In 
 the United States, the weight of authority, in the absence 
 of any statutory provision, is in favor of holding a prom- 
 ise to accept a bill, thereafter to be drawn, valid as an 
 acceptancej only in the hands of a person who has taken 
 it for value on the faith of the promise. (^) But in cases 
 where the mercantile law applies, these questions are now 
 regulated by special statute in England, and in most, and 
 probably all of the United States. In other cases, the 
 validity of a verbal promise to accept a draft or order, is 
 generally governed by the rules applicable to other verbal 
 promises. But sometimes it is evidence of a fund in the 
 hands of the promisor with which to pay the debt ; and 
 then questions are presented which will be treated at 
 length in a subsequent portion of this volume. 
 
 § 207. The point, whether a verbal promise to accept a 
 bill to be thereafter drawn in payment of the debt of a. 
 
 (/) Pierson v. Dunlop, 2 Covvper, 571, A. D. 1777; Mason v. Hunt, 1 
 Douglas, 297, A. D. 1779; Johnson v. Collings, 1 East, 98, A. D. 1800; 
 Clarke v. Cock, 4 East, 57, A. D. 1803. 
 
 ig) Bank of Ireland v. Archer, 11 Meeson and Welsby, 383, A. D. 1843. 
 
 (/i) McEvers v. Mason, 10 Johnson (New York), 207; Goodrich v. Gor- 
 don, 15 Johnson, 6; Coolidge v. Payson, 2 "Wheaton (United States), 66; 
 and see 1 Parsons on Notes and Bills, pp. 292-294, and numerous authori- 
 ties collected in the notes.
 
 Art. II.] COLLATEKAL UNDERTAKINGS. 265 
 
 third person, is within the statute of frauds, was decided 
 in a recent American case, Wakefield v. Greenliood, 29 
 California, 597, A. D. 1866. There the action was brought 
 by a teamster, against a forwarding and commission mer- 
 chant at Sacramento, who had employed the plaintiff to 
 transport certain goods of one Bar, from Sacramento to 
 Austin, upon a verbal promise to pay any order or draft 
 which Bar might draw on the defendant for the transpor- 
 tation of the goods. The complaint, after setting forth 
 the contract, and its fulfilment by the plaintiff, stated that 
 the plaintiflf and Bar had an accounting for the transpor- 
 tation, upon which there was found to be due from Bar to 
 the plaintiff one thousand dollars ; and that Bar made a 
 draft for that sum upon the defendant, which the plaintiflf 
 accepted in payment of the amount so due to him from 
 Bar ; but the defendant refused to pay it, etc. Upon this 
 complaint, and the evidence in the cause, the Supreme 
 Court reversed a judgment for the plaintiff. In the 
 opinion it is said, that if by the agreement, the defendant 
 had assumed a direct liability for the cost of the trans- 
 portation, leaving the amount to be agreed upon between 
 the plaintiff and Bar, and to be evidenced by Bar' s draft 
 upon the defendant, the promise would have been clear 
 of the statute ; but that such is not the case made by 
 the pleadings or by the evidence. On the contraiy, the 
 complaint expressly states that Bar became indebted to 
 the plaintiff, and the draft was given to pay that debt; 
 which is entirely inconsistent wdth the idea that the service 
 was performed at the request of the defendant, and upon 
 his direct promise to pay ; and further, that the promise 
 was not to pay for the transportation, but to pay any draft 
 which Bar might make therefor on account of his indebt- 
 edness to the plaintiff; the allegations of the complaint 
 being further borne out by the evidence, which shows that 
 the draft was to be paid by the defendant on account of 
 Bar.(/) 
 
 (t) See Taylor v. Hilary, in note to § 210.
 
 266 Collateral Undertakings. [Ch. vii. 
 
 § 208. A few cases are appended in the note, where a 
 verbal promise to accept a third person' s draft or order 
 was held to be void, the circumstances not being such as to 
 sustain the premise as an acceptance within the mercan- 
 tile law, or the special statutes relating to that subject. (^ 
 
 § 209. The question whether the statute applies to a 
 verbal promise to indorse the bill or note of the third 
 person, or to join with him in the execution of a promis- 
 sory note, where the consideration moves to him, although 
 not complicated by the same considerations which have 
 caused so much doubt in the case of a promise to accept 
 his bill, has been subjected to embarrassments of a differ- 
 ent kind, growing out of some English decisions, which 
 have already been comfnented upon at length, (/t) The 
 leading American case on this subject, is Carmlle v. 
 Crane^ 5 Hill, 483, decided in the New York Supreme 
 Court, A. D. 1843. There the declaration stated in sub- 
 stance, that in consideration that the plaintiff would sell 
 to the firm of G. B. & J. L. Crane, certain goods upon 
 credit at a specified price, the defendant promised the 
 plaintiff, without writing, that he would indorse the note 
 of G. B. & J. L. Crane at six months, for the price of the 
 goods ; and it also averred a delivery of the goods and a 
 refusal by the defendant to indorse such a note. The 
 defendant demurred to the declaration ; and after argu- 
 ment, judgment was given in his favor. Cowen, J., in 
 delivering the opinion of the court, said that this is not 
 analogous to a promise to accept a bill of exchange, 
 because the acceptor is the principal debtor, and the 
 drawer only a collateral undertaker, the acceptance being 
 an admission of funds in the hands of the acceptor ; and 
 the cases do not say that a verbal promise to accept a bill 
 
 ( j ) Wheatley v. Strobe, 12 California, 92 ; Luff v. Pope, 5 Hill (New York), 
 413; Loonie v. Hogan, 9 New York (5 Selden), 435; Ontario Bank v. Wor- 
 thington, 12 Wendell (New York), 593. 
 
 (Ic) Jarmain v. Algar, and Bushell v. Beavan, ante, §§ 113, 114.
 
 Art. II.] Collateral Undertakings. 267 
 
 for the accommodation of another is valicl.(Z) But the 
 indorser of a note is a collateral debtor, the maker being 
 the principal ; and if this were otherwise on the nature of 
 an indorsement, the statement in the declaration shows 
 that this was to be an accommodation indorsement for G. B. 
 & J. L. Crane. 
 
 §210. "In other words," he proceeded, "it was a 
 promise to become their surety for the debt. On fulfilling 
 the promise by making and paying such an indorsement, 
 the defendant might have recovered over against them as 
 for money paid to their use. Their assent to the defend- 
 ant' s promise is perhaps to be intended ; but whether so 
 or not, the defendant finally joining them in the note 
 implies their ultimate assent, that he would take the exact 
 position of their surety. To say then, that this is not in 
 effect a promise to answer their debt, would be a sacrifice 
 of substance to sound. It would be devising a formulary 
 by which, through the aid of a perjured witness, a creditor 
 might get round and defraud" (defeat) " the statute. He 
 may say, ' You did not promise to answer the debt due 
 to me from A ; but only to put yourself in such a position 
 that I could compel you to pay it.' Pray, where is the 
 difference, except in words ? According to such reason- 
 ing, unless you recite the words of the statute in your 
 undertaking, it will not reach the case. No legislative 
 provision would be worth any thing upon such a construc- 
 tion." The learned judge then commented upon several 
 of the cases cited by the counsel for the plaintiff, none of 
 which, he contended, maintains any principle which would 
 sustain this promise, except Busliell v. Beavan, which he 
 said is not law, and Jarmain v. Algar^ which is ques- 
 tioned. Judge Story' s remarks in D' WoI/y. Jiabaud,{m) 
 were also referred to, as to some extent sustaining the 
 plaintiff's position ; but it was said, that he admitted that 
 
 (I) But it was so said in Maggs v. Ames, 4 Bingham, 470, although that 
 case seems to have been overlooked in the discussions of the question, 
 (m) Ante, § 165.
 
 268 COLLATEKAL UnDEETAKINGS. [Ch. VII. 
 
 he was not following the construction of the statute, but 
 suggesting what would be a better construction if it were 
 res nova.(?i) 
 
 (n) This case seems to have been decided in ignorance of the judgment of 
 the Court of Exchequer, in a case presenting some points of close similarity; 
 but which although the reports are very confused, and in some respects 
 conflicting, we think can be reconciled with it, and also with Wakefield v. 
 Greenhood, 29 California, 597, ante, § 207. We refer to Taylor v. Hilary, 1 
 Crompton, Meeson and Roscoe, 741 ; 1 Gale, 22 ; 3 Bowling's Practice Cases, 
 461 ; and 5 Tyrwhitt, 373, A. D. 1835. The declaration (all the reports agree 
 that there was only one count) stated, in substance, that the defendant had 
 guarantied the payment to the plaintiff, of the price of such goods, not 
 exceeding 200?., as he should "allow one Henry Holt to have," and that the 
 olaintiff did deliver the goods to Holt, who had not paid for them, etc. The 
 defendant pleaded, that after the making of the promise, and before any 
 breach thereof, it was "agreed, by and between the plaintiff and the defend- 
 ant, that the plaintiff should supply to the said Henry Holt 200?. worth of 
 goods, as he should want them, and that such goods should be paid for at the 
 end of three months, by a joint bill at four months, accepted by the defend- 
 ant;" and that this agreement was accepted by the plaintiff, before any 
 breach of the former, in full discharge thereof To this plea the plaintiff 
 demurred specially, and the demurrer assigned for cause two grounds; one 
 of which was that there Avas no difference between the new agreement and 
 the old, except as to the time of credit given. Upon the argument, the 
 plaintiff's counsel objected to the plea, that it did not state that the new 
 ao-reement was in writing and signed, as required by the statute of frauds; 
 and he contended, that although in declaring it was not necessary to state 
 that an agreement within the statute was in writing, the rule was otherwise 
 in pleading such an agreement. But Parke, B., said: "The first agreement 
 was a guaranty; but according to the second agreement, the defendant 
 became absolutely bound as an original debtor. In order to bring the case 
 within the authority cited, it must be shown that the second agreement was 
 a guaranty." There is no further reference to this particular question, the 
 demurrer having been overruled upon the ground that the second agreement 
 was a substituted contract, and an answer to an action upon the former; and that 
 as the second plea did not amount to an accord and satisfaction, no averment 
 of performance was necessary. From this statement it would appear, that 
 the decision of the court was to the effect that an agreement by the defend- 
 ant, to accept a bill to be drawn jointly by the plaintiff and Holt, in pay- 
 ment for goods to be supplied by the plaintiff to Holt, was not within the 
 statute. This is undoubtedly correct, as Holt would not be liable, the defend- 
 ant being, in legal effect, the purchaser of the goods; a fact which also dis- 
 poses of any question arising under the mercantile law. But the plaintiff
 
 Art. II.] Collateral Undertakings. 269 
 
 § 211. So also where the promise is to become the maker 
 of a promissory note, jointly mth the third person, as in 
 Bronson v. Stroud, 2 McMullan (South Carolina), 372, 
 decided A. D. 1842. There the plaintiff was applied to by 
 one Henning to sell him some hogs, to which he replied 
 that he must be made safe. Henning then applied 
 to the defendant, who went to the plaintiff and said 
 that he would be Henning' s security, and requested him 
 to let Henning have the hogs, specifying the number ; but 
 he said that he could not wait till they were weighed, and 
 directed the plaintiff, when they should be weighed, to make 
 the calculation and draw a note for the amount, have Hen- 
 ning sign it, and bring or send it to him, and he would 
 sign it with Henning. The hogs were delivered, and a joint 
 and several note, signed by Henning, was tendered to the 
 defendant for his signature, but he refused to sign it. 
 The case was submitted to the jury upon the usual charge 
 to inquire to whom credit was given, and they found a 
 verdict for the plaintiff ; and upon appeal it was held, that 
 upon the facts proved the promise was collateral as matter 
 of law, and a nonsuit was ordered to be entered. In 
 Taylor v. Drake, 4 Strobhart, 431, decided in the same 
 court, A. D. 1850, the facts approached still nearer to 
 those in Carmlle v. Crane. There one Mrs. Owens had 
 
 had leave to amend, and after amendment the cause was tried; and the 
 special plea is stated, in the report of the trial of the cause, in 7 Carrington 
 and Payne, 30, to have alleged that the second agreement was that there 
 should be a "joint" bill accepted by the defendant and Holt] and it is there 
 said that the defendant having proved this plea, but whetlier by writing or 
 orally, is not mentioned, the plaintifif elected to b^ nonsuited. This would 
 present the question in an entirely different phase; but notwithstanding that 
 the report in Carrington and Payne implies, that the amendment consisted 
 in withdrawing the demurrer and filing a replication ; and a remark attributed 
 to Baron Parke, in 5 Tyrwhitt, would indicate that the original plea alleged 
 that some other person was to join with the defendant as acceptor ; the 
 probability i.-i, that the plea was as stated in the reports of the argument ; and 
 that after the d;cision of the demurrer, the parties pleaded de novo, begin- 
 ning with the declaration. If so the plea at the trial was not the one 
 which had been adjudged to be without the statute, upon "Jie argument of 
 the demurrer; and' for aught that appears, it was proved by a writing.
 
 270 Collateral Undeetakings. [Cli. vii, 
 
 purchased from tlie plaintiffs goods on credit at an auction 
 sale, and she was entered as the purchaser on the plaint- 
 iffs' books ; the defendant was present, advising and 
 assisting her ; it was affirmatively proved that she had no 
 credit ; the plaintiffs refused to deliver the goods, unless 
 the defendant would indorse her note for the amount, 
 which he verbally agreed to do ; and the goods were there- 
 upon delivered to her. The court set aside a verdict for 
 the plaintiff and ordered a nonsuit to be entered. 
 
 § 212. The same principle has been established in Eng- 
 land by the recent case of Mallett v. Bateman, 35 Law 
 Journal, N. S., Common Pleas, 40, decided A. D. 1865. (o) 
 There the plaintiff had entered into a contract to supply 
 the firm of Calvert & Co. with iron plates, to be used in 
 constructing a' railway bridge. By the contract, payment 
 was to be made half in cash and half in bills ; but, after 
 part of the goods had been delivered, the payments not 
 having been regularly made, the plaintiff threatened to 
 keep back the remainder of the plates, unless the defend- 
 ant would protect the plaintiff against loss on the bills, 
 for which he would allow him a discount of three per cent. 
 The defendant, who was interested in the work in which 
 Calvert & Co. were using the plates, assented to this, and 
 verbally agreed that he would take their bills from the 
 plaintiff, at three per cent discount, for the amount of all 
 future invoices ; and on the plaintiff proposing to indorse 
 the bills without recourse, the defendant objected to his 
 doing so, and agreed to give him "such document, if he 
 should simply indorse Calvert's bill, as should, under 
 legal advice, free him from all suspicion of risk." There- 
 upon the plaintiff forwarded the remainder of the plates, 
 according to the contract, and received from Calvert & 
 Co. an acceptance of a bill for the amount of the invoices ; 
 
 (o) S. C. 13 Law Times, N. S., 410; 1 Law Reports, Common Pleas, 163; 
 12 Jurist, N. S., 122 ; U Weekly Reporter, 225 ; and 1 Harrison and Ruther- 
 ford, 109. Also reported in the court below, 10 Law Times, N. S., 869; 33 
 Law Journal, N. S., C. P., 243; 10 Jurist, N. S., 865; and 16 Common Bench, 
 N. S., 530.
 
 Art. II.] CoLLATEEAL Undeetakings. 271 
 
 but, before the same had been presented to the defendant 
 to be cashed, Calvert & Co. failed, and the defendant then 
 refused to cash it. In an action in the Common Pleas 
 upon this promise, the plaintiff had a verdict ; w^hereupon 
 the defendant obtained a rule nisi to set aside the verdict, 
 which, after argument was made absolute. From this 
 decision the plaintiff appealed to the Exchequer Chamber, 
 where the judgment below was affirmed. 
 
 § 213. Pollock, C. B., delivering the unanimous opinion 
 of the Exchequer Chamber, said that the real question 
 was, "whether a contract to give a guaranty does not 
 require to be in writing, as much as a guaranty itself;" 
 he then referred to the decisions of the courts under the 
 statute of uses, as having practically nullified that statute, 
 and added : "I hope we shall avoid falling into a similar 
 error in construing the statute of frauds. The contract 
 here is substantially a contract, that if the buyer of the 
 goods does not pay the plaintiff for them, the defendant will, 
 in consideration of a discount of 3Z. per cent, undertake that 
 the plaintiff shall not suffer ; for the defendant undertakes 
 to hold the bill without having recourse to the plaintiff. It 
 is an agreement by which the buyer is not to be exonerated, 
 and by which the defendant engages to indemnify the 
 seller against the buyer's default. That is within the 
 statute ; and therefore the judgment of the court below 
 ought to be affirmed." (j9 ) 
 
 § 214. But in all these cases the consideration of the 
 promise enured to the benefit of the third person, and he 
 was substantially, as well as formally, the principal 
 debtor. Where however the third person was only 
 formally the •principal debtor, the real principal, as 
 between the parties to the promise, being the promisor. 
 
 (p) See also Emmet v. Dewhiirst, 15 Jurist, 1115, and 3 Macnaghten & 
 Qrordon, 587, cited post § 342. The distinction between the case in the 
 text and Busliell v. Beavan, ante, § 114, would appear to turn entirely upon 
 the fact, that iu the latter case the defendant undertook that another person 
 should execute a guaranty.
 
 272 COLLATEEAL UnDEETAKINGS. [Ch. VII. 
 
 the rule is otherwise. In that case the promise is not 
 within the statute ; this being one application of a princi- 
 ple, which may be said to govern or qualify nearly every 
 rule, by which the application of the statute is determined ; 
 namely, that he who is substantially the primary debtor, 
 shall not be allowed to escape from the fulfilment of his 
 promise to pay his own debt, because he has put it in the 
 form of a promise to pay the debt of another. 
 
 § 215. Thus in Westcott v. Keeler, 4 Bosworth (New 
 York), 564, decided A. D. 1859, the plaintiff sued as 
 assignee of one S. H. Mattison, setting forth specially 
 in his complaint, the facts upon which he founded his 
 right to recover, which appeared, upon the trial, as far as 
 they involve this question, to be substantially as follows. 
 Mattison had loaned the defendant $3000, upon a note of 
 one Rumsey for that amount, indorsed by the defendant. 
 On the day when the note matured, the defendant and 
 Mattison agreed verbally, that Mattison would surrender 
 the note. to Rumsey, and procure from him a new note of 
 the same amount in renewal thereof, which he would 
 bring to the defendant, and the defendant would then 
 indorse it ; pursuant to that agreement, Mattison surren- 
 dered the maturing note to Rumsey, who gave him a new 
 note on demand for the same amount, payable to the 
 order of himself (Rumsey), and by him indorsed ; which 
 was immediately taken by Mattison to the defendant, who 
 refused to indorse it after Rumsey, as Mattison requested 
 him to do, saying that Rumsey would pay it in a few 
 days. Subsequently Rumsey, from time to time, made 
 payments to Mattison upon the note ; but finally Mattison 
 sued him upon the note, and recovered judgment, and this 
 action was brought for the unpaid balance. The plaintiff 
 was nonsuited at the trial, on several grounds ; one of 
 which was that the promise to indorse Rumsey' s note was 
 void by the statute of frauds ; and on appeal the defend- 
 ant' s counsel cited Oallager v. Brunel{q) and Carville v. 
 
 (2) Ante, § 110.
 
 Art. III.] Collateral Undertakings. 273 
 
 Crane, in support of his position, that the agreement Avas 
 within the statute. But the judgment was reversed, 
 Hoffman, J., distinguishing those cases from the one at 
 bar, on the ground that in the former "there was no 
 original debt between the parties to the promise." 
 
 ARTICLE III. 
 
 Where a promise la not witMn the statute, although it was in tenns conditioEal upon non* 
 payment by a third person. 
 
 § 216. It was said, at the beginning of this chapter, that 
 a promise, conditional upon default in payment by a third 
 person, generally leaves no room for the only theory, upon 
 which absolute promises are held to be original, in other 
 cases where third persons are concerned ; namely, that the 
 third person was not concurrently liable with the prom- 
 isor. There are however a few cases, in which this theory 
 can be reconciled with such a conditional promise, and in 
 those the statute does not apply. In general terms, they 
 may be said to include all cases, where the presumption 
 of liability on the part of the third person, arising from 
 the words used, can be overcome by proof that he did not 
 incur any liability whatever ; but for all practical pur- 
 poses, they may be restricted to those where he was an 
 entire stranger to the promise ; for it is difficult to conceive 
 a case, where the third person, (unless he was under a dis- 
 ability,) could be a consenting party to a promise of this 
 character, without incurring any liability himself. This 
 exception results from necessity ; for where no one assumed 
 any liability except the promisor, it would be an absurdity 
 to say that his undertaking, whatever may be its form, is 
 a promise to answer for the debt, default, or miscarriage 
 of another ; and unless it is binding upon him, the prom- 
 isee will be wholly without remedy, {a) 
 
 (a) "If A promise B, that in consideration of his doing a particular act, 
 C shall pay him such a sum, or that if C do not pay him such a sum, he (A) 
 will pay the same, this is no collateral promise, unless C was privy to the 
 contract and recognized himself as debtor also ; but otherwise A is the sole 
 debtor, and the statute is out of the case." Roberts on Fraud?, 223. 
 35
 
 274 Collateral Undertakings. [Ch. vii. 
 
 § 217. There is an early case upon this subject, Masters 
 V. Marriott, 3 Levinz, 363, decided in 1694; where,, 
 although the statute of frauds was not directly brought 
 in question (probably because the promise was in writing), 
 the same point was presented upon the pleadings, which 
 raised the precise question whether the promise was orig- 
 inal or collateral. There the plaintiff declared in assump- 
 sit, that the defendant had sold him a certain gelding for 
 eight guineas ; that it was part of the agreement that, if the 
 plaintiff did not like the gelding, and delivered it to one 
 Barham for the defendant' s use, Barham should repay the 
 eight guineas, and, if Barham did not pay it, the defendant 
 would repay it on request ; that the plaintiff did not like 
 the gelding, and delivered it to Barham, and requested 
 him to pay the eight guineas, which he refused to do. 
 There was another count for eight guineas, had and 
 received to the plaintiff's use, and the declaration con- 
 cluded with an averment that the defendant had not, 
 although often requested, repaid the said sums, to the 
 damage of the plaintiff, 30Z. On non-assumpsit pleaded, 
 a verdict was given for the plaintiff, with entire damages ; 
 and it was moved in arrest of judgment, and argued seve- 
 ral times, that the promise to repay the eight guineas if 
 Barham did not do it, was a collateral promise to pay in 
 default of another, and that the defendant was not a 
 debtor, but only a surety in default of Barham ; conse- 
 quently, that a special request to the defendant ought to 
 have been averred, and the general request was insufficient ; 
 and further, that there should have been a notice that 
 Barham had not paid, and a special request thereupon ; 
 and the damages being entire on both counts, it was con- 
 tended that the plaintiff could not have judgment. But 
 at last it was resolved by the whole court, that this was 
 not a collateral contract to pay a debt for another, but the 
 whole was one entire contract upon the sale, which was 
 void and at an end, when the condition was performed, by 
 dislike of the gelding and returning it to Barham ; so that 
 the money was then in the defendant's hands to the 
 plaintiff's use, and Barham was only the defendant's ser-
 
 Art. III.] Collateral Undertakings. 275 
 
 vant, to receive the gelding and repay the money ; and l)y 
 the not doing whereof, the defendant, as master, was the 
 debtor. Judgment was thereupon given for the plaintiff 
 upon the whole declaration, and affirmed in error. 
 
 § 218. In Gordon v. Martin^ Fitzgibbon, 302, decided 
 A. D. 1732, a similar question also arose upon the plead- 
 ings. There the plaintiff declared in indebitatus assump- 
 sit, for work and labor done by the plaintiff, at the special 
 instance and request of the defendant; and at the trial 
 the proof was, that the services were performed touching 
 the sale of an estate, for which one L. S. was treating 
 with the defendant' s brother ; and the defendant' s promise 
 was contained in a letter written by him, in the following 
 words: "If L. S. shall go through the purchase, my 
 brother will give you a handsome gratuity for the trouble 
 and pains you shall be at in transacting that affair, which 
 I promise and assure you shall not be less than 300Z. 
 My meaning is, you shall be paid when the conveyances 
 shall be executed." And the question, whether the evi- 
 dence maintained the declaration, was saved for the opin- 
 ion of the court. The plaintiff had judgment upon his 
 motion, the whole court holding that the work and labor 
 "was at his request and upon his credit ;" and that where 
 a special agreement has been performed, a general inde- 
 bitatus assumpsit will lie. And, upon* the first of 
 these points, Mr. Justice Lee said that "there was a 
 difference between a conditional and an absolute under- 
 taking ; as if A promise to pay B such a sum if C does 
 not, there A is but a security for C ; but if A promise that C 
 will pay such a sum, A is the principal debtor, for the act 
 was done upon his credit, and no way upon C." 
 
 § 219. These two early cases are frequently referred to 
 in the books, upon the point now under consideration ; 
 and, although the statute was not brouglit directly in 
 question in either, they illustrate very fairly two varieties 
 of this species of contract to which it does not apply. In 
 the one, the third person was brought in as the mere
 
 276 Collateral Undertakings. [Ch. vil 
 
 servant of the promisor, through whom the latter agreed 
 to fulfil his own engagement to respond, made upon a 
 consideration moving entirely to himself ; in the other, the 
 third person apparently received the entire benefit of the 
 consideration, and the defendant' s promise was held to be 
 original, solely because the services did not appear to 
 have been rendered at the request of the third person, so 
 as to raise an implied assumpsit on his part to pay for 
 them. The former is the case where the question most 
 commonly arises, and is most easily disposed of; for in 
 the latter, the presumption of a request from the accept- 
 ance of the benefit conferred, is generally so strong, that 
 very slight proof will suffice to establish the third per- 
 son's liability. Still, wherever it fairly appears from the 
 evidence, that the service was rendered to the third person, 
 without his express or implied request, he is not liable, 
 whatever may have been the benefit which he may have 
 derived therefrom; and in all such cases a conditional 
 promise is without the statute. (5) 
 
 (b) Thus in Dunbar v. Williams, 10 Johnson (New York), 249, it was held 
 that a physioan could not recover for services rendered, and medicine far- 
 nished, to the defendant's slave, in curing him of a disease, upon the appli- 
 cation of the slave, and without the defendant's request. And in Bartholomew 
 V. Jackson, 20 Johnson, 28, the plaintiff was not allowed to recover for hi3 
 services in removing the defendant's wheat, to preserve it from being con- 
 sumed by fire, buttpithout the knowledge or privity of the defendant. So 
 also, in Ingraham v. Grilbert, 20 Barbour (New York), 151, the same rule was 
 applied where the plaintiff had paid a debt of the defendant due to a third 
 person, and there was no proof of a prior request; although it was shown 
 that tlie defendant had subsequently admitted his liability. So in Willis v. Hob- 
 son, 37 Maine, 403, where the plaintiffs, on the last day of grace, and a few 
 minutes before the close of business, had indorsed the defendant's note, lying 
 in the bank where it was payable, and the next day had paid it; it appearing 
 that the indorsement was made because it was not convenient to pay the 
 money at the moment, and to save it from being protested ; and that both the 
 indorsement and payment were made at the request of a person, to whom 
 the defendant had intrusted the money to pay the note, but who had mis- 
 appropriated it. And in Adams v. Hill, 15 Maine, 215, ante, § 199 note, it 
 was held that the contract was original, and upon sufficient consideration, 
 inasmuch as the corporation was not bound by it. See also Richardson v. 
 Williams, 49 Maine, 558, and Ellison v. Wisehart, 29 Indiana, 32, cited here- 
 after, where questions a-ose in this connection under the statute of frauds.
 
 Art. III.] Collateral Undertakings. 277 
 
 § 220. A remarkable case, where a conditional promise 
 was held to be original, under circumstances where it 
 would appear, at first sight, that these principles called 
 for a contrary decision, is reported under the title of 
 Blodgett v. T7ie Town of Lowell, 33 Vermont, 174, A. D. 
 1860. There one Guindon, a poor person, had been 
 injured by an accident, and was conveyed to the house of 
 the plaintiff, "a very infirm old man, who objected in 
 vain to his being left with him, and who applied immedi- 
 ately to the overseer of the poor of the town of Lowell to 
 support him ;" the overseer, in his ofiicial capacity, told 
 the plaintiff to take good care of him, and if Guindon did 
 not pay the plaintiff, he, the overseer, would see that the 
 plaintiff had liis pay. It was shown that Guindon had 
 some trifling property ; but the court decided that he was 
 a pauper within the meaning of the statute on that subject, 
 and chargeable to the town of Lowell. A judgment in 
 favor of the plaintiff was affirmed, the Supreme Court 
 holding that the promise was original and not within the 
 statute of frauds ; and that the town was liable to the 
 plaintiff for the support of the pauper, furnished upon 
 the faith of the overseer's promise. The opinion con- 
 ceded that in an ordinary case, such a promise would be 
 in terms collateral; "but," it was said, "the peculiar 
 circumstances of this transaction clearly take it out of the 
 general rule, and forbid the idea of any such intention." 
 
 § 221. The reasons assigned for holding the promise to 
 be original, were, 1, that the person injured was a pauper 
 whom nobody would credit ; 2, that the application to the 
 town showed that the plaintiff would not rely upon him 
 for payment ; 3, that he was legally chargeable to the 
 town, which was primarily liable ; and 4, that there was no 
 proof of any contract with the pauper himself. It is evi- 
 dent that the third of the reasons assigned by the court is 
 the pivot upon which the whole case turned ; the other 
 three are important only as far as they bring out the force 
 of this central idea; for standing alone, they would fit 
 almost every case as well as this. The opinion distinctly
 
 278 Collateral Undertakings. [Cli. vii. 
 
 states that under the statute of Vermont, the notice given 
 by the plaintiJff was sufficient, to throw the pauper' s sup- 
 port absolutely upon the town. If therefore the town was 
 absolutely and primarily liable, the condition that the 
 plaintiff should call upon the pauper in the first place for 
 payment, may be regarded, not as a qualification of lia- 
 bility, but as a condition inserted by the absolute prom- 
 isor, merely for his own convenience ; the person upon 
 whom the plaintiff was in the first place to call, not being 
 a debtor or a party to the contract, but the mere servant 
 of the promisor, pro hac vice, precisely as Barham was 
 in Masters v. Marriott. 
 
 § 222. As a contrast to the last case, we give an abstract 
 of one where a conditional promise was held to be col- 
 lateral, notwithstanding that the third person was not 
 liable at the time it was made ; but the case can be made 
 to harmonize with the others on this subject, although 
 some of the remarks of the court may be open to criticism. 
 In Blanlc v. Dreher, 25 Illinois, 331, decided A. D. 1861, 
 the defendant (appellant) had received an order from one 
 Cunningham, for a large quantity of brick, which he 
 could not fill, and he carried the order to the plaintiff's ; 
 thereupon one of the latter went to inquire from another 
 person as to Cunningham's responsibility, when the 
 defendant said, ' ' You need not inquire further ; Cunning- 
 ham says he will pay for them in thirty days ; only send 
 up the brick ; they need them very badly ; and if he don't 
 pay for them in thirty days, I will be good for them." 
 The plaintiff answered, "that will do," or "I am satisfied; 
 I will send him the brick." The brick were delivered 
 accordingly to Cunningham, and received by him, and 
 the next day one of the plaintiffs called on Cunningham, 
 who objected to the quality, but finally said that if one 
 Miller accepted the brick, the plaintiffs would get their 
 pay in thirty days. Miller came the next day and 
 accepted the brick, "at the price at which they were 
 billed ;" and Cunningham credited the plaintiffs with the 
 amount, to be paid in thirty days. The defendant' s name
 
 Art. III.] Collateral Undertakings. 279 
 
 was not mentioned, in the conversation between the 
 plaintiff and Cunningham. In an action upon the defend- 
 ant' s promise, the cause was tried by the court without a 
 jury, and the plaintiff had judgment, which was reversed 
 on appeal, because it appeared that Cunningham was 
 liable; the court saying, "whether an undertaking is 
 original, or collateral merely, is to be determined, not 
 from the particular words used, but from all the circum- 
 stances attending the transaction. Both the terms of the 
 contract, and the circumstances of the transaction show 
 to our minds quite conclusively, that Blank's undertak- 
 ing was collateral." The opinion added, that the brick 
 were bought by Blank for Cunningham, as the sellers 
 knew; and it concluded by saying, that "Cunningham 
 was liable the moment the brick were delivered to him." (c) 
 
 § 223. On the other hand, in Mease v. Wagner, 1 McCord 
 (South Carolina), 395, A. D. 1821, the promisor was a mere 
 volunteer, whose authority was not afterwards recognized. 
 There the defendant, before any thing was furnished, had 
 undertaken to be responsible to the plaintiff for the funeral 
 expenses of the widow of a Doctor Bradley, saying, 
 " charge them to the estate of Dr. Bradley, and as soon as 
 his nephew comes to town, he will pay for them, or I will." 
 It appeared that the defendant was merely a friend of the 
 family ; that Dr. Bradley had left his property to his 
 
 (c) It is believed that the last proposition cannot be sustained, if the facta 
 are correctly stated in the report. These indicate that Cunningham was no 
 party to the original contract between the plaintiffs and the defendant; 
 indeed it would prima facie appear that this transaction was merely a sale to 
 the defendant, to enable him to fulfil Cunningham's order. But the latter 
 became liable when he accepted the brick; and it is evident from what is 
 said respecting Miller's acceptance, that they were accompanied with a bill 
 which showed a sale from the plaintiffs to Cunningham. The legal construc- 
 tion of the transaction would seem to be, that the defendant assumed, without 
 authority, to act as Cunningham's agent in ordering the brick; and the 
 latter, by his subsequent ratification, waived the want of authority, and 
 became liable ab initio. The defendant's undertaking was then clearly col- 
 lateral ; as the plaintiffs were concluded by their own act, from insisting that 
 the sale was made to him.
 
 280 Collateral Undertakings. [Ch. vii. 
 
 widow for life, with remainder to his nephew ; but the 
 widow had also a separate estate of her own. The nephew 
 refused to pay the bill, and the plaintiff thereupon brought 
 this action against the defendant upon her promise, and 
 recovered. Upon a motion for a new trial, it was held that 
 the defendant was liable, notwithstanding the statute, 
 because she undertook for the representative of Doctor 
 Bradley, against whom no action would lie for the funeral 
 expenses ; but that if she had undertaken for the repre- 
 sentative of Mrs. Bradley, who was legally bound to pay 
 the funeral expenses, the rule would have been different. 
 
 § 224. In most of the preceding cases, the promise was 
 conditional by its terms, but in Walker v. Norton^ 29 
 Vermont, 226, A. D. 1857, it was conditional only by 
 implication ; but the same principle was applied. There 
 the question was, whether the defendant was entitled to'a 
 set off against the demand of the plaintiff, arising upon the 
 following facts. The defendant was one of the students in 
 an academy, of which the plaintiff was the preceptor ; and 
 at the request of the plaintiff, he assumed the expenses, 
 and took charge of the preparations for an exhibition of 
 the students, upon the plaintiff's promise that he should 
 lose nothing, but be indemnified by the plaintiff for his 
 services and expenses. It appeared that the exhibition 
 was principally an affair of the students, and they, as well 
 as the plaintiff, expected to meet the expenses connected 
 with it, by a subscription which had been obtained for 
 the purpose ; the defendant being one of the committee 
 appointed by the students, to collect the subscriptions. 
 The amount subscribed and the amount collected did not 
 appear ; but it appeared that all of the subscription was 
 not collected, and that the amount collected fell short of 
 reimbursing the defendant, by the sum which he inter- 
 posed as a set off. It was held that the defendant was 
 entitled to the setoff, the court saying: "But when no 
 other person is liable for the same debt, the case is not 
 within the statute, although the party may expect to 
 obtain pay from some other fund which fails. As if a
 
 Art. III.] Collateral Undertakings. 281 
 
 teaclier be hired to teach either a public or a private school, 
 to be paid a certain price, if in one case the public money 
 do not pay, or in the other the tuition do not pay ; this is 
 an original, and not a collateral undertaking, although it 
 is conditional in some sense. Such is the present case. 
 The plaintiff was to pay what the subscription did not, 
 and it is an original promise." 
 
 § 225. The case of Ledloio v. Becton, 36 Alabama, 596, 
 A. D. 1860, presents another instance of a promise con- 
 ditional by implication, which was sustained as original, 
 for the same reasons which would have sustained it, had 
 it been expressly made conditional. There the defendant 
 was a widow, who, before administration of her husband' s 
 estate was granted, requested the plaintiff to let a man 
 employed in the business of the estate have some goods, 
 and promised that the estate would pay for them ; and 
 they were furnished accordingly and charged to the estate 
 upon the plaintiff' s books ; but, as the bill of exceptions 
 stated, " for convenience merely." A bill of items, charg- 
 ing the goods to the estate, was also made out by the 
 plaintiff, and presented to the administrator when he was 
 subsequently appointed ; and he refused to pay it. The 
 jury having found a verdict for the plaintiff, it was 
 held, on error by the Supreme Court, that inasmuch 
 as the estate was not liable for the goods, the vddow's 
 promise was not within the statute, and that she was 
 accordingly liable for their value. So the judgment was 
 afl5rmed.(c?) 
 
 (d) See also chapter viii, article ii, for cases involving similar principles, 
 and Lane v. Burghanf, 6 Jurist, 126, cited in § 280. 
 36
 
 CHAPTER EIGHTH. 
 
 THE SAME SUBJECT CONTINUED — CASES WHERE THE INTER 
 POSITION OF OTHER LEGAL PRINCIPLES HAS BEEN SUP- 
 POSED TO CREATE EXCEPTIONS TO, OR QUALIFICATIONS 
 OF THE THIRD RULE. 
 
 § 226. Besides the cases abstracted or referred to in the 
 preceding pages, where a doubt, respecting the result of a 
 correct application of the third rule, arises upon some 
 peculiarity of the case itself, or of the class to which it 
 belongs, there are certain groups or classes, apparently 
 governed by other legal principles conflicting with the 
 rule, and raising questions whether they should not be 
 excluded altogether from its operation. These will be 
 examined in detail in the course of this chapter, for the 
 purpose of ascertaining how far the rule admits of excep- 
 tions and qualifications. 
 
 AETICLE I. 
 
 Where the person benefited hy the transaction, and the person who came in aid of his orediti 
 assumed a joint liability to the promisee. 
 
 § 227. It is hardly necessary to say, that where the 
 property, money, or labor, forming the consideration of 
 the promise, is procured for the benefit of two or more 
 promisors, in furtherance of an object in which they are 
 jointly interested, they are regarded as one party to the 
 contract ; and although one of them may take the lead in 
 the preliminary negotiations, and the consummation of 
 the transaction, the promise of the others to respond Is 
 not a collateral undertaking for the debt of the first, but 
 an original undertaking in their own behalf for their own 
 debt, which is unaffected by the statute of frauds. Indeed, 
 in such a case, the other parties in interest would gen- 
 erally be liable, without an express promise. 
 
 § 228. Nor will the result be varied, if one of the par- 
 ties gives his separate engagement to pay, provided the
 
 Art. 1.] Collateral Undertakings. 283 
 
 same is not received in discharge of the joint liability. 
 This is illustrated by the case of HotchJciss v. Ladd and 
 Warner, 36 Vermont, 593, A. D. 1864. Tliere the question 
 was whether the declaration was sufficient upon demurrer. 
 The court construed it to mean that the defendants, being 
 in partnership together, and desiring to purchase goods 
 for their joint benefit from the plaintiff's firm, agreed with 
 the plaintiff that the sale should be made by the plaintiff 
 to the defendants jointly, and that the plaintiff should 
 take notes of the defendant Warner alone, as security 
 merely, and not as payment ; whereupon the goods were 
 delivered to the defendants jointly, upon their joint 
 promise to pay for them as specified in Warner' s notes. 
 And upon this construction of the declaration the court 
 held that "it was a clear case of an original undertaking 
 by Ladd, and upon the most ample consideration." But 
 cases of this kind belong more properly to the law of 
 partnership. 
 
 § 229. Nor would it probably be serio'usly contended, 
 that the statute applies to a case where two or more per- 
 sons incur a joint liability, upon a consideration which 
 enures exclusively to the benefit of one of them, if they 
 acted jointly in the whole transaction, and there is nothing 
 to show that the promisee had notice that the contract 
 was not made for, and the consideration did not enure to 
 the benefit of all. {a) For obviously the liabilities of the 
 parties cannot be marshalled into primary and auxiliary 
 obligations, to the prejudice of a person who has dealt 
 with them in ignorance of any fact, out of which the law 
 would raise a distinction between the different liabilities. 
 
 § 230. But there is a grave question, whether the statute 
 is applicable to a case, where although the whole trans- 
 action proceeds upon the distinct understanding, tliat one 
 of the two promisors has no direct interest in 1he con- 
 sideration of the promise, and that he assumes a liability 
 
 (a) Fell on Guaranty and Suretyship, 32, citing Waugh v. Carve:, 2 Henry 
 Blackstone, 235.
 
 284 Collateral Undertakings. [Ch... viii. 
 
 entirely for the benefit and accommodation of the other, 
 and in aid of his credit ; yet the promise is made joint by 
 its terms, or else the circumstances are such, that the law 
 would generally imply, that it was the intention of the 
 promisors to assume a joint liability. There is respectable 
 authority for the opinion, that in all such cases the prom- 
 isee can proceed against both the promisors as joint 
 debtors, and hold them liable without any writing. In 
 Hetjield v. Dow, 3 Dutcher (New Jersey), 440, A. D. 1859, 
 the Chief Justice illustrated the general rule respecting 
 the giving of credit to the third person as follows : " If A 
 purchase goods to be delivered to B, or promise to pay 
 for goods that maybe purchased and received byB,(5) 
 the promise of A is clearly an original contract, an engage- 
 ment to pay his own debt and not the debt of B. So, if A 
 and B jointly promise to pay for goods delivered to B, A 
 and B are joint original debtors ; it is a joint promise to 
 pay the indebtedness of A and B, not a promise to pay 
 the debt of B. Such a promise is not within the statute." 
 The case, however, did not call for this remark, it being 
 in fact an action against one person alone, whose under- 
 taking was construed upon the evidence to be merely 
 collateral, and no such point having been taken on the 
 trial. A doubt respecting the application of the statute, 
 in cases where the promise is joint, was also suggested in 
 the course of the remarks of the court in Bronson v. 
 Stroud, 2 McMuUan (South Carolina), 372, A. D. 1842 ; 
 Boykln v. Dolilonde, 1 Alabama Select Cases, 502, A. D, 
 1861 ; and Smift v. Pierce, 95 Massachusetts (13 Allen), 
 136, A. D. 1866, though in neither case was any definite 
 opinion upon the point either called for or expressed. 
 
 § 231. But there are three reported cases, one in England 
 and two in the United States, where the question came 
 directly before the court, whether the statute applies to a 
 joint undertaking, into which one of the joint parties 
 
 (b) But see Cutler v. Hinton, and other cases in chapter vii, article ii, as 
 to the effect of the word "purchase," and others of similar meaning.
 
 Art. I.] Collateral Undertakings. 285 
 
 entered, with the full knowledge of the promisee that the 
 consideration would enure exclusively to the benefit of 
 the other ; and in each case it was held that the particular 
 promise before the Court was good without writing. We 
 will carefully analyze these cases, in order to ascertain 
 whether they can be sustained upon principle ; and if so, 
 what is the nature of the exception to the general rule 
 which they establish, (c) 
 
 § 232. The first of these is the English case of Sclioles 
 and another v. Hampson and Merriott, tried before 
 Chambre, J., at the Lancaster Assizes, A. D. 1806, and 
 reported in Fell on Gruaranty and Suretyship, 33, from 
 notes taken by the author himself, in the following words : 
 *'The defendant Hampson had applied to the plaintiffs, to 
 purchase from them a quantity of cottons upon credit ; 
 which they refused to let him have, unless some one would 
 be answerable for the payment. He afterwards brought 
 with him the other defendant, who was a near relation of 
 his, but not at all connected with him in business, and which 
 was well known to the plaintiffs. The defendant Merriott 
 then requested the plaintiffs to let Hampson have what 
 cotton he might want, and agreed, verbally, that the 
 credit should be given to them jointly, and the invoices 
 made out in their joint nam$s. Several parcels of cotton 
 were accordingly delivered by the plaintiffs to Hampson, 
 who, from time to time, made payments for the same. 
 But becoming insolvent, this action was brought against 
 him and Merriott, for the balance. Hampson had let judg- 
 ment go by default, and the question was as to the liabil- 
 ity of Merriott. It was objected on his behalf, that upon 
 these facts, Merriott could not be considered as a partner, 
 but was only surety for Hampson' s payments ; and there- 
 
 (c) In the enumeration of the cases bearing upon this question, we lay out 
 of view Durham v. Manrow, 2 New York, 533, because there tlie court gave 
 no authoritative decision upon this point, although it came directly in question. 
 Still the weight of the case, especially with the explanation of the views of 
 Bronson, J., in 2 New York, 229, 230, is against tiie validity of the verbal 
 undertaking of the joint promisor, who comes in aid of the other's credit.
 
 286 Collateral Undeetakings. [Ch. viii. 
 
 fore his undertaking was for the debt of another, and void 
 by the statute of frauds as not being in writing ; and it was 
 contended that the permitting such parol promise to avail, 
 would be virtually to repeal the statute. But Chambre, 
 J., overruled the objection, not thinking this to be a case 
 within the statute, and the decision was never afterwards 
 questioned." In this case, it will be noticed, not only 
 was the defendants' undertaking expressly made joint by 
 its terms, but the parties carefully provided that the sale 
 should be made to the defendants jointly, which may well 
 have been regarded as superceding entirely the original 
 negotiation contemplating a purchase by Hampson alone, 
 and the procurement of some other person to become a 
 guarantor for him. 
 
 § 233. But in the subsequent American case of R. and 
 J. WainwrigJit v. Straw and Cunningham, 15 Vermont, 
 215, decided in 1843, the word "joint" did not appear to 
 have been used by the promisors, in the verbal promise 
 upon which the action was founded ; and the character, in 
 which they incurred their respective liabilities, was matter 
 of inference merely ; although the contract appears to 
 have been accepted as a joint undertaking. There the 
 first and second counts of the declaration relied upon an 
 instrument, therein called a note of hand, whereby the 
 defendants, jointly and severally, promised to pay a ceiv 
 tain sum in chattels. The court held this instrument to 
 be void, for uncertainty, because the time for payment 
 was left blank, and there was a misdescription of the 
 payees ; but the declaration contained also a count for 
 goods sold and delivered. At the trial, the agent of the 
 plaintiffs testified that both defendants "came to him and 
 said they wished to buy a stove for Straw, but that both 
 would be responsible to R. and J. Wainwright for the 
 pay ; that it was upon their joint responsibility that he 
 sold the stove ; that they agreed to pay for the stove and 
 pipe which he then sold them" in certain articles of per- 
 sonal property mentioned by him, at certain specified 
 times, and that the so-called note '■'■was intended to hax)e
 
 Art. I.] Collateral Undertakings. 287 
 
 been written according to the contract.^'' The cause was 
 tried by the judge of the court below without a jury, and 
 it would seem from the report that this was all the evi- 
 dence before him ; and the plaintiffs having recovered 
 judgment upon the general count, the question whether 
 the promise was within the statute came before the 
 Supreme Court, upon exceptions to the admission of the 
 agent's testimony, and to the ruling that the plaintiffs 
 could recover. 
 
 § 234. It was held, that inasmuch as the time for per- 
 formance had elapsed, the special contract constituted 
 no objection to a recovery, under the general count, of 
 the value of the goods agreed to be given for the stove ; 
 and upon the question whether the statute applied, the 
 opinion proceeded as follows: "It is also objected that 
 the contract, so far as Cunningham is concerned, is within 
 the statute of frauds. To bring a case within the statute 
 of frauds, it is necessary that the promise should be 
 ' collateral to, and in aid of, the promise of another. But 
 in the present instance, the promise of the defendants is 
 joint. They both made the purchase, and upon their 
 joint responsibility." We add what was said upon the 
 question whether Cunningham was a surety, as it depends 
 upon the same principle. "It is also said that the gen- 
 eral action will not lie against Cunningham, as he stands 
 but a surety for Straw. If such was the relation of the 
 parties, there would be weight in the objection. But such 
 is not the case. To create this relation, the sale should 
 have been made to Straw alone. The fact that it might 
 have been for the individual use of Straw is not sufficient 
 to create the relation of principal and surety." The opin- 
 ion does not specify any reasons why the defendants' con- 
 tract to pay was construed to be joint. Undoubtedly it 
 was so construed, under the rule, that in the absence of 
 any thing showing a contrary intention, the law presumes 
 a contract, creating the same liability, entered into by two 
 or more persons simultaneously, and upon the same con-
 
 288 COLLATEEAL UNDERTAKINGS. [Ch. VIII. 
 
 sideration, to be joint. (^Z) But although the so-called 
 note was void as a contract, by reason of the uncertainty 
 respecting the payees and the subject-matter, it may have 
 been regarded as sufficient evidence, in connection with 
 the testimony of the plaintiffs' agent, that whatever lia- 
 bility was assumed by the defendants was intended to be 
 joint and several, (e) 
 
 § 235. But in the recent case of Gibhs v. BlancTiard, 15 
 Michigan, 292, decided A. D. 1867, the majority of the 
 court distinctly laid down the rule that a joint promise is 
 out of the statute, notwithstanding that the consideration 
 moved directly from the promisee to one of the promisors. 
 
 (d) See 1 Parsons on Contracts, fifth edition, pp. 11, et seq. 
 
 (e) A case where the action was evidently founded upon the decision in 
 Wainwright v. Straw, which was cited for the plaintiffs upon the argument, 
 is to be found reported in 79 Massachusetts (13 Gray), 613, A. D. 1859, 
 under the title of Stone v. Walker. The plaintiffs were lawyers, and brought 
 an action against Comfort M. Walker and Benjamin Walker, to recover 
 for their services in defending the former upon a criminal charge ; insisting 
 that the two defendtmts engaged the plaintiffs jointly, and that the services 
 were rendered upon their joint credit. C. M. Walker was defaulted, and 
 B. Walker alone defended the action. At the trial, it was proved on the 
 part of the plaintiffs, that the two defendants came together to one of the 
 plaintiffs, and that B. Walker said : " We want you to go to Southbridge 
 and take care of this case; they are abusing Comfort, and I mean to stand 
 by him ; I mean to assist him." The evidence was very conflicting, and the 
 judge seems to have taken refuge in the obscurity of his charge ; for he 
 instructed the jury that as the services were to be rendered for the benefit 
 of C. M. Walker, the other defendant would not be liable unless they found 
 that he made " an original express promise " to pay for them. Upon this 
 charge the jury found a verdict for the defendants; and upon the hearing 
 of the exceptions, the plaintiffs' counsel contended, that inasmuch as the 
 promise was not within the statute, if the defendants assumed a joint lia- 
 bility, the question was, not whether B. Walker promised to pay the 
 plaintiffs, but whether he employed them. But Shaw, C. J., in his opinion, 
 baid that it was for the jury to decide, whether B. Walker's promise was 
 original or collateral, and that without an express promise he would not be 
 hable for services rendered to C. M. Walker; and the exceptions were over- 
 ruled. The case is therefore no direct authority upon either side of this que,'>- 
 tion.
 
 Art. I.] Collateral Undertakings. 289 
 
 There the declaration contained a special count, to the 
 effect that the defendants in the court below (Daily and 
 Gibbs), in consideration of the sale of a horse by the 
 plaintiff to Daily, agreed to deliver to the plaintiff their 
 note for $60, payable in six months to the plaintiff or 
 bearer ; that the horse was delivered to Daily ; but that 
 the defendants had refused either to give their note, or to 
 pay for the horse ; to which were added the common 
 counts for goods sold and delivered. At the trial it 
 appeared that Gibbs and Daily called together upon the 
 plaintiff ' ' and Gibbs asked the plaintiff if he wanted to 
 sell his mare ; plaintiff said he did ; Gibbs inquired the 
 price, and being told sixty dollars, wanted to know if 
 the plaintiff would take Daily's note, if he, Gibbs, 
 would sign it, and see it paid;" the plaintiff assented; 
 but Gibbs being anxious to return home, it was agreed 
 that Daily should go with the plaintiff and see the mare, 
 and if she suited him, he might take her away and give 
 his note, and the first time Gibbs went to town, he would 
 sign it. Daily accordingly took the mare and signed a 
 note for $60 at six months, which Gibbs subsequently 
 indorsed, but as the indorsement was made on Sunday, it 
 ^vas void under the Michigan statute. The note was 
 tendered to the defendants at the trial. The report does not 
 expressly state that the note was not pa^^able to the order 
 of Gibbs, or that it was in the hands of the plaintiff when 
 Gibbs indorsed it ; but both these facts are to be inferred 
 from the abstract of the argument of the counsel. 
 
 § 236. The judge charged the jury, upon the question 
 of joint liability, that if the understanding of the parties 
 was "that Gibbs and Daily were the buyers of the mare, 
 and that both were to be liable as purchasers for the 
 purchase price, and accordingly should become joint 
 makers of a promissory note for its payment, though 
 Daily was less relied upon by the plaintiff than Gibbs, 
 and though in point of fact it was understood that the 
 mare when bought should belong to Daily, the plaintiff is 
 entitled to recover ; that the principle in this class of cases 
 37
 
 290 Collateral Undertakings. [Ch. viii. 
 
 is, that if the agreement be such that two persons, in the 
 purchase of goods, do at the same time become co-debtors 
 to the seller for the price, then both are purchasers ; and 
 the case is not within the statute of frauds, and no memo- 
 randum in writing is necessary." The jury found a ver- 
 dict for the plaintiff, and the judgment thereon was 
 affirmed by the Supreme Court, Christiancy, J., deliver- 
 ing the prevailing opinion, and saying that the charge 
 "was not only correct, but that it expres-ses the true rule 
 of law applicable to the question with remarkable clear- 
 ness." This conclusion the learned judge supported in 
 an argument of considerable length, the substantial effect 
 of which is to hold that whenever there is a sale upon the 
 joint credit of two persons, the statute does not apply, as in 
 that case the sale is deemed to have been to the persons 
 to whom credit was given, and the plaintiff is entitled to 
 recover as upon a sale to both jointly. (/) 
 
 (/) The learned judge began by saying that the language of the statute 
 indicates that the class of promises required to be in writing, includes only 
 those which are secondary or collateral to, or in aid of the undertaking or 
 liability of some other person, whose obligation, as between the promisor 
 and the promisee, is original and primary. Consequently it applies only to 
 those which, if valid, would create a liability on the part of the promisor, 
 distinct and several from that of the person in whose behalf it is made, and 
 not a joint liability with him. For if the obligation of the two is joint, 
 neither is collateral to the other, and the joint promise is original as to both. 
 To say that both cannot become jointly liable upon a joint promise, not in 
 writing, to pay for goods purchased for and delivered to one of them, is but 
 another form of declaring that it is not competent for both to become origi- 
 nal promisors, as between them and the promisee, unless each is under an 
 equal obligation, as between themselves, for the ultimate payment of the 
 debt. Such a proposition cannot be maintained upon principle or authority; 
 and to allow the relation between the promisors to be shown, for the pur- 
 pose of defeating a promise which both promisors made as original, would 
 operate as a fraud upon the vendor. Passing to the consideration of Wain- 
 wright V. Straw, the learned judge remarked, that the decision was placed in 
 part upon the ground that the sale was made to both. "Now," said he, "I 
 can see no difference in legal effect, between the case where A and B say to 
 a merchant, ' We want to buy a stove for B, and both of us will be responsi- 
 ble,' and the case where A says, 'B wishes to purchase a stove, but we will 
 both be responsible.' " In each case it is a sale for the benefit of one on the
 
 Art. I.] Collateral Undertakings. 291 
 
 § 237. On the other hand, tliere is some authority 
 for the contrary doctrine, namely, that a joint promise is 
 within the statute, where the consideration moved exclu- 
 sively to one of the promisors. This appears to 
 have been assumed to be law in Wallace v. Wortham, 
 25 Mississippi, 119, A. B. 1852, although there was no 
 direct ruling upon the point. The case being meagerly 
 reported, we are unable to ascertain whether the facts 
 properly raised any question connected with the present 
 inquiry. 
 
 § 238. But in a Tennessee case, Matthews v. Milton, 
 4 Yerger, 576, decided A. D. 1833, an opinion, directly 
 contrary to the ruling in Gibhs v. Blanchard^ was deliv- 
 ered by Chief Justice Catron, afterwards an associate 
 justice of the United States Supreme Court. There the 
 
 joint credit of two, and the real question is, whether the credit was given to 
 both jointly. Wherefore he thought that the decision in Wainwright v. 
 Straw, notwithstanding that the opinion assigns, as the reason for holding 
 the defendants liable, that the sale was made to both, was really put upon 
 the broad ground that the sale was upon the joint credit of the defendants; 
 and he added that in all cases where the sale is upon the joint credit and 
 promise of the defendants, although the property is purchased for and deliv- 
 ered to but one of them, the legal effect of the transaction constitutes it a 
 sale to the two jointly, the sale being to the person or persons to whom 
 credit was given. For these reasons, he held that the plaintiff was entitled 
 to recover upon the count for goods sold and delivered to the defeiulants, 
 but not upon the special count, for that alleged a sale to Daily alone. The 
 term of credit having expired, there was no objection to a recovery upon a 
 common count, notwithstanding the special contract. With this opinion, 
 one of the other two judges fully concurred ; but Campbell, J., Avhile con- 
 curring in the result, said, that upon the whole he regarded the charge as 
 having fairly presented the question, whether there was or was not a con- 
 tract of suretyship, and for that reason there was no error in it, although he 
 had had some doubt whether some of the rulings were not open to the 
 objection, that they rested too much upon the question of a joint obligation. 
 "I cannot," he said, "regard the mere form of the liability (as joint or 
 several) as having any bearing on the applicability of the statute, inasmuch 
 as sureties very generally assume joint obligations with their principals, and 
 are nevertheless protected in all the rights of suretyship, and vested with all 
 its immunities."
 
 292 COLLATEEAL UNDERTAKINGS. [Ch. VIII. 
 
 action was brought against the auxiliary promisor alone, 
 under an act passed in 1789, which permits several actions 
 to be brought against persons jointly liable. (^) Upon the 
 trial it appeared that the defendant (Philip Milton) and 
 his brother William were together in the plaintiffs' store, 
 and the defendant said to the plaintiffs, that whatever 
 goods William "took up" in the store, he, the defendant, 
 would pay for out of a cotton contract, which the plaint- 
 iffs and the defendant were about to make ; the goods 
 were thereupon, and on the same day, delivered to Wil- 
 liam, and debited to William and the defendant jointly. 
 It was also proved that before the defendant's promise, 
 the plaintiffs had told their clerk not to credit William, 
 but subsequently William purchased, on credit, other 
 goods at the plaintiffs' store, which were debited to him 
 individually, and which were not in question in this 
 action. 
 
 § 239. The judge charged the jury, in substance, that 
 if William was ever liable for the account, the defendant 
 was not liable, and that charging the account to both was 
 strong, though not conclusive evidence, that credit was 
 given to William ; but if they found that credit was given 
 exclusively to the defendant, then he would be liable. 
 A verdict having been rendered for the defendant, the 
 plaintiffs brought error, upon exceptions to this and other 
 parts of the charge. The Chief Justice construed the 
 charge as follows: "The circuit judge charged the jury, 
 that if there was no liability resting on William, and the 
 credit was extended to Philip alone, then the promise was 
 
 (g) Carutliers and Nicholson's Compilation of the Laws of Tennessee, 
 pa.ije 415. The learned jiidge who delivered the opinion in Gibbsv. Blanch- 
 ard, treated as obiter all that was said in Matthews v. Milton upon the ques- 
 tion of the promisors' joint liability, saying that there was no evidence tend- 
 ing to prove a joint promise. The report would indicate that the promise 
 was to pay out of a particular fund, not then in existence ; but as this is 
 inconsistent with the Avhole opinion, which assumes that the credit was 
 given to both brothers jointly, it is probably erroneous in tiiat particular. 
 In all other respects, the whole transaction was not distinguishable, upon 
 any substantial ground of difference, from that in Gibbs v. Blanchard.
 
 Art. I.] Collateral Undertakings. 293 
 
 original, and without the statute; but if AVilliam and 
 Philip were jointly trusted, and both held responsible, 
 and so charged on the books of the plaintiffs, then the 
 promise was collateral on the part of Philip, because he 
 undertook to pay the debt of William." He proceeded: 
 "That the goods were advanced upon the joint credit of 
 both is evident. They stand so charged on the books, 
 and these were given in evidence for the plaintiffs for 
 some of the articles, on the oath of one of the plaintiffs, 
 under the book debt law." Then after quoting the Ten- 
 nessee statute of frauds, and overruling the point that if 
 the promise was made before the debt was contracted the 
 statute does not apply, he added : "If William was bound 
 to pay for the goods, it was his debt ; Philip could not be 
 bound, unless in writing. It follows they could not be 
 jointly charged." The learned Chief Justice then cited 
 with approbation the rule laid down in Matson v. 
 Wharam; and added that it accords with the intention 
 of the legislature, which was that no one should be bound 
 to pay for property received by another, unless the delib- 
 eration of a written agreement had intervened, and "that a 
 naked promise could be easily proved, and not possibly 
 disproved, in most instances, and therefore should only be 
 established by written evidence." Accordingly the judg- 
 ment was affirmed. 
 
 § 240. In Hill v. Doughty, 11 Iredell (North Carolina), 
 195, decided A. D. 1850, the question was whether a joint 
 promise of two persons to pay the several precedent debts 
 of the promisors, founded upon a consideration moving to 
 both, was within the statute. The principles applicable 
 to the validity of such a promise, and of one growing out 
 of a new transaction are not in all respects identical ; but 
 they are sufficiently similar to render the case a very 
 pertinent authority upon this inquiry. The action was 
 against two defendants to recover upon a promise to pay 
 a debt due by their father, they having received their dis- 
 tributive shares from his estate. There was a third child, 
 (a daughter), who was not a party. It appeared that the
 
 294 Collateral Undertakings. [CIl. viii. 
 
 two defendants made the promise in •consideration of for- 
 bearance, the creditor threatening to institute proceedings 
 to compel them to refund what they had received, or 
 enough to pay his debt. In the court below, the plaintiff 
 had judgment upon a case stating the facts, and the 
 defendant appealed to the Supreme Court. 
 
 § 241. Ruffln, C. J., who delivered the opinion, after 
 briefly adverting to, without deciding the question, whether 
 there was a sufficient consideration for the promise, said 
 that if that point be assumed for the plaintiff, it will not 
 follow that this verbal promise, by two of the next of 
 kin, will maintain this joint action against them. He 
 added: "Now the liability to creditors, of the defend- 
 ants and their sister, as next of kin, was not joint ; but 
 arose, if at all, by reason of that portion of the assets 
 of their father, which came to their respective hands, 
 as their several shares of the estate. Each was there- 
 fore liable only for an equal proportion of the money ; 
 at all events in the first instance, and while the others 
 were able to pay their parts, which is not questioned 
 here. Hence, it is obvious, if one of the defendants had 
 verbally promised to pay the whole of this demand, 
 that the promise would not have been binding under the 
 statute of frauds, beyond his own one-third ; for beyond 
 that the liability was not his own, but that of another. It 
 seems clear that an undertaking by the defendants, in a 
 joint form, to pay the whole debt, cannot alter the rule of 
 law, or the legal effect of the promise as to each, in that 
 respect. For if two persons owe another separate debts, 
 their joint oral promise to pay both debts, cannot sustain 
 a joint action ; since it is a promise by each to answer for 
 another in respect to all but his own original debt. Per 
 curiam. Judgment reversed and judgment of nonsuit." 
 
 § 242. These are, it is believed, all the reported cases to 
 be found upon either side of the question. The policy 
 of the statute clearly includes joint promises, as well 
 as several; for it is as easy to manufacture evidence,
 
 Art. I.] Collateral Undertakings. 295 
 
 and as difficult to detect perjury, in one case as in the 
 other. Is there then any thing in the words of the statute 
 to exclude them, or do other legal principles require us to 
 do so \ The argument in favor of the broad rule adopted 
 in Gibhs v. Blanchard, commends itself to the mind upon 
 first impressions ; but we think that further reflection will 
 show that it is more specious than solid ; that there is 
 nothing in the statute to justify the courts in laying down 
 such a rule ; and that its adoption would be a long step 
 backward in the progress of legal science, tending to the 
 unsettlement, and the ultimate abrogation of principles, 
 which have been regarded as well settled for upwards of 
 a century. 
 
 § 243. And first, let us examine the question upon prin- 
 ciple. The argument in favor of excluding joint promises 
 from the statute, appears to rest entirely upon the imity 
 existing between the promise of the person benefited by the 
 transaction, and that of the other promisor; which, it is said, 
 is so complete that neither can be said to be collateral to 
 the other. These premises may be granted, without con- 
 ceding the conclusion that the statute is inapplicable to 
 the auxiliary promise, thus united with the other. For, 
 as we have had occasion to remark before, the statute does 
 not use either of the terms " collateral " or " original ; "(^) 
 and although it is true that all collateral promises are within 
 the statute, the converse of the proposition, that all prom- 
 ises within the statute are collateral, by no means necessar- 
 ily follows. Nor can it be said with truth, that the language 
 of the statute, by necessary implication, calls for two several 
 liabilities. A "special promise to answer for the debt, 
 default or miscarriages of another," may consist of a joint 
 as well as a several undertaking, with the person answered 
 
 (A) The complaint, that the use of the word " collateral'' has sometimes a 
 tendency to lead into error in oonstruinp; the statute, is of early date. Per 
 Lord Mansfield, C. J., in Harris v. Hunlbach, 1 Burrow, 375. See BuUer's 
 Nisi Prius, 281 ; Roberts on Fraud?, 224, as well as the remarks of Comstock, 
 C. J., in Mallory v. Gillett, ante, § 50, and of Grover, J., in Browu o. Weber, 
 38 New York, 190.
 
 296 Collateral Undertakings. [Ch. viii. 
 
 for. This will become immediately apparent, by applying 
 the words to written promises of that character, some of 
 which are of constant occurrence ; as for instance joint 
 bonds, conditioned that one of the obligors shall pay a 
 debt or faithfully discharge the duties of an office. 
 
 § 244. Again, if the unity of the promise suffices to take 
 it out of the statute in one case, it will suffice in every 
 other ; consequently promises to answer for a previously 
 existing debt of another are not within the statute, pro- 
 vided the debtor joins with the new promisor in making 
 the promise. It is difficult therefore to discover where 
 the principle stops ; but a mere glance at its necessary 
 consequences suffices to show, that it runs counter to cur- 
 rents of authority in many directions ; and that its general 
 recognition will require the remodelling of other rules, 
 besides the one under which it is now being discussed. 
 
 § 245. In truth it seems that the importance given to 
 the unity of a joint promise, proceeds from confounding 
 that feature, with another closely resembling it, and 
 equally inherent to an undertaking of that description, 
 to wit, its absolute character. If the question were still 
 open, it would be hard to answer the argument, that a 
 joint promise is not within the statute, because it imports 
 a direct and absolute undertaking of each promisor to 
 answer for himself, and not for the other. But it is too late 
 to predicate any argument upon that characteristic of a 
 joint promise, for it may be equally inherent to a several 
 promise ; and, as we have already shown, and as the 
 argument uipon the other side of the question concedes, 
 the rule is perfectly settled that a several promise, though 
 absolute, is within the statute, if the person primarily 
 benefited also incurred a similar liability. (^■) 
 
 § 246. ISText, let us consider the argument ab inconve- 
 nienti, which is very properly resorted to, where it is diffi- 
 cult to discover, upon which side lies the weight of argu- 
 
 (0 See ante, § 140.
 
 Art. I.] Collateral Undertakings. 297 
 
 ment upon principle and authority. The language of the 
 rule, as laid down in Matson v. Wharam,{j) clearly 
 includes joint promises ; and it has been reiterated, in 
 words to the same effect, in all the text books and in 
 nearly every subsequent case.(/i:). If, therefore, this class 
 of promises is to be excluded from the operation of the 
 statute, an exception must be ingrafted upon this ancient 
 and now universally recognized rule. Moreover, every 
 case where the auxiliary promise is absolute in its terms, 
 will presumptively constitute an exception, within the 
 principle adverted to in commenting upon Wainwright v. 
 Straw ;{l) and the effort to prove that it was the intention 
 of the parties in the particular case, to assume several 
 liabilities, will almost invariably fail ; not only on account 
 of the difficulty of enabling witnessess and jurors, to 
 understand the technical distinction between a joint and a 
 several promise ; but also because it will very rarely occur, 
 that the parties themselves had any knowledge of such a 
 distinction. It would seem therefore that the exception, 
 if once introduced, will end in practically swallowing up 
 most of the rule, by confining it to those cases where one 
 promise was in terms conditional upon non-fulfilment of 
 the other. 
 
 § 247. For these reasons, we think that the correct rule, 
 with respect to joint promises, is that they are within the 
 Btatute, under the same circumstances as those which 
 are several. If the consideration of the promise is a 
 
 (;■) Ante, § 146. 
 
 {k) As far as we have noticed, there is no case where any exception to the 
 general rule is hinted at, except those cited in this article. The text 
 books use language equally general. Mr. Robert?, writing a century and a 
 quarter after the statute was enacted, congratulates himself that in the effort 
 to determine what is within the statute, "one anchorage has been gained, 
 viz.: that the person undertaken for must be or become liable at the time 
 the promise by the third person is made," (Roberts on Frauds, p. 223), which 
 is very nearly the language in which, under the ruling in Gibbs r. Blanchard, 
 a promise without tiie statute would be described. 
 
 (0 Ante, § 234. 
 38
 
 298 Collateral Undertakings. [Ch. viii. 
 
 sale, or loan made, or services rendered by the promisee 
 to one of the promisors, and upon his credit, the promise 
 of the other to respond for the price is within the stat- 
 ute, whether it takes the form of a joint or of a several 
 undertaking. But where a sale or loan is made, or 
 services are rendered to two persons jointly, as was 
 clearly the case in Scholes v. Hampson, it is a matter 
 of no moment, whether they assume a joint liability for 
 the price, or whether each undertakes severally there- 
 for. In that case, the consideration of the promise flows 
 directly from the promisee to both the promisors ; and the 
 legal title to the subject of the contract vests in both of the 
 latter, immediately upon the consummation of the bar- 
 gain. If one of the promisors secures the entire benefit 
 of the transaction to himself, he does so by virtue of an 
 arrangement with his co-promisor, with which the prom- 
 isee has no concern, and over which he exercises no con- 
 trol ; amounting to a release, by one of the joint owners to 
 the other, of his undivided interest. Where the transac- 
 tion is of this character, it is clear that each of the prom- 
 isors undertakes for himself and for his own debt, in 
 substance as well as in form ; and the only difficulty, if 
 for any reason the promises are said to be several, is to 
 reconcile that description of promise, with the character 
 of the purchase. No doubt, in many of the border cases, 
 it is difficult to determine whether the sale, or loan was 
 made, or the services were rendered, to one or both of the 
 contracting parties. WalnwrightY. Straio is such a case. 
 But difficulties of that kind occur in the application of 
 every legal principle ; and in this particular class of cases 
 precisely the same difficulty would present itself, if the 
 same question arose in any one of the many other forms, 
 where such questions constantly arise ; for instance, if the 
 action was against the vendor of the chattel for a breach 
 of the implied warranty of title, or of an express war- 
 ranty of quality.
 
 Art II.] Collateral Undertakings. 299 
 
 ARTICLE II. 
 
 Wtere the person benefited and the auxiliary promisor nndertook concurrently to respond | but 
 the person benefited was either a married woman or an infanti 
 
 (1 ) Ob3e7-vations applicable to either species of auxiliary promise. 
 
 § 248. We have next to consider the question whether 
 the fact, that the person who primarily nndertook to 
 respond, was under a disability to enter into a binding 
 contract, necessarily renders the undertaking of the aux- 
 iliary promisor original. It arises where an infant, not 
 contracting for necessaries, or a married woman, not 
 acting within the limited sphere in which her contract 
 binds her estate in equity, or under circumstances where 
 the local statutory provisions allow her to make general 
 contracts, nevertheless assumes a liability, and receives 
 credit for goods, etc., and another person enters into a 
 concurrent promise to respond for the price. In such a 
 case, will the latter' s promise be regarded as an original 
 undertaking, or as a special promise to answer for the 
 debt or default of another ? This question is not free from 
 difficulty ; and although the text-books seem to agree that 
 in both the cases suggested, the promise of the person not 
 benefited by the transaction will be regarded as original, 
 the principle upon which the doctrine is maintained, 
 especially in the case of an infant's contract, is by no 
 means clear ; and the authorities do not sustain the confi- 
 dent opinions of the text- writers, (a) 
 
 (a) We append some ertracts, showing a remarkable unanimity of opinion 
 among the leading elementary writers on this subject, premising that every 
 case cited is abstracted, or otherwise sufficiently noticed, either in this note 
 or in the text. A reference to the cases will show how little justification 
 they contain for so much confidence of opinion. In Chitty on Contracts 
 (8th edition), p. 482. it is said: "If the third party be not by law liable foi 
 the demand, as in the case of goods, not being necessaries, furnished to an infan t, 
 the defendant's promise cannot be considered as collateral, and consequently 
 need not be in writing;" citing Harris «. Huntbach, 1 Burrow, 373, and 
 Duncomb v. Tickridge, Aleyn, 9 J. Mr. Browne, in his Treatise on the 
 Statute of Frauds, § 156, says : " Thus, if the party be a minor, or a married 
 woman, or under any other legal disability as to forming binding contracts,
 
 300 Collateral Undeetakin-gs. [Ch. viii. 
 
 § 2'i9. Manifestly those cases, where the infant or mar- 
 ried woman, although primarily, or even exclusively 
 benefited by the transaction, did not profess to assume 
 any liability for the consideration, or was not made the 
 subject of any credit, call for no special remark. For 
 there is nothing to distinguish them from the ordinary 
 cases, where goods were delivered, money loaned, or 
 services rendered to one person, exclusively upon the 
 credit of another; as the circumstance that the person 
 primarily benefited was under a disability to enter into a 
 contract, becomes wholly immaterial, when such person 
 made no attempt to contract ; or theattempt was unsuc- 
 cessful, in consequence of the non-concurrence of the 
 other party. 
 
 it is manifest that a promise by a third person, to answsr for him or her, ia 
 a matter within the range of that disability, cannot be affected by the statute 
 of frauds," citing Hairis v. Huntbach, 1 Burrow, 371 ; Cliapin v. Lapham, 
 37 Massachusetts (20 Pickering), 4G7 ; Roche v. Chaplin, 1 Bailey, 419; 
 Connerat V. GoLlsmith, 6 Georgia, 14; Mease v. Wagner, 1 McCord, 395; 
 and Drake v. Flewellen, 33 Alabama, 106. Of these cases, Mease v. Wagner 
 (anie, § 223), and Drake v. Flewellen, are entirely irrelevant to the question, 
 and mu-^t have been cited by mistake. The others are fully examined in the 
 text. In the English notes to the posthumous edition of Smith's Lectures 
 on Contracts, p. 47, the same doctrine is doubtless intended to be stated 
 (altiiough unfortunately expressed), and Harris v. Huntbach is cited to 
 uphold it. So in Burge on Suretyship, p. 29 : " If therefore the person, for 
 whom the promise was given, was exempt from all liability by reason 
 of his infancy, the promise given is original, and not collateral," citing 
 Harris v. Huntbach. Messrs. Hare and Wallace, in their notes to Smith's 
 Leading Cases, sixth American edition, vol. 1, p. 473, say: "A guaranty of 
 the payment of a debt, or performance of a contract by a feme covert, 
 minor, or other person under a legal disability to contract, will follow the 
 same rule and bind the guarantor; because there is no obligation resting 
 upon the principal." citing Harris v. Huntbach, also Chapin v. Lapham, 37 
 Massachusetts (20 Pickering), 467, and Sanborn v. Merrill, 41 Maine, 467. 
 But they add : " This would seem, however, not to be true, when the con- 
 tract of the infant is for necessaries, or when he affirms the contract after 
 coming of full age ; although the minority of the person who receives or 
 profits by the consideration, may tend more or less strongly to show that 
 he was not trusted, and that credit was given exclusively to the promisor." 
 No cases are cited in support of this last remark, and with respect to what
 
 Art. II.] Collateral Undertakings. 301 
 
 § 250. This was the ground upon which Sanborn v. 
 Merrill, 41 Maine, 4G7, A. D. 1856, was decided ; although 
 it lias been erroneously quoted, as authority for the propo- 
 sition, that a contract collateral to that of an infant, is not 
 within the statute, because the infant is not liable. There 
 it appeared on a report from nisi prius, that the action 
 was to recover for services and expenses of the plaintiff, 
 as an attorney and counsellor at law, in a suit, in which 
 the defendant was the next friend of an infant plaintiff; 
 and the proof of the promise was, that the defendant said 
 that he had employed the plaintiff in the tirst instance to 
 carry on the suit, and agreed to pay him, and he should 
 pay him. The court held that the next friend of an 
 infant, as such, is not liable for the costs which might 
 
 is said about the aflSrmance of the contract, after the infant becomes of age, 
 it cannot be law; because, as we have frequently had occasion to say, the 
 application of the statute is not afiected by any tiling which occurs after the 
 cqntract was entered into. See § 152, ante. In Addison on Contracts, sixth 
 English edition (18G9), on page 59, it is said: "If goods are furnished to an 
 infant at tiie request of the defendant, the defendant's undeitaking or prom- 
 ise to pay for tliem, is not a collateral promise to answer for the debt of 
 another, inasmuch as the infant is not liable to pay for them, and cannot be 
 indebted by reason of his minority," meaning, doubtless, that such is the 
 rule, if they are so furnished on the request and promise of the hifant, as 
 well as of the defendant. The authorities cited are Harris v. Huntbach, and 
 Duncomb v. Tickridgo, Aleyn, 94. Professor Parsons, in his Treatise on 
 Contracts, does not mention the question, except at page 4 of volume .'second 
 of the fifth edition, where he says: "It" (a guaranty) "is a promise to pay 
 the debt of another; but the guarantor may be held, although no suit could 
 be maintained upon the original debt as where the guar- 
 antor promises to be responsible for goods to be supplied to a mai ried woman, 
 or to be sold to an infant, not being necessaries. But where the ori.t,'inal 
 debt is not enforceable at law, the promise to be responsible for it is consid- 
 ered, for some purposes, as direct and not collateral; as, in fact, the original 
 promise." The authorities cited under the second branch of this proposition 
 are Harris v. Huntbach, 1 Burrow, 37], and Read v. Nash, "there cited;" 
 also Buckmyr v. Darnall, 2 Lord Raymond, 1085. None of the above men- 
 tioned cases, except Chapin v. Lapham, 20 Pickering, 467, and Roche v. 
 Chapin, 1 Bailey, 419, sustained these authors' propositions, as far as they 
 assert that guaranties of the contracts of infants and of married women are 
 original promises. All of them having any relevancy to the subject, are
 
 302 COLLATEEAL UNDERTAKINGS. [Ch. VIII. 
 
 be recovered against the plaintiff, if the suit should be 
 unsuccessful ; the infant plaintiff being liable for costs. 
 The opinion then proceeds: "The promise to answer for 
 the debt or default of another must be in writing, to bind 
 the person thus promising. But an individual may 
 originally undertake to pay for services which are to be 
 rendered, or for goods which are to be delivered to another. 
 The question in such cases is, on whose credit the services 
 are rendered or the goods delivered. Nothing is clearer 
 than that a person may contract for the performance of 
 services in which he is in no way personally interested. 
 
 cited and criticised with reference to this principle, in the text of this chap- 
 ter; except Read v. Nash, and Buckmyr v. Darnall, which will be found at 
 §§ 130 and 143; and the case in Aleyn, 94, which is copied in full from 
 the folio of 1681, as follows. " Duncomb v. Tickridge. In an action upon a 
 quantum meruit for dyet. lodging, and apparel, the evidence was that the 
 defendant, being an infant, was sent with a Rushia merchant beyond sea by 
 his mothei-, who did agree to pay him so much for dyet, washing and apparel. 
 And the merchant in Russia committed the care of the infant to the plaintiff, 
 and promised to pay him for his dyet, lodging and apparel. And Roll 
 directed the jury, that if an infant comes to a stranger and boards with him, 
 there is a contract in law implied, that he should pay for his board as much 
 as it is worth ; but if another undertakes to pay for his boarding, this express 
 agreement takes away the implied contract. And the verdict was accord- 
 ingly found for the defendant." The case was decided in 24 Car. II, and of 
 course the statute of frauds had no application to it: it merely holds that 
 the express contract of the "Rushia merchant" prevented an implied con- 
 tract from arising on the part of the infant. This would be equally true if 
 the infant was an adult, provided the jury found that credit was given 
 exclusively to the other party ; as was decided in Sinklear v. Emert, 18 Illi- 
 nois, 63, A. D. 1856, where a father, being about to leave home, made a 
 special contract with the plaintiff, to board his infant son during his absence; 
 and in an action upon a quantum meruit for the board against the infant, the 
 plaintifif was defeated; the court holding that the rule was the sam.e as if the 
 question of infancy was not in the case, when the father alone would be 
 liable, as the credit was given exclusively to him. And in Ellicott v. Peter- 
 son, 4 Maryland, 476, A. D. 1853, the defendants were executors of an infant's 
 grandfather, who, under the Maryland law, is not bound to support a grand- 
 child; and it was held, that they were liable upon a promise of their testator 
 to the infiint's stepfather for the latter's maintenance, it appearing that the 
 testator veibally undertook to respond therefor, at the time of the marriage 
 of his daugliter (the infant's mother) to the plaintiff.
 
 Art. II.] Collateral Undertakings. 303 
 
 It is of no importance to the individual performing them, 
 who is to be thereby benefited. It is sufficient for him, 
 that he performed them at the instance and on the credit 
 of his employer. In such case the promise need not be 
 in writing." So the plaintiff had judgment. 
 
 § 251. Although both married women and infants are, 
 in common legal parlance, said to be under disability to 
 contract, yet the effect of a married woman's contract is 
 very different from that of an infant' s ; and this difference is 
 supposed by many, probably with correctness, to exercise 
 a controlling influence in the application of the statute. 
 We will therefore consider separately, the cases bearing 
 upon each spfecies of auxiliary contract. 
 
 (2) Where the promise was auxiliary to that of a married %uoman. 
 
 § 252. Where the person primarily assuming to respond 
 was a married woman, and the transaction was not one of 
 the exceptional cases, where her contract is valid, tliere is 
 great weight in the argument that a guaranty of her con- 
 tract is an original undertaking. For at common law a 
 married woman' s executory contract is absolutely void ; 
 and it is even held, that such a contract is incapable of 
 ratification by her, after the cessation of the coverture, by 
 the death of her husband or by a divorce, without such a 
 new consideration as would suffice to sustain it, as a new 
 and independent contract, {h) And where she has a sepa- 
 rate estate, her general contract will not bind her estate 
 even in equity; in order that it should have that effect 
 she must in some form create a charge or lien upon it. 
 When she has done so; or if the transaction is one, 
 where she or her estate is made liable by statute ; the 
 undertaking of a person who "comes in aid'' of such 
 liability is clearly collateral, within the principle of all the 
 authorities heretofore cited ; but in all other cases, as there 
 is no legal or equitable debt of a third person, to which 
 
 {h) Liltlefield v. Shee, 2 Barnewall and Adolphus, 811 ; Meyer v. Hawortb, 
 
 8 Adolphus and Ellis, 4G7.
 
 304 Collateral Undertakings. [Ch. viii. 
 
 sucli an undertaking can be collateral, the promise of the 
 so-called guarantor would seem to be original. And yet 
 there are many cases, where the credit of a married woman 
 is recognized as having a legal existence, although the 
 facts were not such as to render her or her property liable 
 even in equity, (c) 
 
 § 253. And in one case in the New York Supreme Court, 
 Kimball v. Newell, 7 Hill, 116, A. D. 1845, which was an 
 action of covenant, upon a sealed guaranty of the payment 
 by a married woman, of the rent of a dwelling leased by 
 her. Nelson, C. J., said that it had been decided by the 
 English Court of Common Pleas, that a verbal promise to 
 respond for a married woman' s debt is void, within the 
 statute of frauds. The defendant insisted that as his prin- 
 cipal, being a married woman, was not liable upon her 
 covenant, he, the surety, was also not liable: and in dis- 
 cussing the question, the learned Chief Justice referred to 
 Maggs v. Ames, as an action against a surety for a mar- 
 ried woman. "There," he said, "the question was 
 whether the undertaking of the defendant was an original 
 one, so as not to require it to be in writing. The court 
 held that it was collateral, and therefore should have been 
 in writing. But neither the counsel nor court supposed, 
 
 (c) The cases referred to are those, where an action has been brought against 
 the husband for goods furnished to the wife, and it has been held that the 
 goods were in fact furnished upon the credit of the wife, and not of the hus- 
 band. Bentley v. Griffin, 5 Taunton, 356; Holt v. Brien, 4 Barnewall and 
 Alderson, 252; and Metcalfe v. Shaw, 3 Campbell, 22, are leading cases upon 
 tliis subject. For other similar cases see 1 Parsons on Contracts, fifth edition, 
 348, and notes. The distinction between a wife's credit, and that of her 
 husband, is very neatly taken in the opinion delivered in Connerat v. Gold- 
 smith, C Georgia, 14. The case of Darnell v. Tratt, 2 Carrington and Payne, 
 82, cited ante, § 158, also recognizes the credit of a married woman as having 
 a legal existence, in direct connection with the question whether a promise 
 to respond for her is original or collateral; andalthough it was held there that 
 the contract was not collateral, the absence of any allusion, by the court or the 
 counsel, to a distinction growing out of the fact, that the person alleged to 
 be the principal contractor was a married woman, is an indication that it was 
 then supposed that no such distinction existed.
 
 Art. II.] Collateral Undertakings. 305 
 
 that the defendant would not have been bound, if the 
 contract had been in writing. On the contrary that was 
 assumed." But we think that a careful examination of 
 the case referred to by the learned Chief Justice, will show 
 that it is of no value upon this question. (<:?) 
 
 § 254. However, Miller v. Long, 45 Pennsylvania, 350, 
 A. D. 1863, is perliaps an authority for holding that the 
 statute applies to a promise, collateral to a married wo- 
 man' s contract. There the defendant' s wife signed a note, 
 together with the defendant' s step- son, in her own name 
 and for her son's benefit ; and at the same time the defend- 
 ant, being present, was also requested to sign it ; but he 
 refused to do so, and told his wife, in presence of the 
 plaintiff, that she should put her name to it and he would 
 
 {d) The case of Maggs v. Ames was decided in the year 1828, and is 
 reported in 1 Moore and Payne, 294, and 4 Bingham, 470; according to 
 both reports the declaration contained two special counts ; the first upon the 
 defendant's promise to pay, in case of dishonor, a bill of exchange to be 
 drawn upon and accepted by one Ann Prickett, for a debt due from her; 
 and the second upon a promise to pay the debt itself. The defendant 
 pleaded five pleas; the fourth was to the efiect that there was no writing as 
 required by the statute of frauds ; and the fifth, that at the time, etc., and 
 thence hitherto, etc., Ann Pricket was a married woman. Both reports say 
 that these pleas were pleaded to hoth counts. There was a special demurrer 
 to the fourth and fifth pleas ; and after argument the court gave judgment 
 for the defendant. It will be seen, from this statement, that the question 
 to which Chief Justice Nelson referred, could not have arisen ; as the pleas of 
 coverture and of the statute were entirely distinct; and in considering the 
 plea of coverture^ the court must have assumed, upon well settled rules of 
 pleading, (the force of which was fully recognized in the opinion delivered), 
 that both the promises set forth in the declaration were in writing. Accord- 
 ing to the reports of the decision, the court held that a plea of coverture of 
 the original debtor was a good defence, not only to a count upon a promise to 
 pay her debt in case of her default, but also to a count upon an absolute 
 promise to pay it. But the opinion says no such thing; on the contrary it is 
 directly the other way, with respect to the plea of coverture, and the plea of 
 the statute, to the count upon the absolute promise. There are other dis- 
 crepancies between the decision and the opinion, and some palpable errors 
 in the latter. As far as the question now under examination is involved, both 
 reports are wholly unreliable, and in truth incomprehensible. 
 39
 
 306 Collateral Undertakings. [Ch. viii. 
 
 see it paid, and afterwards lie promised to pay it. The 
 plaintiff had judgment in the Common Pleas ; and error was 
 brought thereon to the Supreme Court. There it was held 
 that the defendant was not liable on his promise ; first, 
 because he was not the maker of the note and it would be 
 in contradiction of the writing to hold him liable ; and 
 secondly, because ' ' there is no promise in writing by him, 
 and therefore no promissory note by him, and no valid 
 promise to pay the debt of another, whether his wife' s or 
 her son's." The judgment was therefore reversed. (e) 
 
 § 255. In Connerat v, GoldsmitJi, 6 Georgia, 14, A. D. 
 1849, the plaintiff sued to recover the value of certain fur- 
 niture delivered to the defendant' s wife ; and it appeared 
 that she had a separate estate ; and that she purchased the 
 furniture herself, and gave her note for the price, in exchange 
 for which the plaintiff gave her a receipt in full ; but evidence 
 was given of a subsequent verbal promise by the defend- 
 ant to pay the note. The court held that he was not liable, 
 because it was evident that the credit was given to the 
 wife and not to the husband ; so that if the husband sub- 
 sequently made a promise to pay the note, such prom- 
 ise was void within the statute of frauds, as being an 
 engagement to answer for the debt of another. The opin- 
 ion, however, speaks of the wife as being, as to her sepa- 
 rate estate, a feme sole ; and concludes by saying that the 
 plaintiff has a remedy against her property. Unless there 
 is something peculiar and exceptional in the law of 
 Georgia, it is questionable whether the wife's property 
 was answerable for the debt, either at law or in equity ; so 
 that upon the facts of the case, it would apparently be an 
 authority for holding, that a promise is within the statute, 
 whenever it was collateral to that of a married woman. But 
 as the court assumed, whether rightly or not, that the 
 
 (e) The Pennsylvania married woman's act, passed in 1848, is not construed 
 as giving a married woman any new power to contract debts. See Bright- 
 ly's Purdon's Digest, 699 to 702, and note. The case cited in the text is 
 shamefully reported ; and we are inclined to think that the decision turned 
 entirely upon a point of pleading.
 
 Art. II.] Collateral Undertakings. 307 
 
 woman' s property was liable for the debt, the case cannot 
 fairly be regarded as holding any thing more, than that an 
 equitable liability of a married woman's property consti- 
 tutes such a debt, that the statute of frauds will attach to 
 a promise relating thereto ; in the same manner as if the 
 person benetited by the transaction, out of which it arose, 
 was under no disability. 
 
 § 256. In view of these decisions, (/) it is impossible 
 to say that the law is settled that a promise to respond, 
 concurrently with a married woman, upon a consideration 
 moving to her, is not within the statute of frauds. All 
 that can be said, is that the weight of reasoning appears 
 to favor such a doctrine ; but upon the authorities the 
 question is an open one. Nor can we find much to shed 
 light upon it, by consulting the cases where the undertaking 
 was in writing. They all agree that the surety in such a 
 case is bound, notwithstanding the coverture of the prin- 
 cipal debtor ; and the same rule obtains where the princi- 
 pal is an infant ; but the reasoning upon which the liability 
 rests is vague and by no means uniform. While they 
 assert that "for some purposes" the surety is regarded 
 as a principal, they do not in general state definitely what 
 those purposes are, beyond the purpose of being made 
 liable in the particular case. Thus in St. Albans Bank v. 
 Dillon, 30 Vermont, 122, A. D. 1857, the court said that the 
 maker of a joint note, where a married woman is the other 
 party, and the transaction was for her benefit, " stands in 
 a certain sense as principal promisor." But in Smyley 
 V. Head, 2 Richardson (South Carolina), 690, A. D. 1846, 
 upon the same state of facts, the court said: "The liabil- 
 ity of the surety in such case may be supported, on the 
 ground, that he shall not protect himself, by alleging the 
 incompetency of the supposed principal, which may have 
 been the very motive with the other contracting party for 
 
 (/) The head note to Bagley v. Sasser, 2 Jones' Equity (North Carolina), 
 350, A. D. 1856, impHes that it is relevant to this subject; but we fail to dis- 
 cover its application, upon an examination of the case itself.
 
 308 Collateral Undektakings. [Ch. viii. 
 
 requiring security ; and by analogy to the law of principal 
 and agent, the surety may be held liable as principal, 
 for an engagement he has made in behalf of one, who was 
 incompetent to contract," which apparently puts the lia- 
 bility upon the ground of an estoppel in pais. And in 
 the case already cited, Kimball v. Newell^ 7 Hill, 116, 
 wlijle Nelson, C. J., assigned no special reason for holding 
 the defendant liable, Beardsley, J., put it upon the ground 
 of an estoppel by deed. He says: "The defendant by 
 his covenant admits she was thus bound, and he shall 
 not ... be permitted, on the ground now set up, to 
 deny the legal existence of a covenant which is explicitly 
 conceded by his own deed." 
 
 (3) Whe,re the proviise was auxiliary to that of an infant. 
 
 § 257. Passing now to the consideration of the cases, 
 where the person who was benefited by the consideration, 
 and who assumed the primary liability, was an infant ; we 
 observe that the principles which govern the liability of 
 an infant, upon an executory contract not for necessaries, 
 would seem to render it still more questionable, whether 
 the concurrent undertaking of another, to respond for a 
 debt contracted by him, can be treated as original, by 
 reason of any invalidity of the infant's promise. For 
 while the contract of a married woman is, as we have seen, 
 so absolutely void at common law, that a new promise, 
 after the disability has ceased, will not suffice to sustain 
 it, without a new consideration ; the rule is quite difl'erent 
 with respect to that of an infant. Without undertaking 
 to give here any comprehensive statement of an infant' s 
 rights and liabilities, it will be sufficient for our purpose 
 to say, that while an infant is liable for all torts committed 
 by him, in general his contract is not void but only voida- 
 ble ; that is, he may, either during minority or a reason- 
 able time after majority, avoid the contract; or on the 
 other hand, he may, after he attains majority, confirm and 
 enforce it. It is said that contracts of suretyship, and 
 other similar contracts, which the court can clearly see 
 will not promote the infant' s interest, can be declared void
 
 Art. II.] Collateral Undertakings. 309 
 
 by the court ; but the better opinion seems to be that no 
 such jurisdiction exists, and that no contract of an infant 
 is absolutely void ; it being the exclusive privilege of the 
 infant himself to avoid his contracts. (^) The accomplished 
 authors of the American Leading Cases, in the course of 
 a chapter, which contains a very full and lucid discus- 
 sion of the liabilities and rights of infants, say: "The 
 numerous decisions which have been had in this country, 
 justif}" the settlement of the following definite rule, as one 
 that is subject to no exceptions. The only contract bind- 
 ing on an infant is the implied contract for necessaries : 
 the only act which he is under a legal incapacity to per- 
 form, is the appointment of an attorney : all other acts 
 and contracts, executed and executory, are voidable or 
 confirmable by him at his election. "('^) 
 
 § 258. The solution of the question seems to depend 
 upon the legal character of the infant' s contract, during 
 the period which elapses between its creation, and its 
 avoidance or affirmance. And in common legal parlance, 
 such a contract is said to be binding on both parties, until 
 it is disaffirmed by the infant. This expression defines 
 with substantial accuracy the rights and liabilities of both 
 the parties. To say that a contract is voidable imports, 
 ex vi termini, that it is good until it is avoided. And the 
 rule is well settled that no one but the infant himself can 
 avoid his contract. Hence it seems very clear that after 
 the making of a contract by an infant, and during the 
 intermediate time elapsing before its disaffirmance, it has 
 a legal value and character as a binding agreement, under 
 which rights may be acquired or lost. Consequently there 
 is a period of time, in which the collateral promisor and the 
 principal debtor are concurrently liable, which is the test 
 whether the former' s contract is within the statute ; for 
 events happening after the contract has been entered into, are 
 wholly immaterial to the determination of that question. ( / ) 
 
 (7) 1 Parsons on Contracts, fiRh edition, 294, 296. 
 (A) 1 American Leading Cases, fourth edition, 244. 
 (t) See ante, § 152.
 
 310 Collateral Undertakings. [Cli. vin. 
 
 § 259. But, as was shown in the note to section 248, the 
 general opinion seems to be the other way, although it is not 
 suiDported by much authority. The case most frequently 
 cited, in support of the theory that the auxiliary promisor 
 is liable, because the infant' s contract does not bind him, is 
 Harris v. Hunthach, 1 Burrow, 371, A. D. 1757, which, as 
 we regard it, holds no such doctrine. There the promises 
 upon which the action was brought were in writing, and 
 so the application of the statute of frauds was not directly 
 in question ; but the case is a pertinent authority under 
 the statute, because the pleadings presented the precise 
 question, whether the undertaking was original or collat- 
 eral. The action was upon a general indebitatus assump- 
 sit, the declaration containing two counts ; the first for 
 money lent and advanced by the plaintiff, at the defend- 
 ant' s request ; and the second for^ money laid out and 
 expended by the plaintiff, at the like request. As the 
 question respecting the first count was almost too clear for 
 argument, it will suffice to say that it arose upon the 
 defendant' s note of hand, the consideration of which enured 
 to the infant's benefit. To sustain the second count, the 
 plaintiff proved that one Davidson, the gardener upon the 
 estate of the defendant' s infant grandson, applied to the 
 plaintiff, by order of the defendant, for money to pay 
 the workmen employed upon the estate ; but the plaintiff 
 refused to furnish the money, unless the defendant would 
 sign a receipt therefor ; whereupon the defendant wrote to 
 the plaintiff a note requesting him to pay Davidson, ' ' on 
 the account of Master Hillier, for the workmen' s use, the 
 sum of 15Z." ; and upon this the plaintiff paid the money to 
 Davidson, who executed his receipt therefor to the plaintiff. 
 There was a verdict for the plaintiff, and a case was 
 reserved for the opinion of the court upon the question 
 whether the evidence was sufficient to support the verdict. 
 
 § 260. Upon the argument the point was, whether the 
 defendant' s undertaking was original or collateral ; it 
 being conceded, that in the latter case the declaration 
 should have been special, but in the former the general
 
 Art. II.] Collateral Undertakings. 311 
 
 count sufficed. The court held that it was an original, and 
 not a collateral undertaking, for the reason that there was 
 no proof that the plaintiff had any remedy against the 
 infant. Lord Mansfield, C. J., said: " Here is a mansion- 
 house belonging to an infant, which mansion-house has 
 a garden belonging to it. It might not be necessary (in 
 regard to the infant's situation and circumstances), to 
 support this garden (which might be a pleasure garden), 
 and no action will lie against the infant but for necessaries. 
 It don't appear at all that there could be any remedy 
 against the infant." Denison, J., added: "There is no 
 privity between the plaintiff and the infant ; " and Foster, 
 J., said: "The infant was not liable, and therefore it 
 could not be a collateral undertaking. It was an original 
 undertaking of the defendant to pay the money." So the 
 postea was delivered to the plaintiff. 
 
 § 261. If these remarks of the judges be disconnected 
 from the facts upon which they were predicated, there are 
 some expressions in them, which seem to convey the idea 
 that the liability of the defendant was original, merely 
 because the person undertaken for was an infant. But if 
 due weight be given to the peculiar circumstances, under 
 which they were spoken, we think it will be manifest, that 
 Harsris v. Hunthach is not an authority upon either side 
 of the question under consideration ; for the infant had 
 made no express contract; and what is said by Lord 
 Mansfield about necessaries, is evidently upon the ques- 
 tion, whether there was any thing, upon which the court 
 could raise an implied contract against him. The conclu- 
 sion was, not that the defendant had undertaken collat- 
 erally to respond for an infant's voidable contract; but 
 that the infant was not liable upon any contract, express 
 or implied ; and the result would have been precisely the 
 same, if "Master Hillier" had been an adult; only in the 
 latter case the remarks about necessaries would have been 
 irrelevant. (,/) 
 
 ij) In Tupper v. Cadwell, 53 Massachusetts (12 Mefcalf), 559, A. D. 1847. 
 It was held that an infant was not liable, upon an implied contract for th©
 
 313 COLLATEKAL UNDERTAKINGS. [Ch. VIII. 
 
 § 262. The case of Roclie v. OhapUn, 1 Bailey (South 
 Carolina), 419, A. D. 1830, has been also supposed to con- 
 tain a judicial sanction of the proposition that a promise 
 to pay an infant' s debt is original. The report does not 
 disclose the circumstances of the transaction between the 
 plaintiff and the infant; it merely says that this was a 
 "summary process upon an open account, for a frock coat 
 furnished by the plaintiff, a tailor, to the defendant' s ward." 
 There was an interrogatory annexed to the process, under 
 the local statute, requiring the defendant to answer on 
 oath, whether he had not promised the plaintiff' s attorney, 
 after the account had been placed in his hands for collec- 
 tion, to pay the debt, if he should be indulged for a short 
 period. He refused to answer on two grounds, one of 
 which was that if such a promise had been made, it was 
 void under the statute of frauds. In the court below the 
 objection was overruled, on the ground that the promise 
 " was an admission, both that the debt had been properly 
 contracted by the ward, and that he himself had funds in 
 hand to meet it;" and the plaintiff had judgment under 
 the statute, in consequence of the defendant's refusal to 
 answer. 
 
 § 263. The defendant moved in the Court of Appeals to 
 set aside the judgment. The motion was denied, Johnson, 
 J., saying, that assuming the affirmative of the question 
 to be true, the case was that the coat was furnished to the 
 ward without the defendant's order, and that he subse- 
 quently promised to pay the value, in consideration of 
 indulgence ; and that where there was no liability on the 
 part of the person for whom the promise was made, the 
 promise was original. He added: "It may, I think, be 
 well questioned, whether an infant having a guardian 
 would, under ordinary circumstances, be himself liable 
 
 expenses of repairing his dwelling house, although the repairs were necessary 
 for the prevention of immediate and serious injury to the house; the court 
 holding that if such repairs are needed, a guardian should be appointed to 
 make them.
 
 Art II.] Collateral Undertakings. 313 
 
 even for necessaries furnished him. But there is clearly 
 nothing in this case which would bind him ; and accord- 
 ing to the rule, the promise of the defendant was original 
 and binding on him," citing Harris v. Hunthach. The 
 motion was therefore denied. It would seem, from the 
 remarks which we have quoted, that the pleadings or the 
 evidence disclosed something, relating to the original 
 transaction between the plaintiff and the infant, which the 
 reporter has omitted ; probably that the coat was fur- 
 nished on the credit of the defendant, but without his 
 authority ; especially as the decision of the court below 
 proceeded upon that ground, and the reason there 
 assigned was ample to sustain the action. (A-) 
 
 § 264. In CJiapin v. Lapham, 37 Massachusetts (20 
 Pickering), 467, A. D. 1838, the defendant had requested 
 the plaintiff to assist his minor son, whenever he should 
 need any assistance, in a business which he was carrying 
 on ; and had promised to indemnify him for any liabilities 
 "which he might incur, and any assistance which he might 
 render. Upon the faith of this promise, the plaintiff had 
 signed a note with the son, and for the latter' s accommoda- 
 tion, which he had subsequently paid ; and now he brought 
 this action to recover the amount so paid. A verdict was 
 rendered for the plaintiff, under a general charge that the 
 
 (Jc) The case apparently very nearly resembles that of Law v. Wilkin, 6 
 Adolphus and Ellis, 718, A. D. 1837. There the action was brought by a 
 firm of tailors for the value of a suit of clothes, supplied to the defendant's 
 son, a boy at a boarding school. It appeared that the boy was in want of 
 clothes, but there was no evidence to show that the father had ordered this 
 suit. It was also shown that when the boy went home for the holidays, he 
 took the clothes with him; but "was not wearing them; " and he returned 
 to school with them; but there was no direct proof that the defendant had 
 seen them. The plaintiffs were nonsuited, and the court set aside the 
 nonsuit and ordered a new trial, partly on the ground that it appeared that 
 the father had not made proper provision for the son. But Lord Denman, 
 C. J., and Patterson and Coleridge, J. J., also held that the presumption was 
 that the father saw the clothes during the vacation; and as he made no objec- 
 tion, an authority might, for that reason, be implied. 
 40
 
 314 Collateral Undertakings. [Ch. vin. 
 
 promise was not witliin the statute of frauds ; and the case 
 came on to be heard, upon exceptions to that and other 
 portions of the charge. Shaw, C. J., delivered the opin- 
 ion of the court, overruling the exceptions. Upon the 
 point whether the promise was within the statute, after 
 saying that when the whole credit was given to the person 
 making the promise, it is original, he added: "In the 
 present case we think the whole credit was given by the 
 plaintiff to the defendant. The son of the defendant was 
 a minor, and not liable to any action by the plaintiff for 
 the money paid on his account, on the joint and several 
 note signed by the plaintiff, in pursuance of the defendant' s 
 request. The undertaking and promise of the defendant, 
 therefore, was not collateral to any promise of the son ; 
 but was separate, independent and original. "(Z) 
 
 § 265. On the other hand, the case of Clarlt v. Lem^ 10 
 New York Legal Observer, 184, decided in the New York 
 Common Pleas, A. D. 1851, is an authority for holding a 
 promise to respond for an infant' s contract to be collateral ; 
 for although in the particular case, it was conditional by 
 its terms, it is believed, that within the principles govern- 
 ing verbal contracts of that character, the rule is the same, 
 in this connection, whether the promise was absolute or 
 conditional, (m) The plaintiff had sold goods to the defend- 
 
 (?) This is all in the opinion material to the point under consideration ; and 
 if we understand it rightly, it means no more than that the infancy of the 
 principal debtor, was a circumstance to show, that in fact credit was not 
 given to him; rather than that it rendered the contract necessaiily original. 
 It is true, that the infant had assumed to contract upon his own credit, but 
 not with the plaintiff. As between the plaintiff and the defendant, the result 
 would have been the same if the principal debtor had been an adult. It will 
 appear hereafter, (chapter xiii,) that this is the first of a series of Massachusetts 
 cases, which finally settled the rule in that State, that a promise to indemnify 
 the promisee for becoming surety for the third person to a fourth person, who 
 was not a party to the contract, is not within the statute. Still the Chief 
 Justice failed in this case to lay down that principle distinctly, saying that it 
 was not necessary to decide it; and placed the decision entirely upon the 
 question of credit. 
 
 (m) Chapter vii, article iii.
 
 Art. II.] Collateral UNDEKTAKmos. 316 
 
 ant' s son, at six months' credit, upon the defendant' s prom- 
 ise to be responsible and to pay for them, if the son did 
 not ; the son was under age, and the plaintiff had refused 
 to trust him because he was an infant ; but finally let him 
 have the goods, upon the defendant's promise as above 
 stated. The defence was that the promise was within the 
 statute. The plaintiff had judgment, which was reversed 
 on appeal. Ingraham, First Judge, delivering the opinion 
 of the court, held, that the promise was not taken out of 
 the statute of frauds by the infancy of the son ; because 
 "the contract with the infant was a good contract, which 
 he could enforce on his part ; and which was only void- 
 able, if he saw fit to avail himself of his personal exemp- 
 tion ; but until the defence of infancy was made, the con- 
 tract was otherwise valid." The learned judge added, that 
 it was evident that the defendant did not intend or agree 
 to be the principal debtor ; this was apparent, not only 
 from the circumstances proved in evidence, but from the 
 terms of the contract ; the whole credit was not given to 
 the defendant. "If," he continued, "the promise had 
 been, to do what was asked of the defendant in the first 
 instance, viz., to indorse the note of Joseph, there could 
 be no doubt that such a promise would be void." The 
 case of Harris v. Hunfbach was distinguished from the 
 one at bar, on the ground that there it did not appear that 
 the infant had made any contract, or that there was any 
 privity between the plaintiff and him. 
 
 § 266. And the recent case of Dexter v. Blanchard, 93 
 Massachusetts (11 Allen), 365, decided A. D. 1865, although 
 the question arose upon a promise to pay a debt antece- 
 dently contracted by an infant, apparently covers the 
 whole subject of the present discussion. It was an action 
 "upon an oral promise by the defendant, to pay to the 
 plaintiff a bill for the hire of horses and carriages, and for 
 injury to a wagon." At the trial, " the plaintiff offered 
 to prove that the horses and carriages were hired, and the 
 injury done, by the defendant's minor son, to whom the 
 credit therefor was given;" and that in consideration of
 
 316 COLLATEEAL UnDEETAKINGS. [Ch. VIII. 
 
 forbearance to trouble the son, while he was ill, the defend- 
 ant promised to pay the debt. The judge ruled that the 
 action could not be maintained, and a verdict was rendered 
 for the defendant. The Supreme Court overruled an 
 exception to this ruling, Bigelow, J., delivering the opin- 
 ion, which, upon this branch of the case, is as follows : 
 "The fallacy of the argument urged in behalf of the 
 plaintiff, lies in the assumption, that there was in fact no 
 debt due from the son of the defendant, because he was a 
 mmor at the time he undertook to enter into a contract 
 with the plaintiff. A debt due from a minor is not void ; 
 it is voidable only ; that is, it cannot be enforced by a suit 
 at law against the contracting party, on plea and proof by 
 him of infancy. But it is voidable only at the election of 
 the infant, and until so avoided it is a valid debt. Wor 
 can a third person avail himself of the minority of a 
 debtor, to obtain any right or security or title. Infancy is 
 a personal privilege, of which no one can take advantage 
 but the infant. " " The effect of the doctrine contended for 
 by the counsel for the plaintiff would be, that a verbal 
 agreement to answer for the debt of another would be 
 valid, if it could be shown that the original contracting 
 party could have established a good defence to the debt, 
 in an action brought against him. We know of no prin- 
 ciple or authority on which such a proposition can be 
 maintained. It certainly would open a wide door for some 
 of the mischiefs which the statute of frauds was designed 
 to prevent. "(?i) 
 
 (n) As germane to this question, we refer also to the cases of Haine's 
 Administrator v. Tarrant, 2 Hill (South Carolina), 400, A. D. 1834, and 
 Conn V. Coburn, 7 New Hampshire, 368, A. D. 1834, (each of which was an 
 action to recover from an infant, the amount paid by the plaintiflf, to take up 
 a promissory note, which he had signed with the infant, as his surety, for 
 necessaries furnished to the infant); and to Randall v. Sweet, 1 Denio (New 
 York), 460, A. D. 1845, where a stranger to the demand, at the request of 
 the infant, had paid the infant's note, given upon a like consideration. In 
 each of these cases the creditor was allowed to recover. In Conn v. Coburn, 
 it was expressly conceded, that the note was voidable, and that it did not 
 cancel the debt until it was paid ; and Parker, J., delivering the opinion of
 
 Art. II.] Collateral Undertakings. 317 
 
 § 267. These are, as far as we can ascertain, tlie only 
 reported cases upon this subject ; (o) and we think that 
 the weight of authority, as well as of argument, is very 
 decidedly in favor of the ruling, that a promise in aid of 
 that of an infant, is within the statute of frauds, precisely 
 as if the infant was an adult. 
 
 § 268. Here we take leave of the cases governed directly 
 by the third general rule ; but by no means of the principle 
 embodied in the rule. On the contrary, we shall lind it 
 underlying many of the rules upon which depends the 
 validity of a verbal promise relating to an antecedent debt 
 or liability of a third person. Not unfrequently the very 
 language of this favorite rule is used, as a test by which 
 to determine the application of the others ; and in some 
 cases this rule has been erroneously allowed to supercede 
 the one, by which the validity of the promise should have 
 been determined. 
 
 the court, saj's: "If the infant is not liable upon the note, as he would not 
 be if he elected to avoid such liability, an assumpsit, upon the delivery of the 
 goods, must be considered as subsisting against him ; and the note of the 
 surety be regarded as collateral security for the payment." 
 
 (o) Kirkham v. Marter, 2 Barnevpall and. Alderson, 613 (ante §§ 124, 
 133.) is sometimes supposed to relate to this question. If it has any bear- 
 ing upon the validity of a verbal auxiliary undertaking in behalf of an 
 infant, it merely proves that such an undertaking is within the statute, when 
 the infant is liable. But there is nothing m the case to show that the 
 defendant's son was an infant.
 
 CHAPTER NINTH. 
 
 CASES WHICH ARE NOT WITHIIST THE STATUTE, ALTHOUGH 
 THE THIRD PERSON AND THE PROMISOR BECAME LIABLE 
 FOR THE SAME DEBT, BECAUSE THEY WERE NOT SO 
 LIABLE AT THE SAME TIME. THE SUBJECT COMMENCED 
 WITH THOSE CASES, WHERE THE EXTINGUISHMENT OF 
 THE THIRD PERSON'S LIABILITY RESULTED FROM SOME 
 ACT OR OMISSION OF THE PROMISEE, OTHER THAN AN 
 EXPRESS DISCHARGE. 
 
 § 269. Having thus completed the examination of those 
 cases, where the liabilities of the promisor and of the third 
 person did not concur, for the reason that the third per- 
 son had assumed no liability corresponding with that of 
 the promisor, at the time when the promise took effect, 
 we now come, in pursuance of the classification indicated 
 in the second chapter, to those where the failure of the 
 two liabilities to concur, proceeded from the fact that the 
 person primarily owing the debt or the duty, had been 
 discharged therefrom, before the undertaking of the new 
 promisor took effect. These form the second subdivision 
 of the fourth class of cases not within the statute, because 
 the terms of the statutory description of the promises to 
 which it applies are only partially satisfied, {a) and they 
 are governed by the fourth general rule, namely : 
 
 RULE FOURTH. 
 
 A promise to assume an antecedent liability of a tliird person is ■withont the statutBi if the 
 third person's liability had become extinct, at the time when that of the promisor came 
 into ezistencei 
 
 § 270. The cases governed by this rule are also very 
 numerous ; and they arrange themselves into several dis- 
 tinct groups or sub-classes, depending upon the manner 
 m which the discharge of the tliird person was effected, 
 
 (a) Section 70.
 
 Art. I.] Collateral Undertakings. 319 
 
 and presenting various incidental questions, which relate 
 chiefly to the sufficiency of the discharge, or of the evidence 
 to establish it. After disposing of some preliminary 
 matters relating to all these groups, we will consider in 
 this chapter those cases which possess in common the 
 feature, that the third person's discharge resulted from 
 some act of the promisee, done at the request of the prom- 
 isor, but without any agreement to that effect with the 
 person discharged; reserving till the next chapter the 
 examination of those, where the discharge resulted from 
 an agreement, to which the promisor, the promisee, and 
 the third person were all parties. 
 
 ARTICLE I. 
 
 Origin and correct definition of the rule ; in what oases an eiecntory agreement to discharge 
 the third person, or to do some act which will operate to discharge him, will satisfy it, 
 
 § 271. The suggestion that the statute does not apply to 
 cases where the third person's liability had become extinct 
 at the time of the promise, is believed to have been first 
 made in the year 1766, by Sir Fletcher Norton, comment- 
 ing upon Read v. Nash, 1 Wilson, 305, in the course of 
 his argument for the plaintiff in Williams v. Leper, 3 
 Burrow, 1886. (a) But the earliest case where we find any 
 such principle distinctly suggested from the bench, is 
 Anstey v. Mar den, 4 Bosanquet and" Puller (1 New 
 Keports), 124, decided in the Common Pleas in the year 
 1804, already cited at considerable length in another con- 
 nection. (&) There, as was mentioned when the case was 
 formerly cited. Sir James Mansfield, the Chief Justice, 
 said that one of the grounds of his ruling at the trial waa 
 that he did not see "how one person could undertake for 
 the debt of another, when the debt, for which he was sup- 
 posed to undertake, was discharged by the very bargain." 
 And he seems to have retained that impression, after the 
 argument of the rule nisi ; although he ultimately fell in 
 
 (a) See ante, § 130, and post § 577, 578. 
 (6) Sections 118 and 119.
 
 320 COLLATEKAL UNDERTAKINGS. [Ch. IX. 
 
 with the conclusions of the other judges, who discharged 
 the rule upon a ground, which seems to be wholly incon- 
 sistent with the application of that doctrine to the case 
 then before them. 
 
 § 272. This suggestion of the Chief Justice provoked 
 much cotemporaneous comment ; and Mr. Roberts, whose 
 Treatise on the Statute of Frauds was published soon 
 afterwards, condemned it in unqualified terms, (c) But 
 fourteen years after the decision in Anstey v. Marden, 
 the case of Goodman v. Chase, which will presently be 
 given at length, was decided in the King' s Bench, before 
 Lord Ellenborough and his associate justices ; wherein 
 that principle was distinctly promulgated as the ground 
 
 (c) The following extract contains the substance of his argument against 
 the principle : " The promise mentioned by the statute is as well that whereby 
 a man undertakes to answer for the debt, as for the default, of another; and 
 although where the original party was liable to the performance of some act 
 (to which case the words default or miscarriage seem properly applicable), 
 the promise may be construed in the limited sense of an alternative under- 
 taking only ; yet such interpretation will be too narrow where the promise 
 is to pay the deht of another. To answer for another man's debt seems to be 
 a phrase extending as well to promises to pay another's debt, where the 
 promise is made in consideration of an instantaneous discharge of the party 
 originally liable, so as to substitute the promisor in his place as the only 
 debtor, as where the engagement is only meant to be in the alternative; and 
 as the greatest lawyers have, for a series of years, strongly declared their 
 conviction of the expediency of a liberal construction of the statute, there 
 does not appear to be any just ground for confining this clause to the case 
 of such promises only, which suppose the liability of the original debtor to 
 remain. Where, indeed, there was no previously existing debt, as where 
 the undertaking arises upon the furnishing and delivery of goods by a trader 
 to a third person, to place such case within the reach of the statute, it is 
 necessary that the deliveree should become liable ; in such case, therefore, the 
 liabilities of the party undertaken for, and the party undertaking, must 
 necessarily exist together. But if I undertake to satisfy the debt of a person 
 already indebted, in consideration of his instantaneous release, there seems 
 to be no good reason for saying that this is not a promise to answer for the 
 debt of another, within the reason and contemplation of the act of Parlia- 
 ment." Roberts on Frauds, pp. 224, 225. Case v. Barber, T. Raymond, 450, 
 A. D. 1681, appears to be an authority in support of Mr. Roberts's views.
 
 Art. I.] Collateral Undertakings. 321 
 
 of the decision. Since that time, it has been universally 
 acknowledged, as the true rule of construction of the 
 statute, by all the English courts and text writers ; and 
 from England it has travelled to the United States, where 
 it has now become equally well settled, and although 
 some ill-considered rulings to the contrary may be found 
 scattered through our reports, our courts are practically 
 unanimous in recognizing it.{d ) 
 
 § 273. The rule is frequently stated, as though it was 
 conhned to cases where the discharge of the third person, 
 or the act from which his discharge resulted by operation 
 of law, constituted the consideration of the promisor's 
 undertaking. In practice such is almost always the fact ; 
 but it is believed that the principle does not depend upon 
 that circumstance ; and that all that is required is, that 
 the two liabilities should not exist simultaneously. If 
 we are correct in this conclusion, the consideration of the 
 discharge and of the promise may be entirely distinct. 
 
 § 274. But while it seems impossible to state any satis- 
 factory reason for this rule, other than that the two lia- 
 bilities did not at any time concur, it has happened that 
 in nearly every English case of this class, there has been 
 a period of time, more or less extended, during which the 
 undertaking of the promisor was for some purpose a 
 binding contract, and yet the third person was not actually 
 discharged. This feature of the cases at once provokes 
 the inquiry, whether an executory agreement on the part 
 of a creditor to discharge his debtor, or to do some act 
 fi'om whi(;h his discliarge will result by operation of law, 
 will take out of the statute a stranger's promise to pay 
 the debt. The question is full of embarrassment ; and we 
 can make only an experimental effort to answer it. 
 1 
 
 (d) Per Lipscomb, J., Tompkins v. Smith, 3 Stewart and Porter (Ala.), G2, 
 A. D. 1832; Saxton v. Landis, 1 Harrison (N. J.), 302 (1838); per Wilson, 
 C. J., Evans v. Lohr, 2 Scammon (Illinois), 511 (1840) ; per Whitman, C. J., 
 Rowe V. Whittier, 21 Maine, 550 (1842). 
 
 41
 
 322 COLLATEKAL UNDERTAKINGS. [Ch. IX. 
 
 § 275, Suppose that A and B should agree, that at some 
 future day, A will pay B the amount of a debt which C 
 owes him, and that upon receiving the money B will dis- 
 charge C from the debt ; it is manifestly absurd to say, 
 that the circumstance that B expressly agrees to discharge 
 C, will take the promise out of the statute, when the fulhl- 
 ment of A' s promise would extinguish the debt, without 
 any special agreement to that effect. Doubtless no one 
 will deny that in the case put, the statute avoids the agree- 
 ment, unless it was in writing. The same result would 
 follow, if A' s promise was to pay a smaller sum than the 
 amount of the debt ; or to do some specific act in lieu of 
 paying money, as, for instance, to give a note for all or 
 part of the debt. In all such cases there may be two lia- 
 bilities, which can be enforced by concurrent actions ; for 
 if B should, at the appointed day, tender a discharge of 
 C, and demand fulfilment of A's contract, as a condition 
 of its taking efiect, he could maintain an action against A 
 for breach of his promise, without affecting his original 
 remedy against C. And it would seem, that the applica- 
 tion of the statute depends upon the fact, that both these 
 actions might be maintained. 
 
 § 276. On the other hand, suppose that the agreement is 
 that A will pay B a certain sum at a future day, provided 
 that B shall have previously discharged C ; and B agrees 
 that he will discharge C accordingly. In this case, as B 
 can maintain no action against A, until he shall have 
 actually discharged C, there cannot be two concurrent 
 actions. It would therefore seem, that in such a case, the 
 promise is not within the statute. And we suspect that 
 in all cases, where the original debtor' s discharge was not 
 fully accomplished, till after the making of the new agree- 
 ment, the true test of the application of the statute will 
 be found in the answer to the inquiry, whether the terms 
 of the agreement were such, that the creditor could, in 
 any contingency, maintain an action thereon, vtdthout 
 previously discharging his debtor. Although this dis- 
 tinction is very fine, and cases can easily be suggested,
 
 Art. I.] Collateral Undektakings. 323 
 
 where the course of the dividing line could be detected 
 with difficulty, there seems to be no other satisfactory 
 method of dcfcndin"; some of the cases upon principle, or 
 of reconciling llicni with othei-s. As this question is of 
 considerable practical importance, and the foregoing 
 distinction has never, as far as we have noticed, been 
 expressly taken, we shall recur to the subject again, after 
 examining the principal English cases, where the question 
 is presented, (e) 
 
 § 277. Proceeding, therefore, to the consideration of the 
 cases, where the extinguishment of the third person's lia- 
 liility resulted from some act of the promisee, other than 
 an express discharge, tendered to and accepted by the 
 third person; we find that in some of them, wh(>re the 
 third person's liability was in the form of an indebted- 
 ness, ascertained and payable, the discharge resulted 
 from some act or omission of the promisee, whence the 
 law presumes a satisfaction, and, without considering the 
 question of actual intent, declares the debt to be cancelled. 
 In others, where the third person' s obligation was a con- 
 tract to perform some act, other than the payment of a 
 debt, or whereby a debt would be created upon a future 
 contingency ; the promisee, without any express discharge 
 of the obligation, has pursued such a course with respect 
 to the subject matter of the contract, as to indicate his 
 intention to abandon it altogether ; and to preclude him 
 from enforcing it against the other party. Each of these 
 descriptions of cases will be considered in its turn. 
 
 (e) See the note to BiiUjher v. Stcnart, [lOst § 284.
 
 324 Collateral Undeetakings. [Ch. ix. 
 
 ARTICLE 11. 
 
 Where tlie discharge of the third person's deht arose hy operation of law, in consequence of some 
 act or omission of the promisee, without his express assent thereto. 
 
 (1) Where the promisee discharged the third person from arrest under a 
 capias ad satisfaciendum. 
 
 § 278. It is well settled, that where the defendant in a 
 judgment is taken upon a capias ad satisfaciendum, such 
 capture amounts, for the time being, to a satisfaction of the 
 judgment ; and the defendant' s subsequent discharge from 
 custody, by the consent of the plaintiff, operates in law as 
 an extinguishment of the debt, although it may have been 
 merely temporary, and the facts may clearly indicate 
 that the intention of both of the parties was quite other- 
 wise. The principle, that an extinguishment of the orig- 
 inal debt, suffices to take out of the statute, the promise of 
 another person to pay it, was first settled in England, in a 
 case where the debt was extinguished, in consequence of 
 such a discharge, 
 
 § 279. The case referred to, which was decided in the 
 King's Bench in the year 1818, is Ooodman v. Chase^ 
 1 Barnewall and Alderson, 297. There it appeared that 
 the plaintiffs, having recovered a judgment against the 
 son of the defendant, sued out a capias ad satisfaciendum, 
 under which the son was arrested ; that he applied to the 
 plaintiffs' attorney for time to get the money, and in the 
 mean time to be released from custody ; to which the 
 attorney consented, provided the defendant in this action 
 would sign a written paper, which the attorney delivered 
 to the officer for the purpose, undertaking that he would 
 put his son into custody of the sheriff by the next Satur- 
 day, and in default of so doing that he would pay the 
 damages and costs. The officer went with the paper to 
 the defendant, and informed him of what the attorney 
 had said ; whereupon the defendant signed the paper, and 
 the officer returned it to the attorney, by whose consent 
 the son was then discharged from custody ; but he did
 
 Art. II.] Collateral Undertakings. 325 
 
 not return into custody by the Saturday. Subsequently 
 however, and on the return day of the writ, the son offered 
 to surrenderhimself in discharge of the defendant' s agree- 
 ment ; but the plaintiffs' attorney refused to discharge the 
 defendant on those terms ; whereupon the son offered to 
 surrender himself to the sheriff, who refused to receive 
 iiim. In an action upon the promise, the plaintiffs had a 
 verdict, subject to the opinion of the court ; and the cause 
 was twice argued, the first argument turning chiefly upon 
 the question, whether the writing was sufficient to satisfy 
 the statute. Upon the opening of the second argument, 
 Lord Ellenborough, C. J., said that it was unnecessary to 
 discuss the question of the sufficiency of the writing, as it 
 appeared to the court, that the debt had been discharged, 
 by the plaintiffs permitting the younger Chase to go out 
 of custody ; and he called upon the defendant's counsel, 
 after hearing whom, he pronounced the judgment of the 
 court as follows: "By the discharge of Chase, junior, 
 with the plaintiffs' consent, the debt, as between those 
 two persons, was satisfied. No case can be cited, in which 
 such a discharge has not been held quite sufficient. Then 
 if so, the promise by the defendant here is not a collateral 
 but an original promise, for which the consideration is the 
 discharge of the debt, as between the plaintiff and Chase, 
 junior. That being so, it becomes wholly unnecessary 
 to consider the question, arising out of the construction 
 of the fourth section of the statute of frauds." — Judg- 
 ment for the plaintiff. 
 
 § 280. In Lane v. Burgliart, 6 Jurist, 125, decided 
 A. D. 1841, (a) it was held, that where the debtor is in fact 
 discharged, the undertaking is original, although it assume 
 the form of a guaranty that he shall pay the debt ; as he 
 will be regarded in such a case as the mere agent of the 
 promisor. The validity of the promise under i\\Q statute 
 
 (a) S. C, 1 Gale and Davison, 311^ and 1 Queen's Bench Reports (Adolpbus 
 and Ellis, New Series), 933.
 
 H26 COLLATEEAL UNDERTAKINGS. [Ch. IX. 
 
 was not directly involved in the de(;ision, but the case la 
 nevertheless quite in point upon that question. (6) 
 
 § 281. The more recent case of Butcher v. George Drum- 
 mo nd Steuart, 11 Meeson and Welsby, 857, decided in 
 the Court of Exchequer, A. D. 1843, (c) is remarkable, not 
 only because it holds, that upon a question of this kind, 
 the regularity of the execution and of the arrest cannot be 
 inquired into ; but because it is, as far as we know, the 
 only reported decision, expressly holding that the statute 
 
 (h) In this case, the plaintiSs had causeJ one Bacon to be arrested on a 
 ca. sa., issued upon a judgment in their I'avor; and the defendant, on the 
 17th of November, 1838, gave a written agreement addressed to them in 
 these words: "' (Title of the judgment.) Gentlemen — In consideration of 
 your discharging the defendant out of custody in this action, I undertake 
 that he shall pay the debt due to you, viz. : 275^. 125., together with interest, 
 by four equal half-yearly instalments, the first instalment to commence and 
 be made on the 17th day of May, 1839." Within a few days after receiving 
 this agreement, the plaintiffs discharged Bacon from custody. In an action 
 upon this agreement, the defence was that on the 19th of April, 1839 (the 
 date of the fiat), the defendant became bankrupt, and obtained his discharge 
 in the following August; and the question was whether the debt could have 
 been proved before the commissioners and valued, under a clause of the 
 statute, providing in substance, that a debt payable on a contingency might 
 be so proved; it being also provided that all debts which might be proved 
 before the commissioners, should be barred by the certificate. On the part 
 of the plaintiffs it was contended, that this was not a debt payable by the 
 defendant on a contingency, nor in fact any debt of the defendant ; but only 
 a liability to damages, if Bacon should fail to pay, and that Bacon had not 
 made default at the date of the fiat. But a verdict having been rendered for 
 the plaintiffs, with leave to the defendant to move to enter a nonsuit, a rule 
 nisi to enter a nonsuit was made absolute. Lord Denman, C. J., delivering 
 the opinion of the court, said : " It was argued on the authority of Good- 
 man V. Chase, that this undertaking was an original one, on the part of the 
 bankrupt, to pay the amount of the sum that had been due from Bacon ; and 
 though in form it was an undertaking that Bacon should pay, yet at most it 
 was an undertaking, by the defendant, to pay by the hands of Bacon. On 
 consideration we agree that this is correct; the unpaid instalments might 
 therefore have been estimated and proved under the commission. It follows 
 that the defendant's certificate is a bar to the action." 
 
 (c) S. C, 12 Law Journal, N. S., Exch., 391 ; 7 Jurist, 774 ; 1 Bowling and 
 Lowndes's Practice Reports, 308.
 
 Art. II.] Collateral Undertakings. 327 
 
 docs not api)ly, to a promise to ]»ay a third person's debt 
 to the promisee, wliere the consideration of the promise is 
 an executory contract to do an act, whence liis discharge 
 will result. The action was assumpsit ; and the de(!lara- 
 tion alleged in substance the recovery of a judgment 
 against one Robert Steuart ; the arrest of Robert by virtue 
 of a capias ad satisfaciendum issued thereon ; that while 
 Robert was in custody, ''in consideration that the plaint- 
 iff would procure the release of the said Robert Steuart, 
 from and out of the said custody under the said writ," the 
 defendant promised, etc. (according to the writing i)ro- 
 duced at the trial) ; that the plaintiff, confiding on the said 
 promise^, did then "procure the release of the said Robert 
 Steuart from and out of the said custody," etc. ; concluding 
 with an averment of a breach and of damages. Upon the 
 trial, the plaintiff proved the recovery of a judgment, and 
 the arrest of Robert Steuart, as alleged in the declaration ; 
 that on the next day George Drummond Steuart, the 
 defendant in this action, entered into a written undertak- 
 ing in the form of a letter to the plaintiff, in which, after 
 reciting the title of the judgment, he stated that "in consid- 
 eration of your having released the above named definid- 
 ant from custody," he agreed that within one month from 
 the date of the writing, he would pay the plaintiff ^(K)l., 
 and hand him a bond for the remainder of the debt, inter- 
 est and €osts, executed by the defendant, the said Robert, 
 and some other responsible person, payable at periods 
 particularly mentioned. 
 
 § 282. On the receipt of this writing, and at the same 
 interview, the plaintiff's attorneys gave an order to the 
 sheriff, to discharge Robert Steuart on payment of the fees, 
 "judgment having been satisfied." The fees were imme- 
 diately i)aid by the defendant; and the sheriff's officer 
 then said that Robert was free as to that suit ; but before 
 discharging lilm from actual custody, he must ascertain 
 if there were aii}' detainers lodged against him ; and it 
 being discovered that there were two detainers, founded 
 upon other judgments, the sheriff refused to discharge him.
 
 328 COLLATEKAL UNDERTAKINGS. [Ch. IX. 
 
 At the time when the writing was executed, and the order 
 given, Robert Steuart had actually taken out a summons 
 to be discharged from custody as to this action, on the 
 ground of privilege, as a member of Parliament ; and at 
 a subsequent hour of the same day, he procured a judge''s 
 order to be discharged from this execution and from the 
 detainers, on that ground ; and the sheriff returned the 
 poundage fees. It had been agreed, however, that the 
 discharge should not affect the defendant' s undertaking. 
 It appeared also that the execution was irregular, it 
 having been issued to Middlesex without any previous 
 writ having been issued to Kent, where the venue was 
 laid. 
 
 § 283. The defendant objected to a recovery, on the 
 ground that the promise was void under the statute of 
 frauds, and because it was without sufficient considera- 
 tion ; and also upon other grounds, presenting questions 
 of variance between the declaration and the proofs, only 
 one of which need be noticed here. It was substantially, 
 as developed in the argument and the opinion, that 
 whereas the declaration alleged that the consideration of 
 the defendant' s promise, was a promise on the part of the 
 plaintiff to procure the release of Robert Steuart, the proof 
 consisted of a writing, reciting that such a release had 
 already been made. There was a verdict for the plaintiff, 
 subject to the opinion of the court, for the full amount of 
 the debt and interest, to be reduced to 500?., etc., upon 
 delivery of a bond, etc., with a consent that the court 
 might draw any inferences of fact. The opinion of the 
 Court delivered by Parke, B., and concurred in by the 
 other Barons present, was in favor of the plaintiff upon 
 all the points raised ; and judgment was accordingly 
 entered in his favor. 
 
 § 284. With respect to the question, whether the promise 
 was void under the statute of frauds, the opinion said that 
 if the case was within the statute, it would be very doubt- 
 ful whether the writing was sufficient. ' ' But, ' ' the learned
 
 Art. II.] COLLATEKAL UNDERTAKINGS. 329 
 
 Baron proceeded, "it appears to me that this is an abso- 
 lute promise, in consideration of the agreement to dis- 
 charge th«' defendant from execution. It is not a promise 
 to answ(!r for tlic debt, default or miscarriage of another ; 
 but is a promise to pay a debt, in the event of the other 
 contracting party doing a certain act. It is therefore 
 within the decision of Goodman v. Chase^ and does not 
 require a memorandum in writing to satisfy the statute of 
 frauds." The point of variance, which we have noted, 
 was disposed of by saying that the plaintiff's engagement 
 recited in the memorandum, might be construed as pros- 
 pective ; that is to say, it was not inconsistent with the 
 words, to construe them as meaning that the defendant 
 would pay the 500Z., and deliver the bond at the expiration 
 of a month, in consideration of the plaintiff having then 
 released Robert Stenart. It was further held that the 
 irregularity in the issuing of the writ was not material ; 
 nor was it important to inquire whether Robert' s privilege 
 protected Mm from arrest ; for the questions affected only 
 the consideration of the defendant's promise, and if they 
 should be decided against the plaintiff, there was ample 
 consideration in the plaintiff's consent to an immediate 
 discharge, without putting Robert to his motion, {d) 
 
 (d) The extract from Lord Wensley dale's remarks, quoted verbatim in tlie 
 text, is taken from the report in the 11th of Meeson and "Welsby. The 
 Jurist makes the corresponding portion of his opinion commence thus : " But 
 it appears to me an absolute promise to discharge a defendant from execu- 
 tion, and falls within the decision of Goodman v. Chase, that such a promise 
 does not require," etc. With this absurd version the report of Bowling and 
 Lowndes agrees. The Law Journal, equally incorrect in another direction, 
 makes his Lordship say " that this is not an absolute promise to discharge a 
 defendant from execution," etc. But the four reports coincide exactly, in 
 attributing to him the expression, that the defendant's promise was " to pay 
 a debt in the event of other contracting party doing a certain act," and this 
 coincidence, with the decisions upon the questions of regularity and of vari- 
 ance, (including another question of variance, not noticed in the text, 
 which was decided upon grounds entirely similar,) leave no room for doubt 
 that his Lordship did intend to hold, that an executory contract to discharge 
 a debt, would sustain a stranger's verbal promise to pay part of the debt in 
 money, and to join with the debtor in a bond for the remainder. This is 
 42
 
 330 COLLATEKAL UNDERTAKINGS. [Cll. IX 
 
 § 285. The rule that a voluntary discharge of a defend- 
 ant, arrested on a capias ad satisfaciendum, releases the 
 
 the question discussed in §§ 275, 276, ante, to which we now recur, after exam- 
 ination of the Enghsh cases where it arises, with the exception of Emmet v. 
 Dewhurst, 3 Macnaghten and Gordon, 587, which our arrangement of sub- 
 jects required us to place in the next chapter. (See § 342.) In the earhcst 
 of these, Goodman v. Chase, ante, § 279, it will be observed, that as the 
 sheriff's officer was the agent of the plaintiff's attorney, and took the defend- 
 ant's agreement in that character, upon a promise of the attorney to dis- 
 charge the judgment debtor; which was fulfilled only after a short interval 
 of time, it may be made to appear, by a very minute subdivision of time, 
 that the plaintiff's executory agreement formed the consideration of the 
 defendant's agreement, which was sustained as being founded upon the dis- 
 charge. But the interval was so short, and the transactions were so closely 
 connected with each other, that doubtless the discharge and the agreement 
 would be regarded in law, as taking effect simultaneously. In Butcher v. 
 Steuart the facts would easily admit of a construction, which would also make 
 the discharge and the agreement take effect simultaneously ; but the court 
 precluded that construction, by its decision upon the questions of variance. 
 To avoid these, it was held that the consideration of the defendant's agree- 
 ment was executory. But the construction put upon it was not such, as to 
 enable the plaintiff to maintain his action, upon an allegation of tender of per- 
 formance ; on the contrary the court held, that the agreement meant that the 
 defendant would pay the money and hand over the bond, at the expiration of 
 the month, "in the event" that the plaintiff had then discharged his original 
 debtor. So that although the promise was made, while the original debtor con- 
 tinued to be liable, there was no obligation to perform it, till he should be dis- 
 charged ; and therefore there was no moment of time, when the defendant and 
 the original debtor were concurrently liable to separate actions. On the other 
 hand in Emmet v. Dewhurst, where it was held that the promise was within 
 the statute, the agreement provided that the defendant's guaranty notes, and 
 the discharge by the bank, should be delivered simultaneously, the one form- 
 ing the consideration of the other; so that upon an allegation of tender of a 
 discharge and demand of performance, the plaintiff's bank could have main- 
 tained an action for damages against the defendant, without impairing its 
 remedy against his brother. This distinction runs very fine; but it seems 
 to afford the only method of reconciling the cases, and to furnish the true 
 test of the application of the statute, to executory agreements of this charac- 
 ter. The same distinction will remove an apparent inconsistency between 
 the more modern cases, and Chater v. Beckett, 7 Term Reports, 201, A. D. 
 1797; Gaunt V. Hill, 1 Starkie, 10, A. D. 1815; and the reasoning of the 
 court, particularly of Chambre, J., in Anstey v. Harden, 4 Bosanquet and 
 Puller, 124.
 
 Art. 11.] Collateral Undertakings. 331 
 
 debt, is laid down in numerous American cases ; but there 
 appears to be no reported decision, where such a discharge 
 lias been expressly held to take out of the statute of 
 frauds, a stranger's promise to pay the debt. The prin- 
 ciple, however, abundantly appears in the cases cited 
 under the other subdivisions of this chapter, (d) 
 
 (2) Where the promisee discharged a levy npov the third person^ s goods, which 
 had been made under a fieri facias or a distress warrant. 
 
 % 286, "Where a fieri facias or a distress warrant has been 
 levied ujion goods sufficient in amount to discharge it, 
 the general rule is that the debt is suspended, and it is 
 even said in some cases that it is extinguished. (/) There 
 is accordingly considerable force in the argument, that a 
 promise to pay the debt, made by a stranger, in considera- 
 tion of the release of the goods levied on, is not within 
 the statute ; at least if the value of the goods equals the 
 amount of the debt. 
 
 (e) In Cooper v. Chambers, 4 Devereux (North Carolina), 261, the original 
 debtor had been arrested upon a ca. sa., and was discharged in consideration 
 of the defendant's promise to "see the debt paid in trade;" but although it 
 was held that the promise was not within the statute, the court assigned 
 another reason for its decision, namely, that ''there Avas a new and original 
 consideration of benefit or harm moving between the newly contracting 
 parties." It was said that when the plainliDf discharged the original debtor, 
 " he was entirely freed from the debt and the defendant became the 
 debtor," but this was mentioned only to show, that although the defendant 
 derived no benefit from the promise, the plaintiff suffered harm "by giving 
 up those advantages with which the law had invested him to coerce the debt." 
 See also Rice v. Barry, 2 Cranch, C. C, 447, cited hereafter. For the general 
 rule that a debt is discharged by the defendant's release from arrest on a ca. sa., 
 see also, among other cases, Palethorpc v. Lasher, 2 Rawle (Pennsylvania), 
 272; Lathrop v. Briggs, 8 Cowen (New York), J71; Ransom v. Keyes, 9 
 Cowen, 128; Howe v. Buffalo, etc., R. R. Co., 38 Barbour (New York), 
 124. 
 
 (/) Mountney v. Andrews, Croke Elizabeth, 237; Clerk v. Withers, 2 
 Lord Raymond, 1072, 11 Modern, 34, Holt, 046, and 1 Salkeld, 322; Ex 
 parte Lawrence, 4 Cowen (New York), 417 ; Jackson v. Bowen, 7 Cowen. 
 13 ; Ladd v. Blunt, 4 Massachusetts, 402.
 
 832 Collateral Undertakings. [Ch. ix. 
 
 § 287. In Edwards v. Kelly ^ 6 Maule and Selwyn, 204, 
 A. D. 1817, (^) it was held that the defendants' promise to 
 pay the amount of the rent in arrear, was not within the 
 statute, where a distress warrant had been levied on the 
 goods of the tenant, and they were surrendered to one of 
 the promisors in consideration of the promise. The four 
 judges concurred in the decision, for a reason which prop- 
 erly brings the case within another class ; but two of them 
 also thought that the promise should be sustained, because 
 the debt was suspended by the distress. Bayley, J., said 
 that after the plaintiff had distrained, the tenant was no 
 longer indebted, and that the statute "was aimed at cases 
 where a debt being due from one person, another engaged 
 to pay it for him ; but here, for the reason above stated, 
 at the time when the promise was made, the debt was not 
 owing from the tenant." And Holroyd, J., also said, that 
 as the tenant might have pleaded the distress, in an action 
 for the rent, the debt was for the time suspended ; and the 
 promise was therefore to pay "a debt, which at that time 
 did not exist as a debt of another." 
 
 § 288. The facts, in Slingerland v. Morse, 7 Johnson 
 (New York), 463, A. D. 1811, were substantially like those 
 in Edwards v. Kelly, as far as they raised this question ; 
 but the goods were delivered to the tenant. There also the 
 court held the promise to be original, upon the ground 
 which chiefly controlled the decision in the former case, 
 although it is now ranked among those where the princi- 
 ple was erroneously applied. {7i) But the point now under 
 consideration was not suggested. 
 
 ig) Cited more at length in chapter sixteenth. 
 
 {h) It is true that Comstock, 0. J., in his opinion in Mallory v. Gillett, 21 
 New York, 412 (on page 424), attempted to reconcile Slingerland v. Morse 
 with the cases which were correctly decided, upon the hypothesis that the 
 goods were delivered to the defendants, and the debt was discharged. But 
 as we read the case, especially with the assistance of the report after the 
 second trial, in 8 Johnson, 370, the goods were delivered to the tenant; and 
 the court assumed that the debt was not discharged.
 
 Art. II.] COLLATEKAL UNDERTAKINGS. 333 
 
 § 289. Among the American cases on this subject, the 
 decision in Tlndal v. Touchberry^ 3 Strobhart (South 
 Carolina), 177, A. D. 1848, was x^^rtly put upon this 
 ground. The levy was under a domestic attachment ; and 
 in consideration that the plaintiff, who was the officer 
 holding the attachment, would deliver the property to the 
 debtor in the attachment, the defendant verbally promised 
 that the property should be returned the next day, or he 
 would pay the debt ; and it was held that he was liable for 
 the value of the property, it being less than the debt. The 
 decision was principally put upon the ground, that the 
 debtor assumed no liability for the property ; on the con- 
 trary, he was resisting the levy ; but the court also said 
 that where the original debtor was discharged, the promise 
 was within the statute, and that "the proceeding by 
 attachment is a proceeding in rem, and is like the seizing 
 of goods under a distress warrant, or under execution ; 
 a presumptive satisfaction, until the goods seized are sold 
 or are accounted for."(i) 
 
 § 290. But most of the American cases, where the defend- 
 ant' s promise was made, in consideration of the surrender 
 of a levy upon the goods of the original debtor, were 
 decided upon the theory, which long prevailed here, that 
 the statute does not apply, flf the promisee surrendered to 
 the debtor a lien, available for the collection of his debt, 
 even though the debt remained in full force. Indeed this 
 theory was regarded as a corollary from, or a principle 
 concurrent with a much broad<'r doctrine ; namely, that 
 whenever the promise was founded upon a new and orig- 
 inal consideration, of benefit to the promisor or harm to 
 the promisee, it was without the statute. (/) There are 
 
 (t) It was held in Martin v. England, 5 Yerger (Tennessee), 313, A. D. 
 1833, that a verbal agreement, very similar in its character to that which 
 was upheld in Tindal v. Touchberry, was void ; but the decision was put 
 upon the ground that the Tennessee statute, relating to a bond for the deliv- 
 ery of property leviod upon, avoided a verbal agreement to that effect. 
 The statute of frauds was not alluded to in the opinion. 
 
 (j) These doctrines, both of which are now exploded, will be examined in 
 the seventeenth chapter.
 
 834 Collateral Undertakings. [Cii. ix. 
 
 consequently but few cases, where the effect of the dis- 
 charge of such a levy, has been considered in connection 
 with the principle now under examination. But vre find 
 a series of decisions in the New York Supreme Court, 
 which may perhaps be regarded as of authority, upon the 
 subject of this discussion ; although in each of them it is 
 quite doubtful, whether any such question was ever in the 
 mind of the court. 
 
 § 291. The first of these is Skelton v. Brewster, 8 John- 
 son, 293, A. D. 1811. There it is said in the report, that 
 the plaintiff recovered a judgment and "took out an 
 execution for twenty-five dollars against W. S. ; " and 
 that W. S. delivered all his household goods to the 
 defendant in this action, who thereupon, "in considera- 
 tion that the plaintifi" would discharge the said W. S. 
 from the execution, promised to pay the plaintiff twenty- 
 five dollars." A judgment for the plaintiff, rendered 
 in a justice's court, was affirmed upon certiorari, the 
 Supreme Court saying that the promise was not within 
 the statute, because it was founded " on a new and distinct 
 consideration, which was the delivery of the goods of such 
 person and the plaintiff's discharge of the judgment." It 
 would seem from the reporter' s statement of the facts, and 
 the language of the court, thai the execution was against 
 the person, rather than the property of the original debtor. 
 But in a subsequent case in the same court {Jc) it was said 
 that the execution was against the property. If so, this 
 case is perhaps an authority for the proposition, that the 
 discharge of a levy upon goods, by virtue of an execution, 
 will suffice to take the promise out of the statute ; but not, 
 we are inclined to think, for any reason connected with 
 the present discussion. 
 
 § 292. In Mercein v. Andrus, 10 Wendell, 461, A. D. 
 1833, the Supreme Court of the same State granted a new 
 
 (Tc) Parley v. Cleveland, 4 Cowen, 432, where Savage, C. J. (on p. 437) 
 said that the levy was upon property, and that the distinctive feature of the 
 case was that the original debtor was discharged.
 
 Art. II.] Collateral Undertakings. 335 
 
 trial, upon exceptions taken by the defendants, to certain 
 rulings of the judge at the trial, upon points not connected 
 with the statute of frauds ; but there was also an exception 
 to a ruling, that the defendant's promise to pay a certain 
 sum, being part of the amount for which a judgment had 
 been recovered by the plaintiff against one Reed, was not 
 within the statute, because it was founded upon the release 
 of certain goods of Reed, levied upon under an execution 
 issued upon the judgment. With respect to that excep- 
 tion, Savage, C. J., delivering the opinion of the court, 
 said : " The judge correctly stated to the jury, that where 
 the promise of one person to pay the debt of another, was 
 founded upon the consideration of surrendering property 
 levied on by an execution, the promise was an original 
 undertaking, and need not be in writing to be valid : that 
 it was not vdthin the statute of frauds. Whether the 
 evidence proved such a case was submitted to the jury."(Z) 
 
 § 293. But in Stern v. DrinTcer, 2 E. D. Smith, 401, 
 A. D. 1854, the New York Common Pleas expressly held, 
 that the release of a sufficient levy, under an execution 
 against property, would not take a stranger's promise to 
 pay the debt out of the statute. The action was originally 
 brought in a justice's court, and the complaint alleged 
 that the plaintiff had recovered a judgment against on(» 
 
 (?) Mercein v. Andrus was also commented upon in 21 New York, 424, 
 425; where Comstock, C. J., after referring to the fact that what was said 
 upon this point was obiter, because a new trial was granted upon another 
 point, said that if "the charge at the trial and the observation of the Chief 
 Justice assumed, as the law was, that the levy of an execution extinguished the 
 debt, and that the release of the levy remitted the creditor to the new 
 promisor as his only remedy, then the remark was strictly correct." 
 " Such," added the learned Chief Justice, " is probably the true explana- 
 tion." The principle of this ruling in Mercein v. Andrus was also recog- 
 nized in Van Slyck v. Pulver, Hill and Denio, 47, A. D. 1843, but without 
 any explanation of the grounds upon which it rested; the court distinguish- 
 ing it from the case then at bar, on the ground that upon the most favorable 
 aspect of the testimony, the surrender of the goods was made in considera- 
 tion of another agreement, and not the one sued upon ; so that the latter 
 was nudum pactum.
 
 336 Collateral Undertakings. [Cli. ix. 
 
 JsTusbann, and had issued execution thereon, which had 
 been levied upon property sufficient to satisfy it ; and in 
 consideration of his abandoning the levy, and delivering 
 the property to the debtor, the defendant undertook to 
 pay the amount of the judgment. To this complaint the 
 plaintiff demurred, and the court below gave judgment 
 for the defendant. Upon the argument of the appeal, it 
 was admitted by counsel on both sides, as it was evidently 
 assumed by the court below, that the promise was not in 
 writing, although the complaint did not so state ; and the 
 Common Pleas decided, under the circumstances, to fol- 
 low the same assumption, denying costs to the plaintiff on 
 the reversal, which was adjudged on account of a techni- 
 cal irregularity. Ingraham, First Judge, delivered an 
 opinion upon the merits ; in which he contended that the 
 promise was within the statute, upon the ground, that 
 a new consideration, moving between the promisor and 
 the promisee, would not take a promise out of the 
 statute, where the original debt was not discharged. 
 Here, he said, the promise to pay the amount of the judg- 
 ment, "did not relieve Nusbaun from liability." " In the 
 present case, the original debt remained ; the property 
 was given up to the debtor, and not to the defendant ; the 
 defendant received no property, and owed no debt which 
 he promised to pay the plaintiff ; but simply in considera- 
 tion of the plaintiff's relinquishing to the debtor the 
 debtor' s property, he promised to pay the debtor' s debt. 
 I cannot imagine a promise to pay the debt of another, 
 if the one under consideration is not one." The atten- 
 tion of the court was evidently confined, to the terms of 
 the actual express agreement between the parties ; the 
 question whether, under all the circumstances, the law 
 would not imply a discharge of the debt, without an 
 expre-ss agreement to that effect, not having been sug- 
 gested, (w) 
 
 (ni) The rules laid down by the New York courts, touching the effect of a 
 sufiBcient levy under a fieri facias, go so far as to make it very nearly equiva- 
 lent to an arrest under a ca. sa. It has been said in several cases, that such
 
 Art. III.] Collateral Undertakings. 337 
 
 ARTICLE III. 
 
 Where an abandonment of the third person's liability is inferred, as matter of fact, from Bome 
 aot or omission of the promisee, without any agreement to that effect. 
 
 (1) Oencral principles upon which the application of the statute to this 
 description of cases is determined. 
 
 § 294. The cases witliin this class consist almost exclu- 
 sively of those, where an executory contract had been 
 made between the promisee and the third person, for the 
 performance of services, or the sale of property, to the third 
 person by the promisee, for a reward to be paid to the 
 latter ; and the promisor undertook, without any express 
 rescission of the contract, that if the promisee would 
 perform the services, or furnish the articles for which it 
 provided, he would pay, either their value or the contract 
 price. Unless the circumstances are such, as to bring the 
 case within some of the rules, whereby promises, Avhich 
 are confessedly in form to answer for the debt of another, 
 are taken out of the statute, because they are not within 
 its spirit, it is manifest, upon a mere statement of the case, 
 that the only theory upon which a verbal promise of that 
 character can be upheld, is that the old contract was dis- 
 connected from the new. Occasionally it may happen, that 
 the facts show, that the parties to the new contract merely 
 stipulated for the performance of the same acts, for which 
 the old contract provided, without reference to the question 
 
 a levy extinguishes the judgment; and it has been held, that if after a levy 
 the execution be returned unsatisfied by direction of the plaintiff, a pur- 
 chaser of real estate, under a new execution, will get no title, unless, 
 perhaps, where he had no notice. Jackson v. Bowen, 7 Cowen, 13. Also, 
 that after a sufl&cient levy upon personal property, the judgment ceases 
 to be a lien on real estate ; and while the personal property remains 
 unsold, the judgment creditor has no right to redeem real estate, from 
 a sale under a previous execution. Ex parte Lawrence, 4 Cowen, 417. 
 However where a levy has been made, and subsequently abandoned at the 
 request of the defendant in the execution, there is no satisfaction of the 
 judgment, and a new execution may issue. Ostrander v. Walter, 2 Hill, 329. 
 Here is the distinction, if any exists, between a promise founded upon a 
 discharge from arrest, and one founded upon the release of a levy. 
 43
 
 338 COLLATEEAL UNDERTAKINGS. [Ch. IX. 
 
 wlietlier that was to be fulfilled or not. In snch cases, the 
 statute has no application ; for then it is immaterial whether 
 the old contract remained in force or otherwise. But in 
 general it is entirely clear, that the parties could not have 
 contemplated the performance of both the contracts ; and 
 whenever this occurs, the two can be disconnected only by 
 the abandonment of the first ; and the question whether it 
 was or was not abandoned, becomes the turning point, 
 upon which the application of the statute depends. 
 
 § 295. In the next chapter, we shall refer with some par- 
 ticularity to the civil law doctrine of novation, of which 
 this species of substitution forms a part. It is, according 
 to the rules which prevail in the civil law, one of the ways 
 in which may be effected that kind of novation called "ex- 
 promissio," being the intervention of a new debtor, in 
 place of him who is already bound. Other instances of the 
 same process will be given in the next chapter ; being cases 
 where an antecedent liability of a third person was dis- 
 charged, by mutual agreement between him, the creditor 
 and the new promisor, in consideration of its assumption 
 by the latter. The feature, wherein that process of extinc- 
 tion of the original liability, differs from the one now to be 
 considered, is that in this class of cases, the person origin- 
 ally bound was not a consenting party to the transaction ; 
 a fact which gives rise to some significant distinctions, not 
 only with respect to the application of the fourth rule, but 
 also with respect to the efiect of these cases, upon an 
 important question, hereafter to be discussed, arising in 
 connection with the eighth rule. 
 
 § 296. Although, as it would seem, the civil law permits 
 a substitution of one debtor for another, to be made in 
 some cases, without the concurrence or consent of the 
 original debtor, (a) such is not, strictly speaking, the rule 
 
 (a) Pothier on Obligations, part 3, chapter 2, article 4, section 5; Evans's 
 Translation, volume 1, page 562. The reason is said to be that "Ignorantis 
 enim et inviti conditio melior fieri potest."
 
 Art. III.] Collateral Undertakings. 339 
 
 of the common law, which requiivs two parties to dis- 
 charge a contract, as well as to make it. At common law 
 no act, to which both the original contractors have not 
 become parties in some form, can be pleaded hy either as 
 a discharge of the obligation of the contract, in an action 
 by the other to enforce it ; even although it may have 
 been the act of the plaintiff himself. But a party may 
 disqualify himself from enforcing a contract, against the 
 other party to it, by acts which will prevent him from 
 making that proof of performance, or of readiness to per- 
 form on his part, which is essential to his right to maintain 
 an action founded upon it. When such acts are accom- 
 panied by the promise of another person to respond, in 
 consideration of the promisee rendering the same services, 
 or furnishing the same property, which formed the sub- 
 ject-matter of the original contract, the latter' s abandon- 
 ment of the contract, and election to rely exclusively upon 
 the new promise, may properly be inferred ; and although 
 he would be liable in damages to the other party, in con- 
 sequence of his refusal to fulfil it, he would have no 
 remedy for the services or property, except against the 
 promisor. Hence, as far as this question is involved, the 
 practical effect of such conduct ought always to be, and in 
 general is the same, as if the contract had been rescinded 
 by consent of both the parties to it. 
 
 § 297. All the cases in this class agree, that the test of 
 the application of the statute is, whether, upon the per- 
 formance of the new contract by the promisee, he could 
 recover against the original contractor. (/;) Sometimes it 
 is said to be, whether the promisee has made himself 
 liable to the original contractor, for damages, in conse- 
 quence of his non-fulfilment of the original contract; a 
 proposition which is frequently the correlative of the 
 
 (b) See, in addition to the authorities hereafter cited, Puckettv. Bates, 4 
 Alabama, 390; Ellison v. Jackson Water Company, 12 California, 542; 
 Andre v. Bodman, 13 Maryland, 241 ; Newell v. Ingraham, 15 Vermont, 
 422 ; Larson v. Wymau, 14 Wendell, 246.
 
 340 Collateral Undertakings. [Ch. ix. 
 
 other, but not always so ; because cases may occur, where 
 performance was optional on the part of the promisee, or 
 where the other party to the contract had made a previous 
 default. 
 
 § 298. When the language and the acts of the parties 
 leave room for doubt, whether in fact the existing contract 
 was abandoned ; or whether, on the other hand, the new 
 contract was such as to leave the former one in force, and 
 to add the credit of the new party to that of the original 
 contractor, as security for its fulfilment ; questions often 
 arise, which are very analogous to those presented upon 
 the sale of goods, the loan of money, or the performance 
 of services for the benefit of one person, upon a promise 
 to respond by another, and are to be disposed of in the 
 same way. Whether the language used imports, as matter 
 of law, an original or collateral contract; how far the 
 province of the jury extends, when the language is of 
 doubtful meaning; the principles upon which to deter- 
 mine whether credit was given solely to the promisor ; the 
 relevancy of certain facts as evidence upon that issue ; and 
 various other similar questions, are substantially identical 
 in both classes of cases. On this account, the two are 
 frequently confounded ; cases belonging to this class being 
 treated, as if they belonged to the other. But this is 
 manifestly an error ; for the points, in which both are alike, 
 are merely subordinate and incidental to the determina- 
 tion of the principal question, constituting the crucial test 
 of the application of the statute ; and this is entirely 
 different in the two classes. In one, it is whether the third 
 person incurred any liability upon the original contract ; 
 in the other, whether he was discharged from a liability 
 which he had previously incurred. Another striking 
 point of diff'erence between them is, that it almost 
 invariably happens, in this class of cases, that the prom- 
 isor is the person to be benefited by the consideration 
 of the promise, whereas the other depends upon the 
 fact that the third person received the benefit of the 
 consideration.
 
 Art. III. J Collateral Undertakings. 341 
 
 § 299. But mucli of what was said under the third rule, 
 upon these subordinate points, is closely applicable to the 
 kindred questions arising under this rule ; and the reader 
 is therefore referred to the places, where the former liave 
 been fully discussed, upon principle and authority, (c) A 
 few cases belonging to this class, where some of those 
 questions were presented, under circumstances calling for 
 special notice, are appended. 
 
 §300. In WarnickY. Grosliolz^ 3 Grant's Cases (Penn- 
 sylvania), 234, A. D. 1858, the plaintiffs had commenced 
 painting certain cottages, belonging to the defendant, under 
 a contract between them and one Barber, a builder, who 
 had a contract with the defendant, for building and finish- 
 ing the cottages, and Barber was to pay the plaintiffs by 
 doing certain work for them ; he failed to do the work for 
 the plaintiffs ; and they thereupon stopped their work 
 upon the cottages, saying to the defendant that "with 
 Grosholz, the owner, they had no contract, and of course 
 were not bound to go on ;" to which the defendant made 
 answer, "Go on with the work ; that he had security for 
 the building, and he would see it paid." The judge at 
 the trial referred the words to the jury, "to say whether 
 they imported a direct undertaking or a guaranty ; ' ' and 
 the plaintiffs having had a verdict, the judgment thereon 
 was affirmed on error, the court holding that the meaning 
 of the words was properly referred to the jury.(6Z) 
 
 § 301. So also in Payne v. Baldwin, 14 Barbour (New 
 York), 570, A. D. 1853. There the plaintiff had entered into 
 a contract with one Stebbins, to furnish the marble and 
 plaster to be used in the erection of certain houses, upon 
 which Stebbins was doing the mason work under a con- 
 tract with an insurance company ; and a dispute having 
 arisen between the plaintiff and Stebbins, respecting the 
 amount due to the plaintiff for materials previously fur- 
 
 (c) See chapters sixth and seventh. 
 
 (d) See the case also cited, ante, §§ 181, 182.
 
 342 Collateral Undertakings. [Ch. ix. 
 
 nished by him, lie refused to furnish any more of the 
 materials ; whereupon the defendant, who was president of 
 the company, told the plaintiff's agent "to go on and fur- 
 nish the stuff, and he would see it was paid for. ' ' The action 
 was to recover for materials subsequently furnished, and 
 a referee having reported in favor of the plaintiff, the 
 report was set aside as against the weight of evidence ; on 
 the ground that Stebbins was liable for the materials, and 
 the whole credit was not given to the defendant. This 
 the court thought was apparent, from the following facts : 
 "that the buildings were not tlie property of the defend- 
 ant ;" " that when the materials were delivered, the receipts 
 were signed by Stebbins and that the accounts in the defend- 
 ant' s" (plaintiff's) "books were continued against Steb- 
 bins the same as before, and that no charge was made 
 against the defendant, and it finally appeared that the 
 insurance company paid" (doubtless Stebbins) "for the 
 building of the houses." 
 
 § 302. Again in Noyes v. Humphreys^ 11 Grattan (Vir- 
 ginia), 636, decided A. D. 1854, the defendant's testator 
 had leased his salt works to one Thompson, who had 
 undertaken to make certain improvements thereon, to aid 
 in which the defendant' s testator was to advance to him cer- 
 tain sums ; and the plaintiff had been employed by Thomp- 
 son to do part of the work ; but the plaintiff, after he had 
 partly completed the work, "apprehending that Thomp- 
 son would not pay him, stopped his work, and refused to 
 proceed with it under his contract with Thompson;" 
 whereupon the defendant' s testator went to him and said, 
 " The work is now commenced ; it must go on. Go on and 
 finish it ; I will pay you for it," or "I will see you paid." 
 The plaintiff then resumed his work and completed it ; the 
 defendant' s testator attending to its execution, and giving 
 directions. The plaintiff then rendered his account to 
 Thompson ; and after deducting certain payments made 
 by the latter, during the progress of the work, he took 
 Thompson's bond for the balance; and subsequently 
 applied for the benefit of an insolvent act, returning the
 
 Art. III.] Collateral Undertakings. 343 
 
 debt in his schedule as owing by Thompson, and saying 
 nothing about any demand against the defendant. At 
 the trial the plaintiff had a verdict, various exceptions 
 having been taken by the defendant, calculated to 
 present the question whether the promise was within 
 the statute of frauds. The judgment rendered upon the 
 verdict was reversed in the Court of Appeals ; partly 
 because the court thought that even if the promise 
 was valid, as to the work thereafter to be done, it would 
 be within the statute ; inasmuch as it was entire, and 
 related also to work previously done. But the court also 
 took the distinct ground, that as to the work thereafter 
 to be done, the evidence tended to show that Thompson 
 continued to be liable upon his contract with the plaintiff, 
 notwithstanding the defendant' s promise, and the comple- 
 tion of the work in consequence thereof; the instructions, 
 given and refused at the trial, having failed to lay down 
 clearly the rule of law, that in such a case the defendant' a 
 promise to pay for that work was within the statute. 
 
 § 303. But the principle upon which the last case was 
 decided, was perhaps pushed beyond its true limits, in 
 the recent case of Bresler v. Pendell, 12 Michigan, 224, 
 A. D. 1864. There one C. E. B. had made a contract 
 with one St. Amour, for the erection by St. Amour of a 
 block of buildings ; and the latter had sub-let part of the 
 work to the plaintiff. After such sub-letting the plan 
 of the block was twice changed, in certain particulars 
 tending to increase the expense of erection. The plaintiff 
 commenced the work; but St. Amour twice failed to 
 make the payments stipulated for by his agreement 
 with the plaintiff ; and on each occasion, as the report 
 says, the plaintiff "abandoned said job, and refused to 
 proceed further with the same ; that on both of said occas- 
 ions, the defendant requested said plaintiff not to abandon 
 said job, and promised him that if he would continue the 
 same to completion, he, the said defendant^ would pay 
 him, or would see him paid." Under this promise, the 
 plaintiff on each occasion resumed his work, and finally
 
 344 COLLATEEAL UNDERTAKINGS. [Cll. IX 
 
 completed it ; the defendant being frequently present, and 
 giving directions, while the work was going on. These 
 facts were found by a referee, who also found ' ' that the 
 said original contract between St. Amour and the plaintiff 
 was still in existence and uncancelled;" that the extra 
 work (the nature and value of which were detailed in his 
 report), was not included in the contract between the 
 plaintiff and St. Amour ; that it was done at the request 
 of the defendant; and that the defendant promised to 
 pay therefor. It was held by the referee and the court 
 below, that the defendant was not liable for so much of 
 the work, as was included in the contract between the 
 plaintiff and St. Amour ; but that he was liable for the 
 value of the extra work, and judgment was rendered for 
 that only. 
 
 § 304. The defendant brought a wi'it of error, and the 
 judgment was reversed, the Supreme Court holding that 
 there could be no discrimination between the work men- 
 tioned in the contract, and the extra work. Manning, J., 
 said that if either was done on the defendant' s promise, 
 "it was not on his sole promise, but on his promise in 
 connection with the previous promise of St. Amour;" for 
 which reason, if the defendant' s engagement was supported 
 by any consideration, it should have been in writing ; and 
 that if the plaintiff abandoned the work, because St. 
 Amour did not pay him, and afterwards resumed it on 
 the defendant's promise, the evidence showed that he 
 looked to St. Amour for his pay, and not to the defend- 
 ant, except as a surety or a guarantor. The nature of tliis 
 evidence is not stated in the report ; but if it supported 
 the referee' s conclusions of fact, it is difficult to see upon 
 what principle, a finding in favor of the plaintiff, for the 
 whole amount of his demand, could have been properly 
 set aside. With respect to the extra work, there is nothing 
 to show (although a large portion of the finding is given 
 verbatim) that St. Amour made any promise to pay for it. 
 The decision was probably put upon the groi\ind, that the 
 referee' s finding was against the weight of evidence.
 
 Art. III.] Collateral Undertakings. 346 
 
 § 305. It seems to be settled tliat a jury, undc^r proper 
 instructions from the court, may find an abandonment of 
 the original contract, from tlie mere declarations of the 
 promisee to that effect, not communicated to tlie other 
 party ; although he has subsequently perfoiTned precisely 
 the acts for which the original contract provided, and 
 would be entitled to recover against the original con- 
 tractor, but for the fact that they were not performed in 
 fulfilment of the contract. This doctrine is strikingly 
 illustrated by the decision of the Supreme Court of Ver- 
 mont in Sinclair v. Richardson^ 12 Vermont, 33, A. D. 
 1840. There it appeared that the plaintifi" had entered 
 into a written contract with one Upson ; whereby he was 
 to provide the materials and do the work, upon a house 
 which was in the course of erection, on land of the defend- 
 ant ; that in 1831, he erected the frame of the house and 
 partly inclosed it ; that in the spring of 1832, when about 
 to complete the work, the plaintifi" said to the defendant, 
 in substance, that he would do nothing more to the house, 
 unless the defendant would agree to pay him ; and the 
 defendant answered, " Do you go on and finish the house, 
 and I will pay you for it, or see you paid." Whereupon 
 the plaintiff completed the work ; but, the report says, the 
 original contract between Upson and the plaintiff was still 
 in force and unrescinded. At the trial the judge charged 
 the jury, that the promise of the defendant was void by 
 the statute of frauds ; and a verdict and judgment having 
 been rendered for the defendant, the cause came on to be 
 heard upon exceptions to the ruling. Tlie judgment was 
 reversed, on the ground that it should have been left to 
 the jury to say, whether the contract with Upson had been 
 wholly abandoned by the plaintiff or not ; and whether the 
 defendant' s undertaking was original or collateral, (e) 
 
 (e) This case came very near the dividing line; but, upon the whole, it 
 appears that the jury might have inferred such an abandonment of the con- 
 tract with Upson, as would prevent the plaintiff from recovering against 
 him. In an action against him, he might have shown that although the 
 work was done according to the coiitract, it was not done upon the coutract, 
 44
 
 346 Collateral Undertakings. [Cli. ix, 
 
 § 306. But this doctrine is subject to the qualification, 
 that the original contract must have been of such a nature, 
 that the promisee's claim to compensation thereunder 
 could be abandoned by mere words, without also abandon- 
 ing the performance of the acts for which it provided. Thus 
 if an attorney has been employed to conduct an action or 
 
 but upon another contract with the defendant in this suit. As the book is 
 scarce, and the opinion of Collamer, J., presents very clearly and correctly 
 the principles which govern this class of cases, we insert it nearly at length. 
 " When a contract is once made, it cannot be rescinded but by consent of 
 both parties. But it does not follow that because a man has entered into a 
 contract, and entered upon its performance, he may not utterly abandon and 
 decline to perform it. If he does so, it still remains unrescinded and in 
 force against him, and damages may be recovered for his non-performance, 
 yet he can have no action thereon. He may, from the employer having 
 become insolvent, refuse to proceed without a guaranty of his credit; but 
 he can enforce no such guaranty unless it be in writing, as it is collateral. 
 He may, from a consideration that the employer has become insolvent, or ab- 
 sconded, or otherwise become wholly irresponsible, entirely decline to proceed 
 any further on the contract with him, preferring to lose what he has done, 
 to completing the contract and losing all. I.'', in this case, a person make an 
 entire, substantive, independent contract with him, to perform the same ser- 
 vice, this may be enforced though not in writing, as i is not collateral. 
 Whether the new contract be auxiliary or independent is a question of fact. 
 If the terms used on the occasion clearly imply that the former contract is 
 to continue, and the new one be auxiliary thereto; then it is matter of law 
 that the new contract must be in writing. Such as the saying, 'Proceed, 
 and if he does not pay you, I will.' But if the terms be uncertain, equivocal 
 or ambiguous, then it must always be left to the jury to find, whether in 
 fact the former contract was to continue; or whether the whole was aban- 
 doned, and the new contract and credit substituted in its place. In this case 
 there was nothing in the terms used, which shows, as matter of law, whether 
 the Upson contract was to continue or not. That was a question of fact for 
 the jury to find. If from the language used, and the other facts which were 
 or may be put into the case, the jury find that it was understood that the 
 plaintiff was to proceed upon his contract with Upson, and the defendant 
 was only to pay upon the failure of Upson, then the plaintiff cannot recover 
 of the defendant without a writing. But if the jury find it was then under- 
 stood, that the plaintiff wlolly abandoned his contract with Upson, and was 
 to proceed entirely on the employment of the defendant, then the plaintiff 
 should recover of the defendant without any writing ; and the same facts 
 which would enable him to recover of the defendant, would prevent his recovery 
 of Upson"
 
 Art. III. J Collateral Undertakings. 347 
 
 other legal proceeding, by a party thereto, and lias entered 
 upon the discharge of his duties ; he cannot afterwards, 
 without his client's participation, abandon the original 
 retainer, and continue to appear and act as the attorney 
 for the same party, upon a subsequent retainer from 
 another person, and tlie latter' s promise to compensate 
 him. Such a promise would therefore be within the stat- 
 ute of frauds, although the attorney' s services might have 
 been subsequently rendered, and expenses incurred by 
 him, entirely upon the credit of the new promisor. (/) 
 
 (2) How far the question is material in this description of cases, whether the 
 promisor received the benefit of the consideration for his promise. 
 
 § 307. We should not think it necessary to add to our 
 general remarks in another place, respecting the weight 
 to be given to circumstances connected with the considera- 
 tion, ((7) anything specially applicable to this description of 
 cases, but for the fact that there is an intimation, in a recent 
 decision of highly respectable authority, that a distinction 
 may be predicated upon the circumstance, that the con- 
 sideration enured wholly to the benefit of the new prom- 
 isor. It is quite important to guard against any misap- 
 prehension upon this point ; not orJy to avoid confusion 
 in similar cases, but also because the principles which 
 govern the cases of this description, will shed considerable 
 light upon a doctrine, depending entirely upon the nature 
 of the consideration, which will be hereafter discussed at 
 considerable leigtli.(7i) 
 
 § 308. Tlie decision referred to, (which is noticeable also 
 on account of other questions involved,) was pronounced 
 by the New York Supreme Court in Devlin v. Woodgate, 
 34 Barbour, 252, decided in the year 1861. There the 
 plaintiff had been employed by one Cavenagh, a con- 
 
 (/) Barber v. Fox, 1 Starkie, 270 ; Noel v. Hart, 8 Carrington and 
 Payne, 230. 
 
 (g) Chapter ii, article ii. 
 (h) Chapter xvii.
 
 348 Collateral Undertakings. [Ch. ix. 
 
 tractor with the defendant, to excavate a vault in front of 
 the defendant' s premises ; and on the second day after he 
 commenced his work, he went to the defendant, and said 
 to him tliat he would not go on, unless the defendant 
 would promise to pay him ; whereupon the defendant 
 told him "to go on, and finish the job, and he 
 should be paid." After the work was completed, the 
 plaintiff signed and made oath to an account there- 
 for against Cavenagh, for the purpose of taking pro- 
 ceedings to make the defendant' s property liable, under 
 the mechanics' lien law. Upon a trial at the circuit, these 
 facts were submitted to a jury under the judge's charge ; 
 and it was held on appeal, by a majority vote, that their 
 verdict for the plaintiff was conclusive. The verdict 
 included compensation for the one day' s work, done before 
 the defendant' s promise ; but as it did not appear what 
 were the terms of the Contract with Cavenagh, Suther- 
 land, J., one of those composing the majority, suggested 
 that it must be assumed that the plaintiff was not entitled 
 to any compensation from him, till the work was com- 
 pleted ; and if so, Cavenagh owed the plaintiff no debt, 
 to which the promise could be collateral. 
 
 § 309. But the same learned judge placed his decision 
 on the main question, principally upon the ground that 
 the work was for the benefit of the defendant, and was to 
 be paid for by the defendant, either to Cavenagh or the 
 plaintiff. Under the circumstances, he thought that after 
 the promise, the plaintiff had a right to rely upon the 
 defendant' s retaining enough to pay him, out of the contract 
 price payable to Cavenagh ; and he expressed a decided 
 opinion that an entire stranger, having no interest in the 
 work, would not be liable under like circumstances. 
 Welles, J., although he assigned as the principal reason 
 for his opinion, that the plaintiff had violated his contract 
 with Cavenagh, and that the circumstances upon which 
 the defendant relied had been fairly submitted to the jury ; 
 also mentioned the fact that the defendant was benefited, 
 as one of the elements which influenced his opinion in
 
 Art. III.] Collateral Undertakings. 349 
 
 support of the verdict, without pointing out in what man- 
 ner it was significant. 
 
 § 310. We must enter our entire dissent from so much 
 of either opinion, as intimates that, as matter of law, the 
 liability of tlie defendant would in any way be affected by 
 the circumstance, that he was interested in the completion 
 of the work. The remark was apparently obiter; for 
 although the substance of the charge is not stated, no 
 complaint was made of it; it must therefore have been 
 in such a form, that the verdict was conclusive to show, 
 that the contract between the plaintiff and Cavenagh had 
 been abandoned, and that the work was done entirely on 
 the defendant' s credit. But as soon as the fact was ascer- 
 tained that the original contract was abandoned, the 
 remainder of the case was in all respects analogous to one 
 arising under the third rule ; and the chapters devoted to 
 the discussion under that rule are crowded with decisions, 
 to the effect that the defendant is liable if the considera- 
 tion was furnished exclusively upon his credit, although it 
 enured entirely to the benefit of another. And, as far as 
 we have noticed, this case stands alone in its class, in 
 attributing any particular legal significance, to the recep- 
 tion of the consideration by the defendant ; although, as 
 we have already remarked, that feature is almost invari- 
 ably present in all cases of this description. On the con- 
 trary there are many, where that circumstance was disre- 
 garded ; and some where the decision was the other way, 
 although in that respect they are not distinguishable from 
 Devlin V. Woodgate.{i) It is impossible therefore to 
 resist the conclusion, that the benefit received by the 
 defendant, is material only upon the question of fact, 
 whether the original contract was abandoned, and the sub- 
 sequent work done entirely upon his promise. (./) 
 
 (i) See particularly Noyes v. Humphreys, ante, § 302; Ellison v. Jackson 
 Water Company, 12 California, 542; Newell v. Ingraham, 15 Vermont, 422. 
 
 (j) The defendant in Payne v. Baldwin, 14 Barbour, 570, ante, § 301, 
 was a stranger; but that circumstance is adverted to only upon the question 
 of fact.
 
 350 COLLATEEAL UnDEETAKINGS. [Ch. IX. 
 
 § 311. The weight to be given to the interest of the 
 promisor, and other questions discussed in this chapter, 
 were considered by the New York Court of Appeals, in 
 the very recent case (March, 1868,) of Brown v. Weber, 38 
 New York, 187, reported in the court below in 24 How- 
 ard' s Practice Reports, 306. There the defendant had 
 entered into two written contracts with one Horton, provid- 
 ing that Horton would furnish the materials for, and build 
 a saw mill for the defendant, on his (the defendant' s) land, 
 within a specified time ; for which the defendant would 
 pay Horton a certain sum, in a manner mentioned in the 
 contract. After Horton had framed and raised the build- 
 ing, he and the plaintiff entered into two contracts, also 
 in writing, whereby the plaintiff agreed with Horton to 
 complete the building ; for which Horton was to pay him 
 a sum, smaller than the amount provided for in the defend- 
 ant' s contracts, by passing over to him the defendant's 
 obligation for that amount. After the commencement of 
 his work, the plaintiff became fearful that Horton was not 
 responsible, and communicated his fears to the defendant ; 
 whereupon the latter, to induce him to go on with his 
 work, promised him verbally "that if he would go on 
 and finish the mill according to contract," he would see 
 that he would not lose any thing by it, and that he got 
 his pay. {k) These facts were found by a referee, who also 
 found that the defendant alluded to the contracts between 
 himself and Horton ; that the plaintiff finished the mill 
 according to those contracts, with certain exceptions speci- 
 fied in the report ; and that during the progress of the 
 work, the defendant was often present, and expressed his 
 approbation of the manner in which it was being done. 
 The referee held that the defendant' s promise was void by 
 the statute of frauds ; and the Supreme Court, by a 
 
 Qc) There is nothing else stated in either report, to show an abandonment 
 of the 'contracts between Horton and the plaintiff; and the report in 24th 
 Howard further states, that the referee found that there was affirmative 
 evidence, that the plaintiflf regarded his contracts with Horton as being in 
 full force.
 
 Art. III.] COLLATEEAL UNDERTAKINGS. 351 
 
 majority vote, affirmed a judgment for the defendant, 
 founded upon liis report. From this decision the plaintiff 
 appealed to the Court of Appeals, where the judgment 
 of the Supreme Court was aflBirmed. 
 
 § 312. Grover, J., who delivered the opinion in the 
 Court of Appeals, first remarked, that as the promise of 
 the defendant was conditional upon the fulfilment of Hor- 
 ton' s contracts, and as those contracts had not been fulfilled, 
 the plaintiff could not recover, leaving out of view the 
 question arising under the statute of frauds ; but as the 
 referee and the court below did not proceed upon that 
 ground, the case would be examined with reference to the 
 statute. He then said, that the application of the statute 
 of frauds is not necessarily affected by the fact, that the 
 consideration was new; not arising out of the original 
 obligation ; and received by the promisor. In most cases, 
 he said, these facts will show whether the party contracted 
 an independent obligation in his own behalf, or whether 
 his position was that of a surety ; but not always, a 
 remark which the learned judge illustrated by two sup- 
 posed cases. Therefore, he said, "the receipt or non- 
 receipt of the consideration by the party promising, does 
 not determine, in every case, whether it is within the stat- 
 ute or not ; but that the inquiry still remains, whether he 
 entered into an independent obligation of his own, or 
 whether his responsibility was contingent upon the act of 
 another." In this case, therefore, the question is not 
 determined by the fact, that the mill was built upon the 
 defendant's land, and became his property, so that he 
 received the consideration. The referee has determined, 
 that the promise really was, that the defendant would 
 become surety that Horton should pay the plaintiff for 
 his work; and this determination accords with all the 
 facts of the case. "It is true," the learned judge pro- 
 ceeded, "that it was competent for the defendant, although 
 he had made the contract with Horton," .... "to make an 
 independent contract with the plaintiff for doing the same 
 job, and to pay him therefor ; and such contract would
 
 352 COLLATEEAL UNDERTAKINGS. [Ch. IX. 
 
 not come within the statute; but the difficulty with the 
 plaintiflF's case is, that the referee has found no such con- 
 tract; nor would the evidence warrant such a finding. "(Z) 
 
 § 313. The fact that the promisor is to derive a benefit 
 from the completion of the original contract, may, how- 
 ever, become important in connection with a question 
 hereafter to be considered, namely, whether a promise to 
 pay a pre-existing debt of another is within the statute, 
 when the leading object of the promisor is to subserve 
 some interest of his own. Some of the cases cited in the 
 course of that discussion, are quite relevant to the princi- 
 ples now under examination ; and the reader, who wishes 
 to pursue the subject further, is referred to them in their 
 proper places in that connection, (m) 
 
 (3) Cases where the new promise was in terms an assumption of the liability 
 of the original contractor. 
 
 § 314. This brings us to the last question to be con- 
 sidered here, namely, the effect of a promise, whereby the 
 promisor in terms adopts the liability of the other party 
 to the original contract. It is obvious that the fact that 
 the parties adopted the terms of the original contract, will 
 
 (T) The court did not, in this case, refer directly to the effect of an abandon- 
 ment of the original contracts; for it was conceded that the plaintiff's con- 
 tracts with Horton were still subsisting; the argument of the plaintiff's coun- 
 sel having been, that as the referee had found that the defendant's promise, 
 related to the contracts between him and Horton, it could not be deemed 
 collateral to the contracts between the plaintiff and Horton ; to which the 
 learned judge made answer, that the plaintiff's work was done upon the 
 latter contracts; and the price to be paid by the defendant to the plaintiff, 
 could not be determined by reference to the defendant's contracts with 
 Horton. To which we may add, that it was a necessary consequence, from 
 the finding that the plaintiff's contracts with Horton were not abandoned, 
 that the defendant's promise was collateral to those contracts; for it was 
 impossible to suppose that the plaintiff was doing his work upon two inde- 
 pendent sets of contracts ; under both of which he would be entitled to com- 
 pensation. 
 
 (m) Clay v. Walton, 9 California, 328; Kutzmeyer v. Ennis, 3 Butcher 
 (New Jersey), 371; Emerson v. Slater, 22 Howard (U. S.), 28, cited in 
 chapter xvii.
 
 Art. III.] Collateral Undertakings. 353 
 
 not necessarily bring the promise Avithin the statute, if the 
 other circumstances sliow that it has been abandoned. 
 For then it is evidently referred to, merely as a method by 
 which the terms of the new engagement are to be ascer- 
 tained. Of course the question whether such was in fact 
 the intention of the parties, will depend upon the peculiar 
 circumstances of each case, it being impossible to lay down 
 any general rule on the subject. 
 
 § 315. An instance of a contract of this kind, where the 
 court held, but without assigning any reasons for its con- 
 clusion, that the statute did not apply to a promise to pay 
 for work thereafter to be done, was presented in Rand v. 
 Mather^ 65 Massachusetts (11 Gushing), 1, decided in 1853. 
 There the defendant, being the owner of certain lands, 
 made a contract with one Whiston, providing, among 
 other things, that Whiston. should erect houses thereon; 
 and Whiston made a contract with the plaintiffs, provid- 
 ing that the latter should do the necessary painting upon 
 the houses, for which Whiston would pay them a specified 
 Drice per yard, as the work progressed. After the plaint- 
 iffs had done part of their work, for which they were 
 entitled to receive $45, Whiston paid them $15, and 
 omitted to pay them the remainder ; whereupon they 
 declined to proceed further, and discontinued work for six 
 weeks. The defendant, in order to induce them to pro- 
 ceed with it, then made to them one or more promises, 
 respecting the language of which the witnesses differed 
 somewhat ; but all the different versions amounted substan- 
 tially to promises to pay them, or to see them paid, what 
 they were to receive under their contract with Whiston. 
 The plaintiffs thereupon completed the work ; and after- 
 wards they made out and presented to Whiston a bill 
 therefor; but the evidence left it uncertain, whether the 
 bill had not previously been presented to the defendant. 
 And the judge at the trial having instructed the jury to 
 find a verdict for the defendants, upon their objection that 
 the promise was within the statute, an exception to the 
 ruling was sustained, and a new trial granted. Metcalf, J.. 
 45
 
 354 COLLATEKAL UNDERTAKINGS. [Ch. IX. 
 
 delivering the opinion of the court, said that the only 
 ground upon which the instruction could have proceeded, 
 was that an agreement which is void in part by the statute 
 of frauds, is void in toto. And, referring to a previous 
 decision of the same court to that effect, {n) he discussed 
 the question at length, overruling the previous decision, 
 and holding that the ruling at the trial was erroneous, 
 because the sound part could be separated from the 
 unsound. 
 
 § 316. But the principles upon which the question 
 depends were elaborately discussed and illustrated in 
 King v. Despard, 5 Wendell, 277, decided in 1830, by the 
 New York Supreme Court. There the plaintiffs had con- 
 tracted with one Tilman to find the materials and erect a 
 tan-house for Tilman, at a stipulated price, payable when 
 the building should be finished; and pursuant to the 
 contract they "got out the timber and framed it; but 
 before the building was raised, or the sills laid, Tilman 
 absconded and they stopt the work." Before absconding, 
 Tilman transferred the contract to the defendant, guaran- 
 tied its performance by the plaintiffs, and promised to 
 indemnify the defendant against the plaintiffs' claims for 
 erecting the building. The plaintiffs, after Tilman' s 
 departure, said to the defendant that they had determined 
 not to go on with the work; and to abide the conse- 
 quences of not performing their contract. The defend- 
 ant told them to go on and finish the building, "and he 
 would pay them or they should have their pay ;" where- 
 upon the plaintiffs completed the building. The defend- 
 ant was present and gave directions, while the work was 
 in progress ; and at his request, the building was erected 
 upon a different part of the land from that marked out by 
 Tilman, and some alterations were made in the plan. Both 
 parties however insisted upon their rights under the con- 
 tract with Tilman ; and the alterations were charged for 
 separately as extra work ; and the plaintiffs had recovered 
 
 (n) Loomis v. Newhall, cited ante, § 174, and note.
 
 Art. III.] Collateral Undertakings. 355 
 
 a judgment against the defendant for the extra work. 
 The defendant from time to time made payments upon 
 account of the work ; for which the plaintiffs, at the request 
 of the defendant, drew orders in the defendant's favor 
 upon Tilman, the defendant saying that he wanted them 
 as vouchers in his settlement with Tilman ; and in fact 
 they were applied upon a note, which Tilman held against 
 the defendant. The plaintiffs sued for the balance due 
 to them, and on the trial the judge ruled that the defend- 
 ant's promise was within the statute. The defendant 
 had a verdict accordingly, which the plaintiffs moved to 
 set aside. 
 
 § 317. The court granted the motion, Savage, C. J., 
 remarking : "The defendant substantially undertook that 
 the plaintiffs should have their pay according to their 
 contract with Tilman. The consideration for this promise 
 is the building of the house. The plaintiffs were bound 
 by their contract to build it, and Tilman to pay them ; but 
 when he became unable to pay, they preferred risking the 
 consequences of a breach of their contract. The defendant 
 had purchased the interest of Tilman in the work ; it was 
 important to him to have it completed ; and the promise 
 was, not to pay Tilman' s contract, but as I understand it, 
 to pay for the building according to the terms of that con- 
 tract : it was either that, or a promise to pay as much as 
 the building was worth. It was understood by both par- 
 ties to be an undertaking to pay according to the terms of 
 Tilman' s contract, as an extra price was charged and paid 
 for variations made from that contract." "There is no 
 one circumstance in the case," continued the learned 
 Chief Justice, "when properly explained, which proves 
 an intention on the part of the plaintiffs to look to Tilman 
 for their pay. They had abandoned their contract with 
 him ; and what passed between them and the defendant 
 must be considered as a new contract. The plaintiffs say, 
 we will not put up the building for Tilman ; the defendant 
 says, I stand in Tilman' s place; I have purchased his 
 interest in tl;e work, and the building is to be erected for
 
 356 Collateral Undertakings. [Cli. ix. 
 
 my benefit ; go on and finish it according to your agree- 
 ment with Tilman, and I will pay as he agreed to pay." 
 Referring to the drafts upon Tilman, he added "that they 
 favored the idea that the building was erected upon the 
 responsibility of Tilman, and in pursuance of the con- 
 tract with him ; but this was removed by the plaintiffs' 
 explanation." 
 
 § 318. This case was followed by the present Supreme 
 Court of New York, under circumstances involving con- 
 siderable nicety in the application of the principle, in 
 Quintard v. De Wolf, 34 Barbour, 97, decided A. D. 1861. 
 There the plaintiff had been employed by one Gardiner, 
 an inventor, to manufacture a machine, which Gardiner 
 had agreed to furnish, for a specified sum, to one Stead- 
 man ; and Gardiner was to pay the plaintiff by Steadman' s 
 accepted drafts upon D. S. & Co., a firm in New York ; 
 the contract between Gardiner and Steadman providing 
 for the latter furnishing such acceptances, and D. S. & Co. 
 having agreed with Steadman that they would accept his 
 drafts for the amount. From the opinions delivered in 
 the case, it is apparent that by the terms of the contract, 
 drafts for the price of the machine were to be given to the 
 plaintiffs, when the machine should be finished and deliv- 
 ered ; and it would seem that the delivery was to be made 
 by the plaintiff to Steadman, and that the price was fixed 
 at the same sum, which Steadman was to pay Gardiner 
 therefor. 
 
 § 319. The plaintiff had nearly finished the machine, 
 when D. S. & Co. refused, or said they would refuse to 
 accept Steadman' s drafts ; whereupon, according to the 
 plaintiff's version of the matter, he refused to go on with 
 the work, unless Gardiner "would give a responsible 
 party in New York." Steadman then applied to the 
 defendant, to accept his drafts for the price of the machine, 
 when it should be completed, which the defendant verb- 
 ally agreed with him to do ; and Gardiner having so 
 informed the plaintiff, the latter saw the defendant, who
 
 Art. III.] Collateral Undertakings. 357 
 
 told the plaintiff to go on and complete the machine "and 
 he would pay him in his notes of four and six months, or 
 in Steadman's drafts acceptedby him, as he, the plaintiff, 
 might prefer." When the machine was completed, Stead- 
 man refused to take it or give his drafts therefor ; where- 
 upon this action was brought. There was conflicting 
 testimony as to what took place, after the refusal of D. S. 
 & Co. to accept the drafts of Steadman ; and at the trial 
 the judge charged the jury, (inter alia,) that if after such 
 refusal, and the plaintiff's refusal to go on with the work, 
 the defendant promised to pay for the machine if he would 
 complete it, the defendant was liable for the price ; and the 
 defendant's request to charge the jury that the original 
 contract was not terminated, and that Gardiner continued 
 from first to last to be liable was refused. 
 
 § 320. The jury found a verdict for the plaintiff, and 
 the judgment rendered thereon was affirmed on appeal. 
 The court remarked that Steadman, who was to receive 
 the machine, did not appear personally in the transaction 
 at all; and although it might have been a question 
 whether Gardiner or D. S. & Co. were the persons origin- 
 ally and directly responsible, that was not material, if the 
 original contractor, whoever he was, was discharged and 
 the contract terminated, which was properly left to the 
 jury; and that the defendant's request was correctly 
 refused, because it asked a positive instruction upon a 
 disputed question of fact ; the request should have been, 
 that if Gardiner was from first to last liable to the plaintiff, 
 the defendant was not liable. The material fact in the 
 case was that the first contract was rescinded and termi- 
 nated, and therefore the agreement upon which the action 
 was brought was original, (o) 
 
 (o) The facts of this case have been partly extracted from the opinions ; in 
 one of which, given on a previous appeal, it is said that D. S. & Go's, agree- 
 ment was with the plaintiff, and that it was not within the statute, they 
 alone being liable for the price.
 
 CHAPTER TENTH. 
 
 THE SAME SUBJECT CONTIISrUED — CASES WHEEE THE EXTIN- 
 GUISHMENT OF THE THIRD PEESON'S LIABILITY WAS 
 EFFECTED BY AN AGEEEMENT, TO WHICH HE, THE 
 PEOMISOE, AND THE PEOMISEE WEEE PAETIES. 
 
 ARTICLE I. 
 
 Tlie doctrine of novation! 
 
 § 321. The process by wMcli one person becomes sub- 
 stituted as another's debtor, in place of a third, who is 
 discharged, is called a novation ; a term which is borrowed 
 from the civil law, together with the rules by which the 
 doctrine known by that name is governed. The introduc- 
 tion of the doctrine of novation into the common law has 
 been gradual, and our courts have not yet fully adopted all 
 its incidents, as they prevail in the system of jurisprudence 
 from which it was taken. An instance of this has already 
 been given, (a) although there the same result is practically 
 accomplished, in a way more consistent with the princi- 
 ples of the common law. In another important aspect of 
 the doctrine, which is yet to be examined, there is great 
 inconsistency, not to say conflict in the cases. We shall 
 have occasion, in investigating the different phases of the 
 application of the statute of frauds to promises to answer 
 for the debt, etc., of another, to examine somewhat fully, 
 how far the doctrine of novation has become engrafted 
 upon the common law ; and we therefore append here its 
 definition, together with a statement of its elementary 
 principles, and the general rules of its application, as we 
 find them laid down by one of the most eminent of the 
 continental jurists. 
 
 (fi) See section 296.
 
 Art. I.] COLLATEEAL UNDERTAKINGS. 359 
 
 § 322. "A novation is a substitution of a new debt for 
 an old. The old debt is extinguished by the new one 
 contracted in its stead, for which reason a novation is 
 included amongst the different modes, in which obliga- 
 tions are extinguished. A novation may be made in 
 three different ways, which form three different kinds of 
 novations. The first takes place without the intervention 
 of any new person, where a debtor contracts a new engage- 
 ment with his creditor, in consideration of being liberated 
 from the former. This kind has no appropriate name, 
 and is called a novation generally. The second is that 
 which takes place by the intervention of a new debtor, 
 where another person becomes a debtor in my stead, and 
 is accepted by the creditor, who thereupon discharges me 
 from it. The person thus rendering himself debtor for 
 another, who is in consequence discharged, is called 
 expromissor ; and this kind of novation is called expro- 
 missio. The expromissor differs entirely from a surety, 
 who is sometimes called in law, adpromissor. For a 
 person by becoming a surety does not discharge, but 
 accede to, the obligation of his principal, and becomes 
 jointly indebted with him. The third kind of novation 
 takes place by the intervention of a new creditor, where a 
 debtor, for the purpose of being discharged from his 
 original creditor, by the order of that creditor, contracts 
 some obligation in favor of a new creditor. "(&) 
 
 § 323. As our proposed examination of the extent to 
 which the doctrine of novation now prevails at common 
 law, is merely subordinate to its effect upon the applica- 
 tion of the statute of frauds to verbal promises, the first 
 species of novation, which does not involve that question, 
 will receive no special attention, and the examination of 
 the third will be deferred to a subsequent chapter -,(0) 
 
 {h) Pothier on Obligations, Part III, chapter 2, article 1; Evans's Transla- 
 tion, Vol. I, pp. 546 to 549. 
 
 (c) Chapter fourteenth, article fourth.
 
 360 COLLATEKAL UnDEETAKINGS. [Ch. X. 
 
 because, although its validity at common law rests upon 
 the same grounds as that of the others, its validity under 
 the statute depends upon a different principle. We will 
 therefore proceed to the examination of the application of 
 the statute, to cases where there has been a novation by 
 the discharge of the person originally liable, and the 
 acceptance of a new promisor in his stead, accomplished 
 by mutual agreement between the three persons interested. 
 
 ARTICLE 11. 
 
 Where, ty consent of all the parties, the third person's antecedent liability to the promisee 
 was discharged,' in consideration of the promisor's engagement to pay to the promisee, a debt 
 antecedently due by him to the third person. 
 
 § 324. This species of novation was the first to be recog- 
 nized by the common law, and it is sometimes said to 
 raise an exception to the rule that a chose in action can- 
 not be assigned ; but, whether this expression is strictly 
 accurate or not, it is well settled that an action in favor of 
 a transferee of a debt against the debtor, must be founded 
 upon a promise of the defendant to the plaintiff to pay the 
 debt to him. In the United States it seems to be held, that 
 the debtor' s liability is sufficient as a consideration for 
 the promise ; but in England it is said, no doubt correctly 
 upon the strict rules of the common law, that like aU other 
 contracts, such a promise is binding upon the promisor, only 
 when it was founded upon a distinct consideration, moving 
 between the parties to the promise; at least to the extent that 
 it must be something done, or permitted to be done by the 
 promisee, at the express or implied request of the prom- 
 isor. Where the consideration of the transfer was a debt 
 due to the transferee by the transferor, forbearance upon, 
 or the discharge of which formed the consideration of the 
 promise, by the person who owes the debt transferred, 
 the question is at at once presented, whether the promise 
 was to answer for the debt of another, within the statute 
 of frauds ; and this question has given rise to many doubts 
 and considerable nicety of distinction. We shall examine 
 hereafter that aspect of it which is presented, where the 
 promise was founded upon forbearance, or any other con-
 
 Art. II.] COLLATEEAL UNDERTAKINGS. 361 
 
 sideration, than the discharge of the debt due from thp 
 transferor to the transferee. Where it was founded upon 
 such a discharge, and the promise was verbal, its validity, 
 under the statute of frauds, is determined by the principle 
 embodied in the fourth rule. 
 
 § 325. The common law writers generally confine the 
 generic term novation to the latter species of contract ; but 
 it is generally known in the civil law as a delegation, or 
 double novation, concerning which the eminent author 
 already quoted says : " Delegation is a kind of novation, 
 by which the original debtor, in order to be liberated from 
 his creditor, gives him a third person, who becomes 
 obliged in his stead to the creditor, or to the person 
 appointed by him." "A delegation includes a novation, 
 by the extinction of the debt from the person delegating, 
 and the obligation contracted in his stead by the person 
 delegated. Commonly, indeed, there is a double novation ; 
 for the party delegated is commonly a debtor of the per- 
 son delegating ; and in order to be liberated from the 
 obligation to him, contracts a new one with his creditor. 
 In this case there is a novation both of the obligation of 
 the person delegating, by his giving his creditor a new 
 debtor, and of the person delegated, by the new obligation 
 which he contracts. "(a) 
 
 § 326. The principle of this kind of novation, although 
 no name was given to it, is to be found in some very early 
 cases, but its first promulgation in the common law, is 
 generally attributed to Buller, J., in Tatlock v. Harris, 
 3 Term Reports, 174, A. D. 1789 ; a case having no special 
 relevancy to this question, but where that eminent judge, 
 in answer to one of the counsel, during the argument, 
 made the following observation: "Suppose A owes B 
 lOOZ., and B owes C 100^. ; and the three meet, and it is 
 agreed between them that A shall pay C the 100^. ; B's 
 
 (tt) Pothier on Obligations, Part III, chapter 3, article 6, sections 1 and 2. 
 Evans's Translation, vol. I, pp. 564 and 565. 
 46
 
 362 COLLATEEAL UNDERTAKINGS. [Ch. X. 
 
 debt is extinguished, and C may recover that sum against 
 A." There is no further allusion in the case to this sub- 
 ject ; but this incidental remark of Mr. Justice Buller has 
 been construed in subsequent cases, as laying down three 
 rules or propositions, namely : 1. That wherever the 
 transaction between the parties is such, that the two 
 intermediate debts are extinguished, the promise is good 
 at common law. 2. That the promise is not good, unless 
 both the intermediate debts are extinguished. 3. That in 
 the particular case put, both the intermediate debts were 
 extinguished as matter of law, although there were no 
 express words of discharge of either. The question 
 whether the second of these propositions is law, will be 
 examined at length in subsequent chapters. (6) The first is 
 the only one with which we have any direct concern in this 
 connection. We will illustrate it by a few cases, showing 
 the circumstances under which the two intermediate debts 
 are regarded as discharged, or vice versa ; and as it is fre- 
 quently dependent upon the third, some of the cases 
 necessarily involve that proposition also. It makes no 
 substantial difference, whether the question, respecting the 
 validity of the promise, arises at common law or under the 
 statute. Indeed the cases treat it, as arising in either 
 aspect indiscriminately. 
 
 § 327. In Browning v. Stallard, 5 Taunton, 450, decided 
 A. D. 1814, in the Common Pleas, the plaintiffs sued as 
 assignees in bankruptcy of one Morgan, to recover the 
 value of a cask of gin ; and it appeared that the cask was 
 ordered from Morgan by, and delivered to one Phillips, a 
 publican, who afterwards "gave it over" to the defend- 
 ant, another publican; when the rider of Morgan came 
 for his money, Phillips said to him that he had sent the 
 cask to the defendant, who would pay him when he came 
 around again ; and the defendant then coming in, this was 
 repeated, and he assented to it. At the trial, it was 
 objected that the promise was within the statute, and it 
 
 (fi) Chapter twelfth, and chapter fourteenth, article fourth.
 
 Art. II.] Collateral Undertakings. 368 
 
 was contended that as the gin was originally sold to 
 Phillips, the mere taking possession of it by the defend- 
 ant, would not give the plaintiffs a cause of action upon 
 any other ground; but Chambre, J., before whom the 
 cause was tried, thought this was a transfer of the sale by 
 consent of all parties, and not an agreement to pay the 
 debt of another, and the plaintiffs had a verdict. A motion 
 was made to set aside the verdict and for a new trial, but 
 the court refused a rule, holding that the ruling below 
 that it was a transfer was right, and adding: "An action 
 could, after that consent, no longer have been maintained 
 against Phillips for the goods. It was a new sale of them 
 to the defendant." 
 
 § 328. The case of Cuxon v. Chadley, 3 Barnewall and 
 Cresswell, 591, (c) A. D. 1824, in the King's Bench, pre- 
 sented directly, only the question whether the original 
 debtor to the plaintiff was in fact discharged, the solution 
 of which, however, depended upon whether the new prom- 
 isor in fact assumed any legal liability. This was an 
 action in favor of the assignees of one Sweet, a bankrupt, 
 against James Chadley, to recover a sum due for goods 
 sold to him by the bankrupt ; and the defence was that 
 before the bankruptcy, Robert Chadley, the defendant's 
 brother, who then had an account current growing out of 
 various transactions with Sweet, and at the same time 
 owed the defendant a larger sum, than the bill of goods 
 for which this action was brought, had requested Sweet 
 to charge this amount of James's bill to his (Robert's) 
 account current, to which Sweet had assented ; and when 
 the account was adjusted between Robert and Sweet at 
 the end of the year. Sweet, by Robert's direction, entered 
 to Robert's debit, that charge, which nearly balanced the 
 account between them. Soon after making the arrange- 
 ment with Sweet, Robert communicated it to his brother 
 James, the defendant ; but the report does not state that 
 any thing ever passed between Sweet and the defendant. 
 
 (c) S C, 5 Dowling and Ryland, 417 ; and 1 Carrington and Payne, 174.
 
 364 COLLATEEAL UnDEETAKINGS. [Cll. X. 
 
 The plaintiffs had a verdict, and a rule nisi to enter a 
 nonsuit was discharged ; on the ground that the entry was 
 proof merely of an assent to debiting Robert with the 
 goods, and not that the bankrupt consented to take 
 Robert as his debtor, and discharge James. Abbott, C. 
 J., remarked, that at most there was an accord between 
 Robert and the bankrupt, but no satisfaction ; and he 
 added, "We cannot say, therefore, that either Robert 
 could have been made to pay this money to Sweet, if he 
 had called for it, or that James is discharged from his 
 original obligation to pay the amount of goods sold to 
 him."(^) 
 
 § 329. So in Wharton v. Walker^ 4 Barnewall and Cress- 
 well, 163, and 6 Dowling and Ryland, 288, decided in the 
 same court, A. D. 1825. There one Lythgoe was indebted 
 to the plaintiff, and gave him an order for the amount of 
 the debt upon the defendant, who was his tenant, payable 
 out of the rent that should next become due ; and the 
 plaintiff sent the order to the defendant, without any fur- 
 ther communication between them. When the next rent 
 became due, the defendant produced the order to Lythgoe, 
 and promised him to pay the amount to the plaintiff; 
 whereupon Lythgoe allowed him to deduct that amount, 
 and on his paying the difference, gave him a receipt for 
 the whole sum. The plaintiff then brought this action, 
 declaring for money had and received, and upon an account 
 stated. On the trial he was nonsuited, on the ground 
 
 (d) The trial of this cause is reported in 1 Carrington and Payne, 174, 
 from which it would appear that the ruHng turned upon the ground, that 
 Robert's agreement to pay James's debt was within the statute of frauds. 
 The notes of the argument are given at page 485 of the same volume; where 
 it is said, that on counsel for the plaintiffs insisting that Robert could not be 
 bound without a writing, Bayley, J., answered : " There you are quite wrong, 
 Mr. Marryatt; for there are many cases which decide that a man, by word 
 only, may take a debt upon himself, discharging the principal debtor. In 
 this case Robert owes James money ; and by this arrangement, Robert is to 
 pay Sweet what he would otherwise pay to his brother." To which Marryatt 
 answered, that there was no evidence that Sweet knew that one brother 
 owed the other any money.
 
 Art. II. J COLLATEEAL UNDERTAE:i:N-OrS. 365 
 
 that the promise was within the statute of frauds, and a 
 rule nisi to enter a verdict in his favor was discharged. 
 Although the court thought that the declaration should 
 have been special; all the judges, delivering opinions 
 seriatim, also agreed that the action could not be main- 
 tained ; because, as the three parties did not concur in the 
 arrangement, the debt due from Lythgoe to the plaintiff 
 had not been discharged, and the plaintiff might collect it 
 from him ; so the case did not come within Buller's rule.(e) 
 
 § 330. There are a few cases in the United States, where 
 the correctness of the first or of the third proposition, 
 derived from the rule in Tatlock v. Harris^ has been 
 denied, either expressly or by implication ;(/) but they 
 run decidedly counter to the general current of the Ameri- 
 can decisions. Indeed this seems to favor the much 
 broader rule, that a promise by a debtor to pay his debt 
 to a transferee thereof, is valid, at common law, without 
 any new consideration ; and under the statute of frauds, 
 upon the principle embodied in the sixth rule. We will 
 cite some specimen cases where the first and third propo- 
 sitions were recognized and their application illustrated ; 
 and where also the validity of the transaction, under the 
 statute of frauds, was either expressly affirmed, or admitted 
 by implication. 
 
 § 331. In Hay don v. Christopher, 1 J. J. Marshall (Ken- 
 tucky), 382, A. D. 1829, the plaintiff was a creditor of one 
 
 (e) This case, and several others not cited here, where it was ruled, upon 
 grounds which appear to be unsatisfactory, that there was a discharge df the 
 intermediate debts, are commented upon in the note at the conclusion of 
 chapter xiv. 
 
 (/) Smith V. Coleman, 1 Bibb (Kentucky), 488, A. D. 1809; Gunnels v. 
 Stewart, 3 Brevard (South Carolina), 52, A. D. 1812; Jones v. Ballard, 2 Mill 
 (South Carolina), 113, A. D. 1818; Smith v. Stevens, 3 Indiana, 332, A. D. 
 1852. In the last mentioned case it is said that a transaction, which was 
 substantially the same as the supposed case put in Tatlock v. Harris, would 
 be void under the statute of frauds; but the decision was put upon another 
 ground, which calls for no comment here, as it did not arise under the 
 statute.
 
 366 COLLATEEAL UNDERTAKINGS. [Ch. X. 
 
 Cock to the amount of $25, and the defendant said that 
 he owed Cock $20 ; and thereupon an agreement was 
 made between the three, whereby the defendant agreed to 
 pay the plaintiff $20, and the two intermediate debts were 
 discharged. Afterwards Cock fled from the State; and 
 the defendant then said that he did not owe him as much 
 as he had supposed, and refused to pay the plaintiff. It 
 was objected at the trial, that the promise was within the 
 statute, and the defendant had a verdict under the instruc- 
 tions of the court. The judgment rendered thereon was 
 reversed, and a new trial ordered ; the Court of Appeals 
 holding that the promise was not witliin the statute, and 
 that after procuring Cock's release by the plaintiff, the 
 defendant could not show that he had been mistaken in 
 the amount of his debt to Cock.(^) 
 
 § 332. An American case, where a novation was sus- 
 tained under the rule of Tatlock v. Harris^ in an action 
 by the substituted creditor seeking to recover upon the 
 original liability, is reported under the name of Heaton 
 V. Angier, 7 IS'ew Hampshire, 397, decided A. D. 1835. 
 There the plaintiff sued for the price of a wagon sold to 
 the defendant, and it appeared that immediately after the 
 sale, one Chase bought the wagon from the defendant, at a 
 slight advance upon the price ; that Chase and the defend- 
 ant went to the plaintiff ; and Chase agreed to pay to the 
 plaintiff the purchase price of the wagon, to be paid by 
 the defendant; "and the plaintiff agreed to take Chase as 
 paymaster for that sum, and thereupon Chase took the 
 wagon and went away." Upon a verdict, subject to the 
 opinion of the court, it was held that the action could not 
 be maintained ; as the agreement of the plaintiff to take 
 Chase as his debtor discharged the defendant, the debt 
 due from Chase to the defendant being simultaneously 
 discharged. 
 
 (g) The last paragraph is in accordance with part of the ruHng in Beach 
 V. Hungerford, post § 336.
 
 Art. II.] Collateral Undertakings. 367 
 
 § 333. And in Wood v. Corcoran, 83 Massachusetts (1 
 Allen), 405, A. D. 1861, a verbal agreement between the 
 plaintiflf, the defendant, and a third person, who was the 
 plaintiff's debtor and the defendant's creditor, tliat the 
 defendant would pay the plaintiff the debt against the 
 third person, and that the latter should be discharged, 
 was sustained as not being within the statute. And the 
 court said, that the agreement operated to discharge as 
 much of the defendant's debt to the third person, as 
 was equal to the sum which he undertook to pay to the 
 plaintiflf. 
 
 § 334. In Grover v. Sims, 5 Blackford (Indiana), 498, A. 
 D. 1841, it was held that a novation was good which took 
 effect immediately, although the amount of the substituted 
 debt was not definitely known, and payment was to be post- 
 poned till the amount should be ascertained. There the 
 defendants were indebted to one Treadway, "having funds 
 or cash of his in their hands," and Treadway was indebted 
 to the plaintiflf upon a promissory note made by him ; 
 the parties met, and mutually agreed that the defendants 
 should pay to the plaintiffs the amount they owed Tread- 
 way, "so soon as the precise amount of their indebtedness 
 to Treadway, could be ascertained by reference to their 
 accounts." Upon the trial, various objections were taken 
 to the recovery, among them that the plaintiflf had not 
 proved that he had delivered up Treadway' s note, or 
 otherwise expressly released him, but the judge charged 
 that this was not necessary, and the plaintiflf had a ver- 
 dict, which was aflftrmed upon appeal. The opinion of 
 the court, reviewing the English cases, held that the 
 debt from Treadway to the plaintiflf was extinguished, and 
 that the action for money had and received lay against 
 ■the defendants. 
 
 § 335. An instance of double, or as the civil lawyers 
 would perhaps call it, quadruple novation, or double 
 delegation, occurred in the case of Beach v. Hungerford^ 
 19 Barbour (New York), 258, A. D. 1855. There the
 
 368 Collateral Undertakings. [Ch. x. 
 
 defendants, who were contractors with a railroad com- 
 pany for the construction of a portion of the company's 
 road, had made a sub-contract with one Deland for the 
 construction of one section, reserving the right to retain 
 sufficient moneys to pay the laborers employed by Deland, 
 if the latter failed to pay them. Deland employed a 
 number of laborers, and after doing a part of the work, 
 stopped, leaving them, unpaid. The plaintiff had fur- 
 nished supplies to them, for which they were indebted to 
 him. Deland, the laborers, the plaintiff, and the defend- 
 ants thereupon agreed that the defendants should pay 
 the plaintiff' s bills against the laborers for supplies, (the 
 amount of which was agreed upon) ; that the laborers 
 should be discharged from liability to the plaintiff ; that 
 the amount of the plaintiff's bills against each laborer 
 should be deducted from the wages owing to him; and 
 that the balance due to each laborer should be paid to him 
 by the defendants. The defendants thereupon paid the 
 laborers the amount due to them respectively, deducting 
 the plaintiff's bills. It appeared further that before 
 this arrangement was made, the laborers had taken pro- 
 ceedings under the railroad act, to charge the company 
 with the amount of their wages ; and that the defendants' 
 contract with the company provided that the company 
 might retain moneys sufficient to satisfy any such claims.. 
 In an action brought by the plaintiff, to recover the sums 
 thus deducted by the defendants, it was objected that the 
 defendants' promise was void by the statute of frauds ; 
 but the objection was overruled, and a judgment for the 
 plaintiff, rendered upon a referee's report, was affirmed 
 on appeal. 
 
 § 336. It was held that it was of no consequence, whether 
 the laborers had any valid claim against the company by 
 the provisions of the act ; or whether the defendants 
 retained enough of the moneys due from them to Deland, 
 to pay the plaintiff ; or whether they were liable to the 
 laborers for their wages. It was sufficient that they 
 undertook to settle, and did, in fact, settle with the labor-
 
 Art. II.] Collateral Undertakings. 369 
 
 ers, acknowledging their liability so to do ; and that for 
 that purpose they used the plaintiff's d(-iiiands against 
 them, as so much money in their hands. That in this way 
 the plaintiff's demands against the laborers were paid and 
 satisfied, and the defendants became liable to the plaintiff 
 for so much money had and received to his use. That 
 the statute of frauds had nothing to do with the case ; 
 and that the agreement was original, and the considera- 
 tion sufficient. (7i) 
 
 § 337. Other cases illustrating the application of the 
 doctrine that the discharge of the intermediat<' debts will 
 suffice to sustain the promise at common law and under 
 the statute of frauds, will be found in the note.(/) They 
 also sustain the general principle, which, notwithstanding 
 some intimations, and even rulings to the contrary, is upon 
 the whole, clearly established by the weight of authority; 
 that any words or acts, manifesting either expressly or by 
 necessary implication, a consent on the part of the? three 
 persons concerned, that the intermediate debts should be 
 immediately discharged, are sufficient to extinguish them. 
 The question whether any consideration, except such a 
 
 (h) Pothier (Part III, chapter 2, article 5), speaking of delegation, says: 
 "Sometimes there intervenes a fourth party, viz. : the person indicated by 
 tlie creditor, and in whose favor the person delegated becomes obliged upon 
 the indication of»the creditor, and by the order of the person delegating." 
 But here was something more, for the fourth person was a creditor of one 
 of the intermediate persons, whose demand was also extinguished by the 
 novation. The process was evidently double ; first the laborers' claim against 
 Deland, and the plaintiff's claim against the laborers were extinguished by 
 one delegation, and the plaintifl' became a creditor of Deland ; then the 
 plaintiff's claim against Deland, and Deland's claim (pro tanto) against the 
 defendants were extinguished by another, and the plaintiff became a creditor 
 of the defendants. 
 
 (i) Ramsdalev. Horton, 3 Barr (Pennsylvania), 330, A. D. 184G ; Barrin- 
 ger V. Warden, 12 California, 311 (1859); Cnnsociated Presbyterian Society, 
 etc., V. Staples, 23 Connecticut, 544 (1855); Stony v. Menzies, 4 Chandler 
 (Wisconsin), 61(1851); Millard v. Porter, 18 Indiana, 503(1802); Stanly 
 V. Hendricks, 13 Iredell (North Carolina), 8G (1851) ; King v. Hutchins, 28 
 New Hampshire, 561 (1854); Cook v. Barrett, 15 Wisconsin, 596 (1862). 
 
 47
 
 370 COLLATEEAL UNDERTAKINGS. [Ch. X. 
 
 double discharge, will sustain a promise by a debtor to 
 pay his debt to a transferee thereof, is of course entirely 
 distinct, at common law, and under the statute. 
 
 ARTICLE III. 
 
 Where the third person's antecedent liahility to the promisee was discharged, in consideration 
 of its assumption hy the promisor, 
 
 § 338. This class of cases, like that which formed the 
 subject of the third article of the last chapter, comes 
 within the second species of single novation described by 
 Pothier, and called expromissio,(a) being that which takes 
 place ' ' by the intervention of a new debtor, where another 
 person becomes a debtor in my stead, and is accepted by 
 the creditor, who thereupon discharges me." It is valid, 
 at common law and under the statute of frauds, only when 
 it is made by the concurrence of the three parties ; that is 
 to say, the creditor, the old debtor, who is to be discharged, 
 and the person who is to assume his place. As it consti- 
 tutes only one half of that species of delegation, to the 
 examination of which the preceding article is devoted, one 
 of the elements of the consideration, necessary to the valid- 
 ity of a contract of that kind, is unimportant in this species 
 of contract. Here the consideration for the assumption 
 of the new liability by the new debtor, is merely the dis- 
 charge by the creditor of the original debtor ; and it is of 
 no consequence what was the consideration, or whether 
 any consideration passed, between the new debtor and 
 the person discharged ; whereas, as we have seen, it is one 
 of the ingredients of a delegation by double novation, that 
 the former shall be discharged by the latter of a precedent 
 debt owing by him. 
 
 § 339. In this class of cases, as in the other, any thing 
 which amounts to a valid discharge of the original debtor, 
 suffices to take the promise out of the operation of the 
 statute ; respecting which, it may, in general terms, be said 
 
 (a) See ante, § 322.
 
 /.]'t. in.] Collateral Undertakings. 371 
 
 tliat any words or acts passing between liim and liis cred- 
 itor, indicating unequivocally an intention on the part of 
 tlie latter, immediately and thenceforth to abandon his 
 demand, and an assent thereto on the part of the former, 
 will suffice. 
 
 (1) Cases illustrating the general principle, and the rule that the three per- 
 sons in interest must concur, 
 
 § 340. The question whether the discharge of the prin- 
 cipal debtor, by a trii^artite agreement, sufficed to take a 
 stranger's promise out of the statute, arose and was 
 affirmatively decided in Bird v. Gammon, 3 Bingham's 
 New Cases, 883, in the Court of Common Pleas, A. D. 
 1837. (?>) There the plaintiff had issued a lieri facias upon a 
 judgment in his favor against one Lloyd, Subsequently 
 Lloyd conveyed to the defendant his farm and farming 
 stock; the defendant verbally undertaking in return, as 
 was expressly proved at the trial, and as it also appeared 
 by the recitals of the deed^ to satisfy Lloyd' s creditors ; 
 and it was a part of the agreement, the plaintiff being a 
 party to it and an attesting witness to the deed, that 
 Lloyd should be discharged. The plaintiff then mthdrew 
 his execution, and Lloyd continued to manage the proj^- 
 erty as the defendant' s bailiff. About three years after- 
 wards, the defendant, having examined the plaintiff's 
 account, acknowledged its correctness. At the trial two 
 objections were made to a recovery, one of which is not 
 important in this connection ; the other was that the 
 defendant' s engagement was within the statute of frauds. 
 The plaintiff had a verdict ; and upon the argument of a 
 Tule nisi, the court held that the promise was not within 
 the statute, because Lloyd could set up the agreement, 
 in bar of a new suit, or to stay proceedings upon the 
 judgment ; so that the plaintiff had effectually dis- 
 charged him, and accepted the defendant's undertaking, 
 in lieu of any remedy against him. The rule was there- 
 fore discharged. 
 
 (b) S. C, 5 Scott, 213, and 3 Hodges, 224.
 
 372 CoLLATEEAL Undeetakings. " [Ch. X. 
 
 § 341. On tlie other hand, it was held by the same court 
 in FrencTi v. French^ 2 Manning and Granger, 644, (c) A. 
 D. 1841, that as it did not clearly appear that the origmal 
 debt was discharged, the defendant's promise to pay it 
 was within the statute. There the plaintiff sued to 
 recover, among other items of an account, the amount of 
 321Z. 5s., being a debt originally contracted by the defend- 
 ant' s father ; and it appeared that the defendant, who was 
 a naval officer, had given to the plaintiff a writing, (insuffi- 
 cient under the statute of frauds, ) acknowledging that he 
 had received from the plaintiff 3211. 5s.; and desiring that 
 in case of his death, during his absence from England, or 
 at any time before the debt was liquidated, the plaintiff 
 should be paid out of any property the defendant might 
 possess. It was further shown that this writing had been 
 given to avoid proceedings against the estate of the father, 
 who had died abroad in embarrassed circumstances. It 
 also appeared that the defendant's sisters had subse- 
 quently entered into some written engagement, (which had 
 been destroyed by a fire,) to pay the same debt. At the 
 trial the defendant had a verdict ; and upon a motion to 
 enter a verdict for the plaintiff, the latter' s counsel con- 
 tended that the wiiting was evidence of a loan by the 
 plaintiff to the defendant, to enable him to discharge his 
 father's debt; in which object, as one of the next of kin, 
 he was personally interested. But Tindal, C. J., said that 
 ' ' the substratum of that suggestion must be that the debt 
 due from Dr. French" (the father) "was satisfied. But 
 it is inconsistent with such a supposition, that the plaintiff 
 should afterwards obtain from Dr. French' s two daughters, 
 a note or engagement to pay the same debt." The rule 
 was accordingly discharged, on the ground that the prom- 
 ise was void for want of consideration, and also as being 
 witliin the statute. 
 
 § 342. In the English chancery case of Emmet v. Dew- 
 liUTst, 15 Jurist, 1115, 3 Macnaghten and Gordon, 587, 
 
 (c) S. C, 3 Scott's New Reports, 121.
 
 -Art III.] Collateral Undektakings. 373 
 
 and 21 Law Journal, N. S., Chancery, 497, decided in the 
 year 1851, it was held that a promise was within the 
 statute, whereby the promisor undertook to substitute for 
 a liability resting upon another, the joint liability of him- 
 self and the original debtor. Such a substitution, as will 
 presently a])pear,(c?) suffices to satisfy the principle now 
 under examination, because the original several lial)ility 
 is thereby extinguished. The reason, why this particular 
 case was taken out of this class of cases not within the 
 operation of the statute, is not given in the opinion ; and 
 it may be that the Lord Chancellor overlooked or dis- 
 sented from the doctrine, that a joint promise extinguishers 
 the original debt; but probably he put his decision on 
 the ground, that the plaintiff did not discharge tlie 
 original liability, but only promised to do so. The plaint- 
 iff, as public officer of the Halifax Joint Stock Banking 
 Company, filed a bill to get the benefit of an indenture; 
 whereby, in substance, the defendant agreed with one 
 Turney, in behalf of himself and all the other creditors 
 of Isaac Dewhurst, the defendant' s brother, that in consid- 
 eration of the abandonment of a fiat in bankruptcy 
 against Isaac, and the acceptance forthwith by the credit- 
 ors of a composition ; he, the defendant, would guaranty 
 a composition of eight shillings in the pound, to all the 
 creditors of Isaac, whose debts exceeded 20/., who would 
 sign a good and effectual release of their claims against 
 Isaac, before a certain day. 
 
 § 343. In pursuance of the agreement, the joint notes of 
 Isaac Dewhurst and of the defendant, for the proportionate 
 part of each creditor's debt, payable at certain periods 
 therein stated, and a release to be executed by the credit- 
 ors, were seasonably prepared and placed in the hands 
 of an agent, to deliver notes for his proportion to each 
 creditor, who should execute the release by the appointed 
 day. The banking company represented by the plaintiff, 
 was one of the creditors, to the amount of nearly 2000^., 
 
 (d) Post § 354, et seq.
 
 374 ■ COLLATEEAL UNDERTAKINGS. [Ch. X. 
 
 part of which was for two dishonored bills drawn by 
 Isaa(3 upon one Carter, and accepted by him ; and it 
 declined to execute the release, or surrender the bills, 
 until the result of certain legal proceedings then pending 
 against Carter should be ascertained ; for which purpose 
 it desired an extension of time, urging as a ground for 
 granting the extension, that the amount of the composi 
 tion notes would be diminished, by a proportionate part 
 of whatever could be collected from Carter. But the 
 agent refused to deliver the composition notes, unless the 
 bills were surrendered; and after some negotiations, he 
 made, as was alleged by the plaintiff, a verbal agreement 
 vdth the agent of the bank, to the effect that the bank 
 should be considered a consenting party to the agreement 
 for the composition, and to the release ; but that it might 
 postpone the actual execution of the release, and the 
 delivery of the bills, until after the proceedings against 
 Carter had terminated. These proceedings having ex- 
 tended beyond the time stated in the indenture, and 
 having resulted in nothing ; the bank insisted upon its 
 right to have the benefit of the indenture, in consequence 
 of the alleged verbal extension of time within which it 
 was to release Isaac ; and for that purpose this bill was 
 filed. 4 
 
 § 344. The Yice Chancellor (Knight Bruce) made a 
 decree, referring it to a master to inquire into the author- 
 ity of the defendant' s agent to make such an agreement, 
 and other matters preliminary to the granting of relief; 
 and from that decree the defendant appealed to the Lord 
 Chancellor, (Lord Truro), who dismissed the bill with costs. 
 Assuming, he said, that the agent had the necessary 
 authority, nevertheless the agreement was 'vdthin the 
 fourth section of the statute of frauds. "It is a special 
 promise to answer for the debt of another person. It is 
 not a promise, upon good consideration, to take the debt 
 exclusively upon himself. It professes in terms to be a 
 case of guaranty. The composition notes were to be the 
 joint notes of Isaac Dewhurst, the principal debtor, and
 
 Art. III.] Collateral Undertakings. 375 
 
 of the defendant William Dewliurst, as his guaranty or 
 surety. The agreement is clearly within the fourth miction 
 of the statute of frauds and must be in writing. Any 
 alteration of the agreement must also be in writing." 
 *' Therefore whether what passed" (between the two 
 agents) "is or is not to be contended to be a variation of 
 the old agreement, or as the formation of a new agreement, 
 it ought to be evidenced by some writing, and it is clear 
 from the whole evidence that no such writing exists. "(<^) 
 
 § 345. The modern American cases, with scarcely an 
 exception, affirm the validity of verbal tripartite agree- 
 ments of this character, at common law and under the 
 statute of frauds. Thus in Watson v. Jacobs^ 29 Ver- 
 mont, 169, A. D. 1857, one Solomons had furnished a 
 piece of cloth, and employed the plaintiff (a tailor) to make 
 a coat for him ; after it was made, the plaintiff handed it 
 to him, and they went together, Solomons carrying the 
 coat, to a place where Solomons said that he would get the 
 money to pay the plaintiff. On arriving at the place, 
 Solomons said that he had not enough money to pay 
 for the coat, together with his fare to a place in New York, 
 irhither he was going ; and, at his request, the defendant 
 promised to pay the plaintiff's bill ; whereupon the plaint- 
 iff " permitted Solomons to leave the State with the coat." 
 These facts were found by an auditor, who also reported 
 that the plaintiff had discharged Solomons. Upon this 
 report the plaintiff had judgment, which was affirmed by 
 the Supreme Court. Rediield, C. J., delivering the opin- 
 ion said : "The general statement of facts indicates very 
 clearly, that the plaintiff looked exclusively to the defend- 
 ant, lie did not fully surrender his control over the coat, 
 until the defendant consented to assume the debt. He 
 then permitted the first contractor to depart out of the 
 country, and the auditor says he was thereby discharged 
 from the debt. This, we think, can. import nothing else 
 but that the defendant was the sole debtor. If this case 
 
 (e) See this case further commented upon in the note to § 284, ante.
 
 376 COLLATEIIAL UNDERTAKINGS. [Cll. X. 
 
 stood against Solomons, it would be impossible to give 
 judgment against liim."(/) 
 
 § 346. The principle was also very correctly laid down 
 and applied in Corhett v. Cochran, 3 Hill (South Carolina), 
 41, and Riley's Law Cases, 44, decided in 1836. There 
 the plaintiff had an account against one Mrs. Pellott, and 
 had sent the account to her for payment ; soon after the 
 defendant called upon the plaintiff with the account, and 
 "promised to discharge the demand, by having the 
 amount charged to himself;" and the plaintiff accord- 
 ingly credited Mrs. Pellott with the amount in full, and 
 charged it to the defendant, no time of forbearance having 
 been agreed upon. The defence was that the promise was 
 within the statute. At the trial the judge left it to the 
 jury to say whether Mrs. Pellott was privy to the arrange- 
 ment, and whether the credit, discharging her, was entered 
 with the knowledge and by the direction of the defend- 
 ant. (^) The jury found a verdict for the plaintiff. The 
 defendant moved for a new trial and the motion was unani- 
 mously denied by the court. Earle, J,, who delivered the 
 opinion, after citing cases to show that if the original debtor 
 was discharged, the defendant was liable, proceeded to con- 
 sider the question, whether Mrs. Pellott was in fact and in 
 law discharged. After saying that any promise may, before 
 breach, be discharged by words only, and that although, as 
 a general rule, a debt is not extinguished by the acceptance 
 of a security of no higher nature, yet it will be thus extin- 
 guished if the parties expressly so agree ; he added : " In 
 these cases the validity of the new promise and the dis- 
 charge of the original debt are mutually dependent ; they 
 arise at the same time, and result from the agreement of 
 
 (/) The case of Croft v. Smalhvood, 1 Espinasse, 121 (see ante § 154), 
 presented a strikingly similar state of facts ; but the court put the decision 
 upon an entirely different ground. This is but one of many illustrations, 
 which might be adduced, of the extreme difficulty of classifying the cases 
 under this branch of the statute of frauds. 
 
 iff) This appears from the opinion, although the "report" of the judge 
 below, would indicate that he ruled expressly upon those points
 
 Art. HI.] Collateral Undertakings. 377 
 
 tli(3 parties, tliat the existing debt slmll be extinguished 
 and tlie first debtor discliarged, in consideration of the 
 new undertaking. Tliere is no form of words or writing 
 necessary to give (effect to these mutual undertakings. If 
 the promise to pay is binding, tlie agreement to discharge 
 is equally so ; eacli is binding because the other is." 
 But in tlie case at bar, he continued, there was something 
 more than a mere verbal agreement, as the plaintiff had 
 entered a satisfaction upon his books, which constituted 
 the evidence of his demand ;(r/) and he had thereby declared 
 that he had no further claim against Mrs. Pellott, in whose 
 stead he accepted the defendant as his debtor. In that 
 respect the learned judge said, that the case at bar differed 
 materially from Ciixon v. Chadley, 3 Barnewall and Cress- 
 well, 591, where there was nothing except a debit to the 
 new promisor. (//.) 
 
 § 347. So in Walker v. Penniman, 74 Massachusetts 
 (8 Gray), 233, A. D. 1857, the defendant had an unfinished 
 contract with one Hamblin, for certain piano-fortes, to be 
 mad(^ by the latter; and Hamblin was indebted to. the 
 plaintiff upon a promissory note. A verbal agreement was 
 made between the plaintiff and the defendant, "in the 
 presence of Hamblin," to the effect that the plaintiff would 
 finish up the work for the defendant, and be paid the same 
 prices which he was paying Hamblin; "and the defend- 
 ant agreed, that if the plaintiff would go on and finish up 
 the instruments, the defendant would pay him the amount 
 of the note ; to which the plaintiff consented, and agreed 
 to give up the note, and abandon all claim on Hamblin, 
 and afterwards did give up the note." It was held that 
 the promise was not within the statute, and a verdict for 
 the plaintiff was sustained upon exceptions. 
 
 § 348. On the other hand, Stone v. Symmes, 35 Mas- 
 sachusetts (18 Pickering), 467, A. D. 1836, was a case 
 
 {g) See ante, § 192, as to the elTrrt i.f iln- pliiniiir's boi>ks as evidence in 
 South Carolina. 
 
 Qi) See the case ante, § 328. 
 48
 
 378 Collateral Undertakhstgs. [Ch. x. 
 
 where the promise, although sufficient at common law, 
 was void by the statute, because there was not a sufficient 
 discharge of the original debtor. There one Woodward, 
 being indebted to the plaintiff, had agreed to pay him in 
 labor, whenever he should be called upon, at a specified 
 price per day. Subsequently Woodward agreed to work 
 for the defendant for a specified time, at a less price ; before 
 the time had elapsed, the plaintiff cajled upon Woodward 
 to fulfil his contract, and said to the defendant that he 
 must have his bill paid or Woodward's work, and asked 
 if he would give up Woodward ; to which the defendant 
 answered that he would not give up Woodward, and that 
 he would see the bill paid, or would pay the bill on 
 demand. This took place in the presence of Woodward, 
 who testified that the defendant, at that time, owed him 
 something, and that something was due to him at the time 
 of the trial ; but he could not tell how much ; and that he 
 continued in the defendant' s employment, in consequence 
 of the latter' s agreement to pay the plaintiff, and would 
 not have remained, if the defendant had not so agreed. 
 In an action upon this promise, the defendant objected 
 that it was without consideration, and also void by the 
 statute of frauds, but the court below, on a case stated, 
 held that the plaintiff could recover. 
 
 § 349. The judgment thereupon was reversed by the 
 Supreme Court, and the plaintiff nonsuited, Putnam, J., 
 delivering the opinion of .the court, held that the benefit, 
 which the defendant received from Woodward' s remaining 
 in his employment, constituted a sufficient consideration 
 for the promise ; but that it was void within the statute of 
 frauds, because the plaintiff's demand against Woodward 
 was not discharged. He said : "It would, perhaps, have 
 been sufficient, if the plaintiff had then expressly dis- 
 charged AVoodward in consideration of the defendant's 
 promise, so relying upon it as an original undertaking, 
 and upon the loss of his claim against Woodward, as the 
 consideration for the promise of the defendant ; but there 
 is no evidence of such an express discharge, and no facts
 
 Art. III.] COLLATEKAL UNDERTAKINGS. 379 
 
 ai'o .stated, from wliicli even an implied discliarge of Wood- 
 ward is to be necessarily inferred. AVoodward's liability 
 to tlie plaintiff continued. At most, the plaintiff agreed 
 to suspend his claim for such time as he pleased, but not 
 to abandon or discharge it at all events." The opinion 
 makes no reference to the fact that. the defendant was 
 indebted to Woodward at the time ; which circumstance 
 aj)parently presented a question of delegation rather than 
 of simple novation; but as the plaintiff's demand was 
 small, it is probable that the intention of the parti(^s was 
 that the defendant should pay it, witliout deducting it from 
 Woodward' s wages. 
 
 § 350. So in Ricliardson v. Williams, 49 Maine, 558, 
 decided in 1861, the promise was void, both at common 
 law and under the statute, because the original debtor was 
 not discharged, there having been no suflScient concurrent 
 action of the three parties in interest, to create a novation. 
 There a certain railroad company was indebted to the 
 plaintiff; and the defendant (who was, it is to be gathered 
 from the case, an officer of the company) verbally agreed 
 to pay. the debt to the plaintiff, and in fact afterwards 
 paid the amount into the hands of one Means, for the 
 plaintiff, and charged it to the company. Means failed ; 
 and the plaintiff thereupon brought this action. There 
 was no evidence, that the company had any knowledge of 
 the verbal agreement between the plaintiff and the defend- 
 ant ; or that the plaintiff' had ever discharged the company; 
 but it was nevertheless ruled at the trial, that, as the 
 defendant had charged to the company the amount, and 
 had promised to pay it, he must be considered as having 
 the money in his hands to the use of the plaintiff; and 
 therefore that he was liable on the count for mon(\y had 
 and received, unless he was authorized to pay it to Means 
 as the ])laintiff's agent. The jury found a verdict for the 
 plaintiff. Upon an exception to the decision of the judge 
 at the trial; a new trial was granted, the Supnmie Court 
 holding that the promise was without considei-ation, and 
 also within the statute of frauds ; because the plaintiff
 
 380 Collateral Undertakings. [Ch. x. 
 
 relinquished nothing and the defendant obtained nothing, 
 as he could not make the company his debtor, by paying 
 or agreeing to pay its debts, without its request or consent. 
 
 § 351. A similar principle controlled the decision in the 
 more recent case of Ellison v. WlseJiart, 29 Indiana, 32, 
 A. D. 1867. There the action was brought to recover a 
 sum due to the plaintiffs for goods sold to the defendant's 
 mother ; and there was much conflict of testimony in the 
 court below ; the plaintiffs recovered judgment, from 
 which the defendant appealed to the SuxDreme Court, 
 where the judgment was reversed. The strongest testi- 
 mony against the defendant, was that of one of the plaint- 
 iffs, who testified in substance that some time after the 
 goods were bought, he had a conversation with the defend- 
 ant, and informed him that the plaintiffs intended to sue 
 his mother immediately for the price. The defendant 
 requested him not to do so, saying, " I have means in my 
 hands, and it may have a tendency to make the old lady 
 worse." The plaintiff then said, "If you will assume 
 this debt of $104.77, and let me charge it to you, I will let 
 the old lady alone, and wait with you till Christmas for 
 the money." The defendant replied, "You may charge 
 it to me and I will pay." The account was thereupon 
 charged to the defendant. Gregory, J., delivering the 
 opinion of the court on the appeal, said that it was clear 
 that the defendant's promise was collateral unless his 
 mother was discharged. "She was not present; and in 
 no wise participated in the arrangement. She had no 
 knowledge 'of it. It does not appear that she was dis- 
 charged, or the account against her credited." "The 
 defendant could not make Susannah his debtor by a vol- 
 untary assumption of her debt to the plaintiffs. How 
 could she, in a suit by the plaintiffs against her for this 
 account, set it up as a defence to her liability to them ? 
 The plaintiffs did not release her in terms. If she was 
 released it was the result of the arrangement, not of any 
 agreement on the part of the plaintiffs." "Tlie plaintiffs 
 might, at any time before the assent of Susannah was
 
 Art. III.] Collateral Undertakings. 381 
 
 given to the arrangement, have disregarded this voluntary 
 assumption by the defendant, and have sued on the original 
 promise. This suit can only be maintained on the ground 
 of a substitution of one debtor for another." 
 
 § 352. The foregoing cases are cited as specimens of the 
 nice distinctions which obtain, in the application of this 
 rule. Other American cases, of the same general charac- 
 ter, are collected in the note. (/) In each of them it was 
 held that the immediate discharge of the original debtor, 
 was the test by which to determine the validity of the 
 defendant' s promise to paj the debt. 
 
 § 353. It is not necessary, however, that the debt of the 
 third person, which is discharged by the promisee, should 
 be a clearly ascertained legal liability ; provided it is a 
 claim, which might form the subject of an action. Thus 
 in Lordv. Davison, 85 Massachusetts (3 Allen), 131, A. D. 
 1861, a married woman had invested money, w^hicli was 
 her separate property, in a firm of which her husband 
 
 (i) Jolley V. Walker, 26 Alabama, 690, A. D. 1855; per Roane, J., Wag- 
 goner V. Gray, 2 Hening and Munford (Virginia), 603 (1808); Draughan v- 
 Bunting, 9 Iredell (North Carolina), 10 (1848); Curtis v. Brown, 59 Mas- 
 sachusetts (5 Gushing), 488 (1850) ; Wood v. Corcoran, 83 id. (1 Allen), 405 
 (1861); Brown v. Hazen, 11 Michigan, 219 (1863); Armstrong v. Flora, 3 
 T. B. Monroe (Kentucky), 43 (1825); Click v. McAfee, 7 Porter (Alabama), 
 62, per Collier, J. (1838) ; Antonio v. Clissey, 3 Richardson (South Carolina), 
 201 (1832); Bason v. Hughart, 2 Texas, 476 (1847); Anderson v. Davis, 9 
 Vermont, 136 (1837); Gleason v. Briggs, 28 id., 135 (1855); Cole v. Shurt- 
 leflT, 41 id., 311 (1868); per Gibson, J., Allshouse v Ramsay, 6 Wharton 
 (Pennsylvania), 331 (1841); Cotterill v. Stevens, 10 Wisconsin, 422 (1860). 
 In Walson v. Randall, 20 Wendell (N. Y.), 201, A. D. 1838, the same princi- 
 ple was applied to a promise of the defendant to pay his mother's debt, in 
 consideration of the plaintiff's promise not to sue her. The court assumed, 
 (though doubting the correctness of the proposition,) that by the terms of 
 the plaintiff's promise the forbearance was to be perpetual, no time therefor 
 being specified ; but it was held that the mother could not have availed herself 
 of it, because she was not a party to the agreement, and lor that rea.<;on the 
 defendant's promise was within the statute. The effect, upon this class of 
 cases, of the doctrine mentioned and the cases collected in chapter xii, article 
 ii, has never been discussed, as far as our observation extends.
 
 382 Collateral Undertakings. [Cli. x. 
 
 was a member with others, intending thereby to become a 
 partner ; but, (as had been held in a previous case,) the 
 Massachusetts married women' s act did not confer upon 
 her the power to become a partner with her husband. 
 The defendants bought the stock, etc., of the firm, and in 
 addition to the purchase price paid by them to the firm, 
 they verbally agreed with her to pay her a certain sum 
 for her "share, interest, contribution, and investment" 
 therein ; in consideration of which she relinquished what- 
 ever rights she had against the firm. At the trial the 
 judge ruled, that the legal effect of the transaction was to. 
 make her a creditor of the firm, and "that she was not 
 the owner of any part of the stock, fixtures and mate- 
 rials ; ' ' but he declined to rule, as requested by the 
 defendants' counsel, that she had no claim against the 
 partnership, which she could enforce at law. The plaintiff 
 had a verdict ; and upon the hearing of the exceptions to 
 the judge's rulings, it was held that there was no error 
 in the rulings actually made, as applied to the facts 
 proved ; and that it was entirely immaterial whether the 
 refusal to rule as requested was correct or otherwise ; that 
 although her rights were not very well defined, neverthe- 
 less their relinquishment constituted a sufficient considera- 
 tion, for an express promise to pay her therefor ; and that 
 as her claim against the firm had been extinguished, in 
 consideration of the promise of the defendants, the latter 
 Was a substituted and not a collateral undertaking, and 
 therefore was not within the statute of frauds, {j ) 
 
 (2) Where the third person and the new promisor assumed a joint liability, 
 in discharge of a previous liability of the third person only, 
 
 § 354. The principle now under examination will sus- 
 tain, at common law and under the statute, a promise 
 made by two persons jointly, and accepted by the cred- 
 itor, to assume the payment of the individual debt of one 
 of them ; as in the familiar instance of a copartnership 
 assuming the debt of one of its members. In such a case. 
 
 (y) It is to be inferred in this case, althougli it is not very clearlj'' stated, 
 that the firm was a party to the agreement.
 
 Alt. in.] COLLATKHAL UXDKRTAKIXGS. 383 
 
 it is true, that in one sense the original debtor continues 
 to be liable for the debt ; but he is not liable in the same 
 manner as before. The incidents and consequences of a 
 liability jointly with others, and of a sole liability, are 
 so different, that the conversion of the one into the other 
 is very properly deemed an extinguishment of the old 
 liability, and the substitution of a new oQe in its place. (/r) 
 Such was the decision in Ex parte Lane, in re Lendon, 16 
 Law Journal, N. S., Bankruptcy, 4, and 1 De Gex's Bank- 
 ruptcy Reports, 300, decided in the year 1847. This was 
 a petition for leave to prove a debt of 4000Z. against the 
 joint estate of two bankrupts (partners) ; and it appeared 
 that before the formation of the partnership, one of the 
 bankrupts was indebted to the petitioner, in the amount 
 claimed ; that at the time of the formation of the partner- 
 ship, all parties had verbally agreed that the firm became 
 liable to pay the debt, as the money had been embarked 
 in the business; and that there had since been several 
 conversations and transactions between the parties, on 
 that footing. It was objected, on the part of the assignees, 
 that the case was within the statute of frauds ; but the 
 Chief Judge (Vice-Chancellor Knight Bruce) said: "If A 
 is a creditor of B, and B and C propose to enter, or have 
 entered into partnership together, and address themselves 
 to A, the creditor of B, and say, ' We wish that this debt, 
 due hitlierto from B alone, shall be a debt from B and C 
 together,' and A accedes to the proposal, although no 
 writing passes, that agreement is valid and effectual, and 
 is not impeached or affected by the statute of frauds. 
 
 (h) Lord Denman, C. J., in his opinion in the case of Thompson v. Percival, 
 5 Barnewall and Adolphus, 925, and 3 Novile and Manning, 1G7, thus speaks 
 of the correlative proposition, that a joint liabiHty may be discharged by the 
 assumption in its place of a several liability, by one of the parties already 
 jointly liable: "Many cases may be conceived, in which the sole liability of 
 one of two debtors may be more beneficial than the joint liability of two, 
 cither in respect to the solvency of the parties, or the convenience of the 
 remedy, as incases of bankruptcy, or survivorship, or in various other ways; 
 and whether it was actually more beneficial in each particular case, cannot 
 bo made the subject of inquiry." And see further on the same subject, 
 Lyth V. Ault, 7 Exchequer, 6G9, and 21 Law Journal, N. S., Exch., 217.
 
 384 Collateral Undertakhstgs. [Cli. x 
 
 Tlie effect of it is, for a valuable consideration, to extin- 
 guish the first ; and for a valuable consideration to sub- 
 stitute the second for it. Of course the very vv^ords I have 
 referred to need not be used; and if there is sufficient 
 evidence that the intention of the parties was so, that will 
 be as effectual as if the most formal expressions had been 
 used." His Honor then examined the evidence ; which he 
 said, satisfied him as a judge of fact, that such was the 
 agreement of the parties in this case, and he therefore 
 granted the application. (^) 
 
 § 355. The same principle is well illustrated in the case 
 of CorMn v. McChesney^ 26 Hlinois, 231, decided A. D. 
 1861, where there was in one sense a double novation. 
 There the plaintiff in the court below, (McChesney,) had 
 become indebted to the defendants, who were partners, in 
 the sum of $60, and the defendant Duffy was indebted 
 individually to the plaintiff in the sum of $119 ; by tiie 
 latter' s direction, in pursuance of a mutual agreement 
 between McChesney and Duffy, the bookkeeper of the firm 
 credited the plaintiff in the last named sum, and charged 
 it to Duffy, upon the books of the firm. There was evi- 
 dence that Corbin, the other defendant, afterwards assented 
 to the arrangement ; and it was objected that as to him, 
 the promise was within the statute of frauds ; but the 
 court below held that as the debt against Duffy was extin- 
 guished, no writing was necessary in order to bind Corbin. 
 The plaintiff having recovered judgment, the defendants 
 brought a writ of error, and the judgment below was 
 affirmed. It appears from some observations in the opin- 
 ion of the court, although the reporter' s statement of facts 
 is silent on the subject, that the firm had been dissolved, 
 and that Corbin had retained assets to pay this debt ; but 
 these facts seem to be mentioned more as evidence of his 
 assent to the transaction, than as a distinct ground of his 
 liability; for the court distinctly held that the verbal 
 promise was sufficient, for the reason given in the court 
 below ; namely, that the individual debt due from Duffy 
 
 (0 See also Butcher v. Steuart, ante, §§ 281 to 284, and note.
 
 Art III.] Collateral Undertakings. 385 
 
 was extinguished, and a new debt due the plaintiffs from 
 the defendants created by the arrangement. 
 
 § 356. The converse of the principle controlled the decis- 
 ion of Sternhurg v. Callanen, 14 Iowa, 251, A. D. 1862. 
 There the action was founded upon an alleged agreement, 
 between the defendants and the plaintiff, made soon after 
 the formation of a copartnership between the defendants ; 
 whereby the firm agreed to pay a debt due to the plaintiff 
 from the defendant Stevens. There were various defences, 
 among them that the alleged agreement was, as to the 
 defendants Callanen and Ingham, without consideration 
 and within the statute of frauds. There was some evi- 
 dence of an assumption of the debt by one of the new 
 partners, in behalf of the firm, but nothing to show that 
 the other assented to it, or subsequently ratified it. The 
 plaintiff had a verdict and judgment, which was reversed 
 upon appeal. The court held that in order to sustain a 
 promise of that character, either at common law or within 
 the statute of frauds, "there must be a novation of the 
 debt before the new firm is liable. In order to make it a 
 new debt the old one must no longer exist." And the 
 judge having ruled at the trial that the new firm was 
 liable even if the debt was not discharged, it was held 
 that an exception to the ruling was well taken, and the 
 judgment was reversed for that reason, and also because 
 the alleged promise was the unauthorized act of one part- 
 ner only.(??^) 
 
 § 357. The correlative of the proposition which we have 
 been discussing, namely, that the creditor of a partnership, 
 by accepting the individual liability of one of the partners 
 in lieu of the liability of the firm, discharges the otlier 
 partner, seems to have been generally recognized, without 
 reference to any question arising under the statute of 
 frauds, (/i) 
 
 (m) And see Taylor v. Hillycr, 3 Blackford (Indiana), 433, cited in chapter 
 xiv, article iii, and other partnership cases there cited. 
 (n) Collyer on Partnership, §§ 557 to 562. 
 
 49
 
 CHAPTEK ELEVENTH. 
 
 OASES DEPENDING UPON THE WOKDS " ANOTHEE PEKSON." 
 THE SUBJECT COMMENCED WITH THOSE ILLUSTKATING 
 THE GENERAL PROPOSITION, THAT IN ORDER TO BRING 
 THE PROMISE WITHIN THE STATUTE, IT MUST HAVE 
 BEEN MADE TO THE CREDITOR. 
 
 § 358. The la>st chapter completes the examination of 
 that numerous class of cases depending upon the words, 
 ''debt, default, or miscarriages ; " constituting the fourth 
 class of the second general division. We are now to con- 
 sider the fifth and last class ; which was stated, in defining 
 the terms of our classification, to consist of those, where 
 there was nobody in the transaction, to whom the term 
 ' ' another person ' ' could apply, {a) It was mentioned, at 
 the same time, that upon principle, it would seem that this 
 class might be extended further than the decisions carry 
 it. Especially is this true with respect to the contract of 
 a factor, in whose hands goods are placed by his principal 
 for sale upon credit, with the stipulation that he shall 
 respond for the payment of the purchase price, by the 
 persons to whom he shall make sales ; in other words, a 
 factor who acts under a del credere commission. It 
 appears to be well settled, in England and in the United 
 States, that contracts of this kind are not within the 
 statute of frauds, but the reasons assigned for this con- 
 clusion are not entirely satisfactory. These cases are 
 made to depend upon considerations connected with the 
 degree of diligence, which the agent assumes by his con- 
 tract ; whereas it is very clear that no diligence, however 
 great, not even the continued solvency of the purchaser, 
 will exempt the agent from liability to pay the debt, if the 
 
 (a) Section 70, and note.
 
 COLLATEKAL UNDERTAKINGS. 887 
 
 purchaser has in fact failed to discharge it at maturity. (&) 
 In that aspect, such undertakings are contracts of guaranty 
 in the most undisguised form, and can only be taken out 
 of tlie statute upon the ground, that altliough within its 
 letter, they are not within its intent and meaning. But it 
 is believed, that in truth they are not within its letter ; 
 because, at the time when the contract was made, no per- 
 son was designated, for whose debt or default the factor 
 undertook to answer. In other words, there was no one, 
 to whom the term "another person" could by any pos- 
 sibility apply. 
 
 § 359. For the same reason it would appear, that when 
 the promise was to pay the debt owing by a person, who 
 had deceased intestate, or without having appointed an 
 executor, and no administrator had been appointed at the 
 time of the promise, the case was not within the statute. 
 Perhaps, also, the principle would extend to a case where 
 the deceased had left a will, designating an executor, but 
 the executor named therein had not accepted the trust, 
 or qualified, if a special qualification is required by statute. 
 The original debtor being dead, and no one having become 
 liable for the debt, in a representative capacity, it would 
 seem impossible, in such cases, to satisfy the words, 
 "another person." But although this state of facts has 
 occasionally been presented, and it has been held tliat the 
 promise was not within the statute, the courts have failed 
 to assign this as a reason for the decision ; and hence we 
 can only speculate, whether it would not have solved the 
 difficulty, without resorting to some other theory which 
 was of less obvious application, (c) 
 
 § 360. Although the point has never been expressly 
 decided, as far as we have noticed, it has been several 
 times assumed that the statute includes a corporation, in 
 
 (&) See chapter eighteenth, article second. 
 
 (c) Mease v. Wagner, 1 McCord (South Carolina), 395 ; Tomlinson v. Gill, 
 Ambler, 330; LeJlow v, Becton, 36 Alabama, 696; Templetons v. Bascom, 
 33 Vermont. 132.
 
 388 Collateral Undertakings. [Ch. xi. 
 
 the word "person ; "(<^) ^^^ such is doubtless its true sig- 
 nification, irrespective of any positive enactment that such 
 shall be deemed the construction of that word, in any 
 statute where it is used. 
 
 § 361. Confining ourselves, therefore, to the construction 
 given by actual adjudications to the expression "another 
 person," we find the principle growing out of its use in 
 this clause of the statute, to be that which is contained in 
 the following rule : 
 
 RULE FIFTH. 
 
 A promise to discliarge the debt or duty of another is not within the statute, unless it was made 
 to the person to whom the debt or duty was to be discharged. 
 
 AETICLE I. 
 
 Origin of the ruloi How it is reconciled with the language of the clause under examination! 
 
 § 362. Although this rule is regarded in England, as 
 being the most recent of all those which are recognized 
 there, as controlling the application of the statute, its 
 traces are to be found in reported cases in the United 
 States, from about the beginning of this century. Some 
 of the most perplexing of the early English cases called 
 for its application, but were decided upon other grounds ; 
 the suggestion that such was the true construction of the 
 statute, not having occurred either to the counsel or the 
 court. Lord Denman claimed it as original with him, in 
 delivering his opinion, in a case which will presently be 
 cited at length, Eastwood v. Kenpon, decided in the year 
 1840 ; and the English text books accordingly agree in 
 attributing its origin to his lordship ; but, to say nothing 
 of the American cases, Bayley, J., in 1828, put his opin- 
 ion in Thomas v. CooTc, 8 Barnewall and Cresswell, 728, 
 
 (d) Rogers v. Waters, 2 Gill and Johnson (Maryland), 64 ; Wyman v. 
 Gray, 7 Harris and Johnson (Maryland), 409 ; Emerson v. Slater, 22 Howard 
 (U. S.), 28 J Richardson v. Williams, 49 Maine, 558; Trustees, etc., v. Flint, 
 54 Massachusetts (13 Metcalf ), 539 ; Alger v. Scoville, 67 Massachusetts 
 (1 Gray), 391 ; Jepherson v. Hunt, 84 Massachusetts (2 Allen), 417 ; Maule 
 V. Bucknell, 50 Pennsylvania, 39,
 
 Art. I.] Collateral Undertakings. 389 
 
 upon the ground, that the promise was not made to the 
 creditor, for whicli reason, he thought that it was not 
 witliin the statute ; and the case of Adams v. Dansey, 
 6 Bingham, 506, decided in 1830, seems to have turned 
 upon the same principle. It is to be regretted that the 
 court failed to discover this rule of construction, in either 
 of two earlier cases, which plainly called for its applica- 
 tion, Howes V. Martin, 1 Espinasse, 162, A. D. 1794 ; and 
 Castling v. Auhert, 2 East, 325, A. D. 1802. Had the last 
 named case been decided, as it ought to have been, upon 
 this principle, many perplexing questions, to which it has 
 given rise, would have been avoided; and considerable 
 error might have been kept out of the books, for the 
 entrance of which it has at least helped to open the 
 door, (a) 
 
 § 363. The effect of this rule is precisely the same as if 
 the statute read, that no action shall be maintained, upon 
 a verbal special promise to answer for the debt, default, 
 or miscarriages "of a third person." And we have 
 accordingly used the latter expression, throughout this 
 work, as designating him, for whom the promisor under- 
 took, or is supposed to have undertaken to answer, more 
 accurately than that used by the statute itself. 
 
 § 364. It would be difficult to suggest a form of words 
 more comprehensive than "another person;" and at first 
 sight, the meaning of the statute would seem to be, that a 
 promise to answer for the debt, default, or miscarriages 
 of any one, except the promisor himself, was within its 
 terms. But the more limited construction given to this 
 expression, is justifiable upon consideration of the evident 
 intent of the framers of the act, who appear to have had 
 in mind three persons ; and as the word "another" calls 
 for a correlative, the latter may, without violence to the 
 grammatical construction, be found in the person whose 
 
 (a) All the cases referred to in this section, are cited at length in subse- 
 quent pages.
 
 390 COLLATEKAL llNDERTAKmOS. [Cll. XI. 
 
 existence is implied, rather than in him who is expressly 
 named ; and thus the intention of the framers of the stat- 
 ute may be reconciled with its letter. In other words, this 
 part of the statute may be construed, as if it read : " No 
 
 action shall be brought" "whereby to charge 
 
 the defendant upon any special promise to one person, to 
 answer for the debt, default, or miscarriages of another 
 person." But whatever may be the grounds upon which 
 the rule can be defended, it is now well settled, both in 
 England and in the United States ; although it incidentally 
 gives rise to some very perplexing questions, respecting 
 which the decisions are irreconcilably at variance. 
 
 ARTICLE II. 
 
 Oases where the promise was not made to the creditor j where it did not relate to s liability 
 thereafter to he incurred by the promisee j and where the promisee was the plaintiff in the 
 aotion to enforce it. 
 
 § 365. The case whence is derived the general recogni- 
 tion of this rule in England, is Eastwood v. Kenyon, 11 
 Adolphus and Ellis, 438, decided A. D. 1840. (a) There 
 the declaration stated in substance that the plaintiff, as 
 the executor of the will of one John Sutcliflfe, and as 
 guardian and agent of Sarah Sutcliflfe, his only daughter 
 and heiress at law, had during her minority expended 
 large sums of money, in maintaining and educating the 
 said Sarah, and taking care of her property ; that the 
 estate was insufficient to allow the plaintiflf to make such 
 payments out of it, and he had advanced 140?. of his own 
 moneys for the purpose ; and to reimburse himself, he had 
 borrowed the 140?. from one Blackburn, upon his promis- 
 sory note ; that after Sarah became of age, she had promised 
 the plaintiff to pay the note, and had actually paid one 
 year' s interest thereon to Blackburn ; and that the defend- 
 ant had married the said Sarah, and afterwards he had 
 promised to pay the plaintiff the said note to Blackburn ; 
 but had not done so. Upon the trial, it was objected that 
 
 (a) S. C, 3 Perry and Davison, 276, and 4 Jurist, 1081.
 
 Art. ir.] Collateral Undertakings. 391 
 
 tlie promise was Avitliin the statute ; but the plaintiflf had a 
 verdict. A rule nisi was obtained to enter a verdict for 
 the defendant, on the ground that the promise was \\ithin 
 the statute, and also on a point of pleading ; and for 
 arresting judgment on tlie ground tliat the declaration 
 showed no consideration for the promise. After argument, 
 judgment was arrested ; but the rule to enter the verdict 
 for the defendant was discharged. Upon that point. Lord 
 Denman, C. J., delivering the opinion of the court, said: 
 *'If the promise had been made to Blackburn, doubtless 
 the statute would have applied ; it would then have been 
 strictly a promise to answer for the debt of another ; and 
 the argument on the part of the defendant is, that it is not 
 less the debt of another, because the promise was made to 
 that other, viz., the debtor, and not to the creditor; the 
 statute not having in terms stated to whom the promise, 
 contemplated by it, is to be made. But upon considera- 
 tion, we are of opinion, that the statute applies only to 
 promises made to the person to whom another is answera- 
 ble. We are not aware of any case in which the point 
 has arisen ; or in which any attempt has been made to put 
 that construction upon the statute, which is now sought to 
 be established, and which, we think, not to be the true one." 
 
 § 366. The rule established by this case, is frequently 
 stated to be, that a promise made to the debtor is not 
 within the statute. But it will be observed that the prin- 
 ciple laid down by Lord Denman takes a wider range, 
 and excludes from the operation of the statute, all prom- 
 ises not made to the person to whom another is answer- 
 able, or to some one directly representing him for the 
 purpose of the promise ; not only in cases where the prom- 
 isee is the debtor, but also where he occupies some other 
 relation to the subject matter of the promise. And such 
 has been the effect given to the decision in subsequent 
 cases. Thus, in Har greaves v. Parsons, 13 Meeson and 
 Welsby, 561, A. D. 1844,(2') the defendant had sold to the 
 
 Q}) S. C, 14 Law Journal, N. S., Exch., 250.
 
 392 Collateral Undertakings. [Cli. xi. 
 
 plaintiff a contract for the sale by one Parker, of the 
 "j)ut or call" of certain foreign railway shares, and had 
 guarantied the performance of the agreement by Parker. 
 In the United States it is well settled, that such a promise 
 would be excluded from the statute by the operation of 
 the ninth rule, under which the case will be cited more at 
 length, (c) But that rule seems to be unknown in England ; 
 and the court put its decision upon the principle estab- 
 lished in Eastwood v. Kenyon, holding that the promise 
 was not one to answer for a debt of, or a default in any 
 duty by Parker towards the promisee ; because he had 
 made no contract with the plaintiff, and there was no 
 privity between them. 
 
 § 367. And the Court of Common Pleas has recently 
 made a novel application of the doctrine, where the prom- 
 isee was neither the debtor ; nor one to whom the person, 
 for whom the promisor undertook to answer, owed any 
 debt or duty whatever ; nor a representative of a person, to 
 whom such a debt or duty was owing. In Reader v. 
 Kingham,, 13 Common Bench Reports, N. S., 344, decided 
 A. D. 1862, ((^) the plaintiff, who was bailiff of the Buck- 
 inghamshire County Court, had received a warrant for the 
 commitment of one Hitchcock to jail, for non-payment 
 of a judgment for 34^., recovered against Hitchcock by 
 one Malins ; but by the county court act, such commit- 
 ment is not a discharge of the debt, as in the ordinary 
 case of a ca. sa., but merely a means of compelling pay- 
 ment, (e) Malins had authorized the plaintiff to accept 
 111. in satisfaction of the judgment. The plaintiff, being 
 about to arrest Hitchcock at the house of the defendant, 
 his relative, the latter promised that if he would abstain 
 from doing so, he, the defendant, would, on the following 
 Saturday, either pay the plaintiff 111. (which the plaintiff 
 
 (c) See cnapter eighteenth. 
 
 {d) Same case, 9 Jurist, N. S., 797 ; 32 Law Journal, N. S., C. P., 108 ; 11 
 Weekly Reporter, 366 ; 7 Law Times, K S., 789. 
 
 (e) Per Wilde, C. J., Ex parte Kinning, 4 Common Bench, 522.
 
 Art. II.] COLLATKKAL UNDERTAKINGS. 393 
 
 then said to him that he was authorized to accept in full 
 satisfaction), or else surrender Hitchcock ; whereupon the 
 plaintiff did abstain from arresting Hitchcock ; but the 
 defendant neither surrendered him nor paid the lll.{f) 
 The plaintiff brought this action on the promise ; at 
 the trial, a verdict was rendered for the defendant, under 
 the instruction of the court ; and the plaintiff obtained a 
 rule nisi to set it aside, and enter a verdict in his favor. 
 
 § 368. Tills rule was made absolute, all the judges deliv- 
 ering opinions. Erie, C. J., said: "The debt was due to 
 Malins from Hitchcock ; the promise was made to Reader. 
 It has been distinctly settled, that to bring the promise 
 within the statute, the promisee must be the original 
 creditor. . . . The debts are totally distinct debts, as 
 well as the debtors. No satisfaction resulted to Malins 
 on account of what passed between Kingham and Reader. 
 Reader was the agent of Malins to accept 17Z., in sat- 
 isfaction of the debt and costs in the county court; 
 but he was not his agent to postpone the payment. 
 If Malins had chosen, he might have revoked Reader's 
 authority, between the time of Hitchcock's release and 
 the Saturday ; and the payment of 111. would have been 
 no discharge of Malins' s claim under the judgment. 
 The payment of the 111., therefore, would not necessarily 
 have been a discharge of Malins' s demand ; but only a 
 discharge or satisfaction of the contract between Kingham 
 and Reader. The case is clearly not one to which the 
 statute of frauds can apply." Williams, J., concurred, 
 without discussing the peculiar circumstances of this 
 case, on the ground, that the statute applies only to "a 
 promise made to one to whom another is answerable." 
 Byles, J., after concurring with the general doctrine, as 
 laid down by Williams, J., added: "It was contended 
 by the counsel for the defendant, that Reader was the 
 agent of Malins. But the answer is that the transaction 
 
 (/) In some of the reports it is said that the plaintiflf had actually arrested 
 him, and that he discharged him upon the promise. 
 50
 
 394 Collateral Undertakings. [Cli. xi 
 
 was not for his benefit, and lie lias not recognized Reader's 
 act." Keating, J., said tliat although some of the cases 
 tended to throw some doubt upon the proposition, the 
 balance of authority was clearly in favor of the rule, that 
 to bring the case within the statute, "the promise must 
 be made to the original creditor, "(p') 
 
 (g) Although this case presents some novel, and at first sight, startling 
 features; it is believed that a critical examination will show that the decision 
 was correct. The point upon which the case presents the most embarrass- 
 ment, is the plaintiflf's relation to Mahns, the judgment creditor; and the 
 question suggests itself whether, in case the 17?. had been paid by the 
 defendant, the plaintifif could have put the money in his pocket, leaving the 
 judgment in full force against Hitchcock? The answer is, that although the 
 plaintiff assumed to act as Malins's agent, in accepting the defendant's prom- 
 ise, he had in fact no such authority ; but if Malinshad subsequently accepted 
 the 17?., he would have affirmed the plaintiff's act. But he might have dis- 
 affirmed it, and sued the plaintiff for an escape, or a failure to execute the 
 writ; which shows that at the time of the promise, the plaintiff was not his 
 agent. No question arose as to the effect of a subsequent affirmance of the 
 plaintiff's act by Malins ; or whether the promise had not been exacted 
 colore officii ; or whether, if Hitchcock had promised to return to the plaint- 
 iff's custody, the defendant's promise would not have been collateral to that 
 of Hitchcock. In the latter respect, this case is very similar to Tindal v. 
 Touchberry, 3 Strobhart (South Carolina), 177, A. D. 1848, cited in § 289, 
 as authority upon another proposition, which the court held to be also 
 apphcable. It was an action brought by a constable who had levied upon a 
 mare, the property of one June, under a domestic attachment against June, 
 and the plaintiff gave up the mare to June, upon a verbal promise of the 
 defendant, which was construed by the court to mean that he would "stand 
 security,"' that the mare should be delivered to the plaintiff the next day, or 
 pay the debt, amounting to $67.47. On the trial, the defendant objected that 
 the promise was within the statute; but the plaintiff had a verdict for $40, the 
 value of the mare. The court refused a motion for a new trial, on the 
 ground that the debt was discharged by the levy ; and also because the con- 
 tract was not an engagement, that June should deliver back the mare, but 
 that the defendant would do so. It was said that the bailment was made 
 to the defendant, and not to June, the latter having made no promise what- 
 ever; and the evidence showing that on the contrary, he was endeavoring (,o 
 recover the mare forcibly. As a contrast to Reader v. Kingham, we append 
 a statement of a New York case, Bennett v. Pratt, 4 Denio, 275, A. D. 1847. 
 There the plaintiffs had procured a summons, to be issued against one Crosby 
 by a justice of the peace, to collect a demand of $4.09, and had placed it in 
 the hands of a constable to serve, instructing him not to serve it "if
 
 Art. II.] Collateral Undertakings. 395 
 
 § 369. The American authorities generally recognize the 
 rule very clearly, as the same was laid down by Lord 
 Denman in Eastwood v. Kenyon, although there are a 
 few decisions, where promises not made to the creditor or 
 any one representing him, have been held to be within the 
 statute, without adverting to the distinction taken by the 
 nile.(7i) The cases, English and American, where the 
 
 Crosby would pay or secure the debt and expenses." Crosby procured the 
 defendant to execute the instrument, upon which the action was brought, 
 in these words: "I agree to be security for the payment of J. Crosby's 
 debt, to J. & W. C. Pratt" (the plaintiffs), "to the amount of $4.09, and the 
 legal costs," etc. ; " to be paid in nine months." The constable lliereupon 
 teceipted the demand to Crosby as paid, and omitted to serve the summons. 
 Crosby at the same time agreed to pay to the defendant the sum which he 
 undertook to pay to the plaintiffs. The plaintiffs recovered judgment in the 
 court below, which was reversed by the Supreme Court, because the defend- 
 ant's agreement did not express the consideration. It does not appear 
 what were the points made by the counsel on either side; and the opinion 
 contains an elaborate discussion upon the question, whether the writing 
 sufficiently expressed the consideration, under the New York Revised 
 Statutes ; and no reference to any of the peculiar features of the case. 
 But here the agreement was made in terms with the plaintiffs ; and although 
 the constable perhaps exceeded his authority, they ratified his act by 
 bringing this suit. A grave question arose upon the facts, whether the 
 discharge of the debt was not sufficient to take the promise out of the 
 statute within the fourth rule ; but it seems not to have occurred to the 
 court or the counsel. But one of the oldest reported American cases, 
 Thomas v. Welles, 1 Root (Connecticut), 57, decided A. D. 1773, is appa- 
 rently in direct conflict with Reader v. Kingham. The report states that 
 "Welles," the plaintiff below, "was a constable of the town of Hartford, 
 and had a rate-warrant and a rate against Jacob Brown, for which he levied 
 upon Brown's body, and was about to commit him to jail: Thomas, in con- 
 sideration that Welles would suspend any further proceedings that night, 
 assumed and promised, that he would see him forthcoming to said officer the 
 next morning, or he would pay the debt; upon this Welles released said 
 Brown, and Thomas did not see him forthcoming, nor has he paid the debt.'' 
 The court below, upon demurrer to a plea of the statute of frauds, gave 
 judgment for the plaintiff, which the Superior Court reversed, saying that 
 this was " manifest error ; for this is clearly a promise for the debt and duty 
 of another." 
 
 Qi) Mundy v. Ross, 3 Green (N. J.), 466, A. D. 1836; Campbell v. Find- 
 ley, 3 Humphrey (Tennessee), 330, (1842); Nixon v. Van Eise, 2 Southard 
 (New Jersey), 491, (1819.)
 
 396 COLLATEEAL UNDERTAKINGS. [Ch. XI. 
 
 promise consisted of an indemnity against a liability, there- 
 after to be incurred by the promisee, on the faith of the 
 promise, depend npon the same principle ; and those where 
 no other person than the promisor would be liable, in any 
 event, to the promisee, might appropriately be cited here ; 
 but they are so intimately connected with the cases where 
 the promise was to indemnify the promisee, under such 
 circumstances that he would also have a remedy against 
 another person, which are irreconcilably conflicting, that 
 it has been deemed better to consider both classes of 
 cases together in another place, {i) We will now proceed 
 to the examination of the American decisions, upon prom- 
 ises to discharge a debt previously contracted, or other 
 liability previously incurred by the promisee ; confining 
 our citations to the cases, where the action is brought by 
 the other party to the contract. The question whether the 
 creditor can maintain an action for the breach of such a 
 promise ; and, if so, whether the statute of frauds requires 
 it to be proved by a writing, when the attempt to enforce 
 it is made in that form, will be the subject of examination 
 in the next succeeding chapter. 
 
 § 370. It was said, a few pages back, that the principle 
 under discussion was recognized in the United States, for 
 many years before Lord Denman's decision in Eastwood 
 V. Kenyon. It is in fact to be found distinctly stated in 
 Allaire v. Ouland, 2 Johnson' s Cases, 52, decided in New 
 ^York in the year 1800 ; which will be again referred to 
 with the other cases, where the promise was to indemnify 
 the promisee, against a liability thereafter to be incurred. 
 But it was apparently overlooked in the next case, Myers 
 V. Morse, 15 Johnson, 425, A. D. 1818, where another 
 reason was given for the decision, although the facts called 
 for the application of this principle. There the court sus- 
 tained an action upon a verbal promise to indemnify the 
 plaintiffs against their previous indorsement of a third 
 person' s note, under Chancellor Kent' s third proposition in 
 
 (i) Chapter thirteenth.
 
 Art. II.] Collateral Undertakings. 397 
 
 Leonard v. VredenhiLrg7i,{j) holding that there was a new 
 and original consideration of benefit to the promisor, which 
 sufficed to take the promise out of the statute. 
 
 § 371. But the correct rule was again stated and applied 
 by the Supreme Court of New York in Conkey v. Hop- 
 Jclns, 17 Johnson, 113, decided A. D. 1819. There the 
 plaintiff had bound himself to pay a certain sum annually 
 to the trustees of a religious society, towards the support 
 of the defendant, as a minister of the gospel ; and after- 
 wards the defendant, for the consideration of $25, verbally 
 agreed to save the plaintiff harmless, and indemnify him 
 against the subscription ; the trustees sued the plaintiflf 
 upon his subscription, and recovered judgment against 
 him ; whereupon this action was brought upon the defend- 
 ant' s promise of indemnity ; and the court held that it 
 was not within the statute, on the ground that the defend- 
 ant was not bound to the trustees. 
 
 § 372. The rule was again laid down, even more dis- 
 tmctly, in Chapin v. Merrill, 4 Wendell, 657, A. D. 1830, 
 which will also be found in the thirteenth chapter, and 
 again, in the same year, when Eastwood v. Kenyon was 
 decided (1840), by the judgment of the Court of Errors of 
 New York in Mersereau v. Lewis, 25 Wendell, 243. 
 Tliere the plaintiffs sued upon a verbal agreement, that 
 the defendant would undertake the collection of the 
 debts due to a late firm, composed of himself and one 
 Jacobus, and assume as his own all that he should not 
 have put in suit by a certain time; the plaintifi's, who 
 were the assignees of the interest of Jacobus, agreeing 
 that they would pay one-half of certain debts due by 
 the firm, particularly specified. It was held by the 
 Court of Errors that the defendant's promise was valid, 
 because the statute did not relate "to contracts made 
 with the debtor himself, to assume the responsibility of 
 paying his debts, or to furnish him the means of pay- 
 
 (/) See § 63.
 
 398 COLLATEEAL UnDEETAKINGS. [Cll. XI. 
 
 ing them, founded upon a valid consideration between 
 such debtor and the person promising," the Chancellor 
 citing as authority Eastwood v. Kenyon, decided in the 
 earlier part of the same year. The case is somewhat 
 obscure, but probably the objection was that the plaintiffs' 
 agreement was within the statute ; and therefore, that the 
 defendant' s agreement was without consideration. 
 
 § 373. In Westfall v. Parsons, 16 Barbour, 645, decided 
 by the Supreme Court of the same state in 1853, the 
 defendant was the first indorser, and the plaintiff the 
 second indorser of a promissory note, made by one Par- 
 sons ; and before its maturity they verbally agreed with 
 Parsons, in consideration that he would make an assign- 
 ment, preferring the note in question, that they would 
 take up the note, and look to the assignment for reim- 
 bursement. Parsons made the assignment accordingly; 
 and the parties to this action provided for the payment 
 of the note before its maturity ; whereupon the plaintiff 
 brought this action to recover the sum paid by him, 
 claiming that the agreement was void by the statute of 
 frauds, and that he was entitled to recover against the 
 defendant, as the first indorser of the note. There was 
 another point which is not material here, but upon this 
 point, the court held that the relation of the parties was 
 changed by the agreement; that it bound them jointly, 
 so that the plaintiff could recover no more than enough, 
 to enforce the defendant' s liability to pay one-half of the 
 note ; and that the agreement was not within the statute 
 because it was an agreement with the debtor and- without 
 the creditor. 
 
 § 374. In Massachusetts the principle was laid down in 
 the year 1821 in the case of Colt v. Root, 17 Massachusetts, 
 229. There the defendant was a member of a manufac- 
 turing corporation, and as such made liable by statute, in 
 certain events, for the payment of its debts; and the 
 plaintiff held a dishonored note against the corporation, 
 upon which he wished to raise the money, in order to
 
 Art. II.] Collateral Undertakings. 399 
 
 enable him to pay a note due by him to one Janes. It was 
 thereupon agreed between the plaintiff, (who was about 
 to leave the state,) and the defendant, that the plaintiff, 
 instead of suing the company upon the note, would 
 deposit it in another's hands ; and if Janes sued the 
 plaintiff upon the note held by him, the defendant would 
 indemnify the plaintiff from all cost and harm. The 
 plaintiff deposited the note accordingly, and went away ; 
 and during his absence he was sued by Janes, and judg- 
 ment recovered and execution issued against him, of 
 which the defendant had notice ; and, he neglecting to pay 
 the execution, the plaintiff's personal property was sold 
 thereon. In an action upon the defendant's promise, the 
 court held that the promise was not within the statute, 
 Parker, C. J. , saying : " It is not a promise to pay the debt 
 of another^ it is a promise to pay to another the debt of 
 the plaintiff; and is in principle, like the case of a debtor 
 giving money to another to pay his debt, and he neglecting 
 to do it." 
 
 § 375. In Weld v. McTiols, 34 Massachusetts (17 Picker- 
 ing), 538, A. D. 1836, the plaintiff and the defendant had 
 entered into an indenture, whereby the plaintiff agreed to 
 sell, and the defendant to purchase, a certain house lot in 
 Boston, by warranty deed, free from all incumbrances ; 
 and the defendant agreed to indemnify the plaintiff against 
 all claims, in consequence of a brick wall on the adjoining 
 lot being partly upon the plaintiff' s lot. Subsequently the 
 plaintiff made the conveyance, and in consideration that 
 he would cancel the indenture, the defendant agreed 
 verbally that if any claim should be enforced against 
 the plaintiff concerning the wall, the defendant would 
 reimburse the same to the plaintiff. The defendant having 
 used the wall, the plaintiff was sued for his share of the 
 expense of erecting it ; and having been defeated, he 
 brought an appeal at the request of the defendant, upon 
 which he was again defeated. In an action upon the 
 promise it was held that it was not within the statute, 
 either as relating to an interest in lands, or as a promise
 
 400 Collateral Undeetakings. [Cli. xi. 
 
 to answer for the debt of another ; nor was it contrary to 
 the covenants of the deed; and the cancelling of the 
 indenture was a sufficient consideration to sustain it. 
 
 § 376. The case of PiTce v. Brown, 61 Massachusetts (^7 
 Gushing), 133, A. D. 1851, already cited under another 
 point, {Jc) was also decided on the ground that the promise 
 was to the debtor and not to the creditor, as well because 
 it was implied by law. And in Alger v. Scomlle, 67 Mas- 
 sachusetts (1 Gray), 391, A. D. 1854, where the plaintiff 
 transferred to the defendant certain shares of stock in a 
 manufacturing company, and a note he held against the 
 company ; and the defendant, in consideration thereof, 
 conveyed to him a farm, and verbally agreed to indemnify 
 him against his indorsements upon certain outstanding 
 notes of the company, not then payable, it was held that 
 the promise was not within the statute. Shaw, C. J., said, 
 that there was no debt then due to any body; but if 
 there had been an absolute debt, it was ' ' a promise to pay 
 the plaintiflF's own debt, which is equivalent to a promise 
 to pay the money to him, by which he himself could dis- 
 charge the debt." And he referred to the previous case 
 of Preble v. Baldwin, 60 Massachusetts (6 Gushing), 549, 
 A. D. 1850, where a promise by a grantor of land to the 
 grantee to pay taxes upon the land, which were not yet 
 assessed, was held not to be within the statute, Wilde, 
 J., assigning the same reason for the decision which has 
 been heretofore given in these pages, namely, that the 
 words " another person " refer to a third person. 
 
 § 377. The same result was attained in Soule v. Alhee, 
 31 Vermont, 142, A. D. 1858, although the decision was 
 put upon a more questionable ground. This was an 
 action to foreclose a mortgage, given by the defendant 
 Albee to the plaintiffs, to indemnify them against all 
 sums which the plaintiffs or A. G. S. should become liable 
 to pay for the mortgagor, "in consequence of signing or 
 
 (fc) See § 98.
 
 Art. II.] Collateral Undertakings. 401 
 
 otherwise ;" and the question was whether a certain sum, 
 paid by the plaintiffs to A. G. S., was included in the con- 
 dition of the mortgage. It appeared that Albee had been 
 sued by one Buck, and a trustee process had been. issued 
 in favor of Buck against A. G. S., who owed Albee $500 ; 
 while that suit was pending, Albee, wishing to collect the 
 money due to him, procured the plaintiffs to make a verbal 
 agreement with A. G. S., that if the latter would pay 
 Albee the $500, they would pay him whatever judgment 
 should be rendered in favor of Buck against him as trus- 
 tee of Albee ; relying upon which promise, A. G. S. paid 
 Albee the money. Afterwards and before Buck's suit 
 was determined, the mortgage in questijon was given, for 
 the purpose, as the case states, of protecting the plaintiffs 
 against their liability to A. G. S., as well as a liability 
 which they had incurred by signing a certain note for 
 Albee. The suit brought by Buck terminated in a judg- 
 ment in his favor against Albee, and a judgment on the 
 trustee process against A. G. S. ; and the plaintiffs, being 
 called upon by the latter, paid an execution issued thereon 
 against him. It was objected in this suit, that as the 
 plaintiffs' promise to A. G. S. was void by the statute of 
 frauds, the payment to him was voluntary, and conse- 
 quently the mortgage did not include their demand ; but 
 the court held that the payment by A. G. S. to Albee, 
 was virtually advancing the money to the plaintiffs, upon 
 their promise to pay it; and that such promise was not 
 within the statute of frauds, but was a valid undertaking, 
 which A. G. S. might have enforced against the plaintiffs ; 
 so that it came within the terms of the mortgage. 
 
 § 378. So in Mske v. McGregory, 34 New Hampshire, 414, 
 A. D. 1857, the plaintiff had sold his real and personal prop- 
 erty at auction, and certain land had been struck off to one 
 F. F. At the time when the land was offered, the auctioneer 
 stated that there was a mortgage upon it to one Keyes, 
 and bids were invited for the value of the land beyond the 
 mortgage. Other parol evidence was given, tending to 
 show an understanding, that the purchaser should pay 
 51
 
 402 COLLATEEAL UNDERTAKINGS. [Ch. XI. 
 
 Keyes. The defendant was present at the sale, and 
 afterwards purchased the bid of F. F. for $25 ; and a deed 
 was thereupon executed by the plaintiff to the defendant, 
 with the usual covenants for title, excepting as against 
 the Keyes mortgage. This action was brought for breach 
 of a promise to pay the mortgage, and the plaintiff had a 
 verdict, which the court refused to set aside. It was held 
 that the evidence warranted the jury in finding, that the 
 defendant was to take the place of F. F., and made the 
 promise declared upon ; and that inasmuch as it was a 
 promise made to the debtor himself and not to the creditor, 
 to which the creditor was not privy, it was not within that 
 part of the statute relating to a promise to answer for the 
 debt of another. And the court also held that it was 
 not within that part of the statute relating to a contract 
 for the sale of lands. 
 
 § 379. In Connecticut the principle was correctly laid 
 down by Gould, J., as early as 1816, in Stoclcing v. Sage, 
 1 Connecticut, 519, although the other judges put the decis- 
 ion upon different grounds ; and it was distinctly affirmed 
 by the judgment of the court in Pratt v. Humphrey, 22 
 Connecticut, 317, A. D. 1853. There the plaintiff ' s declara- 
 tion alleged, in substance, that the defendants were admin- 
 istrators on the estate of one Andrew Pratt ; and that in 
 consideration that the plaintiff would forbear to present 
 for allowance, a debt of $1,200, due to him by the deceased, 
 the defendants promised to him to pay whatever debts he, 
 the plaintiff, might owe, to the amount of $200 ; and to 
 apply that amount of money to the liquidation of the 
 plaintiff' s debts ; and furnish him that amount of money 
 to be applied to the payment of his debts ; concluding with 
 an allegation of a breach. To which declaration the defend- 
 ants pleaded that there was no note, etc., in writing, and 
 the plaintiff demurred to the plea. The court below gave 
 judgment for the plaintiff upon the demurrer, which was 
 affirmed by the Supreme Court, Storrs, J., saying, upon 
 the point that this was a promise to answer for the debt, 
 etc., of another : "The promise here was made, not to the
 
 Art. II.] Collateral Undertakings. 403 
 
 creditors of tlie plaintiff, but to himself, to pay debts 
 wliicli lie owed to such creditors. Whether the terms of 
 ■ttie statute are, or are not, sufficient to embrace such a prom- 
 ise, the object and occasion of it show plainly, that it was 
 intended to apply only to promises made to the person to 
 whom another is answerable, and that such therefore is 
 its true construction." The case is cited elsewhere upon 
 the other point taken, namely, that it was a special prom- 
 ise by administrators to answer damages out of their own 
 estates. (Z) 
 
 §380. This principle was also fully recognized in Ken- 
 tucky, in the recent case of North v. Bobinson, 1 Duvall, 
 71, A. D. 1863, There the petition alleged, in substance, 
 that the plaintiff had subscribed for $2,000 of stock in a 
 certain railroad company ; for which he had executed to 
 the company a mortgage and two bonds, payable in ten 
 years, with semi-annual interest ; that the company sub- 
 sequently passed a resolution, that all subscribers, in the 
 plaintiff's situation, might reduce their stock one-half, by 
 paying thirty one per cent of the reduced subscription, at 
 a specified time, and agreeing to pay the balance of the 
 reduced subscription whenever called upon ; that the 
 defendant, being interested in the company, urged the 
 plaintiff to accept those terms ; that the plaintiff hesitated 
 so to do, on the ground that he did not believe that his 
 acceptance would have the effect to release him from his 
 original subscription; that in order to induce him to 
 accept the terms the defendant undertook to save him 
 harmless on account of his original subscription. And 
 that relying upon such promise he accepted the terms, 
 and paid the thirty one per cent within the specified time, 
 and the balance of the $1,000 when called upon ; but 
 the company had enforced the original subscription, and 
 recovered judgment for the remainder of it, which the 
 plaintiff had been compelled to pay. A demurrer to this 
 petition was sustained in the court below, on the ground 
 
 (0 See § 28.
 
 404 Collateral Undeetakings. [Ch. xi. 
 
 that there was no allegation that the promise was in writ- 
 ing. On appeal the judgment was reversed, on the ground 
 that the promise was not made to the company, but to 
 the debtor himself, the court remarking that this doctrine 
 "may be now regarded as conclusively settled both in 
 England and in this country." 
 
 § 381. Other American cases (besides those in the thir- 
 teenth chapter) in which it has been held that a promise 
 made to the debtor was not within the statute, and it has 
 accordingly been enforced between the original parties to 
 the contract will be found in the note, {m) This constitutes 
 for obvious reasons, the state of facts upon which the 
 question generally arises. But occasionally it happens, 
 as in Header v. Kingham, that the promisee was neither 
 the creditor nor the debtor. 
 
 § 382. Thus in Perkins v. Littlefield, 87 Massachusetts 
 (5 Allen), 370, A. D. 1862, the defendant, who was the 
 owner of a vessel, requested the plaintiff to pay to certain 
 ship chandlers a debt for supplies, contracted by the 
 master of the vessel, promising to repay the amount ; and 
 it was held, (overruling the exceptions taken at the trial,) 
 that the promise was not within the statute. Bigelow, J., 
 delivering the opinion of the court, said, "It was not a 
 promise to pay the debt of another, in the sense in which 
 those words are used in the statute. Such would have 
 ben the case, if the defendant had agreed to pay the debt 
 to the persons to whom it was originally contracted, and 
 they had brought an action upon such promise. It is the 
 well settled doctrine, that the provision in the statute is 
 applicable only to promises made to the person to whom 
 another is answerable." The learned judge added that 
 
 (m) Hardesty v. Jones, 10 Gill and Johnson (Maryland), 404, A. D. 1839; 
 Rice V. Carter, 11 Iredell (North Carolina), 298(1850); Rider v. Riley, 2 
 Maryland Chan'^ery Decisions, 16(1849); Howard v. Coshow, 33 Missouri, 
 lis (1SG2); Tibbettsu. Flanders, 18 New Hampshire, 284 (1846); Shook v. 
 Van Meter, 22 Wisconsin, 532 (1868).
 
 ^rt. II.] Collateral Undektakings. 405 
 
 this was a new, distinct and independent agreement with 
 the plaintiff, to repay mont^y (^xpend(»d by liim at the 
 instance of tlie defendant, and u2:)on his promise to repay 
 it ; in which aspect of the case it was wliolly immaterial 
 whether the defendant was or was not liable for the 
 original debt.(7i) 
 
 § 383. It may therefore be safely said, that the rule is 
 well established, in England and the United States, that 
 in order to render the statute of frauds at all applicable, 
 to a promise to assume the debt or duty of another per- 
 son, the promisee must be the person to whom the debt or 
 duty is owing. Of late years, some obscurity has been 
 cast around this principle, by the general language used, 
 not only in some of the cases where the right of a creditor 
 to enforce such a promise is denied, (o) but in others where 
 it is argued that every promise to assume a pre-existing 
 debt, of a person other than the promisor, is within the 
 statute, if the debt subsists after the promise ; unless the 
 consideration upon which it was founded, consisted of a 
 fund furnished by either the creditor or the debtor, for the 
 purpose of paying the debt.{p) But whatever may be the 
 correct rule, with respect to the questions directly involved 
 in those cases, the general language used in the course of 
 the argument, was not intended, it is believed, to go beyond 
 those questions ; certainly not to infringe upon the princi- 
 ple now under examination. 
 
 § 384. The decisions which hold that the promisee may 
 sustain an action, upon a verbal promise to indemnify him 
 against his own debt, when it was founded upon any 
 
 (n) See also Pearce v. Blagrave, ante, § 163. The case of Oliphant v. 
 Patterson, 56 Pennsylvania, 368, A. D. 1867, is of the same general char- 
 acter. There the plaintiff had paid certain debts of a firm of which the 
 defendant was a member, at the defendant's request; and the objection that 
 the statute prevented a recovery, without joining: all the mcmbtTS of the 
 firm, was overruled. 
 
 (o) Cases in chapter xii, article iii. 
 
 (jj) For instance, Fuliam v. Adams, 37 Vermont, 391.
 
 406 Collateral Undertakit^gs. [Ch. xi. 
 
 valuable consideration, are too nnmerons and of too high 
 authority to be overthrown by general dicta ; and it is 
 believed that no attempt to do so by direct decision, 
 would command the approbation of the profession. We 
 must acknowledge that the principle is sustained by incon- 
 clusive reasoning, and that it opens the door to many 
 difficult questions; but after it has been settled for so 
 many years, and approved in so many cases, an attempt 
 to uproot it would involve consequences far more disas- 
 trous than any which could possibly ensue from suffering 
 it to remain. And every attempt to escape from the results 
 to which it legitimately leads, by engrafting arbitrary ex 
 ceptions upon it, will lead to greater perplexity and con 
 fusion, than to allow it to be pushed to its logical conclu- 
 sions; a proposition which we shall have occasion to 
 maintain and apply, in each of the two folio wing chapters.
 
 CHAPTER TWELFTH. 
 
 THE SAME SUBJECT CONTINUED — CASES WHERE A CREDITOR 
 SEEKS TO ENFORCE A CONTRACT BETWEEN HIS DEBTOR 
 AND ANOTHER PERSON, PROVIDING FOR THE PAYMENT 
 OF THE DEBT BY THE LATTER. 
 
 ARTICLE I. 
 
 The questioa arising under the statute stated, and examined npon principle i the English rule 
 with respect to the creditor's right to sue, 
 
 § 385. Before proceeding to the discussion of the other 
 classes of cases governed by the rule, that a promise to 
 pay the debt of another is not within the statute, unless it 
 is made to the creditor ; it is necessary to consider a ques- 
 tion which we regard as depending upon that rule, as the 
 same is explained and applied in the cases examined in 
 the last chapter ; namely, in what manner the statute 
 affects the right of a creditor to maintain an action, for the 
 breach of a promise to pay the debt, which has been made 
 to his debtor, upon a consideration proceeding from the 
 latter. It will be seen, that althougli the step between an 
 action upon such a promise by the debtor, and one by the 
 creditor, is but short, its consequences are quite moment- 
 ous, involving the indirect accomplishment of a result, 
 which the statute clearly forbids to be accomplished 
 directly. Indeed it seems, at first sight, a mere evasion 
 of the statute to say, that when it has confessedly forbid- 
 den an action to be maintained by A, upon B's verbal 
 promise, made to him, to pay him a debt due to him by 
 C ; it will nevertheless permit A to maintain such an action, 
 provided B has made the same promise to C. But per- 
 haps, upon a further examination of the subject, this will 
 not appear so unreasonable.
 
 408 Collateral Undertakings. [Ch. xii. 
 
 § 386. Tlie doubts upon this question are confined to the 
 United States ; for in England it is altogether prevented 
 from arising, not only because it is diametrically opposed 
 to the second proposition deduced from the rule in TatlocJc 
 V. Harris ; (a) but also because it contravenes the rule of 
 the common law, that a stranger to the consideration 
 cannot maintain an action upon a contract. The latter 
 rule has been somewhat relaxed by the English courts in 
 modern times ; but not sufficiently to permit a creditor to 
 sue, in the case now under examination. This appears to 
 be entirely settled by the modern English decisions ; 
 although the American authorities in support of the 
 action are founded, more or less directly, upon certain 
 early English cases, which were supposed to establish the 
 principle, that a person for whose benefit a contract was 
 made, might enforce it at law, although he was a stranger 
 to the contract and to the consideration. (5) 
 
 (re) See ante, § 326. But an attempt was made to reconcile it with that 
 proposition in Warren v. Batchelder, 16 New Hampshire, 580. 
 
 (h) The principal of these is Button and wife v. Poole, 29 Car. II, in the 
 King's Bench, reported in 1 Ventris, 318 and 332; 3 Keble, 786, 814, 830,^ 
 and 836 ; 2 Levinz, 210; and T. Jones, 102; and affirmed upon writ of 
 error to the Exchequer Chamber, T. Raymond, 302. These various reports 
 are very discordant respecting the minor incidents of the case, some of them 
 representing that facts were before the court, the absence of which is :.tated 
 in others, to have formed grounds of objection to the recovery. As it came 
 up on a motion in arrest of judgment, the contents of the declaration are all 
 that is really material; and no doubt- they are most correctly given in the 
 report in Raymond, which professes to contain an abbreviation of the plead- 
 ing itself. The action was assumpsit; and ihe substance of that part of the 
 declaration upon which the question arose, was, that whereas Sir Edward 
 Poole, father of Grizil Button, the female plaintiff, was possessed of certain 
 timber trees, growing in a certain park, etc., and intended to cut down and 
 sell the same to raise portions for his children ; the defendant, in considera- 
 tion that Sir Edward would forbear from cutting the trees, " did promise 
 the said Sir Edward, that he, the said defendant;, Avould well and faithfully 
 pay to the said Grizil, 1,000?.;" that Sir Edward did not cut the trees, but 
 the defendant did not pay Grizil while sole, or the plaintiffs, or either of 
 tl.em, after their marriage, the said sum of 1,000?., although, etc. We also 
 gather from the other reports, as part of the history of the case, that the 
 trees were in a park attached to an estate, of which Sir Edward was tenant
 
 Art. I.] COLLATEEAL UNDERTAKINGS. 409 
 
 § 387. It is evident that the question, whether the statute 
 of frauds permits auch an action to be maintained, is not 
 necessarily connected in any manner with that arising at 
 common law. Indeed the latter question is frequently 
 presented in such a form, that the statute can have no 
 application ; as, for instance, where the contract is evi- 
 denced by a writing expressing the consideration ; or, 
 being verbal, is for the performance of some act for the 
 benefit of the plaintiff, other than the payment of a debt 
 due to him by the other party. But in many cases the 
 controversy arises upon a promise, either verbal, or con- 
 tained in some writing which does not satisfy the require- 
 ments of the statute, to pay a debt due from the promisee 
 to the plaintiff; and then the effect of the statute and the 
 common law question are both involved in the decision, 
 and discussed in the opinion, the one reflecting upon the 
 other. Again, the cases which hold that the statute is 
 
 for life, without impeachment of waste; that the defendant was his son and 
 the remainderman; and that Grizil's mother, who was. the executrix of Sir 
 Edward, was the only witness, "so cannot bring the action as on a promise 
 to him." After verdict for the plaintiff, a motion was made in arrest of judg- 
 ment, and upon the argument the judges appeared to be divided ; at a sub- 
 sequent term two new judges had been made, and the cause was argued 
 anew. The substance of the arguments, which, as well as the remarks of 
 the judges, are given at considerable length, was, for the defendant, that the 
 action should have been brought by the father or his executors, because the 
 daughter was not privy to or interested in the consideration ; that the case 
 was different from many others put, as for instance, where a father promises 
 J. S., that if the latter's son will marry his daughter, he will give him 1,000Z. ; 
 there the son might sue, for he vvas privy to the consideration ; but here the 
 daughter had done nothing, and she could not have released the defendant; 
 but Sir Edward might at any time have released him, or he might have cut 
 the wood after the promise. The plaintiff had judgment; according to 
 1 Ventris, 332, Scroggs, C. J., said: "It might be another case, if the 
 money had been to have been paid to a stranger; but there is such a near- 
 ness of relation between the father and child, and 'tis a kind of debt to the 
 child to be provided for, that the plaintiff is plainly concerned." This sub- 
 stantially accords with the report in Levinz, which adds, "for the son hath 
 the benefit, by having of the wood, and the daughter hath lost her portion 
 by this means." But Sir ThomavS Jones states that the ground of the decis- 
 ion was merely that "the benefits belong to the daughter, and she may 
 53
 
 410 Collateral Undertakings. [Ch. xii. 
 
 inapplicable to such promises, are not in harmony respect- 
 ing the reasons for its failure to apply ; and the discussion 
 
 release it." The report of the case, in the Exchequer Chamber, says only, 
 with respect to the reason for the decision, that Pollexfen, for the plaintiff, 
 argued that " the action is maintainable by the party to whom the promise 
 was made, or to " (by) " the cestuy que use the promise was, indifferently ; 
 and of this opinion were all the justices and barons, and judgment was 
 affirmed." T. Raymond, 302. The case has been much criticised; and 
 those who deny the creditor's right to maintain the action, explain it as 
 having proceeded upon the ground taken by Scroggs, and so not to be a 
 precedent where the consideration proceeds from an entire stranger. Other 
 early cases where the beneficiary was allowed to maintain the action, are 
 open to the same critici.^m. Sprat v. Agar (A. D. 1658) cited, together with 
 
 an anonymous case, in Bourne v. Mason, 1 Ventris, G; Thomas r, , 
 
 W. Style, 461 (A. D. 1655). But on the other hand, several very strong 
 expressions, and some decisions, may be found scattered through the English 
 reports, down to as late a period as the commencement of the present cen- 
 tury, to the effect that the person for whose benefit a contract between 
 others was made, may maintain an action for its breach, irrespective of any 
 relationship which he might bear to the promisee. Starkey v. Mill, Style, 
 296 (A. D. 1651); Ward v. Evans, 2 Lord Raymond, 928 (1704); Martyn v. 
 Hind, 2 Cowper, 437, see p. 443 (1776); Per Buller, J., Marchington v. 
 Vernon, 1 Bosanquet and Puller, 101, note c (1786) ; Per Lord Alvanley, 
 C. J., Piggott V. Thomson, 3 Bosanquet and Puller, 149 and note a (1802). 
 And see Carnegie v. Waugh, 2 Dowling and Ryland277 (1823). But now it 
 is conclusively settled, by the uniform course of the modern EngTish decisions, 
 that a person who is a stranger to the contract and to the consideration, 
 cannot sue for a breach of the contract; and it is debatable whether one 
 Avho is a stranger to the consideration can sue, even if he was a party to the 
 contract. Bourne v. Mason, 1 Ventris, 6 (A. D. 1669); Crow v. Rogers, 
 1 Strange, 592 (1724); Price v. Easton, 4 Barnewall and Adolphus, 433, 
 and 1 Nevile and Manning, 303 (1833) ; Per Maule, B., Tollit v. Sherstone, 
 5 Meeson and Welsby, 283, and 7 Dowling's Practice Cases, 455 (1839) ; 
 Per Patteson, J., Thomas v. Thomas, 2 Queen's Bench, 859 (1842); Per 
 Parke, B., Jones v. Robinson, 1 Exchequer, 456 (1847), and per totam 
 curiam', according to 11 Jurist, 934; Scott v. Pilkington, 2 Best and 
 Smith, li, (A. D. 1862); S. C, 8 Jurist, N. S., 557, 31 Law Journal, N. S., 
 Q. B., 81, 6 Law Times, N. S., 21. The same principle is to be found 
 in a still more recent case in the Irish Common Pleas, McCoubray v. 
 Thomson, 2 Irish Reports, Common Law, 226, and 16 Weekly Reporter, 
 367 (1868)» See also the cases raising an exception to the rule, where 
 the defendant has received money from another person to the use of the 
 plaintiff ; in which case it seems that the* action can be maintained, only
 
 Art. I.] Collateral Undertakings. 411 
 
 of that question involves an inquiry into the principles, 
 upon which the action is sustained at common law. It 
 
 after the defendant has actually promised the plaintiff to pay him the 
 f money, or in some equivalent form recognized the plaintiff as his creditor. 
 Harris v. De Bevoice, 2 Rolle, 440 (A. D. 1624) ; Williams v. Everett, 14 
 East, 582 (1811) ; De Bernales v. Fuller, id. in note to p. 590; Lilly v. Hays, 
 6 Adolphus and Ellis, 54S, 1 Neviie and Perry, 26, and 2 Harrison and 
 Wollaston, 338 (1836); Moore v. Bushell, 27 Law Journal, N. S., Exch., 
 3 (1857). The last vestiges of authority which modern decisions suffered 
 Button V. Poole to retain, were swept away by the recent case of Tweddle 
 V. Atkinson, Executor, etc., 1 Best and Smith, 393, (S. C, 8 Jurist, N. S., 
 332, 30 Law Journal, N. S., Q. B., 205, 9 Weekly Reporter, 781, 4 Law Times, 
 N. S., 408), decided in the Queen's Bench, A. D. 1861. There the declara- 
 tion stated in substance, that in consideration of an intended marriage 
 between the plaintiff and the daughter of William Guy, the defendant's 
 testator, Mr. Guy verbally promised the plaintiff to give his daughter a mar- 
 riage portion, and the plaintiff's father also verbally promised to give the 
 plaintiff a marriage portion; and after the consummation of the marriage, 
 neither of the said verbal agreements having been performed, the plaintiff's 
 father and Mr. Guy, as a mode of giving effect to their verbal promises, and 
 each acting for the benefit of his child, and for the purpose of providing and 
 procuring the other to provide a marriage portion for his child, entered into 
 an agreement in writing with each other, a copy of which was set out in the 
 declaration; being a mutual promise, on the part of each of the contracting 
 parties, to pay to the plaintiff a certain sum of money, at a time therein 
 mentioned; and containing further a stipulation, that the plaintiff might sue 
 the parties "for the aforesaid sums hereby promised and specified." The 
 declaration then averred, that the plaintiff and his wife afterwards ratified 
 and assented to that agreement; and concluded with the necessary formal 
 allegations. The defendant demurred to this declaration, and the plaintiff's 
 
 counsel cited Dutton v. Poole, Thomas v. , and the two cases in Bourne 
 
 V. Mason. Wightman, J., said: "Some of the old decisions appear to sup- 
 port the proposition, that a stranger to the consideration of a contract may 
 maintain an action upon it, if he stands in such a near relationship to the 
 party from whom the consideration proceeds, that he may be considered a 
 party to the consideration. The strongest of these cases is that cited in 
 Bourne v. Mason, in which it was held that the daughter of a physician 
 might maintain assumpsit, upon a promise to her father, to give her a sum 
 of money, if he performed a certain cure. But there is no modern case in 
 which the proposition has been supported. On the contrary, it is now estab- 
 lished, that no stranger to the consideration can take advantage of a contract, 
 although made for his benefit." Crompton, J., and Blackburn, J., delivered 
 opinions to the same effect; so there was judgment for the defendant.
 
 412 Collateral Undertakings. [Cli. xii. 
 
 will therefore be impossible fully to examine the question 
 arising under the statute, without also bestowing con- 
 siderable attention upon the common law rule. 
 
 § 388. Let us therefore inquire whether those cases, 
 which affirm that the creditor may maintain the action at 
 common law, advance any theory for that purpose, which 
 in any way affects the queston arising under the statute 
 of frauds. It has been sometimes said that the promise 
 may be regarded as having been made to the debtor, in the 
 character of an agent of the creditor, and that the latter, 
 by bringing the action, affirms the assumed agency, (c) 
 If the creditor' s action rested upon that idea, there would be 
 no feature to distinguish a case of this kind from one where 
 the promise was made to him directly, without any partici- 
 pation by the debtor ; and consequently every attempt of 
 the creditor to maintain an action thereon, when it was 
 verbal, must be defeated by the objection arising under 
 the statute. And again, it would be impossible for the 
 debtor to mnintain an action upon the promise, under 
 any circumstances. (cZ) But the theory of an agency in 
 the debtor has not been so generally advanced as to call 
 for an elaborate discussion ; it is supposed to be derived 
 from a remark in one of the English cases, referring to a 
 supposed agency on the part of the defendant when he 
 has received money for the use of the plaintiff, (e) and to 
 be entirely inapplicable where the liability assumed by 
 the promisor was such as to create a simple debt.(/) 
 
 (c) Per Johnson, C. J., and Denio, J., in Lawrence v. Fox, 20 New York, 
 268, post, § 412, and note; Per Hogeboom, J., Seaman v. Hasbrouck, 35 
 Barbour, 151, in note to § 412. 
 
 (cZ) All this is very clearly shown by Robertson, C. J., in Connor v. Wil- 
 liams, 2 Robertson (K Y.), 46. 
 
 (e) Lilly v. Hays, 5 Adolphus and Ellis, 548. 
 
 (/) Professor Parsons, in the fifth edition of his work on Contracts 
 (Volume 1, page 468), has added this paragraph to the observation, con- 
 tained in the earlier editions, that the prevailing rule with us, is that 
 the party benefited may sue: "Indeed it has been held that such a 
 promise is to be deemed made to the third party, if adopted by him,
 
 Art. I.] Collateral Undertakings. 413 
 
 § 389. It has been said with greater show of authority 
 that the express promise made by the defendant to the 
 debtor, raises also an implied promise in favor of the 
 creditor (^); but it is believed that the expression is used 
 ill the sense that a duty or obligation is created, by the 
 actual or constructive receipt of money in consideration 
 of the promise ; which enables the creditor to draw to 
 himself the fulfi^nent of the latter, and to insert the formal 
 allegation of an assumpsit in a declaration adapted to the 
 facts ; rather than as indicating that the law implies a 
 promise, upon wliicli he may specially declare as having 
 been made to himself. No precedent of such a declara- 
 tion has come under our observation ; on the contrary it 
 has been held that in pleading the promise, it should be 
 stated to have been made to the debtor, according to the 
 fact.(^) And it is believed that the theory of an implied 
 promise is an unnecessary excrescence upon the doctrine, 
 tending to increase the perplexity in which the whole 
 subject is enveloped. But if the common law action rests 
 upon this ground, it is clear that the statute does not 
 apply, for the latter includes only express promises. (/) 
 
 though he was not cognizant of it when made." The authorities cited 
 in the note are Lawrence v. Fox, 20 New York, 2G8, and Steman v. 
 Harrison, 42 Pennsylvania, 49. Doubtless the reference to Lawrence 
 V. Fox is intended for the reasons assigned by the Cliief Justice and 
 Denio, J., for concurring with the majority. The case in 42 Pennsyl- 
 vania does not bear out the observation. It holds merely that a prom- 
 ise to accept a bill of exchange for a fixed amount is equivalent to an 
 acceptance, not only as to the drawer, but as to every person who takes the 
 bill on the faith of the promise; and the rule in the case of an ordinary con- 
 tract is not alluded to in the opinion. 
 
 (g) Per Gray. J., in Lawrence v. Fox, 20 New York, 2G8, and cases cited 
 by him, § 412; Per Bigelow, J., in Brewer v. Dyer, 61 Massachusetts 
 (7 Cashing), 337. note to §420, Per Shaw, C. J., Perry v. Swasey, GG Massa- 
 chusetts (12 Gushing), 36; Per Robertson, C. J., Connor v. Williams, 2 
 Robertson, N. Y., 46. 
 
 (/i) Delaware, etc., Company v. Westchester County Bank, 4 Denio, 97 ; 
 Barker v. Bucklin, 2 Denio, 45 ; Decker v. Shaffer, 3 Indiana, 187; Mason i. 
 Hall, 30 Alabama, 599. Contra, per Skinner, J., in Eddy v. Roberts, 17 
 Illinois, 508. Sf-e remarks upon Curtis v. Brown, 59 Massachusetts (5 Cush- 
 ing), 488, post, §418, 419. 
 
 (J.) See chapti r iv, article i.
 
 414 Collateral Undertakings. [Ch. xn. 
 
 § 390. An examination of the cases contained in the 
 second article of this chapter, will suffice to show that the 
 modern authorities sustaining the creditor' s action, agree 
 in holding, that where no trust was raised by the acts of 
 the parties, the right of the creditor to sue depends upon 
 the presumption, that he is the person for whose benefit 
 the contract between his debtor and the defendant was 
 made. And although there is not absolute uniformity 
 among them, the weight of authority is decidedly to the 
 effect, that the action must rest upon that contract ; and 
 that the declaration must allege that it was made between 
 the debtor and the defendant ; which is entirely repugnant 
 to the notion, that it was a constructive promise to the 
 plaintiff, either by reason of the debtor being his agent, or 
 for any other cause. Consequently the action is not 
 founded upon the idea that the plaintiff was, or at any 
 time became a party to the contract either in fact, or by 
 fiction of law ; but upon the ground that the law entitles 
 him to acquire a privity, with respect thereto, by reason 
 of his interest. These propositions are very distinctly 
 stated in some of the cases, and they are to be inferred 
 from all those which carry much weight of authority. It 
 is believed that a collation of the cases will also result in 
 establishing the proposition, that from the time when the 
 contract is entered into, the right of the promisee therein 
 to release or enforce it is suspended, awaiting the action 
 of the person for whose benefit it was presumptively 
 made ; and that an inchoate right to enforce it vests imme- 
 diately in the creditor, which remains in abeyance, until 
 he determines his election, by the commencement of a 
 suit or some other unequivocal act; but reverts to the 
 promisee, if renounced by him. Some of the cases go 
 much further ; but this is far enough for our purpose, (y) 
 It results inevitably from these conclusions, that the creditor 
 
 {j) According to the decision in Warren v. Batchelder, IG New Hamp* 
 shire, 580, and apparently also as a consequence of the decision in Bohanan 
 V. Pope, 42 Maine, 93, an election to enforce the promise amounts to an 
 extinguishment of the original debt.
 
 Art. I.] Collateral Undertakings. 415 
 
 was not in any sense a party to the contract, at the time 
 when it was made ; and that, if the privity which the law 
 raises in liis favor makes him a quasi party, or creates an 
 implied promise in his favor, it does so only from the 
 time when his election to enforce it was determined. 
 
 § 391. If these propositions state truly the rules of law, 
 to be deduced from the authorities sustaining the credit- 
 or' s right of action, it would seem that all questions aris- 
 ing under the statute of frauds are completely disposed 
 of, by the principle that the statute does not apply to 
 promises made to the debtor. Every additional reason 
 for taking this class of cases out of the statute is suppr- 
 fluous ; and if it leads to doubt or confusion its introduc- 
 tion is mischievous. 
 
 § 392. But this principle, if indeed it solves the diffi- 
 culty, has been overlooked, in the discussions which have 
 arisen, respecting the application of the statute to such 
 promises. This was quite natural in the earlier cases, 
 because the principle itself has been definitely incorpor- 
 ated into the law but recently ; and even if it had been 
 established, when they were decided, the uncertainty which 
 long existed, with respect to the grounds of maintaining 
 the action, would have prevented the recognition of its 
 importance. So vague are the reasons assigned in the 
 early cases, for permitting the plaintiff to sue, that in most 
 of them, where, in addition to the promise to the debtor, 
 a subsequent promise was made to the creditor, (either 
 verbal or not supported by any distinct consideration ;) we 
 find ourselves at a loss to determine, which of the two 
 promises the court intended to sustain or condemn ; and 
 in others we are forced to the conclusion that the court 
 has intentionally blended the promise to the debtor, with 
 a real or fictitious promise to the creditor, in an attempt 
 to make the consideration of one take the other out of the 
 statute. The prevalent opinion then was that the promise, 
 (whatever might be meant by that term,) was not \vithin 
 the statute, because it came within Chancellor Kent's
 
 416 Collateral Undertakings. [Ch. xii, 
 
 third class, (A*) being founded npon a new and independ- 
 ent consideration, moving between the debtor and the 
 promisor. Much error was promulgated under that 
 theory, the traces of which appear to linger, notwithstand- 
 ing the abandonment in modern times of the theory 
 itself.(^) 
 
 § 393. For although most of the modern cases, which 
 sustain the creditor's right to sue, hold, as we have 
 already stated, either expressly or by necessary conse- 
 quence from their other rulings, that he was neither 
 actually, constructively, nor by retroactive relation a 
 party to the promise ; they continue to seek in the con- 
 sideration of that promise, for some ground on which to 
 take it out of the statute of frauds. And not only do 
 they fail to agree with respect to the true ground; but 
 occasionally, after some peculiar feature of the considera- 
 tion has been fixed upon, as affording a satisfactory 
 reason for taking the particular promise out of the statute, 
 a corollary is deduced that all cases not possessing that 
 feature are within the statute. Hence arise new and 
 perplexing questions upon this branch of the law, with 
 their usual concomitant, discordance of judicial authority. 
 
 § 394. This will disappear with the recognition of the 
 principle, that all cases of this class are without the 
 statute of frauds, because the promise was not made to 
 the creditor. The only answer to this proposition, is that 
 which seemed to press upon the mind of the court, in a 
 recent case, where it was held that the action could not be 
 maintained upon a verbal promise ;(w) namely, that the 
 policy of the act requires, that a creditor should not be 
 allowed to enforce such a promise. But at the same time 
 it was conceded, that the reasoning had no application, 
 when the debtor was suing ; and that he could maintain 
 
 (Jc) Section 63. 
 ( Z ) Chapter xvii. 
 
 On) Clapp V. Lawton, 31 Connecticut, 95, fully abstracted, and the remarks 
 of the court upon this point quoted in §§ 421, 422.
 
 Art. I.] Collateral Undertakings. 417 
 
 the action. And this conclusion apparently neutralizes 
 the whole argument. For the statute is directed against 
 certain promises, and not against their enforcement by 
 particular persons ; and it would aeem that the province 
 of the courts ends, in this respect, with the decision that 
 promises to the debtor are not within its provisions. 
 Such is the precise effect of the cases cited in the last 
 chapter, {n) And the exception proposed to be engrafted 
 upon the general rule, which they establish, will fail of 
 accomplishing, in the great majority of instances, any 
 practically useful purpose. For although the decisions 
 upon the common law question have thrown much 
 obscurity around the debtor's rights, there can be no 
 doubt that he is entitled to enforce the promise, in every 
 respect in which the creditor' s ability to do so falls short 
 of completeness. The proposed exception will therefore 
 affect no substantial right, but only turn the parties in 
 interest over to another action, (o) On the other hand, it 
 is believed that if the rule be maintained in its integrity, 
 
 (n) It is true, that in nearly all tlie cases cited in the eleventh chapter, the 
 promise took the form of an indemnity to the debtor. But the language in 
 which the rule is laid down, and the principles upon which it rests, preclude 
 the idea of any distinction arising out of the form of the promise. It would 
 indeed be an absurdity, as respects the rights of the promisee, under the 
 statute, to say that a promise to indemnify him against a debt is governed 
 by one rule, and a promise to pay the debt by another. And in some of the 
 cases the promise was in terms to pay the debt. Preble v. Baldwin, 62 
 Massachusetts (C Gushing), 549 ; Fiske v. McGregory, 34 New Hampshire, 414. 
 
 (o) See Tibbetts v. Flanders, 18 New Hampshire, 284 (A. D. 184G). There 
 the action involved a question of title to a table, and the plaintiff proved 
 that one Balch being indebted fo one R. Tibbetts, the plaintiff's father, an 
 agreement was made in the presence of Balch, R. Tibbetts, and the plaintiff, 
 to the effect that the plaintiff should take the table and some other furniture 
 belonging to Balch, and guaranty the payment of Balch's debt to R. Tibbetts 
 within a time agreed upon, and if it was not then paid by Balch the furniture 
 should be the plaintiff's. Various objections were taken, one of which was 
 that this verbal agreement was not valid. But the court said: "The plainiiff 
 might, without any writing, upon good consideration, make a valid agreement 
 with Balch to pay his debt. Whether Richard Tibbbets could or could not 
 enforce the guaranty is not material. Balch might enforce the promise to 
 him." 
 
 53
 
 418 Collateral UisrDEETAKiiirGS. fCii. xii. 
 
 the conflict of authority upon the question whether the 
 statute applies may be reconciled, {p) 
 
 § 395. Regarding this principle as controlling the appli- 
 cation of the statute, we observe that the question whether 
 a creditor can enforce the promise to the debtor is purely 
 a common law question, whatever may have been the evi- 
 dence of the promise, and by whatsoever consideration it 
 may have been supported. And for all purposes con- 
 nected with the application of the statute, it is immaterial 
 whether, after the consideration passed from, and the 
 promise was made to the debtor, the promisor repeated 
 his verbal promise to the creditor, either with or without 
 the intervention of a new consideration ; unless the new 
 transaction was of a character to take the case out of the 
 statute, without reference to the original transaction. 
 But where the original agreement was one to which the 
 creditor was a party ; that is to say, where he, together 
 with the debtor and the new promisor, participated in an 
 agreement, whereby the latter undertook with the creditor, 
 to pay him the debt ; although, if the consideration was 
 furnished by the debtor, the common law question is in 
 substance the same, that arising under the statute of 
 frauds is essentially different. For then the debtor's 
 presence and participation in the contract are entirely 
 immaterial, as far as the application of the statute is 
 involved ; and the promise, having been made to the 
 creditor, must, if verbal, stand or tall by the same rules 
 which govern other verbal promises to pay a debt due by 
 another to the promisee. We haye therefore severed from 
 this class of cases, those presenting the feature of a tripar- 
 
 (p) In Clapp V. Lawton the suggestion to which we have referred, wsa 
 made incidentally and disposed of without much consideration. Of the other 
 cases which assert that the statute applies to such an action, Shoemaker v. 
 King, 40 Pennsylvania, 107, was decided upon the idea that the creditor's 
 action depended upon an implied promise to him ; and in Curtis v. Brown, 
 59 Massachusetts (5 Gushing), 488, the proposition referred to was not sug- 
 gested, nor could it properly have influenced the decision, as the pleadings 
 stood.
 
 Art. I.] Collateral Undertakings. 419 
 
 tite agreement, which have been generally, altliongh erro- 
 neously, confounded with those where the debtoi- and the 
 promisor were the only parties to the contract. They con- 
 sist principally of a class where the consideration was a 
 fund placed in the promisor' s hands by the debtor ; which 
 are fully examined in a subsequent chapter, under the 
 seventh TVile.{q) 
 
 § 396. With these preliminary remarks, we proceed to the 
 examination of the cases, where the debtor and the promisor 
 were the only parties to the contract ; confining ourselves 
 in the text, to those wlojere the application of the statute of 
 frauds formed the ground of the decision ; except in a few 
 instances, where the facts involved such an adjudication, 
 although the question was not expressly passed upon ; 
 or the ground of the decision, upon the common law 
 question, has an important bearing upon that arising 
 under the statute. For obvious reasons we shall be com- 
 pelled to select certain cases as types of the class to which 
 they belong. Others will be cited in the notes, where also 
 will be found the cases involving only the common law 
 question ; the citation occasionally extending itself into 
 an abstract of the case, where the particular point decided 
 bears upon some of the numerous and perplexing ques- 
 tions, which incidentally arise from the prevalent Ameri- 
 can doctrine, summed up in the expression "that a 
 promise made to one for the benefit of another, he for 
 whose benefit it is made may bring an action for its 
 breach." (r) 
 
 (q) Chapter fifteenth, article third. There are nevertheless a few cases 
 oiled in the succeeding articles, where the agreementwas made between the 
 three; but as the facts did not call for the application of any rule which 
 would take them out of the statute, as promises made to the creditor, they 
 are left with the others, where the promise was made to the debtor. 
 
 (r) Gray, J., in Lawrence v. Tox, 20 New York, 2G8, says that this prin- 
 ciple "concisely states the case in hand." (p. 274.) But although the 
 embarrassing questions, referred to in the text, mostly relate to the rights 
 of the party who is summarily ousted by this doctrine, from the control of 
 his own contract, it is not always easy to ascertain the principle upon 
 which it is determined, whether a particular person is deemed to be the
 
 420 Collateral Undertakings. [Ch. xii. 
 
 ARTICLE 11. 
 
 American oases holding that the statute does not apply to the actioni 
 
 § 397. In Maine, the rule that neither the common law 
 nor the statute of frauds interposes any obstacle to the 
 creditor' s right to recover, upon the defendant' s promise 
 to the debtor that he will pay the debt, has been settled 
 by a series of decisions, commencing in 1827 with Dear- 
 horn V. Parks, 5 Greenleaf, 81. There the plaintiff sued 
 as treasurer of the Monmouth academy, for money had and 
 received by the defendant to the use of the academy ; and 
 it appeared that one Heald had purchased land from the 
 academy, and had given his notes for the purchase money ; 
 and that before the notes became payable, he sold the 
 land to the defendant, who retained enough of the consid- 
 eration money to pay the notes, and promised Heald to 
 pay them. Afterwards, Heald having died, the defendant 
 said that he had paid him in another way. There was no 
 
 one for whose benefit the contract was made, so as to entitle him thus to 
 draw to himself the exclusive right to sue for its breach. It seems to be 
 generally settled that where the contract is to pa}' a debt, the creditor is pre- 
 sumed to be the person intended to be benefited ; although, as a matter of 
 fact, it very rarely happens that his interests had any influence on the mind 
 of the parties, their purpose being generally to take care of the debtor 
 merely. And the presumption has been asserted in words so strong, that it 
 is not probable that the courts would listen to evidence tending to overthrow 
 it. In Missouri alone has there been any attempt to ascertain, whether the 
 parties really had the benefit of the creditor in view; and this the court 
 seeks to discover, not from parol evidence, but from the contents of the 
 instrument itself. (See § 417.) It has been held, however, that a surety 
 for the promisee cannot avail himself of the promise. Thus in Hofiman v. 
 Schwaebe, 33 Barbour (N. Y.), 194, A. D. 1860, the plaintifiF was surety for 
 one Miller, on two promissory notes, given by Miller upon the purchase of a 
 contract for land ; and before the maturity of the notes, Miller assigned the 
 contract to the defendant, upon his verbal agreement to pay the notes. This 
 he neglected to do, and the plaintiff was compelled to pay them ; whereupon 
 he brought this action to recover the amount paid by him. It was held by 
 the New York Supreme Court, that although the promise was valid, and 
 not within the statute of frauds, the plaintiff could not recover upon it; 
 because he was not a party to the contract, nor was it made expressly for 
 his benefit. See also Hicock v. McKay, 78 Massachusetts (12 Gray), 218.
 
 Art. II.] Collateral Undertakings. 421 
 
 proof of any promise to the plaintiff, or to any other per- 
 son in behalf of the academy. A verdict having been 
 found for the plaintiff, subject to the opinion of the court, 
 it was held that the promise was not within the statute 
 of frauds, because it was merely to pay a debt of the 
 promisor ; and also that the plaintiff could sue upon the 
 promise, notwithstanding the objection of want of privity. 
 
 § 398. The case of Rowe v. Whittier, 21 Maine, 646, 
 decided A. D. 1842, recognizes the same rule ; but the court 
 refused to sustain the action, apparently because the 
 promise was not made to the debtor, but to the plaintiff; 
 although the opinion is not very clear, and it asserts one 
 proposition which is not law. There the defendant had 
 proposed to one Patten to settle a lawsuit pending in 
 favor of Patten, against him, by giving to Patten, 
 security for the debt, to which Patten assented, provided 
 the defendant would pay his expenses ; on the defendant 
 asking what would be the amount of the expenses, the 
 plaintiff, who was the attorney for Patten in the suit, 
 made out his bill to Patten ; and the defendant in the 
 presence of Patten, then promised the plaintiff to pay it, 
 and the plaintiff answered that that would be satisfactory, 
 whereupon the security was given, and the suit discon- 
 tinued. The bill was for taxable costs and commissions ; 
 the defendant had paid the costs ; and this suit was to 
 recover the commissions. It was held that the plaintiff 
 could not recover. The opinion stated that if the defend- 
 ant had been under any liability to Patten for the com- 
 missions, the plaintiff might have recovered upon the 
 promise within the principle of Dearborn v. Parks ; but 
 Patten was liable to the plaintiff therefor, and he could 
 have recovered against the defendant only the taxable costs, 
 if the suit had proceeded to judgment ; consequently as to 
 the commissions the defendant' s promise was without con- 
 sideration. It proceeds to say that even if the plaintiff 
 had discharged Patten in consideration of the defendant's 
 promise, the latter would not have been obligatory under 
 the statute of frauds, without a memorandum in writing.
 
 422 Collateral Undertakings. [Ch. xii. 
 
 § 399. In Todd v. Tobey, 29 Maine, 219, A. D. 1848, the 
 plaintiff, with R. M. T. and others, had jointly guarantied 
 the payment by one Haycock of a bill of goods purchased 
 from one Hale ; and the defendant had afterwards pur- 
 chased Haycock' s stock of goods, and agreed with him to 
 pay Hale. Then Hale called upon the guarantors for 
 payment, and they referred him to the defendant, who 
 verbally promised R. M. T. to settle the demand. He 
 failed to do so ; and the plaintiff paid his proportion of 
 the amount, and the like sum for R. M. T. ; after which the 
 defendant again promised R. M. T. to pay the demand. 
 Still later a person employed by the defendant to settle 
 his accounts with the plaintiff, allowed the amount so 
 paid by the plaintiff for his proportion, as an item in his 
 favor in certain accounts between the parties ; leaving a 
 balance due to the plaintiff, to recover which this action 
 was brought ; whereas if that sum had not been allowed 
 there would have been a balance due to the defendant. 
 The settlement of the account was in writing, the agent 
 having signed the defendant's name at the foot of a 
 statement thereof. The defendant having been shown by 
 the agent a copy of this statement assented to it. There 
 was no evidence of any direct promise by the defendant 
 to the plaintiff, except what might be inferred from these 
 facts. The case came before the court upon a statement 
 of facts, upon which judgment was ordered for the plaintiff. 
 The court in their opinion refer to the settlement of the 
 accounts between the parties ; but place their decision 
 distinctly upon the ground that the defendant's promise 
 to Haycock was not within the statute of frauds, because 
 it was upon a new consideration moving between them, 
 and that the person for whose benefit it was made would 
 be entitled to enforce it. That person was Hale ; and he 
 had two remedies besides the liability of Haycock; 
 namely, one against the defendant, and one against the 
 plaintiff and his fellow guarantors. He availed himself 
 of the latter. After the guarantors had paid the demand, 
 Haycock would be liable to them ; and if he had paid 
 them, he would have had a remedy against the defendant.
 
 Art. II.] Collateral Undertakings. 423 
 
 *'The law applied to tlie facts admitted, authorizes tliem 
 to reach this object directly, instead of being obliged to 
 resort to the circuity of action supposed." (o^) 
 
 § 400. In New Hampshire a ruling has been adopted, 
 without special reference to the question arising under the 
 statute of frauds, which, if folio wed elsewhere, will not only 
 
 (a) Here the defendant's promise, through his agent, to the plaintiff, appears 
 to have been resorted to in support of the action ; but only to avoid a 
 technical objection to maintaining it. The validity of the transaction under 
 the statute of frauds was made to depend upon the circumstances attending 
 the transaction between the defendant and Haycock. The question respect- 
 ing the application of the statute, in an action by a creditor to recover upon a 
 contract between his debtor and i, stranger, to pay the debt, also arose and was 
 decided the same way, in the more recent cases of Maxwell v. Haynes, 41 
 Maine, 559, A. D. 1856, and Perkins v. Hitchcock, 49 Maine, 468, decided 
 A. D. 1860, but they present no features requiring special comment. In the 
 following cases no question arose except as to the right of the person to be 
 benefited by the contract to enforce it at common law. His right was 
 affirmed in Hinkley v. Fowler, 15 Maine, 285; Warren Academy v. Starretl, 
 id., 443 ; and Motley v. Manuf. Ins. Co., 29 Maine, 337. And conversely it 
 was held in Tewksbury v. Hayes, 41 Maine, 123, that the plaintiff could not 
 maintain an action upon a contract in writing, reciting that in consideration 
 of a conveyance by him to the defendant of the plaintiff's interest iii a mill, 
 the defendant agreed to pay to Cornelia E. Blake the amount of her interest 
 in the mill; because the contract contained no promise to the plaintiff. The 
 general common law rule, deducible from the cases above mentioned and 
 those cited in the text, was reaffirmed in Bohanan v. Pope, 42 Maine, 93, 
 A. D. 1856; where it was also held, that if the person to be benefited by a 
 contract between two others, is also a debtor of the party from whom the 
 consideration flows, and if he should "disregard it and seek his remedy 
 directly against the party with whom his contract primarily exists," then 
 "such party may recover against the party contracting with him, in the same 
 manner, as if the stipulation in the contract had been made dircctl}"- with 
 him, and not for the benefit of a third person," and that an election of one 
 remedy implies the abandonment of the other. And it appearing that the 
 plaintiff had been hired by one Whitney to do certain work; that the defend- 
 ants had previously made a contract with Whitney, whereby they agreed to 
 pay his men ; that this contract was shown to the plaintiff when he was hired ; 
 and that after the plaintiff had done the work, Whitney gave him an order 
 on the defendants, which they refused to pay; whereupon the plaintiff sued 
 and recovered judgment atrainst Whitney; it was held that he could not 
 maintain an action against the defendants.
 
 424 Collateral Undertakings. [Cli. xii. 
 
 remove all doubt as to the application of the statute, and 
 the true rule at common law, but will also completely turn 
 the current of the decisions upon various questions which 
 are now the subject of much debate. We refer to the 
 case of Warren v. BatcJielder, 16 New Hampshire, 580, 
 decided in 1845, but not published till 1863. The action 
 was for money had and received. The defendant had 
 been a debtor to one Dow upon a promissory note ; and 
 the plaintiff had commenced a suit against Dow, in which 
 he had summoned the defendant by a trustee process as 
 Dow's debtor. Pending the suit Dow called on the 
 defendant for payment of his debt ; but the defendant 
 objected to paying, on account of the trustee process. 
 Thereupon Dow and the defendant agreed that the latter 
 should pay the former the amount of the debt, less a sum 
 equal to the plaintiff' s demand against Dow and the costs, 
 which sum the defendant should pay to the plaintiff; 
 and the balance was paid to Dow, who surrendered the 
 defendant's note. The plaintiff proceeded with his suit 
 against Dow, and finally recovered a judgment therein ; 
 but before judgment the trustee was discharged. Nearly 
 four years afterwards, the plaintiff demanded from the 
 defendant payment of the money left in his hands by 
 Dow, and upon his refusal commenced this action. 
 
 § 401. The cause was first heard in 1844, and the decis- 
 ion thereon is reported in 15 New Hampshire, 129. Upon 
 that occasion, a verdict for the plaintiff was set aside on 
 exceptions ; an opinion having been delivered by Gilchrist, 
 J., concluding, after an examination of the authorities, 
 that the plaintiff could not recover because he was a 
 stranger to the consideration. This decision was generally 
 supposed to have settled the rule in that state, until the 
 publication of the 16th New Hampshire, nineteen years 
 afterwards. From the latter report it appears, that upon 
 a new trial of the cause, the plaintiff had a verdict, subject 
 to the opinion of the court ; there being no material differ- 
 ence between the evidence upon the two trials, except that 
 the report of the first trial states that the plaintiff issued
 
 Art. II.] Collateral Undertakings. 426 
 
 an execution upon his judgment. But upon the second 
 verdict the court rendered judgment for the plaintiff. 
 Upon the latttrT occasion, an (^ahorate opinion was deliv- 
 ered by Woods, J., wherein he insisted that when a con- 
 tract has been made between a debtor and a stranger, 
 providing for the payment of the debt by the latter, the 
 creditor may make himself a party to it, and entitle him- 
 self to recover upon it, by a subsequent ratilication ; that 
 such a ratification is accomplished by a demand of fulfil- 
 ment, made upon the person who had und<*rtaken to pay 
 the debt, and the commencement of an action against him, 
 in case'of his refusal ; and that such a demand, followed 
 by the commencement of an action, amounts in law to an 
 extinguishment of the original debt, {b) An extended com- 
 
 (/;) The learned judge commenced by assenting to the broad proposition, 
 that the person to be benefited might maintain the action; and after exam- 
 ining anew the authorities, he said, that the pUiintiff, in order to recover, 
 must be a party to the arrangement between Dow and the defendant, either 
 by an original participation in it, or by a subsequent assent to it, and adop- 
 tion of its provisions. That it was well settled, that unless the demand of 
 the plaintiff against Dow was to be considered as cancelled by the arrangement, 
 his assent to it was not so perfect and unqualified as to entitle iiim to tiie bene- 
 fit which it was intended to provide for him. But that such an assent, and an 
 acceptance of the provision so made for him, whether cotemporaneous with, 
 or subsequent to, the acts of the other parties, must operate to discharge the 
 debt, unless there should be cause for holding that the provision was merely 
 collateral; and no such cause existed in the present case. And it was stated 
 to be the unanimous opinion of the court, that in such cases of a deposit by 
 a debtor with a third person for the payment of his debt, upon the promise 
 of the depositary to pay the same to the creditor, together with the assent 
 of the creditor to the arrangement, and his acceptance of the provision thus 
 made for him, his original demand must be deemed to be discharged, and a 
 new debt and a new debtor substituted. The next question was, whether 
 the evidence showed such an assent, so that a privity Between the parties 
 became established. Upon this point the learned judge said, that something 
 more than the comraencement of a suit was necessary to indicate the assent, 
 and something anterior to that measure was needful to establish the necessary 
 privity. A mere demand, he thought, was insufficient for the purpose; 
 "but," he concluded, "a demand and refusal, followed by a suit, or any 
 other equally plain demonstration of a purpose to adopt and to insist upon 
 the new provision, is such evidence of an election of it, in preference to the 
 54
 
 426 Collatp:kal Undertakings. [Ch. xii. 
 
 ment upon this opinion would be out of place here. It 
 suffices to say that its doctrines are so novel, not to say 
 revolutionary, that it cannot be regarded as a precedent 
 elsewhere, until they shall have received the sanction of 
 other adjudications. 
 
 § 402. It would seem that the courts of Vermont sustain 
 the creditor's remedy, at common law and under the 
 statute, according to the case of Wait v. Waifs Executor^ 
 28 Vermont, 350, decided in 1856 ; although the distinction 
 between a promise to the debtor and one to the creditor 
 does not appear to have been clearly taken. There the 
 plaintiff appealed from the decision of the probate court, 
 disallowing a claim in his favor, against the estate of 
 Joseph H. Wait, and the auditor reported the following 
 facts: The plaintiff had erected a barn upon premises 
 then owned by one Joseph Wait, under his assurance 
 that the premises should be conveyed to the plaintiff, or, 
 if they were conveyed to another, that the grantee should 
 pay the plaintiff for erecting the barn. Afterwards the 
 premises were conveyed by Joseph Wait to Joseph H. 
 Wait, the deceased ; and the latter, soon after the convey- 
 ance was made, informed the plaintiff that he was to pay 
 him for building the barn and that he would do so as 
 soon as he could ; and on several other occasions he 
 recognized the debt and promised to pay it. The defence 
 was that "this promise to pay the plaintiff his claim" 
 
 original debt, as to conclude the party, and to bar him from the pursuit of a 
 collateral remedy, against the terms and intentions of the parties who have 
 furnished the new. A direct and explicit assent, in terms, to accept the 
 provision as payment, would clearly, upon the authorityof Heaton v. Angler, 
 (see ante, § 332,) discharge the antecedent debt. Whether the assent be 
 contemporaneous or not. seems immaterial. If the assent appear, not by 
 the clear and unambiguous language of the party creditor, but by his unam- 
 biguous act, it is equally availing as an election between two remedies, of 
 which he is entitled to only one. The bringing of an action, following a 
 demand, is an act that may well be regarded as an election of remedies, and 
 should be attended by the proper consequences of an election in excluding 
 the party from the alternate and collateral remedy."
 
 Art. II.] Collateral Undertakings. 427 
 
 was void by the statute of frauds. But the court held 
 that the fair construction of the auditor's rei)ortwas, that 
 payment of the debt to the plaintiff, was part of tlie con- 
 sideration of the conveyance to the deceased ; and, as 
 matter of law, that where property had been placed in the 
 hands of the promisor by the debtor for the purpose of 
 paying a debt, the promise was out of the statute. The 
 decision of the probate court was therefore reversed. 
 
 § 403. In the opinion of the Supreme Court in this case, 
 it was said that the rule that a promise to pay the debt is 
 collateral, as long as the original liability continues, has 
 no application "to cases where the original debtor places 
 property of any kind in the hands of a third person, and 
 that person promises to pay the claim of a particular 
 creditor. The promise in such case is an original promise, 
 and the property placed in his hands is its consideration." 
 This remark seems to indicate that the court had in 
 mind a tripartite agreement, of which there was no evi- 
 dence ; and in Fullam v. Adams ^ 37 Vermont, 391, (c) the 
 case of Wait v. Wait was cited, as holding that the prom- 
 ise to the plaintiff was not within the statute ; and as 
 showing that where the promisor holds a fund of the 
 debtor for the purpose of paying the debt, so that as 
 between him and the debtor he is primarily liable for 
 it, his promise to the creditor is not witliin the statute, 
 because it is substantially to pay his own debt. 
 
 § 404. In the State of New York the right of the person 
 for whose benefit a contract was made, to sue for its breach, 
 and, where he is a creditor of the promisee, to maintain 
 the action without reference to the statute of frauds, has, 
 after considerable conflict of authority, been cf)nclusively 
 settled by a number of modern decisions ; which generally 
 take the correct distinction between the original promise 
 to the debtor, and a subsequent promise to the creditor. 
 In the earliest. Gold and Sill v. Phillips, 10 Johnson, 
 
 (c) Cited at length in chapter xvii.
 
 428 Collateral Undertakings. [Cli. xii. 
 
 412, decided A. D. 1813, in the Supreme Court, the action 
 was really founded upon a promise to the debtor, but 
 there was a subsequent promise to the creditor, upon 
 which the declaration counted ; and the case furnishes an 
 instance of that confusion between the two promises, 
 referred to in the first article of this chapter. (cZ) The 
 report says that the action was brought by the plaintiffs 
 "to recover their fees as attorneys and counsellors." 
 The proof was that one Wodd had conveyed a farm to the 
 defendants, for a specified consideration ; which was se- 
 cured to be paid by a bond of the defendants, and a mort- 
 gage on the premises. By the terms of the bond, part of the 
 consideration was to be paid in money to Wood ; and the 
 remainder was made up of debts due by Wood, mentioned 
 in the bond, which the defendants assumed to pay, and 
 to indemnify Wood against the same ; among others the 
 debt due to the plaintiffs. Subsequently the defendants 
 conveyed the farm to another person, who agreed with 
 them to pay the debts of Wood which they had assumed ; 
 and thereupon the defendants' bond was cancelled. On 
 the day when the conveyance from Wood to the defend- 
 ants was made, they wrote a letter to the plaintiffs, saying 
 that by an arrangement between them and Wood, they 
 were accountable to the plaintiffs for the balance due them 
 by Wood. The letter was not however sufficient, as a 
 memorandum of the agreement, to satisfy the statute. 
 The plaintiffs having sued to recover from the defendants 
 the debt due to them by Wood, a verdict was taken for 
 them, subject to the opinion of the court. 
 
 § 405. The court said that the promise of the defendants 
 was not within the statute of frauds, because it "was 
 founded on a new and distinct consideration. ' ' That ' ' the 
 defendants made the promise, in consideration of a sale of 
 lands made to them by Wood ; and they assumed to pay 
 the debt of the plaintiffs, as being, by arrangement with 
 Wood, part payment of the purchase money. Here was a 
 
 (d) Section 392.
 
 AH. II.] Collateral Undertakings. 429 
 
 valid assumption of tlie debt of Wood." Judgment was 
 accordingly rendered on the verdict for the plaintiffs. But 
 there was another suit against the-same defendants, in favor 
 of Gold alone, to recover fees due from Wood as solicitor in 
 chancery ; and the case shows that there was evidence, from 
 which the jury could have inferred, that Gold's debt was 
 also included in the bond. But the Court directed judg- 
 ment for the defendants in that suit ; on the ground that 
 an inquiry as to the extent of the promise, showed that 
 " iY was made jointly to Gold and Sill." This clearly 
 refers to the letter ; so that the case is an authority against 
 the doctrine that an action will lie upon a promise to the 
 debtor, unless it proceeded upon the ground that the 
 promise was contained in a sealed instrument. 
 
 § 406. This case was followed by several others involv- 
 ing the application of the statute, where the creditor, the 
 debtor, and the new promisor were all parties to an agree- 
 ment, whereby the latter undertook with the creditor to 
 pay him the debt, in consideration of a fund placed in his 
 hands by the debtor ;(e) and the first case where the Su- 
 preme Court had occasion to determine the effect of a 
 promise to the debtor, contained in a contract to which 
 the creditor was not a party, was Barlcer v. Buckling 2 
 Denio, 45, A. D. 1846. There the action was to recover 
 money due to the plaintiflE* from Francis B. Bucklin ; 
 and the report states that the declaration averred "tliat 
 the defendant, in consideration of a pak of horses de- 
 livered to him by Francis, and of forbearance by the plaint- 
 iff to prosecute Francis for the debt, at tlie defendant's 
 request, had promised the plaintiff to pay liim tlie value 
 of the horses towards the debt which Francis owed the 
 plaintiff." On the trial the plaintiff proved an indebt- 
 edness of Francis to the amount of $372.17, and that the 
 demand had been placed in the hands of an attorney for 
 
 (e) Olmstead v. Greenly, 18 Johnson, 12 ; Farley v. Cleveland, 4 Cowen, 
 432, and 9 Cowen, 639; Jennings v. Webster, 7 Cowen, 256; Elhvood v. 
 Monk, 5 Wendell, 235 ; ia chapter xv, article iii.
 
 430 Collateral Undertakings. [Ch. xii. 
 
 collection ; that Francis, being pressed for payment, de- 
 livered to the defendant a pair of horses, upon his agree- 
 ment to pay upon the demand of the plaintiff the sum 
 of $160, which was agreed upon as their value ; and that 
 the defendant thereupon wrote to the attorney a letter con- 
 taining this expression : " I have taken my brother' s team, 
 and will be accountable to you for the same, if you will 
 be so good as not to trouble him." This letter was sent 
 by the defendant to the attorney by the hands of Francis, 
 who informed him of the arrangement ; and he there- 
 upon agreed to give Francis time, and did so ; but this 
 was not communicated to the defendant. 
 
 § 407. The defendant moved for a nonsuit, on the ground, 
 among others, that the letter contained only a proposition, 
 which was not binding until it was accepted, and the 
 judge directed a nonsuit accordingly. The plaintiff 
 moved for a new trial. The opinion of the court, delivered 
 by Jewett, J., first considered the question whether the 
 plaintiff, under a proper count, could sustain an action 
 to enforce the defendant' s promise to pay the price of the 
 horses, which he purchased. The authorities were cited 
 and commented upon at length, and the learned judge 
 came to the conclusion, that the weight of authority was in 
 favor of the proposition, that the person to be benefited by 
 a promise to another could sustain an action upon it, 
 although he was a stranger to the consideration. The 
 opinion then examined the question whether the statute 
 of frauds would prevent a recovery ; upon which point 
 the learned judge concluded, that the doctrine that a new 
 and independent consideration would take out of the 
 statute, a promise to the creditor to pay another' s debt, 
 was unsound. That principle he thought was applicable 
 only to promises made to the debtor ; those were not within 
 the statute ; and in the case at bar, the defendant' s prom- 
 ise was obligatory upon him, it being merely to pay his 
 own debt to a particular person, designated by his own 
 creditor. But because the plaintiff had counted in his 
 declaration upon a promise made to himself, and not
 
 Art. II.] Collateral Undertakings. 431 
 
 upon one made to Francis for his benefit, the motion to 
 set aside the nonsuit was denied ; the learned judge remark- 
 ing : "The contract set out in each of the special counts is 
 widely variant from the one proved." 
 
 § 408. Of the next case, Blunt v. Boyd, 3 Barbour, 209, 
 A. D. 1848, also in the Supreme Court, it will be sufficient 
 to say that the defendant was a debtor to one Rowley ; 
 that he and Rowley settled their accounts, and deducted 
 from the sum found to be due from him to Rowley, the 
 amount of a debt due from Rowley to the plaintiff, the 
 defendant promising to pay that amount to the plaintiff, 
 and giving Rowley his note for the balance ; and that 
 when an agent of the plaintiff subsequently called upon 
 the defendant, in relation to the payment of the plaintiff's 
 demand "for lumber sold to Mr. Rowley," the defendant 
 said that he would settle it, if the plaintiff would deduct 
 $9, for unfinished work of Rowley. It was held by a 
 majority of the court, that as the defendant's promise to 
 the plaintiff's agent related to the plaintiff's demand 
 against Rowley, it was clearly within the statute of frauds ; 
 and that the plaintiff could not recover upon the contract 
 between Rowley and the defendant, for want of privity as 
 well as for want of consideration. The court regarded the 
 promise as being without consideration, because the trans- 
 action did not amount to a discharge of the defendant' s 
 debt to Rowley ; and thought that where the objection for 
 want of privity had been overruled in this class of cases, 
 the defendant had actually received money or property as 
 the consideration of his promise. 
 
 • 
 
 § 409. The case of Earle v. Crane, 6 Duer, 564, decided 
 in the New York Superior Court in 1857, fully affirms the 
 principle of BarTier v. BiiclcUn, and involves also the 
 question whether the original parties could modify 
 the agreement without the participation of the beneficiary. 
 There the plaintiff's complaint stated that on the first of 
 September, 1852, he was a creditor of Nathan Meyer, and 
 that Meyer on that day agreed with the defendants to sell
 
 432 COLLATEEAL UNDERTAKINGS. [Cll. XII. 
 
 them his stock of goods, at prices thereafter to be agreed 
 upon, which they were to pay as follows : by paying the 
 plaintiff $561.63 of his debt ; by deducting $1,263.67 in dis- 
 charge of a debt due to the defendants by Meyer, and by 
 accounting for the remainder to Meyer ; that on the 9th of 
 October, 1852, the goods were delivered in pursuance of 
 this contract, at prices agreed upon, amounting to $2,800, 
 leaving a balance of $1,000 due to Meyer ; and that Meyer's 
 claim for that balance had been assigned to the plaintiff. 
 The complaint asked for a judgment for the amount of the 
 two sums of $581.63 and $1,000, with interest. On the 
 trial it appeared that on the 9th of October, 1862, Meyer 
 executed an absolute bill of sale of the goods to the defend- 
 ants, purporting to be in discharge of his indebtedness to 
 them. The plaintiff' s counsel asked the witnesses several 
 questions, tending to prove a previous oral agreement, in 
 the terms set forth in the complaint, and a delivery of the 
 goods by Meyer and an acceptance thereof by the defend- 
 ants, under such an agreement. Those questions were 
 excluded, and the complaint was dismissed. 
 
 § 410. Upon exceptions to the rulings, a new trial was 
 granted, Bosworth, J., who delivered the opinion of the 
 court, remarking, "Proof of such an agreement, as is 
 stated in the complaint, and of full execution of it on the 
 part of Meyer, standing alone, would entitle the plaintiff 
 to recover the $531.63. The plaintiff could sue on such a 
 promise in his own name, although not a party to the 
 agreement by being present and participating in the mak- 
 ing of it ; and such an agreement is not affected by the 
 statute of frauds." The learned judge then proceeded to 
 say that if such an agreement was made, it might be modi- 
 fied, before delivery and acceptance of the goods, by the 
 act of Meyer and the defendants, without the participation 
 of the plaintiff; and in that case the plaintiff could not 
 recover ; but if the goods wereactually delivered by Meyer, 
 and accepted by the defendants, upon the terms stated in 
 the complaint, the subsequent execution of an absolute 
 bill of sale, could not affect the plaintiff's right to recover
 
 Art. II.] Collateral Unbertakings. 433 
 
 the amount to be paid to him, by the terms of the original 
 agreement. 
 
 § 411. The case of The State Bank at New Brunswick 
 V. 3fettler, 2 Bosworth, 392, decided in 1858, in the same 
 court, is one of those in which, it is believed, the test of 
 the application of the statute is made to depend upon too 
 narrow a rule.(/) Stripped of much extraneous matter, 
 the facts were that the defendants had promised the 
 drawer of a bill of exchange upon them, which had been 
 discounted by the plaintiffs but had been protested for 
 non-acceptance, and was not yet payable, that they would 
 pay it to the plaintiffs ; in consideration that the drawer 
 would permit certain grain, then in transitu, to go forward 
 to them for sale on commission ; assign to them his canal 
 barges and other personal property; and confess a judg- 
 ment so as to bind his real estate. It had been the usual 
 course of business, between the drawer and the defendants, 
 that he should consign grain to them, and draw upon them 
 against the proceeds ; and it is to be inferred from some 
 of the remarks of the court, that the object of the transac- 
 tion was to secure the defendants for advances or accept- 
 ances previously made, as well as to provide for payment 
 of the plaintiff's bill. A judgment for the defendants 
 rendered upon a referee's report was affirmed on appeal. 
 The opinion of the court (Bosworth, J.,) turns upon the 
 following extract : " To take the case out of the statute of 
 frauds, the verbal promise of a third person, made to a 
 debtor of the plaintiffs, to pay to the latter a debt which 
 the promisee owes them, must find its consideration in a 
 purchase of property from the promisee ; so that the 
 amount which is promised to be paid, is to be paid in dis- 
 charge of the proper debt of the promisor : or the transac- 
 tion and promise must be such, that making the promised 
 payment to the plaintiffs, as creditors of the promisee, 
 will operate, incidentally, as a satisfaction of tlie debt of 
 the latter, and, primarily, as payment of the debt of the 
 
 (/) See ante, § 393. 
 55
 
 434 COLLATEEAL UnDEETAKINGS. [Cll. XII. 
 
 promisor." , . . " When the promise places the prom- 
 isor in the position of a surety for the debt of his promisee, 
 the case falls clearly within the statute, and the agreement 
 is void." 
 
 § 412. In 1859, the Court of Appeals had occasion defi- 
 nitely to settle the rule in New York, with respect to the 
 common law right of the beneficiary to maintain an action 
 upon a contract between others ; and incidentally with 
 respect to the application of the statute. In Laiorence v. 
 Fox, 20 New York, 268, it appeared that one Holly loaned 
 to the defendant the sum of $300, on his promise to pay 
 it the next day to the plaintiff, in discharge of a debt due 
 him by Holly, of the same amount, which was then paya- 
 ble. The plaintiff recovered in the court below, not- 
 withstanding the defendant's objections, that the agree- 
 ment with Holly was void for want of consideration, and 
 that there was no privity between the plaintiff and the 
 defendant. Upon appeal this judgment was affirmed by 
 a vote of six judges against two. The leading opinion 
 was delivered by Gray, J., who placed his decision chiefly 
 upon the ground, that in consequence of the defendant's 
 duty to pay the debt, the law implied a promise to that 
 effect from the defendant to the plaintiff; but some of the 
 majority thought that Holly was to be regarded as the 
 agent of the defendant. A brief abstract of this opinion 
 will be found in the note, which also contains a reference 
 to numerous other cases in the same state, upon this 
 most perplexing question, (p') 
 
 (g) After disposing of an objection to the testimony, and of the question 
 of consideration, the learned judge proceeded to consider the objection of 
 want of privity, citing and commenting at length upon the cases in England, 
 New York, and Massachusetts. In the course of this part of the opinion, 
 he referred to Seaman v. Whitney, 24 Wendell, 260, as containing an inti- 
 mation from the court, notwithstanding that the plaintifif was not allowed to 
 recover upon the peculiar facts of ihe case, that an undertaking to pay the 
 creditor may be implied, from an arrangement to that effect between the 
 defendant and the debtor; and to The Delaware and Hudson Canal Com- 
 pany V. Westchester County Bank, 4 Denio, 97 ; and a remark of the court
 
 Art. II.] Collateral Undertakings. 436. 
 
 § 413. In Maryland, the earlier cases were somewhat 
 inconclusive ; {?i) but the rule is now established with 
 
 in Brewer v. Dyer, 7 Gushing, 337, (see note to §420,) as sustaii)ing llie 
 same doctrine of an implied promise. But, he continued, it was urged, on 
 the part of tiie defendant, that because the defendant was not in any sense, 
 a trustee of Holly's property fqr the benefit of the plaintiff, the law will not 
 imply a promise. This argument the learned judge answered by Faying, 
 that in the cases where there was such a trust, the duty of the trustee to 
 pay according to the terras of the trust, implies a promise to do so; and that 
 in this case the defendant, upon ample consideration received from Holly, 
 promised Holly to pay his debt to the plaintiff; this made it his duty to do 
 so, and as well implied a promise to that effect, as if he had been made a 
 trustee of property to be converted into cash with which to pay. The prin- 
 ciple that the person for whose benefit a contrr-ct was made, may sue for ita 
 breach, "has been," he continued, "applied to trust cases, not because it 
 was exclusively applicable to those cases, but because it was a principle of 
 law, and as such, applicable to those cases." He then said that Holly could 
 not discharge the promise, because it was made for the plaintiff's benefit, 
 and in accordance with legal presumption, accepted by him, until his dissent 
 was shown. The cases, he concluded, establish the validity of a parol prom- 
 ise. Three of the judges concurred fully in this opinion, and two concurred 
 in the result, on the ground "that the promise was to be regarded as made 
 to the plaintiff through the medium of his agent, whose action he could 
 ratify, when it came to his knowledge, though taken without his being privy 
 thereto." The two remaining judges dissented from the result; Comstock, 
 J., delivering an elaborate opinion in support of the proposition, that the 
 plaintiff could not maintain Uie action, because there was no privity of con- 
 tract between him and the defendant. This case has been cited with appro- 
 bation, and the general principles established by the decision have been fol- 
 lowed in Burr v. Beers, 24 New York, 178 (A. D. 1861), where the Court 
 of Appeals affirmed a judgment in a personal action in favor of a mortgagee, 
 against a grantee of the mortgaged premises, whose deed contained a recital 
 that he had assumed to pay the mortgage; in Becker v. Torrance, 31 New 
 York, G31 (A. D. 18G4), where it was held, that a plaintiff in an execution 
 might maintain an action against a receiver of the judgment debtor's prop- 
 erty, whose title to the goods of the d'"btor was subordinate to the lien of 
 the execution, upon his verbal promise to the officer to sell the goods, and 
 apply the proceeds to the discharge of the execution ; and in Dingeldein v. 
 The Third Avenue Railroad Company, 37 New York, 575 (A. D. 1SG8), 
 ■where a plaintiff was allowed to recover against the assignee of personal 
 property named in an instrument, which specified that it was taken, subject 
 to the payment of all money, which the assignors were bound to pay, on 
 
 (/i) See Owings v. Owings, 1 Harris and Gill, 484 (A. D. 1827).
 
 436 COLLATEEAL UnDEETAKINGS. [Ch. XII. 
 
 respect to the common law question, and probably also 
 that arising under the statute of frauds, by the recent 
 case of Small v. Schaefer, 24 Maryland, 143 (A. D. 1865). 
 The facts of this case, as far as they are material to the 
 
 account of claims of a certain description, the plaintiflfs' being one of that 
 description. But in Kelly v. Roberts, 40 New .York, 432 (June, 1869), an 
 important distinction was taken. This was an action in favor of a sheriff, 
 to recover the amount due by the defendant to Everett and Jones, against 
 ■whom the plaintiff held an attachment, the action being brought in pursu- 
 ance of a provision of the New York code of procedure, authorizing a sheriff 
 holding an attachment to collect debts due to the defendant therein. It 
 appeared upon the trial, that by a written agreement, under seal, between the 
 defendant in this action and Everett and Jones, the latter transferred to the 
 former a quantity of goods, and the former agreed to pay the latter therefor 
 thirty per centum of the actual cost ; an inventory to be forthwith taken 
 specifying the cost of each article, and to be annexed to the agreement when 
 completed. It was also verbally agreed between them, (but the testimony 
 did not show whether this verbal agreement was made at the same time 
 with the contract; or afterwards, when the inventory was made), that part 
 of the consideration money was to be paid, by the defendant paying to cer- 
 tain persons designated, two notes particularly described, thereafter to mature, 
 which were made by Everett and Jones, and held by the persons so named ; 
 but neither the defendant nor Everett and Jones had communicated this 
 provision to such persons, nor did it appear that the latter had in any man- 
 ner assented thereto. The attachment was issued and served about the time 
 when the first note matured, but before it was paid. The plaintiff had a 
 judgment, which the Court of Appeals affirmed. James, J., delivering the 
 prevailing opinion, took the distinction between this case, and Lawrence v. 
 Fox and kindred case's, that here the transaction was consummated, before 
 any direction was given to pay the notes, so that the defendant had become 
 a debtor of Everett arrd Jones ; the agreement to pay the notes was there- 
 fore made without any new consideration ; and never having been commu- 
 nicated to the holders of the notes, or assented to by them, it was revocable 
 at the pleasure of Everett and Jones, until it was acted upon by the defend- 
 ant. He added, that apparently the verbal agreement was made after the 
 written assignment and covenant by the defendants to pay Everett and 
 Jones; but that the precise time was immaterial; because, if it was made 
 before, or at the same time when the covenant was entered into, it would 
 be merged in the latter : and supposing it to have been made afterwards, 
 there was no delivery of money or property to the defendant for the benefit 
 of another, or the creation of any trust or agency for another: it was simply 
 an executory contract without consideration; in effect, a license; so that as 
 matter of law, the debt was still due to Everett and Jones, and liable to the
 
 Art. II.] Collateral Undertakings. 487 
 
 present discussion, were that one McGinn, a broker, being 
 in default to the plaintiflf and to the defendant, (two of his 
 customers), the defendant in consideration of his giving 
 him an order on a bank for five state bonds, payable to 
 
 attachment. In the result of this opinion, four of the other judges concurred ; 
 one of them, however, putting his decision upon the ground, that the fair 
 inference was, that the verbal agreement was made at the same time with 
 the covenant, and was therefore merged into it ; and two of the judges were 
 for reversal. The cases of Therasson v. McSpedon, 2 Hilton, 1, in the New 
 Tork Common Pleas, A. D. 1858; Seaman v. Hasbrouck, 35 Barbour, 151, 
 A. D. 1861, in the Supreme Court; and Huber v. Ely, 45 Barbour, 169, in 
 the same court, A. D. 1865, also hold, that a promise to pay a debt, made to 
 a debtor, upon a consideration proceeding from him, is not within the statute 
 of frauds, and may be enforced by an action in favor of the creditor. In 
 each of them, the consideration of the promise was the purchase of property 
 from the debtor; and the promise to him is stated to constitute the founda- 
 tion of the creditor's action. In Huber v. Ely, the reason assigned for the 
 decision upon the application of the statute, was that "it is the promise of 
 one deriving a benefit by means of the undertaking, and having funds 
 placed in his hands for the payment of the indebtedness, which he promises, 
 in consideration thereof, to discharge ; " in the others, the decision was put 
 upon the ground, that the promise Avas only to pay the promisor's own debt 
 in a particular way. However, in Seaman v. Hasbrouck, the court added 
 that the purchase money was a fund for the benefit of the creditors; and 
 that the promise might be regarded as made to them through the debtor as 
 their agent. But in Connor v. Williams, 2 Robertson, 40, decided in the 
 New York Superior Court, A. D. 1864, Robertson, C. J., showed very clearly 
 that the doctrine of an agency in the debtor for the creditor, brings the case 
 directly within the statute of frauds; and he thought that the action could 
 be consistently sustained only on the idea of a general duty to pay the debt, 
 upon which the law implied a promise. Before the decision in Lawrence v. 
 Fox, the rule in New York was rendered uncertain by contradictory decis- 
 ions. See besides the cases cited in the text, Schemerhorn v. Vanderhey- 
 den, 1 Johnson, 139; Cumberland v. Codrington, 3 Johnson's Chancery, 
 229, on p. 254, per Kent. Chancellor; Shear v. Mallory, 13 Johnson, 496; 
 Safford V. Stevens, 2 Wendell, 158; Sailly r. Cleveland, 10 Wendell, 156; 
 Seaman v. Whitney, 24 Wendell, 260; Berly v. Taylor, 5 Ilil), 577; Dela- 
 ware and Hudson Canal Company v. Westchester County Bank. 4 Denio, 
 97 ; Bigelow v. Davis, 16 Barbour, 561. In the case in the 4th of Denio, 
 which is mainly relied upon as sustaining the doctrine of an implied prom- 
 ise, there was a special demurrer to a declaration in assumpsit, alleging that 
 certain debtors of the plaintiffs, placed a bill of exchange in the defendants 
 hands, who undertook to collect it, and to pay the amount to the plaintiffs
 
 438 Collateral Undertakings. [Ch. xii. 
 
 bearer, (three of wliicli had been purchased with the 
 defendant' s money, and on his order), there deposited as 
 security for any overdraft of McGinn, verbally agreed 
 with him, that he would pay the amount of an overdraft 
 already paid and charged against McGinn by the bank, 
 and also McGinn' s dishonored check held by the plaintiff. 
 Three points were made by the defence, namely, that there 
 was no privity of contract, that there was no considera- 
 tion for the contract, and that the contract was void by 
 the statute of frauds. The Court of Appeals affirmed a 
 judgment for the plaintiff. With respect to the first 
 point it was held, upon a review of the cases on either 
 side, that the prevailing doctrine in this country was, that 
 the person to be benefited by a promise could maintain an 
 action upon it, and that it was to be deemed to be made 
 to him if adopted by him. The objection that the promise 
 was void under the statute of frauds was overruled, on 
 the ground that the leading object of the promisor was to 
 benefit himself. But it was clearly sufficient to say that 
 the promise was made to the debtor. 
 
 § 414. In Indiana the ruling in the New York cases is 
 supposed to have been followed in Decker v. Shaffer, 3 
 Indiana, 187, A. D. 1851. The action was commenced in 
 a justice's court against the defendant as administrator of 
 
 when collected; and that it had been collected, but that the defendants, upon 
 special request, had refused to pay the money. It was specified as a cause 
 of demurrer, that the declaration did not aver any promise to the plaintiffs. 
 The court overruled the demurrer, Jewett, J., saying, that a contract might 
 be set "out in pleading according to its words or.its legal effect; and here 
 " the ground of the action is a promise made to another for the benefit of 
 the plaintiffs, and not on a promise to the plaintiffs;" consequently the 
 declaration stated it according to the fact. It is to be inferred from the 
 learned judge's remarks, that he regarded a declaration for money had and 
 received as stating the transaction according to its legal effect. Bronson, J., 
 said that if the question was new, his opinion would be, that the pleader 
 should have stated the promise as having been made to tiie plaintiffs; but 
 upon the authority of the report of Dutton v. Poole, T. Ilaymond, 202, he 
 agreed that it was right to state it as having been made to the debtors.
 
 Art. II.] Collateral Undertakings. 439 
 
 one Shookman, "to recover a debt claimed to have been 
 due from Shookman" to the plaintiff. It went to the Cir- 
 cuit Court by appeal ; and the proof was that the plaintiff 
 sold a mare to one Cuppy, and took his note for the pur- 
 chase money ; and that Shookman afterwards bought the 
 mare from Cuppy, on a promise to pay to the plaintiff the 
 note held by him. In the Circuit Court the plaintiff 
 recovered, and the judgment was reversed on error to the 
 Supreme Court. Some of the remarks in the opinion, if 
 read without reference to the rest of the case, would lead 
 to the inference that the court intended to hold, that the 
 promise of Shookman to Cuppy was within the statute of 
 frauds. But probably the decision turned upon the fact, 
 that the plaintiff declared upon a promise from Shookman 
 to himself; and the key note to the decision is to be found 
 in these remarks, at the beginning of the opinion: "The 
 judgment cannot be upheld. The plaintiff below did not 
 make out his case. He proved no indebtedness from 
 Shookman to him."(t) 
 
 § 415. In Illinois the same rule prevails. Of the cases 
 where the application of the statute came in question, it 
 was held in Eddy v. Roberts^ 17 Illinois, 605, A. D. 1856, 
 that upon the merits, the plaintiffs would be entitled to 
 recover upon the evidence, which proved a verbal promise 
 of the defendant, made to one Williams, in considera- 
 tion of a sale of property by him, to pay a debt due by 
 Williams to the plaintiffs. But because the plaintiffs had 
 
 (t) It seems to have been once held in Indiana, that a stranger to the 
 consideiation could not sue for breach of a contract. Farlow v. Kemp, 7 
 Blackford, 544 (1845); Bird v. Lanius, 7 Indiana, G15 (185G). But later cases 
 hold that the person to be benefited may maintain the action. Day v. Patter- 
 son, 18 Indiana, 114 (18G2) ; Lamb v. Donovan, 19 Indiana, 40 (18G2) ; Ray- 
 mond V. Pritchard, 24 Indiana, 318 (18G5). One case assigns the merger of 
 the systems of law and equity as the reason why the course of the decisions 
 was changed, an equitable rule having suspended the legal. Beals v. Beals, 
 20 Indiana, 1G3 (18G3). The ruling in the New York case of Barker v. 
 Bucklin, is also approved in Nelson v. Hardy, 7 Indiana, 364, A. D. 1856, 
 cited in a subsequent chapter.
 
 440 Collateral Undertakings. [Ch. xii. 
 
 declared, not upon the defendant's promise to Williams, 
 but upon a similar promise subsequently made to them, 
 upon a new consideration moving from them, which the 
 court held to be within the statute ; a judgment for the 
 plaintiffs was reversed, with leave to amend the declara- 
 tion. It was however suggested by the court, that the 
 plaintiffs should allege in declaring that the special con- 
 tract was made to them ; but, as we have already shown, 
 this is not only contrary to the ruling in New York, but 
 inconsistent with the principles, upon which, according 
 to the modern cases, the action depends, (y) 
 
 § 416. In Alabama the earlier decisions were to the 
 effect, that the person for whose benefit a contract was 
 made could not maintain the action at common law, 
 although, where he was a creditor of the other party, the 
 promise to his debtor was not within the statute ; but that 
 a new promise to the creditor, by the person who had 
 agreed to pay the debt, would remove all objections to the 
 recovery, and the action must be founded upon that 
 promise. (^) But in Mason v. Hall, 30 Alabama, 699, 
 A. D. 1857, the rule was laid down in substantial harmony 
 with Barker v. BucTclin, and kindred cases. The com- 
 plaint was for the hire of a negro man ; and the proof was 
 that the plaintiff had hired the negro to the defendant's 
 son for one year, at a specified price ; and that very soon 
 afterwards, the son hired the negro to the defendant, upon 
 an agreement that he would pay to the plaintiff the price 
 agreed upon, deducting five dollars, which the son agreed 
 to pay. The plaintiff was nonsuited, and on a motion .to 
 set aside the nonsuit, the court held that the promise was 
 
 (/) In Prather v. Vineyard, 4 Gilman, 40 (1847), and Brown v. Strait, 19 
 Illinois, 88 (1857), the general principle with respect to the application of 
 the statute is affirmed, in harmony with Eddy v. Roberts; and the common 
 law rule is laid down the same way in Bristow v. Lane, 21 Illinois, 194 
 (1859). 
 
 {k) Hitchcock v. Lukens, 8 Porter, 333 (A. D. 1838); McKenzie v. Jack- 
 son, 4 Alabama, 230 (A. D. 1842); Lee v. Fontaine, 10 Alabama, 755 
 (A. D. 1846).
 
 Art. II.] Collateral Undertakings. 441 
 
 not within the statute of frauds ; that where a parol prom- 
 ise is made to one for the benefit of another, the latter 
 may maintain an action upon it, although the promisee 
 might also sue ; but that in this case there was a fatal vari- 
 ance between the complaint and the proof, because the com- 
 ;plaint relied upon a hiring by the plaintiff to the defend- 
 ant, instead of the defendant's promise to his son.(^) 
 
 § 417. The foregoing abstracts of cases present a great 
 diversity of opinion, touching the principles, upon which 
 the statute of frauds is considered inapplicable, and the 
 action is sustained at common law ; as well as the ques- 
 tions incidentally arising out of the common law rule.(77i) 
 It remains only to notice the peculiar ruling of the courts 
 of Missouri. It was said in Rohhins v. Ayres^ 10 Mis- 
 souri, 638, A. D. 1847 that upon a simple contract 
 between two persons, that one will pay a debt due by the 
 other, the creditor can maintain an action, and the case is 
 not within the statute of frauds. But in that case the 
 plaintiff was not allowed to recover ; partly because the 
 contract between his debtor and the defendant was under 
 seal; and partly because it provided for the payment 
 
 (?) And see Carperon v. Clarke, 11 Alabama, 259, A. D. 1847. The com- 
 mon law rule had been previously laid down, substantially in accordance 
 with the decision in Mason v. Hall. See Huckabee v. May, 14 Alabama, 
 263; Hoyt v. Murphy, 18 Alabama, 316. 
 
 (m) The following additional cases are in general accord with those pre- 
 viously cited, upon the common law question, or that arising under the 
 statute of frauds. New Jkrset, Berry v. Doremus, 1 Vroom, 399 (A. D. 
 1863). Kentockt, Smith v. Lewis, 3 B. Monroe, 229 (1842); Allen v. 
 Thomas, 3 Metcalfe, 198 (1860). South Carolina, Brown v. O'Brien, 1 
 Kichardson, 268 (1845); Mann v. Mann, 2 Richard.son, 123 (1845); Thomp- 
 son V. Gordon, 3 Strobhart, 196 (1848). Wisconsin, Kimball v. Noyes, 17 
 Wisconsin, 095 (1864). Minnesota, Sanders v. Cla.son, 13 Minnesota, 379 
 (1848). Nevada, Alcalda v. Morales, 3 Nevada, 132 (1867). Georgia, Ford 
 V. Finney, 35 Georgia, 258 (18G6). Texas, Wallace v. Freeman, 25 Te.rap, 
 Supplement, 91 (1860). The common law rule seems to have been laid 
 down in the same way in California, Kreutz v. Livingston, 15 California, 
 344 (1860) ; and in Delaware, Farmers' Bank v. Brown, 1 Harrington, 330 
 (1834.) 
 
 56
 
 442 COLLATEKAL UnDEKTAKINGS. [Cll. XII. 
 
 of the sum of $600 to the plaintiff and sundry other 
 creditors of the other party, without mentioning the 
 amount of the debt due to each respectively, or even the 
 number or names of the beneficiaries ; but describing them 
 as the hands employed upon a certain boat, the sale of 
 which formed the consideration of the promise. After 
 the contract was executed, but before the boat was taken 
 away, " the instrument was read to the hands, and they 
 accepted its terms." But the court said that the covenant 
 merged all simple contracts, "and a simple promise to pay 
 that sum afterwards would be inoperative." But in sub- 
 sequent cases, the courts of Missouri have apparently 
 adopted a rule which practically denies the existence of 
 any common law right on the part of the creditor, to 
 maintain an action upon a contract to pay the debt, made 
 between the debtor and a stranger. It would seem to 
 follow, as the result of the most recent decisions in that 
 state, that where the consideration proceeded from the 
 debtor and the promise was made to him, it will be 
 regarded as having been made exclusively for his benefit 
 and protection, and as a matter with which the creditor 
 has no concern. The ruling upon the application of the 
 statute of frauds is consequently of no importance, as 
 respects this kind of action. (?i) 
 
 (n) There was a dictum in Bank of Missouri v. Benoist, 10 Missouri, 
 519, A. D. 1847, to the effect that the common law permitted a person to 
 enforce a contract between others, made for his benefit ; but it was not neces- 
 sary to the decision. But in Manny v. Frasier, 27 Missouri, 419, A. D. 1858, 
 the defendant's intestate had purchased the interest of one Bell in the firm 
 of Bell and Sticknell, and on coming into the firm had agreed with them to 
 pay certain debts of the firm ; among others, notes held by the plaintiffs. A 
 judgment for the plaintiffs was reversed upon appeal; the court saying 
 that the case did not fall within the common law rule recognized in 
 Robbins v. Ayres, and Bank of Missouri v. Benoist, and that there was 
 no privity of contract between the plaintiffs and the intestate. The recog- 
 nized rule was illustrated by a promise of A to pay B for the benefit of C. 
 And the principle is more fully explained in Page v. Becker, 31 Missouri, 
 466 (A. D. 1862). There it was held that neither a mortgagee nor his assignee 
 could recover, upon a promise of the defendant to the mortgagor, to pay the 
 amount of a mortgage given to secure certain notes for the purchase money
 
 Art. III.] Collateral Undertakings. 443 
 
 ARTICLE III. 
 
 American cases holding that the statute applies to the action. 
 
 § 418. The State of Massachusetts is generally regarded 
 as one of those, whose courts hold that the statute of 
 frauds applies, where a creditor sues upon a promise made 
 to his debtor, whereby the promisor undertakes to pay 
 the debt ; and such appears to be the leaning of the courts 
 in that State, although a" careful examination of the adju- 
 dicated cases will show that the question is not yet con- 
 clusively settled. The case from which the contrary 
 impression is derived is Curtis v. Brown, 59 Massachu- 
 setts (5 Gushing), 488, decided A. D. 1850. The report 
 says that, "the alleged cause of action was a verbal prom- 
 ise by the defendant to pay the plaintiff, the amount of a 
 bill originally due him from one Augustus A. Coffin;" 
 from which statement it appears that the plaintiff, as in 
 Barker v. BucJclin,{a) relied, not upon the contract be- 
 tween his debtor and the defendant, but upon a promise 
 to himself. At the trial, it appeared that Coffin had 
 entered into a contract with the defendants, to erect certain 
 houses for them ; and before the stipulated period, (as 
 extended by a subsequent agreement,) had expired, a ver- 
 bal agreement was made between him and the defendants ; 
 whereby he released them from the contract, and trans- 
 ferred to them the building materials on the premises, 
 upon their verbally undertaking to pay all the outstand- 
 ing bills for work upon the buildings ; among others one 
 
 of the mortgaged premises ; the equity of redemption having been conveyed to 
 the defendant, upon his verbal agreement to pay the notes and the mortgage. 
 It was said that the defendant's agreement "was exclusively for the benefit 
 of his grantors, and was a matter entirely between the parties to tiiat deed." 
 The opinion concludes: "There is evidence that Becker recognized his lia- 
 bility to pay the notes, both before and after they had been assigned by 
 Hampton to the plaintiff; but the plaintiff does not go upon the hypothesis 
 of a promise by Becker to him directly. No such case is made by the 
 petition; no express promise is averred therein; and if there had been, it 
 would have been without consideration." 
 (a) See ante, § 406.
 
 444 Collateral Ujstdertakin-gs. [Ch. xii. 
 
 due to the plaintiff, whicli was particularly mentioned and 
 assented to by the defendants. The defendants thereupon 
 requested Coffin, to inform the plaintiff and the oth-er cred- 
 itors of the arrangement ; to request them to make out 
 their bills to the defendants ; and to say to them that they 
 (the defendants) would pay the bills ; which was done by 
 Coffin, and the plaintiff s bill made out accordingly. Coffin 
 also made a verbal agreement with the plaintiff and the 
 other creditors, '' to look to the (^efendants for their pay ; " 
 and the defendants in fact paid several of the bills. The 
 judge ruled at the trial that the defendants' promise was 
 v-oid by the statute of frauds, and the jury under his in- 
 structions, found a verdict for the defendants. 
 
 § 419. A motion for a new trial upon exceptions was 
 denied by the Supreme Court, Shaw, C. J., delivering the 
 opinion. He assumed that under the circumstances of 
 the case the promise of the defendants, communicated at 
 their request to the plaintiff by Coffin, was equivalent to 
 a dii'ect promise to the plaintiff ; and he then proceeded to 
 examine the question whether the promise was within the 
 statute of frauds, evidently referring, throughout the whole 
 of the opinion, to the promise made through Coffin to the 
 plaintiff directly. He refuted the idea that the relinquish- 
 ment of a lien, benefit, or advantage possessed by the 
 plaintiff, would take out of the statute a promise to pay 
 the debt of another ; unless the promisor acquired what- 
 ever was reliquished by the promisee. He added that 
 the extinguishment of the original debt would also suffice 
 to take the promise out of the statute. But here, he said, 
 the plaintiff did not release Coffin, or relinquish any lien 
 or benefit, and the consideration for the defendants' prom- 
 ise moved from Coffin. The exceptions were therefore over- 
 ruled. 
 
 § 420. The very recent case of Furbish v. Goodnow, 98 
 Massachusetts, 296, A. D. 2867, cited at length in another 
 section, (&) is open to a similar criticism. The action 
 
 {h) See §§ 563, 564.
 
 Art. III.] Collateral Undertakings. 445 
 
 was upon an agreement, to which the plaintiff, liis debtor, 
 and the defendant were parties, the consideration liaving 
 proceeded from the debtor ; and the whole reasoning of 
 the court is based upon the idea, that the contract upon 
 which the action was brought was made with the plaintiff. 
 It was said that the recent decisions in New York, 
 Maine and Vermont had relaxed the application of the 
 statute too far ; and that, as the authorities were conflict- 
 ing, it was the duty of the Massachusetts courts to follow 
 the precedents in their own State. But in the Massachu- 
 setts cases, which were regarded as controlling, the plaintiff 
 sued upon a promise to himself ; and the court expressly 
 distinguished Alger v. Scoville, 1 Gray, 391, (c) from the 
 others, on the ground that there the promise was to pay 
 a debt of the promisee, the consideration of which was 
 a transfer of property from him to the promisor. The 
 effect of the statute of frauds, upon an action brought by 
 the creditor named in such a promise, does not therefore 
 appear to have been conclusively determined in that 
 State. (^) 
 
 (c) See ante, § 376. 
 
 (d) Before the case of Mellen v. Whipple, 67 Massachusetts (1 Gray), 317, 
 A. D. 1851, it was supposed that the courts of Massachusetts had gone at 
 least as far as those of New York, in affirming the common law right of the 
 beneficiary to enforce a contract between others. The result of the cases 
 was summed up in Brewer v. Dyer, 61 Massachusetts (7 Gushing), 337, 
 A. D. 1851, where Bigelow, J., said that the principle had been "long 
 established and clearly recognized " in that state " that where one person, 
 for a valuable consideration, engages with another, by simple contract, to do 
 some act for the benefit of a third, the latter, who would enjoy the benefit 
 of the act, may maintain an action for the breach of such engagement," 
 citing Felton V. Dickinson, 10 Massachusetts, 287; Hall v. Marston, 17 id., 
 575 ; Arnold v. Lyman, ib., 400, and Carnegie v. Morrison, 43 id. (2 Metcalf), 
 381. He added, "it does not rest on the ground of any actual or supposed 
 relationship between the parties," " nor upon the reason that the defendant 
 by entering into such an agreement has impliedly made himself the agent 
 of the plaintiff;" ''but on the broader and more satisfactory basis, that 
 the law, operating upon the act of the parties, creates the duty, estab- 
 lishes the privity, and implies the promise and obligation upon which tho 
 action is founded." But in Mellen v. Whipple, 67 Massachusetts, '317, tho 
 court held, on demurrer to a declaration setting forth the facts specially, that
 
 446 Collateral Undertakings. [Ch. xii. 
 
 § 421. In Connecticut it has been very distinctly ruled 
 that the statute applies. In Clapp and others v. Lawton 
 and Wright, 31 Connecticut, 95, A. D. 1862, the declara- 
 tion contained sundry special counts, on a promise of the 
 defendants to pay a debt due to the plaintiffs from Faulk- 
 ner and Wright, and also a common count. On the 
 trial it appeared that the plaintiffs were creditors of the 
 firm of Faulkner & Wright, who sold out all their firm 
 
 the plaintiff, as the holder of a negotiable note secured by a mortgage upon 
 real estate, and assignee of the mortgage, could not recover against the 
 grantee of the mortgagor, who had conveyed the equity of redemption 
 to the defendant, by a deed containing a stipulation that the defendant should 
 assume and cancel the note and the moi tgage. Metcalf, J., in delivering the 
 opinion said that the general rule was that a stranger to the consideration 
 could not sue upon a contract; and that the only exceptions to the rule, which 
 hrd been recognized in Massachusetts, were where the promisee had either 
 put money or property into the hands of the promisor as a fund to pay his 
 debt; or was nearly related to the beneficiary; or where the defendant had 
 entered under a lessee of real property, upon a promise to pay the rent 
 to the landlord, and had subsequently occupied the premises, and paid 
 part of the rent. It was further held that if tlie averment in the declara- 
 tion, that the defendant promised the plaintiff to pay the note, was to be 
 taken as referring to an express promise, such a promise would be void 
 for want of consideration. But we find it difficult to reconcile the more 
 recent case of Perry v. Swasey, 66 Massachusetts (12 Gushing), 36, A. D. 
 1853, with this distinction. There the defendant had agreed with the 
 maker of a note with whom he was boarding, to take up and cancel the 
 note, for which he was to pay nothing for board, till his bill equalled the 
 sum due upon the note; after boarding some time, his bill was adjusted and 
 receipted in full, the amount of the note being deducted and the balance 
 paid by him in money; and at the same time he gave to the maker of the 
 note a written agreement to pay the note, and to hold the maker harmless. 
 Upon these facts, (together with a promise to the holder,) the court " inclined 
 to the opinion," that an action for money had and received would lie in favor 
 of the holder of the note; but it was distinctly held that an action would lie 
 upon the defendant's promise to the maker ; and that it raised an implied 
 promise to the plaintiff. See also Hicock v. McKay, 78 Massachusetts (12 
 Gray), 218, A. D. 1858, where the same rule is to be imphed from the opin- 
 ion; although the court thought, that in the absence of evidence to show 
 that the contract was made for the benefit of the third person, the promisee 
 might maintain an action, upon an agreement to credit a third person a 
 certain sum on account, for a consideration proceeding from the plaintiff.
 
 Art. III.] Collateral Undertakings. 447 
 
 property to the defendants Lawton and Wright, (the same 
 Wright being a member of both firms,) upon the consider- 
 ation, in part, that the latter would pay the debts of Faulk- 
 ner & Wright, including specially the debt due to the 
 plaintiffs. It appeared also that the property transferred 
 to the defendants, was more than sufficient to pay all the 
 debts. The defendants objected to the admission of the 
 testimony tending to prove these facts, on two grounds ; 
 namely, that the verbal promise was void within the stat- 
 ute of frauds, and that the plaintiffs could not sue upon it ; 
 but the objections were overruled. There was no evidence 
 of an express assent by the plaintiffs to this arrangement, 
 or that it was communicated to them. The plaintiffs 
 recovered a judgment, which was reversed upon a motion 
 for a new trial. The opinion, by Button, J., argued 
 both the questions at length, and concluded that both 
 objections were well taken. "The agreement," he said, 
 "was void, so far at least as the plaintiffs are concerned, 
 by the statute of frauds." It was, he thought, against the 
 policy of the statute to sustain the action ; the danger, 
 which it was intended to guard against, being " that cred- 
 itors will endeavor by false parol testimony to save debts, 
 which they will otherwise lose by the failure of the original 
 debtor to pay." The learned judge said that this case 
 was precisely the case which the legislature had in view ; 
 it being evident that the plaintiffs were endeavoring to 
 hold Lawton and Wright, because they doubted the 
 responsibility of Faulkner and Wright. 
 
 § 422. The learned judge then proceeded to consider the 
 arguments which had been urged in support of doctrines, 
 which would permit a recovery upon this contract. In 
 some of the cases, he said, a fear had been expressed that 
 if the plaintiff was not allowed to recover, the statute 
 would be made an instrument of fraud. But irrespective 
 of the fact, that it was inconsistent to draw inferences from 
 a case which the law would not permit to be proved, he 
 thought that the danger of fraud had been overrated ; for 
 a defendant who denied the validity of his agreement on
 
 448 Collateral Undertakings. [Cli. xii. 
 
 this ground could not be permitted to retain the consider- 
 ation. The learned judge continued : "Courts have also 
 frequently been misled by not adverting to the distinction 
 between an attempt to hold a person as surety for another, 
 and merely compelling him to pay a sum of money which 
 may happen to be the debt of another. If A eells a house 
 to B for $100, it is clearly immaterial to B whether he is 
 to pay the money to A or to one of A' s creditors. As a con- 
 tract between A and B, there is no more danger that the 
 fraud mentioned in the statute will be perpetrated 
 than in any other contract. But the moment you 
 allow the creditor oF A to have an interest in this contract, 
 and to have the right, either expressly or by implication, 
 to sue upon it, as the plaintiffs claim to have in this case, 
 the agreement is brought directly within both the letter 
 and spirit of the statute." Some of the cases, said the 
 learned judge, turn upon the question, whether the de- 
 fendant received a full consideration; but this cannot 
 affect the application of the statute. Others "seem to 
 have been allowed on the ground that it appeared that 
 some new and, distinct consideration passed from the 
 plaintiff to the defendant ; " but these are mere extensions 
 of a doctrine, to be found in the English lien cases, 
 where the substance of the transaction was a sale by the 
 plaintiff to the defendant. The learned judge concluded that 
 branch of the opinion by saying that there was a tendency 
 in recent cases " to adopt the true rule and to restore the 
 statute to its original purpose," citing particularly Curtis 
 V. Brown and State Bank v. Mettler.{e) 
 
 (e) For an abstract of the last mentioned case see section 411. Upon the 
 other objection the opinion is equally decisive against the plaintiffs; holding 
 that they could not recover, because the promise was not made to the plaint- 
 iffs, or intended for their benefit, but for the benefit of the parties to it; 
 nor was it founded upon a consideration furnished by the plaintiffs; nor did 
 it appear that at the time they knew any thing of it. The case of Treat v. 
 Stanton, 14- Connecticut, 445 (A. D. 1841), was cited as decisive against 
 the plaintiffs upon this point. And it was held, that they could not recover 
 upon the common count, because there were other persons interested, and 
 an accounting was necessary ; so that the only remedy was in equity.
 
 Art. III.] Collateral Undertakings. 449 
 
 § 423. In Pennsylvania, the recent case of Shoemaker 
 V. King^ 40 Pennsylvania, 107, A. D. 1861, is in exact 
 accord with the case just cited, upon substantially the 
 same facts. There a special verdict was found, to the 
 effect that the plaintiff was a creditor of the firm of 
 Harper and Reese, and they sold out all their firm prop- 
 erty to the defendant, he agreeing with them to pay their 
 debts, and the property being sufficient to pay the plaint- 
 iff and all the other creditors of the firm. Soon afterwards 
 Harper informed the plaintiff of the defendant's promise ; 
 but there was no proof that any communication passed 
 between the plaintiff and the defendant, except as implied 
 from bringing this suit, from which the jury found "that 
 he agreed to accept said promise." Upon this verdict the 
 court below rendered a judgment for the plaintiff, which 
 the Supreme Court reversed on error, and ordered judg- 
 ment for the defendant. Lowrie, C. J., delivered the 
 opinion in the following terms: "The decided weight of 
 authority and of reason declares, that though such a con- 
 tract as the present is valid between the immediate parties 
 to it, it is void as a contract in favor of the creditors of one 
 of them ; unless they, as part of the arrangement, give 
 up their original claims, and accept the new contract in 
 their stead. Without this it is void, even when expressly 
 made to those creditors, and of course it cannot be impli^^d 
 as made to them. While the old debt remains, the new 
 contract cannot be a substituted, but only a collateral one ; 
 a promise to pay another' s debt; and it is forbidden by 
 the statute as a cause of action." " Yet we must not be 
 understood as questioning that numerous class of cases, 
 where a debtor puts money or other means in the hands 
 of another, to be delivered to a particular creditor of his, 
 and the creditor has been held to be entitled to sue. Some 
 of this class of cases no doubt crowd hard upon the class 
 to which the present one belongs. Yet they present 
 merely a mode in which the debtor pays his own debt. 
 That was only in part and incidentally a purpose of this 
 arrangement. AVe may need, somt^ day, to distinguish 
 these classes more accurately, and we had better not 
 57
 
 450 Collateral Undertakings. [Cli. xii. 
 
 attempt it, until some case arises that demands such a 
 distinction." (/) 
 
 § 424. The courts of North Carolina appear to incline 
 against allowing the creditor to maintain the action; 
 although in the principal case the question was not fairly 
 presented, as the result would have probably been the 
 same in New York, upon the allegations of the declaration. 
 In Styron v. Bell, 8 Jones, 222, A. D. 1860, the executor 
 of one Pettijohn had sold at auction to the defendant, 
 a schooner belonging to the estate, at a price much below 
 its value, one of the conditions of the sale being that the 
 purchaser should pay all the debts due by Pettijohn, on 
 the schooner' s account ; and the plaintiff, to whom Petti- 
 john owed a debt for lighterage, brought this action to 
 recover the same. It did not appear that the plaintiff 
 was present at the sale ; or that his debt was specifically 
 mentioned ; or that the j)laintifF and defendant had any 
 communication on the subject after the sale. The defend- 
 ant' s counsel submitted that the evidence did not sustain 
 the declaration, which alleged that the promise was made 
 to the plaintiff, and that the statute of frauds required 
 the promise to be in writing ; but the plaintiff had a ver- 
 dict, and the judgment thereon was reversed on appeal. 
 In the opinion of the Supreme Court, delivered by Manly, 
 J.,* it was assumed that the question to be decided was 
 whether there had been any valid substitution of one 
 
 (/) But the Supreme Court of Pennsylvania has now definitively settled 
 the rule, that where the promise was made to the creditor, founded upon a 
 fund placed in the hands of the promisor by the debtor, and constituting 
 part of an agreement to which the three were parties, the promise is not 
 within the statute, and the promisee may recover for its breach. See cases 
 cited in chapter fifteenth, article third. And in Maule v. Bucknell, 50 
 Pennsylvania, 39, A. D. 1865, Strong, J., intimated a doubt whether 
 Shoemaker v. King was correctly decided. The question, respecting the 
 common law right of the beneficiary to recover upon a contract to which he 
 was not a party, seems to have been settled in Pennsylvania in the affirma- 
 tive. Beers v. Robinson, 9 Pennsylvania, 229 (1848); Vincent v. Robinson, 
 18 id., 96 (1851).
 
 Art. III.] Collateral Undertakings. 461 
 
 debtor for another. It was held that no such substitution 
 had been accomplished here, because the plaintiff's 
 original debtor had not been discharged ; tliis action not 
 being evidence of such a discharge, but only of his willing- 
 ness to look to the defendant, as a collateral source from 
 which the money might be obtained. It was further said 
 that the cases, where a promise to one has been allowed 
 to enure to the benefit of another, turn upon the idea of 
 principal and agent. The opinion concluded by saying 
 that the statute of frauds "would be an obstacle to the 
 recovery in other points of view ; but we think it unneces- 
 sary to enter upon that." 
 
 § 425. In Tennessee it was held in Campbell y. Flndley^ 
 3 Humphreys, 330, A. D. 1842, that the defendant's prom- 
 ise to the debtor, to pay to the plaintiff the debt due by the 
 promisee, made in consideration of the sale of personal 
 property by the debtor, was within the statute of frauds ; 
 the court putting the decision on that ground, and, declin- 
 ing to consider the question, whether there was sufficient 
 privity on the part of the plaintiff to entitle him to sue. 
 But the case is avowedly at war with the whole doctrine 
 that a promise to the debtor is not within the statute ; as 
 we conceive the other cases, holding that the statute applies 
 to such an action, are in principle and practical effect, {g) 
 
 § 426. And in Wisconsin the Supreme Court decided, 
 or at least intimated very strongly, in EviericJc v. Sanders, 
 1 Wisconsin, 77, A. D. 1853, that a creditor could not 
 recover under the same circumstances ; and for that reason, 
 with others, held that a subsequent promise to him was 
 within the statute of frauds. The case will be cited more 
 at length hereafter, in connection with another principle 
 Involved therein. (7i) 
 
 (gr) There is a dictum in Brice v. King, 1 Head, 152 (A. D. 1858), favoring 
 the broad rule, that at common law the person to be benefited by a contract 
 may sue for its breach. 
 
 (A) Chapter fifteenth, article second.
 
 CHAPTER THIRTEENTH. 
 
 THE SAME SUBJECT CONTINUED — THE KULE WITH EESPECT 
 TO CONTRACTS OF INDEMNITY, AGAINST LIABILITIES 
 THEREAFTER TO BE INCURRED BY THE PROMISEE. 
 
 § 427. It is frequently said, in general terms, that one 
 of the questions arising under the statute of frauds, which 
 are yet unsettled by the authorities, is whether contracts 
 of indemnity are within its provisions ; but the promises 
 involved in most of the cases considered in the eleventh 
 chapter, were contracts of indemnity, in the broadest sense 
 of the term. They differ from those which are now to be 
 examined in nothing, except that the question there pre- 
 sented arose upon a promise to assume a liability already 
 resting upon the promisee, which for that reason required 
 a new and distinct consideration, in order to be valid at 
 common law. In those which will form the subject of this 
 chapter, the promise was to indemnify the promisee against 
 a liability thereafter to be incurred by him ; and it conse- 
 quently required no consideration to sustain it at common 
 law, beyond the incurring of the liability, pursuant to the 
 request of the promisor. They are divided into two 
 classes, namely, those where the liability, against which 
 the promisee was indemnified, was to be incurred by him 
 without the intervention of any third person, who could be 
 said to be primarily liable ; and those where it was to be 
 incurred by him, at the request of the promisor, but as 
 security for the fulfilmeUt of a third person' s engagement 
 to a fourth person. The "authorities seem to agree that in 
 the first class the promise is not within the statute ; but we 
 shall find that with respect to the second, there is great 
 diversity of opinion.
 
 Art. I.] Collateral U^"DERTAKINGS. 453 
 
 ARTICLE I. 
 
 Where the promise vu to indemmfy the promisee against a liability to be Incorred by him alone 
 without the intervention of any third person, 
 
 § 428. With respect to this kind of indemnity, there is 
 little difficulty in ascertaining and applying the correct 
 rule. Promises of this character come directly within the 
 terms of the rule, sustaining verbal engagements made to 
 the debtor himself; there being no question, such as arises 
 in those belonging to the other class, whether the exist- 
 ence of a primary liability of another, for the payment of 
 the same debt or the fulfilment of the same duty, will not 
 render the engagement collateral. And accordingly we 
 find that the few decisions, which cast a doubt upon the 
 validity of siich contracts, are contained in the overruled 
 cases, which deny the existence of the fifth rule ; .or were 
 evidently made through inadvertence, (a) 
 
 § 429. In Howes v. Martin, 1 Espinasse, 162, tried at 
 nisi prius, A. D. 1794, such an engagement was held not 
 to be within the statute, although the court failed to assign 
 the reason therefor which is now regarded as the correct 
 one. There the declaration was for money laid out and 
 expended to the defendant' s use, with the common counts ; 
 and at the trial it appeared that the plaintiff had accejoted 
 a certain bill for the accommodation of the defendant ; and 
 an action having been brought against her upon the 
 acceptance, she informed the defendant of the fact, and 
 at his request defended the action, but was defeated ; and 
 this action was brought to recover the amount of the 
 verdict against her, and the costs. The defendant's coun- 
 sel objected that the action could not be maintained, as 
 there was no note in writing ; but Lord Kenyon overruled 
 
 (a) One of the reasons assigned by the court for the decision in "Wells v. 
 Mann, 52 Barbour (N. T.), 263, A. D. 18G7, was that a promise by the 
 defendant to the plaiiitiOf to indemnify him njrainst nn action to be com- 
 menced by another person, was witiiin the statute; but this was said inci- 
 dentally, and, it is believed, inadvertently.
 
 454 COLLATEKAL UNDERTAKINGS. [Cll. XIII. 
 
 the objection, and held that the case was not within the 
 statute, because the plaintiff had no consideration for the 
 acceptance, and the defence to the action was on the 
 defendant's account and for his benefit; that as he was 
 interested, and directed the defence to be made, whereby 
 he might have been benefited, the money must be con- 
 sidered as having been laid out by the plaintifi' to his use 
 and upon his account. 
 
 § 430. But in Winckworth v. Mills, 2 Espinasse, 484, 
 A. D. 1796, the question was squarely presented, and 
 decided erroneously, according to the modern author- 
 ities. There one Sharp had made a promissory note to 
 the order of Taylor and Son, payable at their house, which 
 had been indorsed by Taylor and Son to the defendant, 
 and by him to another person, who had indorsed it to the 
 plaintiff. When it became due, the plaintiff' s clerk called 
 at the house of Taylor and Son for payment, but by mis- 
 take left the note behind, and on his returning, and 
 demanding it, they denied having it, and it was lost ; 
 thereupon the plaintiff immediately informed the defend- 
 ant of the facts, who furnished the plaintiff with a copy of 
 the note, and promised to indemnify him, if he would 
 endeavor to recover the amount of it from Taylor and 
 Son, or the maker. The plaintiff succeeded in collecting 
 one-half of the amount, and now brought an action to 
 recover the expenses, adding a count against the defend- 
 ant as indorser of the note. At the trial, there being no 
 writing showing the promise. Lord Kenyon ruled that the 
 plaintiff could recover only the unpaid part of the note, 
 and a verdict was taken for that amount. The report 
 adds that his Lordship offered to save the point ; but the 
 plaintiff's counsel declined it, and the verdict was "ac- 
 quiesced in." 
 
 § 431. But in Adams v. Dansey, 6 Bingham, 506, and 
 4 Moore and Payne, 245, decided A. D. 1830, the Court of 
 Common Pleas anticipated the decision of the King's 
 Bench in Eastwood v. Kenyon, 11 Adolphus and Ellis,
 
 Art. I.] Collateral Undertakings. 460 
 
 438, by holding that a similar promise was not within the 
 statute, for the reason that it was made to the person who 
 was to incur the liability ; and further that, under the cir- 
 cumstances of the case, the promise was also valid, with 
 respect to a liability which had been previously incurred. 
 There the plaintiff, as the occupant of lands in a certain 
 parish, had been sued by the vicar for tithes ; and the 
 landowners of the parish, relying on a modus, resolved 
 that they would contribute pro rata to the defence of the 
 suit ; but the plaintiff refused to defend, as he had quitted 
 the parish ; whereupon the defendant, who was a land- 
 owner of the parish, orally promised to indemnify him. 
 The plaintiff, relying upon this promise, defended the suit 
 accordingly ; and now brought this action to recover the 
 costs adjudged against him therein, part of which had 
 been incurred before the defendant's promise was made. 
 There was a verdict for. the plaintiff, and the defendant 
 obtained a rule nisi to set aside the verdict, or to reduce 
 the damages to the amount of costs incurred subsequently 
 to the promise, which, after argument, was discharged. 
 
 §432. Tindal, C. J., said: "Here, as between Adams 
 and Dansey, what promise is there as to the debt, default 
 or miscarriage pf another ? It is a direct promise to repay 
 Adams any money which might be paid by him, for costs 
 in the suit between the vicar and Adams." .As to the 
 costs previously incurred, he said that it was competent 
 for the plaintiff to make any bargain he pleased, as the 
 price of resisting the tithes suit for the defendant's benefit. 
 Gaselee, J., said, "It is a liability to which the plaintiff 
 himself was to be exposed at the request of the defend- 
 ant," and as to the bygone costs the vicar s claim had 
 been resisted at the instance of the defendant, and the 
 plaintiff was then liable for them. Bosanquet, J. , said that 
 the plaintiff " was at liberty to impose such terms as he 
 pleased, either as to the past or the future costs, and the 
 debt, for the discharge of which he stipulated, was his 
 own debt, not that of a third person."
 
 466 Collateral Undeuta kijs^gs. [Cb. xiii, 
 
 § 433. The same decision was made A. D. 1800, by the 
 New York Supreme Court in Allaire v. Ouland, 2 John- 
 son' s Cases, 52. There the defendant had directed the 
 plaintiff, who was his hired servant, to enter a meadow, 
 which the plaintiff said belonged to him, but which 
 was in fact the property of another, and promised to 
 indemnify him for so doing ; and the plaintiff, having 
 done so, was sued for the trespass, and a judgment recov- 
 ered against him ; whereupon he brought this action upon 
 the defendant' s promise. In the court below a motion for 
 a nonsuit was overruled; and the plaintiff having had a 
 verdict and judgment, a writ of error was brought from 
 the judgment to the Supreme Court, seven errors having 
 been assigned by the defendant, of which the second was 
 that the promise of indemnity should have been in writing, 
 it being for the default of another. The judgment below 
 was affirmed, the second error assigned being disposed of 
 in the prevailing opinion, delivered by Radcliff, J., as fol- 
 lows : " The promise was not to indemnify for the default 
 of another ; but was made to the plaintiff himself, for an 
 act to be done by him as the servant of the defendant 
 below. It was an original undertaking, and not a collat- 
 eral promise." 
 
 § 434. So in Marcy v. Craioford, 16 Connecticut, 649, 
 A. D. 1844, it appeared at the trial in the court below, that 
 the defendant had entered into a verbal agreement with 
 the plaintiff, that if one S. P. C. should enter upon certain 
 lands, and fish in a certain mill pond, and should be prose- 
 cuted therefor by J. C, who had forbidden such entry 
 and fishing, he (the defendant) would pay the plaintiff 
 one half the amount which J. C. should recover, and one 
 half the expenses of defending the suit ; and the plaintiff 
 had made a corresponding contract with the defendant, in 
 case the latter should in like manner enter and fish. The 
 defendant insisted, with other objections to the recovery, that 
 the promise was within the statute ; but under the ruling of 
 the court, the plaintiff had a verdict and judgment, which 
 was affirmed on error. Hinman, J., delivering the opin-
 
 Art. I.] Collateral Undertakings. 457 
 
 ion of the court, said, upon this point, that the promise 
 was original. "It could not be," he continued, "for 
 the debt of S. P. C. ; for he owed none. It was not for his 
 default ; but was rather a promise of indemnity, to a certain 
 extent, for doing a particular act, like the promise of 
 indemnity to an officer taking property, which it may be 
 doubted whether the creditor can hold." 
 
 § 435. So in Feck v. F. W. Tliompson and C. Thomp- 
 son, 15 Vermont, 637, A. D. 1843, the defendant F. W. 
 Thompson had given the plaintiff a verbal order on one 
 Campbell, to pay the plaintiff $88, upon a settlement of a 
 debt which he owed to the plaintiff; but Campbell refused 
 to pay the money without a written order, unless the 
 plaintiff would give his individual receipt for the money, 
 to be accounted for to Campbell on demand ; which the 
 plaintiff gave accordingly ; subsequently Campbell threat- 
 ened to sue the plaintiff on his receipt, and the latter noti- 
 fied the defendant F. W. Thompson of this threat ; and he 
 and his father, the defendant Charles Thompson, both 
 promised the plaintiff, that if he would defend the suit, 
 they would save him harmless from all damages and costs. 
 The plaintiff" thereupon defended the suit, which resulted 
 in a judgment against him ; and he then brought this 
 action on the defendants' promise. It was objected that 
 the promise was void against Charles Tliompson ; but the 
 plaintiff had a verdict, and the judgment thereon was 
 affirmed. The court held that the promise was not within 
 the statute, on the ground that the agreement did not 
 immediately relate to any debt which F. W. Thompson 
 owed to the plaintiff ; but to a disputed claim against the 
 plaintiff asserted by Campbell, who was a stranger to the 
 consideration and to the agreement ; both of which origin- 
 ated entirely between the present parties, 
 
 § 436. The same rule was followed, with but little variety 
 
 •as to the facts, in Goodspeed v. F idler, 46 Maine, 141, 
 
 A. D. 1858 ; Flemm v. WJiUmore, 23 Missouri, 430, A. D. 
 
 1856, and Dorwin v. Smith, 35 Vermont, 69, A. D. 1862. 
 
 58
 
 458 Collateral Undertakin-qs. [Ch. xiii. 
 
 In Stark v. Raney, 18 California, 622, A. D. 1861, it was 
 held that a verbal promise, by the plaintiff in an execu- 
 tion, to indemnify a sheriff for seizing property claimed 
 by another, was not within the statute ; and in Tarr v. 
 NortJiey, 17 Maine, 113, A. D. 1840, a similar promise by 
 a stranger was sustained, although the plaintiff in the 
 execution also joined in the request to the officer ; it 
 appearing that the latter was not satisfied with the plaint- 
 iff 's ability to indemnify him, and refused to levy upon 
 the property without the defendant's promise of in- 
 demnity. 
 
 § 437. But a promise of indemnity cannot be made the 
 medium of saving from the operation of the statute, an 
 engagement of the promisor to respond for an existing lia- 
 bility of a third person to the promisee ; as where the 
 promisee has a demand against a third person, and the 
 promisor engages to pay the same, as distinguished 
 from the expenses of the litigation ; in case the promisee 
 shall fail in an attempt to recover the amount from a 
 fourth person. This was held, and very properly, in Tur- 
 ner V. Hiihhell, 2 Day (Connecticut), 457, decided A. D. 
 1807. There the declaration alleged, in substance, that 
 the defendant's son had received on board a vessel at 
 Newbern, of which he was commander, certain merchan- 
 dise of the plaintiff to be transported to New York, and 
 that he had sold and converted it to his own use ; that on 
 the plaintiff proposing to institute a suit against the son, 
 the defendant requested him to forbear doing so, and to 
 sue one Selby therefor, who, as the defendant alleged, was 
 equally concerned in the conversion of the goods, and had 
 received the proceeds ; and in consideration that he would 
 do so, promised that he would pay the damages so sus- 
 tained by the plaintiff, in case he should fail in the suit 
 against Selby, or be unable to collect a judgmejit against 
 him ; and that the plaintiff accordingly sued Selby, but 
 was defeated. At the trial the plaintiff offered to prove 
 a verbal promise as laid in the declaration, which was 
 ruled out, as being within the statute of frauds j and a
 
 Art. II.] Collateral Undertakings. 459 
 
 verdict having been rendered for the defendant, the 
 plaintiff brought error on the judgment. In the Supreme 
 Court of Errors the judgment was unanimously affirmed, 
 no opinion having been delivered. 
 
 ARTICLE 11. 
 
 Where the promise was to indemnify the promisee against a liability to be incurred by him, at 
 the request of the promisor only) but as security for the fulfilment of a third person's 
 engagement to a fourth. 
 
 § 438. Where one person becomes a surety for another, 
 at the latter' s request, and for his benefit, the request 
 necessarily implies a promise of indemnity ; and if another 
 person unites with the first in the request, and makes an 
 express promise to indemnify the surety, his promise 
 must necessarily be within the statute, as being collateral 
 to the implied promise of the principal. Of course the 
 case is still stronger, if the principal has also made an 
 express promise. But it frequently happens that he who 
 is primarily bound in an undertaking, for his fulfilment 
 whereof another person has also become liable, was not a 
 party to the transaction wherein the latter was induced to 
 assume the liability ; but that such consent was given 
 solely upon the faith of an express promise of a stranger 
 to the undertaking, that he would indemnify the surety. 
 Whether a verbal promise of the indemnitor is, in such a 
 case, within the statute, is a question upon which the 
 authorities are very confused and discordant. On the 
 one hand it is argued, that as it is the duty of every prin- 
 cipal to protect his surety against loss, the promisor's 
 contract is by its terms to answer for the default or mis- 
 carriage of another. And again it is said that inasmuch 
 as the law always implies an undertaking, on the part of 
 every principal, to indemnify his surety, the engagement 
 of another to indemnify him also is necessarily concurrent 
 with, and collateral to an engagement of the person 
 primarily bound upon the undertaking ; which the law 
 implies, if no express engagement to that effect has been 
 made.
 
 460 Collateral Undertakings. [Ch. xiii. 
 
 § 439. On the other hand it is insisted, that in the absence 
 of any request on the part of the third person to the 
 promisee, that the latter would enter into the undertaking 
 for his benefit, he is to be regarded as simply assenting to 
 the transaction, not as entering into any engagement with 
 respect thereto ; so that in case the promisee shall be there- 
 after called upon to make good his undertaking, the third 
 person's liability to him does not grow out of any implied 
 promise, made at the time when the principal contract 
 was entered into ; but out of the actual payment by him 
 of the damages which he has become liable to pay. Such 
 payment, it is conceded, raises an implied assumpsit, 
 upon which the surety is entitled to recover ; but it is 
 contended that the principal' s liability to an action flows 
 from a fact, existing subsequent in time to the engagement 
 of the promisor ; so that such engagement is not within 
 the statute, upon the principle that a contingency arising 
 after the promise was made, will not suffice to draw it 
 within the statute, if it was not so at the time when it was 
 entered into, (a) With respect to the suggestion that the 
 engagement is to respond for the miscarriage or default 
 of the third person, it is further said that the default, 
 against which the promisee is indemnified, is not a default 
 in a duty to him, but to the fourth person ; and therefore 
 the promise is good without writing, within the rule which 
 excludes from the operation of the statute, promises not 
 made to the person entitled to enforce the liability assumed 
 by the promisor. 
 
 § 440. This contradiction in the cases upon this import' 
 ant question, had its origin in England, where the courts 
 have vacillated between the two lines of argument, thereby 
 causing a corresponding vacillation in the decisions in the 
 United States ; as will be apparent by a comparison of 
 dates between the English and American cases. In 
 Thomas v. Cook^ 8 Barnewall and Cresswell, 728, decided 
 
 (a) Section 152.
 
 Art, II.] Collateral Undertakings. 461 
 
 A. D. 1828, (^) the Court of King's Bench sustained, as not 
 being within the statute, a promise made by one of two 
 persons about to become sureties for a third, that he 
 would indemnify his fellow surety against loss. There 
 the first three counts of the declaration, wliich were in 
 substance the same, stated that one Cook, since deceased, 
 had been in partnership with one Morris ; and upon dis- 
 solving the firm it was agreed between them, that Cook 
 should indemnify Morris against the debts of the firm, by 
 a bond executed by himself and two other persons ; and 
 in consideration that the plaintiff, at the defendant's 
 request, would execute such a bond with the defendant 
 and Cook, the defendant undertook to indemnify him 
 against so doing ; concluding with averments of a breach, 
 damages, etc. The fourth count of the declaration stated, 
 that in consideration that the defendant, and Cook, with 
 the plaintiff as Cook' s surety, would together draw a bill 
 of exchange upon certain other persons, and indorse and 
 deliver it to Morris, to be negotiated for his own use, the 
 defendant likewise undertook to indemnify him ; averring 
 also a breach and damages. The declaration also con- 
 tained the general counts. At the trial the plaintiff proved 
 the execution of the bond and of the bill at the defendant' s 
 request, and a verbal promise of indemnity by the defend- 
 ant ; and also various payments by the plaintiff on account 
 of the debts and the bill of exchange, the amount of wliich 
 was reduced by moneys received from the estate of Cook 
 to 300^, / and the defendant objecting that the promise 
 was within the statute, and that he was liable only for con- 
 tribution as a co-surety, the plaintiff had a verdict for 'SOOl. 
 with leave to the defendant to move to reduce it to 150Z. 
 
 § 441. A rule nisi was accordingly obtained, which after 
 argument was discharged, Bayley, J., saying: "Here the 
 
 (h) S. C, 3 Manninf;^ .ind Ryland, 444. This report states tlint Littledale, 
 J., concurred in the decision ; but tlie report in 8 B.irnewail and Crcsswell 
 states that he was absent. Lord Denman, in the next case, assumed that 
 this judgment was pronounced by two judges only.
 
 462 Collateral Undertakings. [Ch. xiii. 
 
 bond was given to Morris as the creditor ; but the promise 
 in question was not made to him. A promise to him 
 would have been to answer for the default of the debtor. 
 But it being necessary for W. Cook, since deceased, to find 
 sureties, the defendant applied to the plaintifi" to join him 
 In the bond and bill of exchange, and undertook to save 
 him harmless. A promise to indemnify does not, as it 
 appears to me, fall within either the words or the policy 
 of the statute of frauds ; and if so, there was sufficient 
 evidence to entitle the plaintiff to a verdict for 300Z." 
 Parke, J., said : "This was not a promise to answer for 
 the debt, default or miscarriage of another person, but an 
 original contract between these parties, that the plaintiff 
 should be indemnified against the bond. If the plaintiff, 
 at the request of the defendant, had paid money to a third 
 person, a promise to repay it need not have been in writing, 
 and this case is in substance the same. The rule for 
 ceducing the verdict ought therefore to be discharged." 
 
 § 442. But in 1839 the same court, in Green v. Cresswelly 
 10 Adolphus and Ellis, 453, (c) made a decision which was 
 certainly intended to overrule the case of Thomas v. CooJc^ 
 and has generally been regarded as having had that effect. 
 There the declaration stated that John Reay had sued 
 Joseph Hadley by capias, on which Hadley had been 
 arrested ; and in consideration that the plaintiff, at the 
 request of the defendant, would become bail for Hadley 
 upon the capias, the defendant promised to indemnify 
 him ; but Hadley did not put in special bail, whereby, 
 etc. At the trial the plaintiff had a verdict ; but, as the 
 pleadings showed that the promise was verbal, a rule nisi 
 to arrest the judgment was obtained, which the court, after 
 argument, made absolute. Lord Denman, C. J., who 
 delivered the opinion of the court, said: "The promise 
 in effect is, ' If you will become bail for Hadley, and 
 Hadley, by not paying or appearing, forfeits his bail bond, 
 I will save you harmless from all the consequences of your 
 
 (c) S. C, 2 Perry and Davison, 430, and 4 Jurist. 169.
 
 Art. II.] Collateral Undertakings. 463 
 
 becoming bail. If Hadley fails to do what is right towards 
 you, I will do it instead of him.' If there had been no decis- 
 ions on the subject, it would appear impossible to make a 
 reasonable doubt that this is answering for the default 
 of another." 
 
 § 443. His Lordship then referred to Thomas v. Coolc, 
 and added: "But the reasoning in this case does not 
 appear to us satisfactory in support of the doctrine there 
 laid down ; which, taken in its full extent, would repeal 
 the statute. For every promise to become answerable for 
 the debt or default' of another may be shaped as an indem- 
 nity ; but, even in that shape, we cannot see why it may 
 not be within the words of the statute. Within the mis- 
 chief of the statute it most certainly falls." "A distinction," 
 continued his Lordship, "was also hinted at, from the 
 circumstance of Hadley' s debt being due to a third person, 
 and the default therefor incurred towards him, not 
 towards the bail. But here again is the surmise of an 
 intention in the legislature which none of its language 
 bears out ; and besides, may it not be said that the arrested 
 debtor, who obtains his freedom by being bailed, under- 
 takes to his bail to keep them harmless, by paying tlie 
 debt or surrendering? There does not appear any objec- 
 tions to the test laid down in the note to 1 Williams's 
 Saunders, 211 c ; and it is decisive in favor of the ob- 
 jection. The original party remained liable, and tlio 
 defendant incurred no liability except from his promise." 
 
 § 444. In Reader v. King7iam,{d) and in Fitzgerald v. 
 Dressier ^{e) as well as in the two cases which will be next 
 cited, to complete the English decisions upon this point, 
 the soundness of the decision in Oreen v. Cressioell is 
 much questioned ; and it must be regarded, in the present 
 state of the cases, as of very doubtful authority in Eng- 
 land. But in the United States, it has had the effect of 
 unsettling entirely the law upon this question. 
 
 ((f) Ante, §§ 367, 368. 
 (e) Post, §§ 590, 591.
 
 464 Collateral Undertakings. [Ch, xiii. 
 
 § 445. In a recent case in the Exchequer, Batson v. 
 King, 4 Hurlstone and Norman, 739, A. D. 1859, (/) the 
 defendant and one Dalton, desiring, (as was found by the 
 jury,) to raise money for their joint benefit, applied to the 
 plaintiff to draw a bill upon Dalton, to be accepted by 
 him and indorsed by the defendant ; and the plaintiff 
 did so, upon the defendant's agreement that he should not 
 be called upon to pay ; but when the bill became due 
 the plaintiff was compelled to pay it; whereupon he 
 brought this action for money paid, and had a verdict 
 for the whole amount. Upon an application for a rule 
 to reduce the verdict by one-half, on the ground that 
 the promise was within the statute. Pollock, C. B., said: 
 "If a man says to another, 'If you will, at my request, 
 put your name to a bill of exchange, I will save you harm- 
 less,' that is not within the statute. It is not a responsi- 
 bility for a debt of another. It amounts to a contract by 
 one, that if the other will put himself in a certain situa- 
 tion, the first will indemnify him against the consequences. 
 In Green v. Cressioell, Lord Denman pointed out a dis- 
 tinction between that case, and one where the defendant is a 
 co-surety, (p') I do not think that the case itself was rightly 
 decided." And Martin, B., immediately added: "If the 
 argument for the defendant were well founded it would 
 apply to all cases of joint suretyship." 
 
 § 446. But a rule nisi was nevertheless granted ; and 
 counsel having been heard in support of it, the rule was 
 discharged. The court held that although as between the 
 holder and the parties to the bill, the acceptor was prima- 
 rily liable, yet as between themselves, the real nature of 
 the transaction might be shown ; and it appeared here 
 that in reality Dalton and the defendant were principals, 
 so that the point decided in Green v. Cresswell did not 
 
 (/) S. C, 28 Law Journal, .New Series, Exchequer, 327. 
 
 (</) The learned Chief Baron doubtless referred to a remark of Patterson, J., 
 during the argument, which is also mentioned by Denio, J., in his opinion in 
 Barry v. Ransom, 12 New York, 462, cited post, § 453, 454.
 
 Art. II.] Collateral Undertakings. 465 
 
 arise. "It miglit have been otherwise," said Martin, B., 
 "if Dalton. had been entirely separate from the defendant, 
 and if the plaintiff had become responsible for Dalton, 
 upon the defendant's promise to indemnify him. Dalton 
 and the defendant being both principals, the only answer 
 which the defendant had was by plea in abatement for the 
 nonjoinder of Dalton." The other Barons concurred in 
 this opinion. 
 
 § 447. In the still more recent case of Cripps v. Ilart- 
 noll^ 8 Jurist New Series, 1010, (7^) decided in the year 
 1862 in the Queen' s Bench, a distinction was taken, between 
 a promise to indemnify bail in a civil, and in a criminal 
 cause, which is apparently unknown in this country. 
 There the defendant had requested the plaintiff to become 
 bail for his (the defendant's) daughter, to answer a criminal 
 charge, and had verbally agreed to indemnify him for so 
 doing. The plaintiff entered into a recognizance accord- 
 ingly ; but the daughter did not appear, whereby the 
 recognizance became estreated, and he was compelled to 
 pay the amount thereof, with costs ; he then brought this 
 action upon the defendant's promise of. indemnity. At 
 the trial he was nonsuited upon the objection that the 
 promise was wdthin the statute. A rule nisi was obtained 
 to ent(^r the verdict for the plaintiff; and after argument tlie 
 court discharged the rule, stating that they were bound 
 by the case of Green v. Cresswell, and it made no sub- 
 stantial difference whether the bail was in a civil or a 
 criminal case ; although in delivering their opinion, (per 
 Crompton, J.,) they intimated a doubt whether that case 
 could be sustained on the merits, and that a court of error 
 might possibly come to a different conclusion. 
 
 § 448. Accordingly an appeal was taken by the plaintiff 
 to the Exchequer Chamber, which was decided in 1863, 
 
 (/j) S. C, 31 Law Journal, X. S., (Q. B.) 150; 2 Bost and Smith, G97; 
 and 6 Law Times (N. S.), C05. 
 
 59
 
 466 COLLATEEAL Un'DERTAKIIS'GS. [Ch. XIII> 
 
 and is reported in 10 Jurist, ISTew Series, 200. (z) There 
 the judgment of the court below was reversed, unani- 
 mously. Pollock, C. B., delivering the opinion, and 
 resting the decision upon a distinction between bail in a 
 civil and in a criminal case. He said that in the latter 
 case there is no contract on the part of the person bailed, 
 to indemnify the person who bailed him against his non- 
 appearance. " There is in this case," he continued, "no 
 debt, and with respect to the person who gives bail, there 
 is hardly a duty ; and it may well be, that a promise to 
 indemnify the bail in a criminal matter should be con- 
 sidered purely as an indemnity, and not as the case of a 
 promise to answer for the default or debt of another. It 
 has been laid down in many cases that a mere promise of 
 indemnity is not within the statute of frauds. On the 
 other hand, where the promise is to answer for the default 
 of another, it is within the statute. No doubt some cases 
 might be put, where the promise to answer for the default 
 or debt of another, would also involve a promise of what 
 might be called very properly and legally an indemnity. 
 Where that is the case, (as it is not here,) in all probability 
 it might come within the statute of frauds. We are not 
 called upon to overrule Green v. Cresswell, nor are we 
 called upon to say that we entirely concur in it ; but we 
 take this distinction, that in the present case the bail was 
 given for the appearance of the criminal, and not bail for 
 the purpose of answering a debt or default in a civil 
 case." In the Jurist report it is merely stated that the 
 other judges concurred ; but the other reports include 
 also an opinion of Williams, J. , In which he said that he 
 did not " think it at all necessary to say whether that case 
 is good law or not ; " but, "whether or no in a case where 
 the plaintiff becomes bail for a stranger in a civil suit, there 
 is a duty, as between the defendant in the action and the 
 surety, that he will render or pay the debt, so as to recon- 
 cile the case of Oreen v. Cresswell with the ordinary rule, 
 
 (i) Also 32 Law Journal, N. S., (Q. B.) 381; 11 Weekly Reporter, 953 j 
 8 Law Times, N. S., 765.
 
 Art. II.] Collateral Undertakings. 467 
 
 that the statute applies only to promises made to a person 
 for whom another is answerable," he thought that there 
 was no debt or duty due from the party in a criminal 
 
 suit.(,/) 
 
 ^ 449. In New York the question arose as early as 1813 
 in HarrUon v. Saiotel, 10 Johnson, 242. There it ap- 
 peared that Sawtel, the plaintiff in the court below, was 
 bail to the sheriff in a suit against one Foot ; and that at 
 
 (y) The question whether a contract on the part of the accused to indem- 
 nify his bail in a criminal case will be implied, has not, to our knowledge, 
 been raised in this country. In Jones v. Orcliard, 16 Common Bench 
 Reports, 614, 1 Jurist, N. S., 936, aiid24 Law Journal, N.S., C. P., 229, decided 
 in 1855, the defendant had been indicted in the Central Ciiminal Court for a 
 conspiracy, and the indictment had been removed to the court of Queen's 
 Bench; where the plaintiff, at the defendant's request, entered into a recog- 
 nizance with the defendant for his appearance, etc. The defendant was con- 
 victed in his absence, and the recognizance estreated for nonpayment of the 
 prosecutor's costs ; the bail being expressly made liable for such costs by 
 statute, although nothing was said about them in the recognizance. This action 
 was brought upon the implied contract of indemnit}'^, and after verdict, it was 
 held that the action could be maintained. Jarvis, C. J., delivering the opin- 
 ion of the court, intimated very strongly that the law would not imply a 
 contract, on the part of the principal, to indemnify the bail against the con- 
 sequences of the recognizance becoming estreated for the nonappearance of 
 the principal ; because an express contract to that effect would be contrary 
 to public policy ; inasmuch as it would be in effect giving the public the 
 security of one person only instead of two. But as in this case the recog- 
 nizance was estreated only for nonpayment of costs, the law would imply a 
 promise of indemnity to that extent. The rule, of which the court apparently 
 approved in this case,. and which was laid down positively in Cripps v. Hart- 
 noil, would bear very hardly upon an innocent person accused of crime, who, 
 although possessed of means, was a stranger in the country where he was 
 arrested, or for some other reason had no friends who were both willing and 
 qualified to become bail ; and the idea that public policy requires it-s estab- 
 lishment appears to us very fanciful. In the absence cf direct authority in 
 its support, we risk little in saying that it will not be adopted in this country. 
 See Holmes v. Knights, 10 New Hampshire, 175, and Kingsley v. Balcom, 
 4 Barbour,131, cited post, in each of which the question arose upon an indem- 
 nity to bail in a criminal proceeding, and no suggestion was made that the 
 rule was different from what it would be in a civil case. Of course we do 
 not refer to a case, where the bail had been indemnified for the purpose of 
 procuring their assent to the prisoner's escape.
 
 468 COLLATEKAL UnDEETAKHSTGS. [Cll. XIII. 
 
 tlie request of Harrison, "who held himself bound to 
 indemnify Foot in that action" (but how, or for what rea- 
 son the report does not state), Sawtel became special 
 bail, and Harrison promised to indemnify him. A judg- 
 ment for the plaintiff was affirmed in the Supreme Court ; 
 the following being all of the opinion material to the ques- 
 tion. ' ' Per curiam. Tliis was not a promise to pay the 
 debt, or answer for the default of another person. It was 
 an original promise between the parties to it, that one of 
 them would indemnify the other, if he would become 
 special bail for a third person, whom the defendant was 
 bound to protect and save harmless in the suit. It was 
 done at the request and for the benefit of the defendant, 
 as it saved him from becoming bail himself, or procuring 
 some other person to become bail. The case had nothing 
 to do with the statute of frauds ; and there was a consid- 
 eration for the promise, the advantage resulting to the 
 defendant from the plaintiff ' s becoming bail. The defend- 
 ant being answerable for the party sued, the becoming 
 bail for the party, at the request of the defendant, was as 
 beneficial as if the plaintiff had become bail for the defend- 
 ant himself. "(A:) 
 
 § 450. But a ruling unquestionably in point was made 
 by the New York Supreme Court, in Chapin v. Merrill, 
 4 WendeU, 657, A. D. 1830. There the plaintiff, at the 
 request of the defendant and upon his promise to indem- 
 nify him, had joined one Ransom in an agreement under 
 seal, to guaranty the payment of goods to be supplied by 
 Hickok and Hart, a mercantile firm, to Ransom's son. 
 Upon the trial of the action, the plaintiff had a verdict 
 
 Qc) It seems to have been assumed in most of the subsequent cases, that 
 the defendant's liability to Foot was the distinguishing feature, upon which 
 the court thought that the promise was not within the statute. But, as we 
 read this opinion, the stress seems to be laid upon that fact, principally, if not 
 entirely, to show that there was a sufficient consideration for the promise. 
 Upon this question there was room for considerable doubt, as the plaintiflf 
 was already bail to the sheriff, (and so bound to put in special bail,) at the 
 time when the defendant's promise was made.
 
 Art. II.] Collateral Undertakings. 469 
 
 under the judge's charge, which the defendant moved to 
 set aside. The motion was denied, Marcy, J., saying upon 
 this point: "This is ch^arly an original undertaking; it 
 was not made with the party buying or selling the goods. 
 The goods sold by Hickok & Hart to Ransom were not 
 the consideration for the promise." He held also that 
 the consideration was the harm to the plaintiff, and that 
 it was sufficient to sustain the promise, although tlie 
 defendant received no benefit from the transaction. The 
 case of Thomas v. CooJc, although decided two years pre- 
 viously, is not cited ; and, what is more remarkable, there 
 is no allusion iuQ the opinion to Harrison v. Sawtel. 
 
 § 451. This case was doubted by Cowen, J., in Carnille 
 V. Crane, 5 Hill, 484,(?) which did not, however, call for 
 any expression of opinion upon the point ; but in 1848 it 
 was overruled by the present Supreme Court of New 
 York in Ktngsley v. Balcome, 4 Barbour, 131. The decis- 
 ion rested chiefly upon the authority of Green v. Cress- 
 well, which, as was mentioned in commenting upon that 
 case, has since been very much shaken in England ; and 
 in truth it is now settled there, that the decision does not 
 cover the precise point adjudged in Kingsley v. Bal 
 come, {m) In the latter case it appeared that the plaintiff 
 had entered into a recognizance for the appearance of one 
 McMillen, to answer to a charge of perjury, at the request 
 of the defendant and upon his promise of indemnity ; but 
 whether McMillen also joined in the request is not stated. 
 McMillen having failed to appear, the plaintiff" had been 
 compelled to pay the full penalty of the recognizance. To 
 a declaration setting forth these facts, the defendant 
 pleaded that the promise was not in writing, and the 
 plaintiff demurred to the plea. 
 
 § 452. Sill, J., delivered the opinion of the court, over- 
 ruling the demurrer. After citing the statute, he said that 
 
 (/) Cited ante, §§ 209, 210. 
 
 (m) Cripps v. Hartnoll, ante, §§ 447, 448.
 
 470 Collateral Undertakings. [Ch. xiii. 
 
 "to the plain common sense of every mind, the promise of 
 the defendant would be deemed a promise to answer for 
 the default of McMillen, and to indemnify the plaintiff for 
 his miscarriage ; ' ' but he added that it was necessary to 
 look at the decisions, for the meaning of this otherwise 
 plain provision of the statute. After mentioning and 
 commenting upon Harrison v. 8awtel, and such Massa- 
 chusetts cases as had been decided up to that time, all of 
 which he either distinguished from the case at bar, or con- 
 demned as unsound, the learned judge recapitulated the 
 facts of Chajnn v. Merrill, and contended that it was 
 erroneously decided ; because when the younger Ransom 
 availed himself of the arrangement, which had been made 
 by Merrill with Chapin for his benefit, and used the credit 
 of Chapin, ' ' he adopted and sanctioned what Merrill had 
 done for him, and created the relation of principal and 
 surety between himself and Chapin," so that the law im- 
 plied a promise on his part to indemnify Chapin. It was 
 no answer, the learned judge thought, to say that Cha- 
 pin' s covenant was to another mercantile firm ; for Ransom 
 junior had assumed two distinct obligations ; one to the 
 vendor of the goods, and another to Chapin. Merrill' s 
 promise was not collateral to the first, but it was clearly 
 so to the second. "The case," the learned judge said, 
 " stands unsupported by any decision in our courts. It 
 has not been relied upon or cited as authority for any 
 subsequent adjudication, or received the sanction of any 
 of our courts or judges." (?i) The opinion then referred 
 to Green v. Cresswell, the facts in which, the learned 
 judge thought, "are precisely like those in the case 
 before us, exicept that the plaintiff was bail in a civil case 
 instead of a criminal one." And he adopted that case as 
 authority for his conclusion that the plea was good. 
 
 § 453. The case of Barry v. Ransom, 12 New York (2 
 Kernan), 462, decided in 1855, takes a distinction, which 
 
 {n) If this remark was intended to include courts in other States, it was 
 erroneous, as the subsequent pages will show.
 
 ^rt. II. J Collateral Undertakings. 471 
 
 reconciles the conflicting decisions in one species of cases, 
 presenting this perplexing question. In brief, the ques- 
 tion before the Court of Appeals was, whether the admin- 
 istratrix of Felix O'Neil, a surety in a tax collector's 
 bond, who had paid the amount of a defalcation of the 
 collector, was entitled to compel contribution from one 
 McGloin, who had also become a surety in the bond, but 
 at the request of O'Neil, and upon the latter' s promise to 
 indemnify him. In the court below, a referee reported 
 that McGrloin was not bound to contribute any thing. 
 The report was confirmed and a decree made, by which 
 the estate of O'Neil was ultimately left to bear the whole 
 of the liability arising upon the bond. The administratrix 
 of O'Neil appealed to the Court of Appeals, where the 
 judgment of the court below was afiirmed. Denio, J., 
 delivering the opinion of the court, upon the question 
 whether the undertaking should have been in writing to 
 satisfy the statute of frauds, said that if the case was to be 
 considered, irrespective of the circumstance that O'Neil 
 was also a surety in the bond, there were adjudications on 
 both sides of the question. 
 
 § 454. Citing the diff'erent adjudications upon the point 
 up to that time, the learned judge added, that those where 
 the promisor was himself bound for the third person' s 
 default, are uniform, in holding that the contract is not 
 affected by the statute. Such was the case of Thomas v. 
 Cook, which is overruled by the subsequent case of Green 
 V. Cresswell, unless the distinction to which he had 
 adverted is material ; but in the latter case the promisor 
 was not a party to the instrument. This difference between 
 the cases was suggested by counsel, upon the argument of 
 Green v. Cresswell, and apparently made a favorable 
 impression upon one of the judges ; but in the opinion 
 the court proceeded upon a disapproval of the ruling in 
 Thomas v. Cook. In the case at bar, the Icai-ned Judge 
 added, 0' Neil's engagement to answer for the default of 
 the collector was in writing, and he was under no greater 
 obligation to respond to the corporation therefor, in con-
 
 472 Collateral Undertakings. [Cli. xiii. 
 
 sequence of his promise to McGloin, than if lie had not 
 made the latter. Lord Denman's objection to holding the 
 promise good in Green v. Cresswell, was that the statute 
 might be evaded. "This reason," said the learned judge, 
 " certainly does not apply where the indemnitor is other- 
 wise bound in writing, for the party whose default is to be 
 provided against. I am of opinion that where a person 
 is about to become bound by writing to answer for the 
 default of a third party, and he procures another to be 
 bound with him in the same obligation, by promising to 
 indemnify him, that this is an original promise and not 
 within this branch of the statute of frauds." 
 
 § 455. In the course of his opinion in MaMory v. Gillett, 
 21 New York, 412, Comstock, J., classed this species of 
 promises among those which were without the statute, (o) 
 but the remark was obiter, and in the subsequent case of 
 Baker v. Dillmann, 12 Abbott's Practice Reports, 313, 
 and 21 Howard's Practice Reports, 444 (A. D. 1861), the 
 New York Supreme Court refused to recognize this die • 
 tum, and again followed the rule laid down in Kmgsley 
 V. Balcome. The plaintiff sued as assignee of one Schurig, 
 to recover a sum paid by Schurig, upon his guaranty 
 given to Sarah Case, to secure the payment of rent 
 reserved in a lease from her to the Brooklyn Turn Verein, 
 an unincorporated association, of which he and the defend- 
 ants were members. It was proved that after Schurig had 
 ceased to be a member of the association, and before the 
 rent for which he was subsequently sued had become 
 payable, the defendants signed "a declaration," which 
 the court regarded as a contract to indemnify him, not 
 expressing the consideration. Emott, J., delivering the 
 opinion of the court, held that Chapin v. Merrill was 
 overruled by Kingsley v. Balcome; and he referred to 
 Green v. Cresswell as an authority to show that a promise 
 to indemnify, in such a case as this, was within the statute. 
 He added that he thought that upon principle the result 
 
 (o) See ante, § 64.
 
 Art. II.] Collateral Undertakings. 473 
 
 would be the same. Judpjment upon the exceptions taken 
 at the trial, was accordingly ordered for the defendant ; 
 but the learned judge; also assigned, as a reason for liis 
 decision, that there was no consideration in fact for the 
 contract ; and he intimated that if the plaintiff had any 
 remedy, it was by an action for contribution. Under 
 these decisions all that can be said is, that the rule in New 
 York awaits a settlement by the court of last resort ; except 
 in cases where the promisor and promisee wc^e parties to 
 the instrument, which formed the subject of the promise. 
 
 § 456. In Perley v. Spring^ 12 Massachusetts, 297, de- 
 cided in 181/5, and again in ChaphiY. Laphaniy 87 Massa- 
 chusetts (20 Pickering), 467, decided in 1838, both of which 
 are cited previously upon other points, (;:>) a promise to 
 indemnify the plaintiff, for becoming surety for a third 
 person to a fourth person was held not to be within the 
 statute ; but in each case other reasons are principally 
 relied upon for the decision. And although in Blake v. 
 Cole, 39 Massachusetts (22 Pickering), 97, A. D. 1839, the 
 point was presented directly for adjudication, and the 
 court distinctly determined it in favor of the plaintiff ; the 
 authority of the case upon this point has been sometimes 
 doubted ; partly because so much stress was laid in the 
 opinion upon the objection that the promise was not to 
 be fullilled within a year ; and partly on account of the 
 peculiar reason assigned by the court for the ruling upon 
 this clause of the statute. The plaintiff's intestate and 
 the defendant had become sureties for one Hatch, the son' 
 of the plaintiff's intestate, on a probate bond given by 
 him as administrator of a deceased person ; and the 
 plaintiff, having been compelled to pay a sum for Hatch's 
 default, sued for contribution. The defence was that the 
 defendant executed the bond, at the request of the plaint- 
 iff' s intestate, and upon the latter' s promise to indemnify 
 him. It appeared at the trial that the defendant had been 
 applied to by Hatch junior to execute the bond, and liad 
 
 (i?) ALt*s^§171, 264. 
 60
 
 474 Collateral Undertakings. [Cli. xiii. 
 
 refused to do so ; whereupon the intestate had said, 
 " Well, if you will not do it for him, do it for me ; I will 
 hold you harmless ; ' ' and the defendant had then answered 
 that he would sign it. A verdict for the defendant having 
 been taken, subject to the opinion of the court, judgment 
 was ordered for the defendant ; on the ground, as far as 
 this point was involved, that the intestate' s relation to the 
 defendant, was rather that of a principal than a co-surety ; 
 and that a surety may take himself by contract out of the 
 liabilty to contribute. (§') 
 
 § 457. But in 1857 all doubts upon this point were con- 
 clusively set at rest, as far as the Massachusetts courts are 
 concerned, by the decision of the Supreme Court of that 
 state in the case of Aldrich v. Ames, 75 Massachusetts 
 (9 Gray), 76. There the case is stated to have been in sub- 
 stance, "that the plaintiff at the request of the defendant, 
 and for a valuable consideration, became bail for John 
 A. Crehore, upon which the defendant promised the 
 plaintiff to indemnify and save him harmless," and 
 the defence was that the promise, not having been in 
 writing, was within the statute of frauds. Shaw, C- J., 
 said: "The court are of opinion that this ground is 
 wholly untenable. This is a promise by the defendant to 
 another to pay his debt ; or, in other words, to save him 
 from the performance of an obligation which might result 
 in a debt. But it is a promise to the debtor to pay his debt, 
 and thereby to relieve him from the payment of it himself, 
 which is not within the statute of frauds. The theory of 
 the statute of frauds is this, that when a third party prom- 
 ises the creditor to pay him a debt due to him from a person 
 named, the effect of such a promise is to become a surety 
 or guarantor only, and shall be manifested by written 
 evidence. The promise in such case is to the creditor, not 
 to the debtor. For instance, if A, a debtor, owes a debt 
 to B, and C promises B, the creditor, to pay it, that is a 
 promise to the creditor to pay the debt of A. But in the 
 
 (2) See also Taylor v. Savage, 12 Massachusetts, 98, to the same effect.
 
 Art. II.] Collateral Undertakings. 476 
 
 same case, should C, on good consideration, promise A, 
 tlie debtor, to pay the debt to B, and indtMunify A from 
 the payment ; altliough one of the results is to pay the 
 debt to B, yet it is not a promise to the creditor to pay 
 the debt of another, but a promise to tlie debtor to pay his 
 debt. This rule appears to us to be well settled as the 
 true construction of the statute, well contirmed by author- 
 ities." So the plaintilF had judgment. 
 
 § 458. The Supreme Court of Maine held, in SmitJt v. 
 Sayward^ 5 Greenleaf, 504 (A. D. 1829), that the defend- 
 ants' promise to indemnify the plaintiff for signing, at their 
 request, a note as surety for one Daniel Smith, was not 
 within the statute ; Daniel Smith not having requested the 
 plaintiff to become his surety, and the note having been 
 given for a purchase of an interest in lands, made by 
 Daniel, as the agent and for the benefit of tlu3 defendants, 
 although the purchase was in Daniel's own name, his 
 agency being secret. But in this case, as in Harrison v. 
 Sawtel, (which was chiefly relied upon as the authority 
 for the ruling of the court), the opinion dwelt so much 
 upon the benefit to be derived by the defendants from the 
 transaction, as to render somewhat obscure the real 
 ground of the decision. The opinion concluded by say- 
 ing that " the promise raised upon that consideration was 
 not, as contended by the defendants' counsel, to pay the 
 debt or answer for the default of another ; but it was to 
 indemnify and save the plaintiff harmless for performing 
 a beneficial service for them, and at their request ; to save 
 him harmless in case he should be compelled, as he has 
 been, to pay their debt contracted by their agent." The 
 case is therefore of but little authority upon either side of 
 the question. 
 
 § 459. In the other States, the ruling lapon this quc^stion 
 has generally depended upon the time when it was first 
 presented for adjudication ; the earlier cases following 
 Thomas v. Cook, and Chapiri v. Merrill ; and the more 
 recent cases following Ghreen v. Cresswell, and Kingsley
 
 476 COLLATEEAL UNDERTAKINGS. [Cll. XIII. 
 
 V. Balcome, wliicli are regarded as having overruled their 
 predecessors. 
 
 § 460. The ablest argument upon principle in support 
 of the doctrine that the promise is not within the statute, 
 which has been made in any case, either in England or 
 America, is to be found in Chief Justice Parker's opinion 
 in Holmes v. Knights, 10 New Hampshire, 175, A. D. 
 1839. There the case was submitted to the court upon a 
 statement of facts, from which it appeared that one 
 Webster was ordered to recognize, with two sureties, for 
 his appearance in a criminal court to answer the charge 
 of passing counterfeit money ; and the plaintiff entered 
 into such recognizance with Webster and one other person, 
 upon the defendant's oral application and promise to 
 indemnify him ; that Webster did not appear, whereby the 
 recognizance became forfeited and the plaintiff had been 
 compelled to pay, etc. After argument the plaintiff had 
 judgment. Parker, C. J., in delivering the opinion of 
 the court, after laying down the general rule applicable 
 to collateral undertakings, said, that the questions to be 
 examined in this case are, whether Webster was liable to 
 indemnify the plaintiff, and whether the defendant's 
 undertaking was collateral to that liability. He then pro- 
 ceeded : ' ' When one requests another to become surety 
 for him and he does so upon that request, the law raises 
 an implied promise to indemnify. But the case does not 
 find that Webster requested the plaintiff to recognize for 
 him, or that the plaintiff acted upon any such request. 
 From the nature of the case, Webster must have assented 
 that the plaintiff should become his surety ; but mere 
 assent, without any request or promise, and where there 
 was a request by a third party, and an express prom- 
 ise by him to indemnify, is not sufficient to raise an 
 implied promise. A declaration in favor of the plaintiff 
 against Webster must have alleged, that he became surety 
 at his request, and on the request the promise to indem- 
 nify may be implied. But this case only finds that the 
 defendant applied, and that he promised. If we may
 
 Art. II.] Collateral Undertakings. 477 
 
 infer that Webster assented, we cannot infer any request 
 by him. Of course we cannot find, nor could a jury on 
 such evidence, any credit given to Webster, or any origi- 
 nal liability on his part, to which the defendant's engage- 
 ment was collateral. "(^) 
 
 §461. " For aught that appears to the contrary," con- 
 tinued the learned Cliief Justice, "if Webster made any 
 request, the plaintiff refused." "AVebster in that case 
 could not be held liable on the request he made, for that 
 would not have been acted on, but reject(?d. Ilie whole 
 credit would have been given to tlie defendant. We do 
 not mean to be understood, however, that the promise of 
 the defendant would be within the statute, had the case 
 stated that Webster also requested the plaintiff to become 
 surety for him. It is apparent that the plaintiff did not 
 assume the liability upon the request of Webster, if one 
 was made ; but upon the request of the defendant, and 
 upon his promise to indemnify ; and there are authorities 
 showing that a promise to indemnify in such case is not 
 within the statute ;" citing and commenting upon Thomas 
 V. Cook and Chapin v. Merrill. "The promise of the 
 defendant is not to answer for the default of AVebster, in 
 not appearing according to the terms of the recognizance. 
 That was the undertaking of the plaintiff in the recogni- 
 zance itself. Nor is it to answer for the default of Webster, 
 in not indemnifying the plaintiff. It has no reference to 
 any duty on the part of Webster to indemnify tlu^ plaint- 
 iff, in case he should make default. That duty the def«^nd- 
 ant took upon liimself." The learned Chief Justice 
 concluded his opinion, by saying that under the circuih- 
 stances, if Webster was also liable on an ini])li('d ])romis«', 
 that liability might be held to be an original iiuh'pcndent 
 liability. "If either was to be deemed collateral, the lia- 
 bility of Webster in such case would seem in point of fact 
 to be collateral to that of the defendant." 
 
 (r) See the same distinction between a request and an assent very neatly 
 taken, and the same consequences deduced therefrom, in Pearce v. Blagrave 
 ante, § 163.
 
 478 COLLATEEAL UnDEETAKINGS. [Cll. XIII. 
 
 § 462. The question was decided in the same way by 
 the Supreme Court of Georgia in Jones v. The Adminis- 
 trators of Shorter, 1 Kelly, 294, A. D. 1846. There the 
 plaintiff filed a bill for specific performance of a verbal 
 agreement by the defendants' intestate, to execute a bond 
 of indemnity, and for the payment by the defendants of 
 any amount, which might be recovered against the plaintiff 
 and the defendants, in an action pending upon an admin- 
 istrator' s bond, wherein the plaintiff and the defendants' 
 intestate were sureties for the due performance of his trust 
 by the administrator ; alleging that the bond was executed 
 by the plaintiff upon the agreement of the defendants' 
 intestate, to indemnify the plaintiff against any loss in 
 consequence of his so doing ; and that after the bond was 
 so executed, he promised to draw up and execute to the 
 plaintiff a written indemnity accordingly. The bill was 
 afterwards amended, by alleging that the plaintiff had 
 paid sundry sums of money upon judgments and other 
 demands, growing out of the administrator' s default. The 
 court dismissed the bill, holding, on the authority of 
 Thomas v. Cooli and Chapin v, Merrill, that there was an 
 adequate remedy at law by an action upon the verbal 
 promise. This was an action, it will be noticed, between 
 two of tlie sureties. 
 
 § 463. And m Mills v. Brown, 11 Iowa, 314, A. D. 1860, 
 the defendant interposed, by way of set off, a demand 
 against the plaintiff, arising upon a promise to indemnify 
 him for signing as surety a note with a third person ; and 
 it was held, upon the same authorities and the more recent 
 cases which followed them, that the promise was not 
 within the statute. It would appear from the report, that 
 the note showed upon its face that the defendant had 
 executed it as surety for the third person. 
 
 § 464. A similar rule was laid down by the court below 
 in Doane v. Newman, 10 Missouri, 69, A. D. 1846, but the 
 point was not argued upon the appeal, and the case went 
 off upon another point.
 
 Ai-t. ir.] Collateral Undertakings. 479 
 
 § 465. In Kentucky a similar rule has been established 
 by a series of cases commencing with Dunn v. West, 5 
 B. Monroe, 376, A. D. 1845. There the defendant inter- 
 posed as a set off, a demand against the plaintiff, arising 
 out of his having been compelled to pay certain notes, 
 which he had signed with the son of the plaintiff and 
 for his benefit, at the request of the plaintiff, and upon the 
 latter' s promise, "that he should not pay any thing by 
 it ; that he, the plaintiff, would pay the debt himself if 
 his son did not ; and that if he (West) had any thing to 
 pay on the notes, he would pay him back the same." 
 The plaintiff having objected that the promise was within 
 the statute, the jury found that the notes were executed 
 upon the sole credit of the plaintiff. The Court of 
 Appeals affirmed a judgment allowing the set off, Mar- 
 shall, J., remarking, in his opinion, that it was a doubt- 
 ful question whether the defendant could recover at all 
 from the son ; but even if it was clear that he could 
 recover, the action would necessarily be founded upon an 
 assumpsit raised by a subsequent fact, to wit, the payment 
 of the notes ; which would not prove that there was any 
 contract express or implied between them, at the time 
 when the notes were signed ; much less that there was any 
 debt for which the plaintiff became bound. He added, with 
 reference to the conditional character of the promise, that 
 the plaintiff did not promise to pay West if his son did 
 not pay him ; but to pay him if in consequence of his 
 son's failure to pay the original debt to another, West 
 should have to pay that debt. 
 
 § 466. This decision was followed in Lucas v. Chamber- 
 lain, 8 B. Monroe, 276 (A. D. 1847), where the court 
 sustained, as not being within the statute, a promise by 
 the defendant to indemnify the plaintiffs for executing, as 
 sureties, an injunction bond with J. and J. St<'phens, to 
 stay execution upon a judgment recovered ngainst them. 
 In fact an execution upon tli<^ judgment stayed by the 
 injunction had been levied on the property of the defend- 
 ant, he having been surety for J. and J. Stephens in tlin
 
 480 Collateral Undertakings. [Cli. xiii. 
 
 original suit ; and the court laid stress upon that circum- 
 stance in the opinion ; but nevertheless, it was distinctly 
 said tliat the rule would have been the same, if the defend- 
 ant had been an entire stranger to the debt. So in Jones 
 V. Letcher, 13 B. Monroe, 363 (A. D. 1852), it was held 
 that one who had requested another, to become jointly 
 bound with him as surety upon a third person' s bond as 
 executor, and had verbally promised to indemnify him 
 for so doing, was liable upon the promise, although the 
 objection was taken that the statute prevented a recovery. 
 
 § 467. To these citations in support of the validity of 
 the verbal promise, should perhaps be added the recent 
 case of Reed v. Holcomh, 31 Connecticut, 360 (A. D, 1863), 
 although its peculiar circumstances, and the reasons upon 
 which the court proceeded, materially affect its value as 
 an authority upon this question. There the defendant 
 procured the plaintiff to indorse the note of a third person, 
 for the defendant' s benefit, and in order to enable him to 
 raise the money upon it, promising to indemnify the 
 plaintiff for so doing ; and the defendant subsequently 
 indorsed it himself and raised the money upon it. The 
 court held that the promise was not within the statute, on 
 the ground that the leading object of the defendant was 
 to accomplish a purpose of his own. The case of Green 
 V. Cresswell was distinguished from this case on that 
 ground, the court saying that there the object of giving the 
 bail bond was merely to liberate the debtor, (s) 
 
 § 468. On the other hand it appears to be settled in 
 Ohio, by recent decisions, that a promise to indemnify the 
 promisee for becoming surety for a third person is within 
 the statute. Thus in Easter v. White, 12 Ohio, New 
 Series, 219, A. D. 1861, the plaintiff sued upon a verbal 
 
 (.s) See the case cited again in chapter seventeenth, article second. But 
 upon the principle of the decisions in BatsoR v. King, ante, § 445, and in 
 Barry v. Ransom, ante, § 453, the defendant was clearly liable, witliout 
 resorting to the reason which was assigned by the court for its judgment.
 
 Art. II. J Collateral Undertakings. 481 
 
 promise of the defendant to indemnify him for becoming 
 surety, at the defendant' s request, for one McDonald, in an 
 undertaking in replevin ; and the Supreme Court affirmed 
 a judgment for the defendant, on the ground that the 
 promise was within the statute. The opinion, delivered by 
 Sutliff, J., first considered the question upon authority, 
 regarding the law as entirely settled in England by the 
 decision in Green v. Oresswell, and in New York by that 
 in Klngsley v. Balcome, each overruling a former case 
 holding the other way. The opinion then proceeded to 
 discuss the question upon principle ; and concluded that 
 if the authorities left it in doubt, the rule should be settled 
 in the same way. In answer to the argument that 
 McDonald was not liable when the promise of indemnity 
 was made, the learned judge said, that it makes no dif- 
 ference whether A, a principal, has already made a pur- 
 chase from B and incurred a debt, for which C asks D to 
 become the surety of A, and promises to indemnify him 
 therefor; or w^hether A's purchase can only be obtained 
 upon his obtaining such surety, and the debt is contracted 
 and the surety becomes liable, after such a promise of 
 indemnity. "In either case," he proceeded, "the lia- 
 bility assumed by the surety is only to the effect, that the 
 principal shall discharge his own duty, or pay his own 
 debt ; and the principal is bound in law to prevent the 
 liability attaching to the surety ; and if the surety should 
 be compelled to pay the debt or suffer any loss, as his 
 surety, then the principal is in law bound fully to indem- 
 nify or remunerate him for the same." And in this opin- 
 ion the other judges concurred. But the argument, that 
 the liability of the third person arises out of a subsequent 
 payment by the promisee, was either disregarded or mis- 
 understood. 
 
 § 469. In Kelsey v. Hihhs, 13 Ohio, New Series, 340, 
 A. D. 1862, a bill of exchange, payable to the order of one 
 Hale, but not indorsed, was handed by the defendant to 
 the plaintiff, with a request to indorse it for liim, which 
 the plaintiff did ; and the bill was subsequently indorsed 
 61
 
 482 Collateral Undertakings. [Cli. xiii. 
 
 by Hale and negotiated ; but for whose benefit the report 
 does not state. The name of the defendant was not on the 
 bill, and there was nothing else to show that he was liable 
 to the holders for its payment. The plaintiff was com- 
 pelled to pay the amount of the bill to the holders, and 
 brought this action on a contract, alleged to arise from the 
 circumstances stated, to recover the amount so paid. The 
 defendant relied on the statute of frauds as a defence. 
 And it was held, that the circumstances showed no con- 
 sideration suflBcient to create a distinct and independent 
 contract, which would not be affected by the statute ; but 
 only a promise to indemnify against the default of a third 
 person, which, not being in writing, created no legal 
 obligation. But apart from the question whether an 
 express promise to indemnify is within the statute, this 
 was apparently a case where the promise was only implied ; 
 whereas the statute' of Ohio, like the English statute, 
 relates only to special promises ; a feature which the court 
 seems to have entirely overlooked. 
 
 § 470. In Alabama it was also said, in Brown v, Adams, 
 1 Stewart, 51, A. D. 1827, that the defendant's promise 
 of indemnity against any liability to be incurred by the 
 plaintiff, by reason of his executing a bond as security for 
 the due performance of his duty by a public officer, was 
 within the statute ; but no authorities were cited, nor was 
 any reason for the decision given, except that it was 
 " clearly a promise to answer for the default or miscar- 
 riage of a third person.'- The decision is not of much 
 weight, as it was pronounced before the general recogni- 
 tion of the doctrine, that a promise not made to the person 
 entitled to enforce the liability is not within the statute ; 
 and besides, the remark was only a dictum. 
 
 § 471. In North Carolina a verbal promise to indemnify 
 one for becoming surety for another, is regarded as being 
 within the statute, according to a ruling in Draughan v. 
 Bunting, 9 Iredell, 10, A. D. 1848. The substance of this 
 case appears to have been, that the defendants' testator
 
 Art. II.] Collateral Undertakings. 483 
 
 promised to indemnify the plaintiff for indorsinp^ a note for 
 one Underwood, the plaintiff having previously refused 
 to do so, "unless he could be indemnified, which he, 
 Underwood, promised should be done;" and accordingly 
 the promise was given by the testator, in consideration of 
 property transferred by Underwood to him ; after which 
 the plaintiff indorsed the note. The court said that the 
 promise was void by the statute of frauds, because Under- 
 wood was under a legal liability to indemnify the plaintiff; 
 however a judgment for the defendant was reversed, 
 because the court thought he was liable, by reason of the 
 property placed in his hands by Underwood. 
 
 § 472. The case of Brush v. Carpenter, 6 Indiana, 78, 
 A. D. 1854, was in some respects similar to the one last 
 cited ; but here the debtor had indemnified the defendant by 
 a transfer of property, made after the plaintiff had suffered 
 damages. The report says that the plaintiff "became 
 replevin bail for one Anderson," upon the request of the 
 defendant, and his verbal promise to indemnify him against 
 loss, etc. ; without disclosing whether Anderson also 
 requested the defendant to become his surety, or merely 
 assented to his doing so. The court, without discussing 
 the question, held that it was ' ' well settled by the latest 
 authorities" that the promise was within the statute, 
 citing Kingsley v. Balcome and Green v. Cresswell. But 
 a judgment for the plaintiff was affirmed, for reasons 
 growing out of the transfer of property to the defendant 
 by Anderson. 
 
 ^ 473. We will conclude these citations "with a case, 
 which turned upon the point, that although it appeared 
 that the plaintiff was a surety for somebody, it did not 
 appear that there was either a third or a fourth person 
 concerned, out of whose relations to the plaintiff the ques- 
 tion could arise. In Beaman v. Russell, 20 Vermont, 206, 
 A. D. 1848, the action was upon an agreement in \\Titing, 
 whereby the defendant agreed with the plaintiff's intestate, 
 "to indemnify him for signing two notes with J. B., A. R.,
 
 484 COLLATEEAL UNDERTAKINGS, [Cll. XIII. 
 
 and A. B., for four liundred dollars each," etc. (describing 
 the notes) ; and upon the trial the plaintiff, having proved 
 the notes, bearing the signatures of the three persons named 
 in the agreement, and also of the plaintiff' s intestate, was 
 defeated ; partly on the ground that the agreement did not 
 sufficiently express the consideration. But the Supreme 
 Court granted a new trial, for the reason, (as far as the 
 objection arising out of the statute was involved,) that it 
 was of no consequence whether the writing was or was 
 not sufficient ; because there was no evidence that the 
 plaintiff' s intestate was surety for any person except the 
 defendant himself ; and, for aught that appeared, all the 
 makers of the note might have signed it for the accommo- 
 dation of the defendant, and on his promise of indemnity, 
 as the plaintiff's intestate did. The point, whether the 
 promise would have been within the statute, had it 
 appeared that the plaintiff' s intestate was in fact a surety 
 for the other signers, was therefore left undecided ; but 
 the court cited with approbation the cases in England, 
 New York, Massachusetts and New Hampshire, in which 
 such a promise was sustained. 
 
 § 474. As the result of the conflict of authority upon 
 this question, nothing can be regarded as definitely settled ; 
 except, perhaps, that where the promisor and the prom- 
 isee are about to unite in an instrument as sureties for the 
 third person, the promise to indemnify is not within the 
 statute. With respect to the weight of argument, the 
 side to which the balance preponderates is even more 
 difficult to discover. If the question was merely whether 
 the general policy of the statute embraces such cases, 
 probably few lawyers would hesitate to answer it in the 
 affirmative. And it is by no means clear that the fifth 
 rule excludes such cases from the language of the statute. 
 But it is more important to have the question definitely 
 settled, than to have it settled in strict accordance with the 
 weight of argument ; and the preponderance of authority 
 in favor of the doctrine that such promises are not within 
 the statute, is quite apparent.
 
 Art. II.] Collateral Undertakings 485 
 
 § 475. It is believed that the ruling just referred to, in 
 the case of joint sureties, involves an affirmance (;f tlie 
 general doctrine ; and that it cannot be restricted within 
 the bounds implied by the rule, that several sureties u])on 
 the same instrument may regulate by contract their 
 liability to contribution. For if it will suffice to defend 
 an action for contribution, in favor of the verbal promisor 
 against the promisee ; we fail to see upon what piinciple 
 it will not also suffice, to maintain an action in favor 
 of the promisee against the promisor, to recover the whole 
 amount of damages, which the plaintiff has sustained 
 through a breach of the verbal promise. And no sub- 
 stantial reason is perceived, w^hy the right to maintain 
 such an action should depend merely on the fact, that the 
 plaintiff and the defendant had united in the execution of 
 the same instrument. 
 
 § 476. And it seems to us, that the courts have entirely 
 overlooked another argument, which apparently carries 
 much, weight, upon the same side of the question. It is, 
 that in most of the cases where the question has arisen, 
 the defendant would have been liable upon an implied 
 promise to indemnify the plaintiff, if he had made no 
 express promise. It seems, therefore, unreasonable, inas- 
 much as a fair question arises upon the terms of the 
 statute, to hold that it requires the safeguard of a writing, 
 in order to prove an express promise ; when upon the same 
 facts, an implied promise would arise, which is clearly 
 not embraced within its terms. Again, it is difficult to see 
 upon what grounds, a substantial distinction in principle 
 can be taken, between a promise to indemnify one against 
 a liability, to be thereafter incurred by him, for which a 
 third person is already primarily liable ; and a promise to 
 indemnify him against a liability theretofore incurred by 
 him, for which a third person is likewise primarily liable. 
 In either case, the promise is in one sense to answer for 
 the default or miscarriage of another ; and of the two 
 descriptions of promises, the second appears to leave 
 room for less doubt than the first, upon the question
 
 486 COLLATEEAL UNDERTAKINGS. [Ch. XIII. 
 
 whether the third person' s liability existed at the time of 
 the promise. But it seems to be conceded, that in the 
 second case the statute does not apply.(^) 
 
 § 477. We have, however, given at such length the 
 arguments of the distinguished jurists who have discussed 
 this question, that any further comments on our part 
 appear to be unnecessary. We will only add that the 
 application of the principles upon which the discussion 
 has thus far proceeded, seems to depend in a great 
 measure upon a question, which it leaves enveloped in 
 great obscurity. This relates to the precise point of time 
 when the implied assumpsit arises, in cases where the 
 surety enters into the undertaking, without any request on 
 the part of the principal, {u) 
 
 (t) Westfall V. Parsons, 16 Barbour, 645; Myers v. Morse, 15 Johnsou, 
 425; Alger v. Scoville, 67 Massachusetts (1 Gray), 391; Soule v. Albee, 31 
 Vermont, 142; Mersereau v. Lewis, 25 Wendell, 243, cited in chapter 
 eleventh, article second. 
 
 (w) There is very little upon this subject in the text books; and the few 
 opinions, w^hich the elementary writers have ventured to give, are quite aa 
 much at variance as the decisions of the courts. Thus in the notes to the 
 sixth American edition of Smith's Leading Cases, Volume I, pages 477 and 
 478, after several cases have been cited, where it was held that the promise was 
 not within the statute, the note proceeds: "But little reflection is requisite, 
 however, to show, that however widely the obligation imposed by an engage- 
 ment of this nature may differ from that assumed by the principal or surety 
 towards the creditor, it is in all material respects identical with that which 
 subsists between the principal and the surety; and this is sufiBcient to bring 
 it within the statute, which applies whenever the promise in question is 
 expressly or impliedly conditioned for the fulfilment of the collateral obliga- 
 tion of a third person, and will cease to be binding if the latter is performed." 
 And again, after citing several cases where the promise was held to be within 
 the statute, the annotators add: "Amidst this diversity of decision it may be 
 difficult to discover the true principle, but the result of the authorities, as a 
 whole, seems to be as follows : A promise to indemnify a surety for becoming 
 responsible for the principal, by a stranger to the debt is prima facie within 
 the statute, because the principal is bound by an implied obligation to do 
 that which the promisor agrees to do expressly, and the promise is there- 
 fore really to answer for the default of the principal. When, however, the 
 promisor is directly or indirectly answerable for the debt, independently of
 
 Art. II.] Collateral Undertakings. 487 
 
 § 478. This closes the examination of those cases which 
 are taken out of the statute, because their distinctive 
 features fail to satisfy some particular word or plirase of 
 the sentence, "special promise to answer for the debt, 
 default or miscarriages of another." They constitute the 
 second of the three general divisions, into which we have 
 ranged the cases for the purpose of classification, in pur- 
 suance of the plan heretofore marked out.(?)) We shall 
 now proceed to the examination of the third general 
 division, consisting of cases which are taken out of the 
 statute, although apparently within its letter, because they 
 are not regarded as being within its spirit. 
 
 the promise, any engagement which he may make that it shall be paid, will be 
 regarded as contracted for himself, and not for the debt or default of another, 
 in the sense in which these terms are used in the statute." On the other 
 hand in the fifth edition of Parsons on Contracts, Volume 3, page 22, note, 
 we find the following: "It has been made a question, whether a promise 
 by A to indemnify B for guarantying a debt due from C to D, is within 
 the statute. It is clear, upon the authorities already cited, that such a promise 
 is not within the statute, as being a promise to answer for the debt of C. 
 For that purpose it must have been made to D, to whom the debt was due. 
 
 The question would seem to depend upon the time when 
 
 the promise of C, the person for whom the guaranty is given, arises. And 
 this again will depend upon the particular circuumstances of the case. If 
 these are such, as to authorize the inference that C made an actual promise 
 to- indemnify his guarantor, at the time when the undertaking of A was 
 given, or prior thereto, the reasonable presumption is that the promise of A 
 was intended to be collateral. If, on the other hand, there is nothing in the 
 ease from which an actual promise by C can be inferred, and he can only be 
 made liable on a promise raised by operation of law, from B's having been 
 compelled to pay money on his account, it would seem to be clear that the 
 promise of A must be original. For the promise of C arises upon a sub- 
 sequent and independent fact, after the promise of A has become a complete 
 and valid contract." 
 
 (v) Ante, § 70.
 
 THIRD GENERAL DIVISION. 
 
 CASES WHICH ARE NOT WITHIN THIS CLAUSE OF THE STATUTE, 
 ALTHOUGH ALL THE TERMS OF THE STATUTORY DESCRIP- 
 TION OF THE PROMISES TO WHICH IT APPLIES, ARE LITER- 
 ALLY SATISFIED, BECAUSE THEY ARE NOT WITHIN ITS SPIRIT 
 AND INTENT. 
 
 g 479. We have yet to consider, in order to complete 
 the examination of this part of the statute, those cases 
 wherein the promisor undertook to discharge to the prom- 
 isee a pre-existing liability of a third person ; which con- 
 tinued in full force and effect, after the making of the 
 promise. This is the most exact definition which can be 
 framed, of a promise literally within the language of this 
 clause ; and the whole scope of the discussion will neces- 
 sarily be confined to an inquiry respecting the circum- 
 stances, under which the statutory requirement that such 
 promises shall be in writing, will be regarded as inappli- 
 cable ; because the case is not within the spirit and intent 
 of the enactment, however closely it may conform to its 
 letter, 
 
 § 480. There are very many cases, where it was decided 
 that the particular promise before the court was taken out 
 of the statute for this reason ; and attempts have been 
 frequently made, to define with precision the rules which 
 govern the application of the principle. But the result 
 has not been very satisfactory. It is readily conceded, 
 that all those cases which, being within the letter, are 
 properly held to be without the spirit of the statute, have 
 this characteristic in common, that the substance of the 
 transaction differed from its form ; the essence of the 
 promise having been that the promisor undertook to an- 
 swer for his own conduct, or for his own debt. But this
 
 Collateral Undertakings, 489 
 
 form of expression admits of such latitude of application, 
 that it is scarcely any thing more than a paraplirase of 
 the language of the act. When we attempt to reduce it to 
 rules, framed in terms sufficiently definite to be practically 
 useful, we are met at almost every step, by decisions 
 which are in conflict, not only with respect to the terms 
 of the rules whicli should govern, but frequently upon 
 the question whether a particular state of facts is within 
 or without a general principle admitted to be sound. 
 
 § 481. But we will make the effort to extract from these 
 discordant elements, such princijoles as appear to be best 
 supported by sound reasoning and the weight of authority; 
 following the plan, adopted in other parts of this work, of 
 giving the cases in opposition to, as well as those in support 
 of the principle, which appears to contain the correct gov- 
 erning rule. By this means, the reader himself will be able 
 to rectify any errors into which we may happen to fall ; a 
 contingency which may be of more frequent occurrence 
 than we have ventured to hope ; because the circumstances 
 preclude us, in most instances, from resorting to any recog- 
 nized standard, by which to test the correctness of our 
 own conclusions. We will commence with the first class 
 of this general division, the definition of which, as it was 
 given in framing our classification, (a) is slightly expanded 
 in the title of the following chapter. 
 
 (a) See section 71. 
 62
 
 CHAPTER FOURTEENTH. 
 
 CASES WHERE, AT THE TIME OF THE PROMISE, THE PROM- 
 ISOR WAS ALREADY LIABLE FOR THE DEBT OR DUTY 
 ASSUMED BY HIM, OR A SIMILAR ONE, IN SOME OTHER 
 FORM, OR TO SOME PERSON OTHER THAN THE PROMISEE ; 
 OR WHERE HE HAD PREVIOUSLY BEEN LIABLE THERE- 
 FOR, AND HAD BEEN ONLY TECHNICALLY DISCHARGED. 
 
 § 482. The distinguishing feature, wliicli connects in one 
 class the diversified cases embraced in this chapter, is that 
 the promise was not the assumption of a new liability. It 
 related to a liability previously existing, or alleged to 
 exist, against the promisor, which had never been in fact 
 satisfied ; but against the enforcement of which, in favor 
 of the promisee, he was entitled to interpose some obstacle. 
 At the same time, there was a third person, who would be 
 discharged by the fulfilment of the promise, upon whom 
 the same liability rested, or was assumed to rest ; for 
 which reason, the question arose whether the promise, 
 being general in its terms, was not an undertaking to 
 answer for his debt, default or miscarriage. The ground 
 upon which tJiese cases are taken out of the statute, is 
 that the practical effect of the promise, was merely to 
 remove the obstacle to the enforcement of the promisor's 
 own pre-existing liability. They are governed by the 
 sixth of our general rules, which is as follows : 
 
 RULE SIXTH. 
 
 A promise is •without the statute, if its effect was merely to remove some impediment to the 
 euforcement, by the promisee, of a liability already resting upon the promisor, in the same 
 or some other form j although its fulfilment will necessarily result in the [discharge of the 
 precedent liability of a third person to the promisee. 
 
 § 483. The impediment removed by the promise may 
 have been a doubt, existing in law or in fact, respecting
 
 Art. I.] Collateral Undertakings. 491 
 
 the liability of the promisor for the demand assumed by 
 him ; or it may have been a legal obstacle to the enforce- 
 ment, by action, of some previous liability, which was of 
 undoubted obligation. In the latter case, the impediment 
 may have been formal ; as where the promisee was equi- 
 tably the owner of a demand against the promisor, but 
 having derived his title from another person, in whose 
 favor it had originally accrued, he could not have main- 
 tained an action at common law, but for the promise ; or 
 it may have been a substantial bar to any action, as where, 
 in consequence of some act or omission of the creditor, 
 the promisor was legally discharged from a previous 
 liability, without any actual satisfaction of the same. 
 Instances where each of these kinds of impediments was 
 removed by the promise, will be given in the course of 
 the different subdivision of this chapter. 
 
 AKTICLE I. 
 
 Where the promise contained an admission of liability on the part of the promisor as a primary 
 debtor | but another person was in fact liable, either exclusively or with him, for the same 
 debt or duty, 
 
 § 484. It is now well settled, that where the only objec- 
 tion to an action upon a verbal promise, is that another 
 was already liable, jointly or severally, with the promisor, 
 for the demand assumed by him, the agreement is not 
 within the statute. Still the letter of the enactment covers 
 such a promise ; and at one time a doubt existed whether 
 the case was not within its provisions. Thus in Stephens v. 
 Squire^ 5 Modern, 205, and Comberbach, 362, A. D. 1696, 
 which has already been cited upon another point(a) an 
 action sounding in tort, had been brought against the 
 defendant and two others ; and the defendant, in consid- 
 eration that the plaintiff would not further prosecute tliat 
 action, promised to pay him 10/. and costs of suit. In an 
 action upon this promise, the plaintiff having recovered a 
 
 (a) Ante, § 130, note.
 
 492 Collateral Undertakings. [Cli. xiv. 
 
 verdict, the defendant moved for a new trial, on the ground 
 that the promis ■ ' ' was made in behalf of another and not in 
 writing." " But the court were of opinion, that this cannot 
 be said to be a promise for another person, but for his 
 own debt, and therefore not within the statute." 
 
 § 485. A few other cases directly involving, or to be most 
 satisfactorily explained upon the same principle, are cited 
 in the note ;(5) but in these days it is so well understood 
 that it is unnecessary to discuss it at any length. A 
 question of greater difficulty arises, where the promise 
 has been made in consequence of a claim of liability 
 against the promisor ; but he . alleges, in defence of an 
 action founded upon it, that he was not liable for the 
 original demand ; and that some other person, whose dis- 
 charge will result from the fulfilment of the promise was 
 in fact liable ; so that the promise was in reality, only an 
 undertaking to respond for the latter' s debt. The rule is 
 however settled, that such an allegation shall not be inter- 
 posed, for the purpose of avoiding a verbal promise, which 
 admits the existence of an original liability on the part of 
 the promisor. It may be said that the existence of such a 
 liability is one of the implied, if not the express stip- 
 ulations of the contract, which is accordingly protected 
 by the consideration. Generally the promisor will be 
 estopped from denying his original liability ; but the rule 
 extends to cases which fall short of raising a technical 
 estoppel, (c) 
 
 (b) Files V. Mcleod, 14 Alabama, 611 (1848) ; Aiken v. Duren, 2 Nottand 
 McCord (South Carolina), 370 (1820) ; Douglass v. Jones, 3 E. D. Smith 
 (New York), 551 (1854) ; and see Lord Ellenborough's remarks in Castling 
 v. Aubert, 2 East, 325, post, § 581. 
 
 (c) However, in Hollingsworth v. Martin, 23 Alabama, 591, A. D. 1853_ 
 the defendant had admitted his liability for a debt due to the plaintiff, and 
 had verbally promised to pay it, upon a condition, which the plaintiff insisted 
 that he had complied with. But it appearing that it was in fact the debt of 
 another, it was held that the defendant was not liable. The court put its 
 opinion upon the ground that the condition had not been complied with, as 
 well as that the statute applied.
 
 Art. I.] Collateral Undertakings. 493 
 
 § 486. Tliis principle is forcibly illustrated and applied 
 in a recent determination of Vice Chancellor Kindersly, 
 in the case of Orrell v. Coppock, 26 Law Journal, N. S., 
 Chancery, 269 ; and 2 Jurist, N. S., 1244, A. D. 1857. There 
 it appeared that Ralph Orrell died leaving a will, whereby 
 he appointed liis son Alfred Orrell and four other persons 
 trustees and executors ; but Alfred Orrell wishing to pur- 
 chase a factory, constituting a part of the property, which 
 he could not safely and conveniently do if he was executor 
 and trustee, renounced probate of his father's will, and 
 disclaimed. The remaining trustees proved the will, and 
 proceeded to carry on the testator's business, which was 
 managed by Alfred Orrell. Afterwards complaints of 
 breaches of trust by the trustees, were made by or in behalf 
 of Mrs. Brooks, Alfred Orrell' s sister, and one of the 
 cestuis que trust ; and she and her husband insisted that 
 Alfred Orrell had managed the estate as one of the trustees, 
 and not as agent of the others ; and that he was therefore 
 personally liable. Alfred Orrell denied all participation in, 
 or knowledge of, the matters in dispute ; but after some 
 correspondence, a friendly suit was commenced in equity ; 
 which was settled by the solicitor for Alfred Orrell writing 
 a letter, in behalf of his client, to the solicitor for Mr. and 
 Mrs. Brooks, agreeing to give Mr. and Mrs. Brooks his 
 promissory note for 3,000?., payable in three years, with 
 interest, "in consideration of and in satisfaction of the 
 alleged losses, Mr. and Mrs. John Brooks have sustained 
 from the acts of the trustees." About a year afterwards 
 Alfred Orrell died, without having given the note ; and this 
 action was commenced to settle his estate. The master 
 allowed the claim of Mr. and Mrs. Brooks for the 3000Z., 
 and his decision was affirmed by the Vice Chancellor. It 
 was insisted that the letter, for want of expression of the 
 consideration, and by reason of its having been signed by 
 Alfred' s solicitor, was not sufficient to take the case out 
 of the statute of frauds ; but in answer to that objection 
 the Vice Chancellor said: "Tliat statute does not apply 
 to the case where a party, giving the guaranty, is him- 
 self liable to the demand, which he is purporting to
 
 494 COLLATEEAL UnDERTAKHSTGS. [Ch. XIV. 
 
 guaranty; it must be exclusively the debt, default or miscar- 
 riage of the other, to bring it within the statute ; and there- 
 fore it appears to me, that in this case, when Mr. Alfred 
 Orrell was incurring this obligation, it was not merely to 
 satisfy the debt of another, but the debt, which it was in- 
 sisted, rightfully or wrongfully, that he was liable for ; and 
 it is clear from the arrangement that none of the losses, 
 except that of Winterbotham, were individual ; but that all 
 were liable for those losses, and therefore Alfred Orrell was 
 not only to be himself discharged, but all the others." 
 
 § 487. The same principle was applied to a promise 
 made in settlement of a claim that the promisor' s prop- 
 erty was liable, in FisJi v. Thomas, 71 Massachusetts 
 (5 G-ray), 45, A. D. 1855. There the plaintiff had furnished 
 materials for building a ship, which had been charged by 
 them to the builder ; and they being about to libel the 
 vessel, to enforce a lien against her, to which they insisted 
 they were entitled under the State law, the defendant, who 
 was one of the owners, and the agent for the others, in 
 consideration of their forbearing to do so, orally promised 
 the plaintiffs, that if a libel upon a similar claim, then 
 pending in the Admiralty, should be sustained, he would 
 pay the debt ; and in consideration of this promise the 
 plaintiffs refrained till their alleged lien was lost. The 
 Admiralty claim having been sustained, an action was 
 brought upon the promise, and the cause was tried in the 
 Supreme Court and reserved for the opinion of the whole 
 court. As one reason why the defendant's promise was 
 within the statute of frauds, his counsel insisted that the 
 State law gave the plaintiffs no lien, inasmuch as the 
 materials were furnished on the buHder' s credit ; but the 
 court held that the statute did not apply, because this was 
 a promise to pay a debt, for which the defendant' s prop- 
 erty was responsible, and which was therefore his debt, 
 sub modo ; and that he was estopped from denying that 
 the plaintiffs had a lien, as that was the very subject of 
 controversy, which the parties had agreed should abide 
 the judgment of the court in the other cause.
 
 Art. I.] Collateral Undertakings. 495 
 
 5 488. A remarkable case in Iowa, depending upon the 
 &ame principle, is reported under the title of Tarhell v. 
 Stevens^ 7 Iowa, 163, A. D. 1858. There the question arose 
 upon demurrer to a petition, alleging in substance that 
 the defendants represented themselves to be owners of, 
 and personally liable as stockholders in a certain bank, 
 for the payment of its circulating notes ; that they adver- 
 tised such a representation in a public newspaper, and 
 made it verbally, whereby they gave credit and currency 
 to the notes ; that the plaintiff was a holder of certain of 
 such notes ; and that he had become so by accepting them 
 as money from other persons, in reliance upon such 
 representation. It appears, from what is said in the opin- 
 ion of the court, that the defendants' representation also 
 included an express promise to redeem the notes. The 
 principal ground of the demurrer was that the petition 
 showed, that the defendants' promise was not in writing. 
 The court gave judgment for the plaintiff upon the 
 demurrer, remarking that the statute of frauds did not 
 apply, because the defendants' liability was not for the 
 debt of another, but upon an original and independent 
 ground ; that is, that by their representations they gave 
 credit, character and currency to the notes ; and caused 
 them to be received by the plaintiff and others in business 
 transactions. The opinion then added: "They were 
 bankers in the county, and in the first place represented 
 themselves to be liable for these bills as stockholders. 
 They may have been taken as sole stockholders in the 
 bank, and owners of it. In the second place they adver- 
 tised that they would redeem the notes at their counter, in 
 said county, which they refused to do.according to tlie decla- 
 ration. Thus by their representations of liability, and their 
 proposing to redeem at their counter, they gave credit and 
 currency to the bank bills, and caused them to be actepted 
 as paper money of value." The principle of this case is 
 very correct, if the objection of the want of any definite 
 promisee, ought not to have been fatal to maintaining any 
 action whatever upon the alleged promise. That objection 
 was also overruled by the court, on the ground that
 
 496 Collateral Undertakings. [Cli. xiv. 
 
 tli(3 defendants must be considered as undertaking to every 
 individual who saw tlieir advertisement, or heard their 
 representations, {d) 
 
 § 489. And in Hoover v. Morris, 3 Ohio, 56, A. D. 1827, 
 the decision was controlled by a similar principle, although 
 it was presented in the form of a presumption, instead of 
 an estoppel. There the question was whether an offset, 
 interposed by the defendant in the court below, had been 
 properly allowed. In order to sustain it the defendant 
 had offered in evidence a paper signed by the plaintiff, in 
 these words, " I agree that Dr. Morris's" (the defendant' s) 
 " account against Samuel Miller, amounting to about $26, 
 shall be offset and applied on my claims against Dr. 
 Morris now in suit, and that I will pay the same." The 
 plaintiff insisted that the offset was not admissible, on the 
 ground that the writing did not express the consideration, 
 and moved for a new trial, because it had been admitted 
 in the court below ; but the motion was denied, the court 
 saying: "It" (the memorandum) "is nothing more than 
 an admission that a stipulated sum of money is due from 
 the plaintiff to the defendant, for which the latter shall 
 have credit. It is not an undertaking to pay the debt of 
 Miller, but an acknowledgment of a pre-existing liability 
 to pay it." "In this view of the case, which we deem th» 
 correct one, it is not touched by the statute of frauds." 
 
 ARTICLE II. 
 
 Where the effect of the promiae was to alter the form of a previously existing liability! 
 
 § 490. It is obvious that the question, whether an altera- 
 tion of a previously existing contract to respond for 
 another, is within or without the statute, generally depends 
 upon the nature and extent of the alteration. If the con- 
 
 i 
 
 {d) This case might, perhaps, have been put upon the ground that there 
 was a representation of a fact, as well as a promise ; and so that it was 
 within the principle of the cases cited in chapter iv, article ii. And see 
 Phillipps V. Bateman, 16 East, 356.
 
 Art. II.] Collateral Undertakings. 407 
 
 tract was executory, and a now one has been made, vary- 
 ing from the old contract in any essential features, a 
 question at once arises, which will be examined in a sub- 
 sequent part of this work, whether when an agreement falls 
 within the statute of frauds, any material alteration of its 
 terms must be evidenced by a writing. It will be shown in 
 the proper place, that the courts are not entirely of accord 
 upon this question. But conceding that the statute ap- 
 plies where the alteration is material, it would evidently 
 be a forced construction of its provisions, to hold that 
 every variation of a liability assumed by a contract, no 
 matter how slight it may be, must be regarded as a new 
 contract, and invested with the same formalities as the 
 original agreement. It is quite difficult, however, to draw 
 the dividing line ; and the principle must be applied with 
 great caution. But where the contract has been so far 
 executed, that the promisor's liability thereunder has 
 assumed the form of an indebtedness, there seems to be 
 no reason why the statute should apply to any agreement 
 which the parties may see fit to make, not having the 
 effect to increase the liability to respond for another, which 
 the promisor has already incurred. 
 
 § 491. A striking instance of the application of the prin- 
 ciple now under examination, may be found in Macrory 
 V. Scott, 5 Exchequer, 907, (a) decided in 1850. The action 
 was debt on a judgment ; and the defendant pleaded in 
 substance that the judgment was recovered, witli the defend- 
 ant's assent, as surety for Scott Brothers, to secure the 
 payment of moneys due from Scott Brothers to the plaint- 
 iff, and to be advanced by the plaintiff to them ; and that 
 all of the moneys so due and advanced, for which the 
 judgment was to be security, had been paid. To which 
 the plaintiff replied in substance, that after the recovery 
 of the judgment an agreement was made between the 
 plaintiff, and Scott Brothers, that for the sake of winding 
 up the unsettled transactions between the plaintiff and 
 
 (a) S. C, 20 Law Journal, N. S., Exchequer, 90. 
 63
 
 498 Collateral Undertakings. [Cli. xiv 
 
 Scott Brothers, they should execute to each other ix4eases ; 
 that the plaintiff should advance to a certain banking- 
 company 800Z., guarantied by him on behalf of Scott 
 Brothers, and to them directly 200^. ; and that the defend- 
 ant assented to this, and agreed that the judgment should 
 stand as security for the 1,000Z. At the trial the plaintiff 
 proved an agreement in writing by the defendant, assenting 
 to another agreement between the plaintiff and Scott 
 Brothers, which was to the effect set forth in the replica- 
 tion ; but it was insisted that the agreement signed by the 
 defendant did not sufficiently express the consideration. 
 
 § 492. The plaintiff had a verdict, and a rule nisi was 
 obtained to enter a nonsuit or for a new trial, on the ground 
 that the case was within the statute, and also on a question 
 of variance ; and after argument the rule was discharged. 
 Upon the point arising under the statute, three of the 
 barons agreed that the memorandum was sufficient ; but 
 Parke, B., also held that the statute did not apply, and 
 Martin, B. , put his decision entirely upon that ground. The 
 former said : " It is not directly a promise to pay the debt 
 of another, but an agreement stating that property already 
 pledged for one debt shall remain pledged for another. 
 Although the ultimate effect is that the debt may be paid, 
 yet the immediate object is merely to appropriate the 
 fund in a different manner. It therefore falls within the 
 principle of the decision in Castling y. Aubert.iV) It is 
 not necessary however to decide that point, though I feel 
 no doubt upon it." Martin, B., also said: "To my 
 mind this is clearly not a case within the statute of frauds. 
 It is not undertaking to answer for the debt, default or 
 miscarriage of another, but an agreement that a certain 
 existing obligation shall continue." " So that even if it 
 had been a parol contract it would have been perfectly 
 good, as the statute of frauds does not apply, "(c) 
 
 Q}) Post, § 580. 
 
 (c) The peculiarity of thi? case, upon which the remarks of Lord Wensley- 
 cLile ami Baron Martin were doubtless founded, was that the agreement was 
 merely a defeasance or conditional satisfaction of the judgment. For the
 
 Art. II.] Collateral Undertakings. 499 
 
 § 493. The case of Rexford v. Brunell, 1 New York 
 Legal Observer, 396, decided in the New York Common 
 Pleas in the year 1843, is referable to the same principle. 
 There the question was whether a setoff interposed by the 
 defendant, in an action upon a bill of exchange could be 
 allowed. The setoif arose upon the following facts : The 
 plaintiff was a surety for one Ensworth, for tlie payment 
 of the rent of a hotel, leased to him by one Swan ; one 
 month after the lease had been made, Ensworth assigned 
 it by deed to the defendant ; and by a memorandum at 
 the foot of the assignment, he agreed to pay the propor- 
 tionate part of the quarter's rent for the month. The 
 defendant also agreed to indemnify the plaintiff against his 
 suretyship. A dispute arose, at the time of the execution 
 of the papers, respecting the payment of the month' s rent 
 mentioned in the memorandum ; and the plaintiff said 
 that it " would be all right, as he would pay it himself; " 
 but the defendant was subsequently compelled to pay it 
 to Swan. The majority of the court held that under the 
 circumstances, the defendant's indemnity must be con- 
 strued as applying only to the rent thereafter to accrue ; 
 that with respect to the month' s rent, the only question 
 was whether the plaintiff's promise was within the statute 
 of frauds ; and that the promise was not within the stat- 
 ute, on the ground that the j)laintiff was already liable to 
 pay the rent to the landlord, and hence he was not under- 
 taking to pay the debt of another, but only his own debt. 
 
 § 494. So in Spann v. Baltzell, 1 Florida (Branch), 301, 
 A. D. 1847, the indorser of a promissory note, before the 
 maturity of the note, made an agreement with the h.older, 
 whereby the former promised to pay the note at maturity, 
 punctually and without fail, out of his own funds, and the 
 
 same reason these remarks are not inconsistent with the doctrine, that the 
 statute will not permit a verbal alteration to be made of a contract, which it 
 requires to be in writing. But the case is sui generis; and it is difficult to 
 extract any principle from it, extending much beyond the same state of 
 facts.
 
 500 Collateral Undertakings. [Ch. xiv. 
 
 latter promised to receive payment in the circulating notes 
 of a certain bank, which were then depreciated. It was 
 held that the agreement was made upon sufficient consid- 
 eration, and was not within the statute of frauds. How- 
 ever, the decision was not distinctly placed by the court, 
 as we think it should have been, on the ground that this 
 was a substituted agreement ; the defendant being already 
 liable upon the contract in another form. 
 
 § 495. To this class of cases may also be referred Blount 
 V. Hawkins^ 19 ^f^labama, 100, A. D. 1851. There the 
 defendant had become surety in a "replevy bond," given 
 by one Lunsford, in order to retain property upon which 
 the plaintiff had levied an attachment against Lunsford ; 
 and afterwards, in consideration of the discontinuance of 
 the attachment suit, he agreed with the plaintiff that he 
 would pay the debt. In an action upon that promise, the 
 Supreme Court held that the statute did not apply, and 
 affirmed a judgment for the plaintiff rendered upon a 
 verdict. The general doctrine upon which the opinion 
 of the court was founded, namely, that a promise is not 
 within the statute, when it was founded upon a considera- 
 tion beneficial to the promisor and injurious to the prom- 
 isee, is no longer regarded as law ; but the particular 
 application made of it will perhaps bring the case within 
 this principle, inasmuch as the dismissal of the attach- 
 ment suit discharged the defendant from his liability, as 
 surety upon the forthcoming bond. 
 
 § 496. It is hardly necessary to say that a promise will 
 not be taken out of the statute by this principle, unless 
 the former liability rested directly upon the promisor. 
 For instance the fact that he was a member of a corpora- 
 tion, which was liable for the original debt, will not 
 suffice to sustain his verbal undertaking to respond. (^) 
 
 (d) Trustees of Free Schools, etc.. v. Flint, 54 Massachusetts (13 Meicalf), 
 530 ; ante, § 55. And see also Wyinan v. Gray, 7 Harris and Julinson 
 (Md.), 409, and Rogers v. Waters, 2 Gill and Johnson (Md.), G4, which 
 ;ire quit'j in point, althr-u<rh in the latter the sufficiency of tlie considera- 
 tion wui the question diiectly involved.
 
 Art. III.] Collateral Undertakings. 501 
 
 And perhaps the same principle requires that a promise 
 to pay in one right, a debt for wliich he was already 
 responsible in another right, should be proved by a writ- 
 ing only, (e) 
 
 ARTICLE III. 
 
 Where the effect of the promise was to waive a legal defence, against an action founded npon a 
 previous engagement of the promisor. 
 
 § 497. It cannot be doubted, although, as far as we have 
 observed, it has never been expressly decided, that a prom- 
 ise to pay a debt originally contracted by the promisor, 
 collaterally with a third person, but barred by the statute 
 of limitations, or by a certificate in bankruptcy, or the 
 like, is not within the fourth section of the statute of 
 frauds ; and consequently that it is good without writing, 
 
 (e) See Rnnn v. Hughes, 4 Brown's Parlicimentary Cases, 27, and 7 Term 
 Reports, 350, note, cited at lengtli, ante, § 10. Two cases liave been pub- 
 lished, since this work was prepared for the press, involving to some extent 
 tlie same question. One of them, Olceson's Appeal, 59 Pennsylvania, 99, is 
 given in full in § 32. The other is Cole v. Shurtleff, 41 Vermont, 311, 
 decided in 18C8. There one question was whether a verbal promise made 
 by a husband, during coverture, to pay his Avife's debt contracted before 
 coverture, would enable the promisee to interpose the debt as a setoff to a 
 demand in favor of the husband, upon which an action had been commenced 
 after the wife's death. The setoff was rejected in the court below, and the 
 Supreme Court afiirmed a judgment in favor of the plaintiff; hoKling that 
 inasmuch as by the marriage, the plaintiff became jointly liable with hi.i 
 wife for her antenuptial debts, but his liability as husband ceased upon her 
 death, unless it had been enforced by a judgment recovered during the 
 coverture; whereas on the contrary she would continue to be liable after his 
 death ; the debt must be regarded as hers, throughout the time of the cover- 
 ture, as well as before and afterwards. It was therefore said " that it would 
 seem that the promise relied upon, referring to and applicable only to the 
 debt of another, and not being supported by any consideration, nor in 
 writing, was invalid within the statute of frauds." But the decision was 
 also placed upon the ground, that there was no legal consideration for the 
 defendant's general promise, within the principle determined in Rann v. 
 Hughes; and the ruling that there was no consideration for the promise, 
 materially affects the value of the case upon the question arising under the 
 statute.
 
 502 Collateral Uiv^dertakings. [Ch. xiv. 
 
 unless a writing has been made necessary to its validity 
 by some other statute, (a) The principle is very familiar, 
 that in all such cases the new promise is in effect not a 
 new contract, but the revival of the original debt ; the 
 remedy upon which is regarded as having been suspended 
 by the legal objection to the recovery. This principle, it 
 is believed, will shelter from the operation of the statute, 
 all cases where the promise was to pay a debt, from which 
 
 (a) That an oral promise is sufficient to prevent the running of the statute 
 of limitations against a guaranty, when it was made before the debt was 
 barred, was determined in Gibbons r. McCasland, 1 Barnewall and Alderson, 
 690, A. D. 1818. This was an action upon a guaranty, made by the defend- 
 ant's testator in 1808, whereby he agreed to be answerable for the payment 
 of the price of certain goods, shipped by the plaintiffs to one Span, at a foreign 
 port. The defendant pleaded the statute of limitations, and the plaintiffs 
 replied that the writ was sued out in Michaelmas term, 1817, and that the 
 cause of action accrued within six years before that time. At the trial the 
 plaintiffs proved the guaranty and the shipment of the goods ; that the 
 guaranty was exhibited to the testator in November, 1811 ; that he then said 
 that he remembered it perfectly well, and when he was able it should be 
 arranged; and that the writ had issued within six years from that time. 
 The judge thereupon nonsuited the plaintiffs, on the ground that as the 
 statute of frauds required the contract to be in writing, it was necessary, in 
 order to take it out of the statute of limitations, that the revival of the con- 
 tract should also be in writing. A rule nisi for setting aside the nonsuit 
 was made absolute. Lord EUenborough, C. J., said: "It seems to me that 
 the difficulty in this case arises from considering together two statutes, 
 which have no relation to each other. The statute of frauds requires the 
 promise to be in writing; but being once satisfied, as it has been by a writing 
 in this case, it may be dismissed entirely from the consideration of the court; 
 and then the only question will be, whether the statute of limitations has 
 also been satisfied by the acknowledgment here made." Upon this question 
 his Lordship said that the language used was the recognition of an existing 
 liability, and was sufficient to satisfy the statute of limitations, whether the 
 original promise had been in writing or not. Bayley, J., said: "To satisfy 
 the statute of frauds, there must be a promise in writing ; and to take the case 
 out of the statute of limitations, there must be a promise within six years. 
 Both these requisites concur in the present case. It is said that the acknowl- 
 edgment must be in writing ; but that is not necessary, for the defendant's 
 liability is fixed by the original promise in writing, and the acknowledgment 
 within six years is only to show that that liability has not been discharged." 
 Abbott and Holroyd, JJ., concurred generally.
 
 Art. in.] Collateral Undertakings. 503 
 
 the promisor had been discharged by the operation of 
 some rule of law, without an actual release by the cred- 
 itor, or a satisfaction of the debt. And it would seem tliat 
 a similar rule ought to govern, in all other cases, where the 
 original contract, without being absolutely void, was void- 
 able at the election of the promisor ; as, for instance, where 
 an agent, or person standing in a similar relation to the 
 promisor, had exceeded his powers in making it. But 
 the authorities are not always clear upon this point. 
 
 § 498. To commence with partnership cases. It has 
 been made a question, whether, if a partner pledges the 
 firm credit without authority, either for his own debt or 
 for that of a third person, under circumstances which 
 would entitle the other partners to interpose the defence, 
 a subsequent promise to pay the debt, by the partners 
 who did not originally assent to the use of the firm name, 
 will fall within the statute. And it was ruled in Ken- 
 tucky, in the early case (A. D. 1818) of Wagnon v. Clay, 
 1 A. K. Marshall, 257, that a verbal promise to that effect 
 will be insufficient. There the action was brought by Clay 
 upon a joint note, signed in the names of Wagnon, M. 
 Bell and J. Bell ; and it appeared that J. Bell signed the 
 name of M. Bell to the note, as well as his own ; they 
 being copartners, and the note having been given for a 
 debt of Wagnon. It was further proved, that after the 
 note was execiited, M. Bell, having been advised that he 
 was not liable for it, promised the plaintift' to pay it. 
 Error having been brought upon a judgment for the 
 plaintiff, the court held that as the note was void as to M. 
 Bell in the first instance, a subsequent verbal promise by 
 him to pay it, was within the statute of frauds ; and that 
 if such promise had been made in writing, the action 
 would necessarily have been upon the writing, and not 
 upon the original note. On a rehearing, however, the 
 judgment was affirmed ; but upon the ground that there 
 was some evidence of authority, on the part of J. Bell, to 
 bind his partner.
 
 504 Collateral Undeetakings. [Cli. xir. 
 
 § 499. So in the case of Taylor v. Hilly er^ 3 Blackford 
 (Indiana), 433, decided in 1834, the Supreme Court reversed 
 a judgment in favor of the plaintiff and granted a new 
 trial, because the judge at the trial refused to give the 
 jury several instructions pertinent to the evidence ; among 
 them one to the effect that where a partner had, with the 
 knowledge of the payee, executed a note in the firm name 
 for his individual debt, a subsequent verbal promise of 
 the other partners to pay it was void under the statute. 
 But as the reversal was upon the whole case, and neither 
 of the legal propositions involved in the exception was 
 specifically assigned as the ground of the decision, it is 
 somewhat doubtful whether that particular proposition 
 was approved ; or whether the objection was not that the 
 original note was absolutely void against the other defend- 
 ants ; the evidence having tended to show that at the time 
 when it was executed, the firm had been actually dissolved, 
 and the exception having presented that question. 
 
 § 500. It is believed that the doctrine of these cases, that 
 the validity of the promise under the statute is governed 
 by the same rule, as if the new promisor was an entire 
 stranger to the original transaction, is founded upon too 
 narrow a view of the principle upon which his liability 
 depends at common law. For the act of one partner in 
 pledging the credit of the firm is not a nullity ; it is merely 
 an excess of power ; and the objection is personal to the 
 other partner, and may be waived, so as to render the 
 contract valid ab origine, without any new consideration. 
 Hence it would seem that in all such cases, a new promise 
 is merely a recognition of antecedent liability, and valid 
 although verbal, as being a waiver of the excess of au- 
 thority assumed by the partner, who had undertaken to 
 bind the firm. (J) 
 
 (h) The rule on the subject of a subsequent recognition by the defendant 
 of his partner's previous unauthorized act, is thus stated in Collyer on Part- 
 nership, 5th American edition, § 507. " We will conclude this section by 
 observing, what indeed has already appeared from the case of Ex parte
 
 Art. Ill ] Collateral Undertakings. 605 
 
 § 601. Upon the same principle it would seem, that where 
 one of the partners has been discharged from a joint debt 
 by the operation of a rule of law, a new promise to pay 
 the debt should be regarded as a mere waiver of his tech- 
 nical defence, and therefore not within the statute of 
 frauds. The rule appears to have been thus laid down in 
 RiceY. Barry, 2 Cranch (U. S.) Circuit Court Reports, 
 447, decided in 1824. There the declaration counted upon 
 a promise of the defendant to pay the amount due to the 
 plaintiff, upon a judgment rendered in his favor against 
 one J. D. B. ; which promise was alleged to have been 
 made, in consideration that the plaintiff would discharge 
 the said J. D. B. from the custody of the marshal, who 
 had arrested him under a ca. sa. issued upon the judg- 
 ment ; and in two of the counts it was alleged that the 
 demand upon which the judgment was recovered was orig- 
 inally a partnership debt of the defendant and the said 
 J. D. B. Upon the trial the defendant's counsel objected 
 to proof of a verbal promise ; insisting that if it was origin- 
 ally a partnership debt, it had become merged in the judg- 
 
 Bonbonus" (8 Vesey, 540), "that if the creditor can show that the firm 
 have adopted, as a joint debt, the debt which was originally several, this is an 
 answer to any charge of collusion against the creditor, and the firm will 
 accordingly be answerable for repayment of the debt. In cases of this 
 nature, subsequent, approbation by the firm of the separate act of their copart- 
 ner, will be equivalent to previous consent; and continued ficquiescence on 
 the part of the firm, in a series of separate contracts and engagements, entered 
 into by an individual partner, will be evidence of subsequent approbation, 
 and will be strong to show that the particular partner engaged in these 
 various transactions is in truth the agent of his copartners; " citing Wheeler 
 V. Rice, 8 Gushing, 205 ; Sweetser v. French, 2 Gushing, 309 ; Gansevoort v. 
 Williams, 14 Wendell, 139, 140; Bank of Kentucky v. Brooking, 2 Littell, 
 41. "An express assent of the other partners need not be shown ; it may 
 be implied from circumstances." Gansevoort v. Williams, 14 Wendell, 133; 
 Noble V. McClintock, 2 Watts and Sergeant, 152. "The burden of showing 
 such assent is on the separate creditor who takes the partnership security." 
 Davenport v. Runlett, 3 N. Hamp., 386; Weed v. Richardson, 2 Dev. and 
 Bat., 535; Pierce v. Pass, 1 Porter, 232; Story on Partn., § 133; Dob v. 
 Halsey, 16 Johns., 34, 38; Gansevoort v. Williams, 14 Wendell, 133, 135; 
 Wilson V. Williams, id., 146; Darling v. March, 22 Maine, 184; Brewster v, 
 Mott, 4 Scammon, 378. 
 64
 
 506 Collateral Undeetakings. [Ch. xiv. 
 
 merit, and the defendant' s promise to pay it must be in 
 writing ; but after argument and deliberation, the court 
 admitted the evidence, in connection with proof that it was 
 originally a joint debt, "being of the opinion that if it 
 were, there was a moral obligation on the defendant to pay 
 it ; and his promise to do so was a promise to pay his own 
 debt, and not the debt of another, within the meaning of 
 the statute of frauds." This case, upon the reason given 
 by the learned judge for admitting the evidence, is directly 
 in point ; but there was in truth another unanswerable 
 reason for holding the promise not to be within the statute, 
 which does not appear to have occurred either to the 
 court or the counsel ; namely, that the arrest and dis- 
 charge of J. D. B. extinguished the judgment against 
 him.(c) 
 
 § 502. But a ruling directly contrary to that in Rice v. 
 Barry was made in Greenleaf v. BurhanJc, 13 New Hamp- 
 shire, 454, decided A. D. 1849. There the declaration 
 stated, in substance, that the plaintiffs had sold goods to 
 a firm, consisting of one Eastman and the defendant, and 
 had afterwards accepted the note of Eastman for the 
 goods, and discharged and settled the account against the 
 firm ; and Eastman having died, the plaintiffs, after his 
 death, presented the note to the defendant, as surviving 
 partner, and he promised to pay it, but he had failed to 
 do so. Upon the trial the plaintiffs proved the sale and 
 delivery of the goods to Eastman for the firm ; the making 
 of an individual note therefor by Eastman, and the plaint- 
 iffs' acceptance thereof; that before its maturity, the 
 defendant had admitted to the plaintiffs' clerk, that it was 
 given for the use of the firm, and had promised him to 
 pay it ; that after Eastman' s death he had repeated that 
 promise ; and that the plaintiffs had delayed presenting 
 it as a claim against Eastman's estate. A verdict having 
 been taken, subject to the opinion of the court, it was 
 held, after argument, that upon the facts set forth in the 
 
 (c) See chapter ix, article ii.
 
 Art. III.] Collateral Undertakings. 507 
 
 declaration, the defendant' s liability for the goods sold to 
 the firm terminated, upon the receipt of the note of East- 
 man, in payment of the firm debt ; and that his subse- 
 quent promise to pay it was void for want of considera- 
 tion. The opinion added: "The case, as stated in the 
 declaration, is clearly within the statute of frauds, not- 
 withstanding the averment respecting the origin of the 
 debt." It was then said that the plaintiff's could not 
 avail themselves of their forbearance against the estate of 
 Eastman, because no averment relating thereto was con- 
 tained in the declaration ; that if there had been an allega- 
 tion that they forbore, in consideration of the defendant's 
 promise, it would have presented a different cause of 
 action ; but there was no evidence to sustain it, as the 
 proofs did not show that they forbore for any such 
 reason. But as there was some evidence tending to show 
 that Eastman' s note was not in fact received as payment, 
 the verdict was set aside, with leave to the plaintiff's to 
 amend their declaration. 
 
 § 503. Cases where a person, who was once liable as a 
 guarantor, or otherwise collaterally for another, and has 
 been discharged by some act, omission, or neglect of the 
 creditor, (falling short of a voluntary and intentional sur- 
 render of the liability,) subsequently renews his engage- 
 ment to respond for the same debt, depend upon a principle 
 analogous to that which obtains, where one of several 
 partners renews his liability for a partnership debt, after 
 a technical discharge. There is respectable authority for 
 the doctrine, that in such a case the new promise is within 
 the statute ; but the rule is believed to be otherwise. 
 For the law looks upon it as an agreement to waive a 
 technical defence against a previously existing liability, 
 rather than a contract to assume a new liability, as a 
 surety for another, 
 
 § 504. The only cases, within our knowledge, in which 
 such a promise was held to be within the statute, are 
 Feahody v. Harvey ^ 4 Connecticut, 119, and Hiint'inyton
 
 608 Collateral Undertakings. [Cli. xiv. 
 
 V. Hccrdey, id. 124, decided in 1821. With respect to sev- 
 eral other questions which arose, there were some points of 
 diiference between these cases, but as far as this question 
 is involved, the facts in both were identical. In each of 
 them it appeared that the defendant had indorsed in blank, 
 a promissory note, not negotiable, made by one Bushnell 
 and payable to Huntington, which the latter had assigned, 
 with the indorsement, to Peabody. By the local law of 
 Connecticut, a guaranty, as this indorsement was con- 
 strued to be, is discharged ; unless demand shall be made 
 of the principal at maturity, and an action at once com- 
 menced and prosecuted against him. Peabody had not 
 complied with these requirements ; but it was shown that 
 after the defendant had been discharged, in consequence 
 of such laches, Peabody was about to institute an action 
 upon the notes against the maker, when the defendant, in 
 consideration that he would forbear to do so, promised 
 him to pay the notes within a certain period. In these 
 actions the plaintiff relied upon this promise, the second 
 suit being prosecuted in the name of Huntington, the 
 payee, by Peabody. The court held in each of the cases 
 that no recovery could be had upon the promise, on the 
 ground that the defendant, after his discharge, was a 
 stranger to the notes ; and whatever promise he might 
 have then made, in relation thereto, must be in writing 
 within the statute of frauds. A verdict having been ren- 
 dered in each cause for the defendant, under a ruling at 
 the trial to that effect, a motion for a new trial was denied. 
 
 § 605. It is however well settled, that where an indorser 
 of a promissory note or bill of exchange, with full knowl- 
 edge that he has been discharged by the holder' s omission 
 to demand payment at maturity, and give him notice of 
 nonpayment, promises to pay the amount due upon the 
 instrument, he is liable at common law, although his 
 promise was not founded upon any new consideration. 
 And the principle upon which his liability rests, appar- 
 ently disposes of any objection arising under the statute. 
 In some of the cases, where an action was sustained upon
 
 Art. in.] Collateral Undertakings. 509 
 
 sucli a promise, tlie question whether the statute applied 
 also arose upon the facts, and was necessarily involved, 
 if not expressly alluded to in the decision. This occurred in 
 Tehhetts v. Doiod, 23 AVend<'ll (New York), 379, decided 
 A. D. 1840, where the objection was distinctly taken, that 
 a promise made under those circumstances was within the 
 statute ; although it was not noticed by the court in the 
 two opinions pronounced. The opinion of Cowen, J., 
 cited upwards of fifty English and American cases in sup- 
 port of the doctrine; and Bronson, J., coincided, "not on 
 the ground that the indorser is bound by the promise, as 
 matter of contract, for it wants consideration ; but on the 
 ground that the promise amounts to a waiver of the objec- 
 tion, that the proper steps had not been taken to charge 
 the indorser." The same rule was established in Massa- 
 chusetts, by the case of Hoj^lcuis v.Lis2oell, 12 Massachu- 
 setts, 52, A. D. 1815 ; and in Slgonrney v. Wether ell, 47 
 Massachusetts (6 Metcalf ), 553, A. D. 1842, it was held that 
 payment by the guarantor of the interest upon a promis- 
 sory note, made with knowledge that he had been dis- 
 charged by the laches of the holder, sufficed, as a waiver 
 of the laches, to render him liable. 
 
 § 506. The same principle has been decided in numerous 
 other cases ; and in some of them the application of the 
 statute of frauds was considered, in connection with this 
 question. Thus in The United States Bank v. Southard, 2 
 Harrison (New Jersey), 473, A. D. 1840, where the action 
 was against an indorser of a promissory note, upon proof 
 of a promise to pay after dishonor, the objection that the 
 promise was within the statute was distinctly taken. And 
 although the court set aside a verdict for the plaintilf, 
 because the proof did not show that the defendant, at the 
 time he made the promise, knew that payment had not 
 been demanded of the maker, the opinion expressly stated 
 that the objection growing out of the statute was unten- 
 able ; and that an indorser, by a promise made with full 
 knowledge of his discharge, "places himself in the same 
 condition he would be in, if such demand and notice had
 
 610 Collateral Undertakings. [Cli. xiv. 
 
 been proved." But in this case tlie promise was without 
 consideration. 
 
 § 507. The objection, that such a promise is within the 
 statute, was also unsuccessfully taken in the subsequent 
 case of Ashford v. Bohinson, 8 Iredell (North Carolina), 
 114, A. D. 1847. There the defendant was the guarantor 
 of a promissory note ; who, it was insisted, had been dis- 
 charged by neglect to prosecute the maker ; and he had 
 made a new promise to pay the debt, in consideration of 
 forbearance against the maker. The court, affirming a 
 judgment for the plaintiff, said : that there was no sub- 
 stantial difference between the liability of a guarantor 
 and of an indorser, upon such a promise ; and in either 
 case it must be shown that the promise was made with 
 full knowledge of the facts. The case did not, however, 
 call for the expression of any opinion upon this point, as 
 the court held there was no evidence of laches. 
 
 § 508. It may well be doubted, whether the distinction 
 between a waiver and a contract is any thing but verbal, 
 as far as the application of the statute of frauds is involved. 
 If a new promise was made upon a consideration, the decis- 
 ions require us to call it a contract. But apparently it was a 
 contract to waive a defence, rather than to pay a debt to 
 which the promisor is a stranger. 
 
 ARTICLE ly. 
 
 Where the promise was to pay the promisor's debt to a transferee thereof, in order to discharge 
 a debt due by the transferor to the promisee, 
 
 § 509. We have already examined the question of the 
 validity, under the statute of frauds and at common law, 
 of a promise, made by a person owing a debt, to pay the 
 same to a transferee thereof ; where the consideration of 
 the promise was the simultaneous discharge of the trans- 
 feror, from a debt due by him to the transferee, in con-
 
 Art. IV.] Collateral Undertakings. 611 
 
 sideration of wliicli the transfer was made, (a) We now 
 come to a question wliich, in its common law aspect, is 
 but a continuation of the former discussion ; but as 
 respects the application of the statute of frauds, its solu- 
 tion depends upon a principle altogether different from 
 that whicli controls, when the debt of the transferor was 
 extinguished. It is whether a verbal promise of a debtor, 
 to pay his debt to a transferee thereof is valid, where the 
 immediate and direct effect of fulfilment of the promise 
 will be to discharge, in whole or in part, a debt due from 
 the transferor to the transferee; which nev(n'theless remains 
 in full force and effect after the transfer and after the 
 promise. It would seem to be very clear, that under the 
 statute of frauds such a promise is valid ; because the 
 promisor merely undertakes to pay to one person a debt 
 for which he is already liable to another. The fact that 
 the fulfilment of his promise will discharge the debt of his 
 original creditor is wholly immaterial ; for that relates 
 only to the disposition of the moneys, to be paid by him 
 in discharge of his own indebtedness. 
 
 § 510. And in the United States, (notwithstanding some 
 cases, chiefly of an early date, to the contrary,) it seems 
 to be reasonably well settled, that a promise by a debtor to 
 pay his debt to any transferee thereof, is valid at common 
 law, if founded upon a valuable consideration, and even 
 if made without consideration. But in England the 
 question is involved in considerable uncertainty. The 
 doctrine that no consideration, except the extinguishment 
 of both of the intermediate debts, will sustain such a 
 promise, either verbal or written, continues, down to the 
 present day, to be reiterated in the dicta of some of the 
 English judges, and apparently to be supported by some 
 
 (a) See chapter tcnUi, article second. In both places we have generally 
 used the word transfer and its derivatives, instead of assij^nment and its 
 derivatives; because a distinction has sometimes been taken, between a trans- 
 RCLioii, whereby the equitable title to the demand itself pa<ses from one party 
 to the other, and a mere authority to collect the proceeds.
 
 612 Collateral Undertakings. [Ch. xiv. 
 
 decisions ; but it is believed to rest upon no solid founda- 
 tion of principle, and to be irreconcilable with other cases 
 of unquestionable authority. 
 
 § 511. In some of the cases, the question arising under 
 the statute, and that arising upon the common law right 
 to maintain the action, are treated as identical, or at least 
 as depending upon the same legal principles ; and some- 
 times both are involved in such obscurity, as to lead to 
 the suspicion that the case has been either badly reported, 
 or decided upon an erroneous construction of the trans- 
 action between the parties. As the common law question, 
 although very clearly distinguishable from that arising 
 under the statute, generally presents itself at the same 
 time with the latter, and upon the same facts, we will 
 consider it at some length in a note at the conclusion of 
 this chapter ; first citing a few decisions, where the debate 
 arose upon the application of the statute, either alone, or 
 in connection with the right to maintain the action at 
 common law. 
 
 § 512. One of the most obscure and unsatisfactory of 
 the reported cases, is Lacy v. McNelle, 4 Bowling and 
 Ryland, 7, decided in the King's Bench, A. D. 1824. 
 This was an action ' of assumpsit for money had and 
 received. The plaintiffs were creditors of one Goodfellow, 
 who had accepted bills for the amount of his debt to them, 
 which had been dishonored. An action had been com- 
 menced upon the bills against Goodfellow, who had been 
 arrested and had put in bail. Afterwards he executed a 
 deed, assigning to the plaintiffs certain moneys due him 
 by the defendants ; and he also gave the plaintiffs a warrant 
 of attorney, upon which a judgment was entered up 
 against him, and the action previously pending was dis- 
 continued, and the bail discharged ; but at what precise 
 time this was done is not disclosed in the report. A 
 memorandum was also indorsed upon each bill, to the 
 effect that its payment was "secured" by that assign- 
 ment. Immediately after the assignment was made, notice
 
 Art. IV.] Collateral Undertakings. 513 
 
 of it was given to the defendants ; and certain conversa- 
 tions took place between the plaintiffs and one of the 
 defendants, the effect of wliich was one of the points of 
 the case ; but the court held that it practically amounted 
 to a promise by the defendants to pay the money to the 
 plaintiffs. Upon the trial the defendants objected that 
 their promise was within the statute of frauds ; but the 
 plaintiffs had a verdict. 
 
 § 513. Upon the hearing of a motion to enter a nonsuit, 
 counsel for the defendants insisted, that as Goodfellow's 
 debt was not extinguished, the promise was collateral. 
 But Bayley, J., interrupted him, saying tliat the case 
 was not distinguishable from Israel v. Douglas ; (&) and 
 Abbott, C. J., added: "The defendants' debt to Good- 
 fellow was assigned to the plaintiffs, and Goodfellow dis- 
 charged from all liability to them ; then surely the old debt 
 by him was extinguished, and a new one by the defendants 
 created." The argument then proceeded upon the effect 
 of the conversations ; at its conclusion, the rule was 
 refused ; the per curiam opinion saying, that ' ' the cases 
 cited," {Israel v. Douglas is the only one approaching 
 this point,) "show that the undertaking in this case is not 
 within the statute of frauds." The facts of this case, if 
 the reporters have truly stated them, certainly repel the 
 suggestion of the Chief Justice, that Goodfellow was dis- 
 charged ; the whole transaction having been a mere trans- 
 fer by way of collateral security, followed uj) by a judg- 
 ment upon the original debt. And in Israel v. Douglas, 
 the consideration did not pass from the plaintiff to the 
 defendants' original creditor, until after the making of 
 the defendants' promise ; and then it was money advanced 
 as a loan. 
 
 § 514. The next case, where the application of the stat- 
 ute came in question, was Wharton v. Walker, 4 Barne- 
 
 (h) 1 H. Blackstone, 239. A full abstract of this case is contained in the 
 note at the end of this chapter. 
 
 C5
 
 614 Collateral Undeetakings. [Ch. xiv. 
 
 wall and Cress well, 163, and 6 Dowling and Ryland, 288, 
 A. D. 1825. (c) There one Lythgoe, being indebted to the 
 plaintiff, gave him an order for the amount of his debt on 
 the defendant, who was his tenant, payable out of the 
 next quarter's rent; which the plaintiff sent to the 
 defendant "but had not any direct communication with 
 him on the subject." When the next quarter's rent 
 became due, the defendant presented it to Lythgoe as a 
 voucher, and the amount thereof was deducted by Lythgoe 
 from the rent, and a receipt in full given by him, the de- 
 fendant promising him to pay the money to the plaintiff. 
 Upon these facts the plaintiff brought an action for money 
 had and received, and he was nonsuited at the trial, upon 
 the objection that the case was within the statute of frauds. 
 Upon a motion to enter a verdict in the plaintiff's favor, 
 the court held, that the declaration should have been 
 special, but all the judges also said that the action could 
 not be maintained, because the three parties did not con- 
 cur, and therefore Lythgoe was not discharged. No 
 notice was consequently taken of the objection arising 
 under the statute. 
 
 § 515. But in the same year (A. D. 1825) the same court 
 decided the case of Hodgson v. Anderson^ 3 Barnewall 
 and Cresswell, 842, and 5 Dowling and Ryland, 735, where 
 both the questions arose ; and it was very clearly held that 
 mere forbearance by the plaintiff, without any discharge, 
 constituted a sufficient consideration, for a promise of the 
 defendant to pay to the plaintiff a debt which he owed 
 to the plaintiff's debtor, made at the latter' s request. 
 There the plaintiff sued to recover the balance of an ac- 
 count due him ; the defendant paid part of the amount 
 into court ; and as to the remainder pleaded the gen- 
 eral issue, and gave a notice of setoff, for money paid to 
 the Commercial Banking Company of Scotland, by the 
 order of the plaintiff, in pursuance of a previous liability 
 incurred by the defendant at the plaintiff's request. The 
 
 (c) Cited also ia chapter x, section 329.
 
 Art. IV.] Collateral Undertakings. 616 
 
 statement of the facts is very voluminous, but it is believed 
 that the point is suflficiently presented by what follows. 
 The plaintiff had become indebted to the Commercial 
 Banking Company of Scotland ; and the defendant (who 
 was a merchant in Trinidad,) owed him the account for 
 which the action was brought. The plaintiff gave to the 
 bank his promissory note for his debt, at seven months, 
 and, at the same time, as collateral security for its pay- 
 ment, a letter addressed to Anderson and Rhind, the 
 Edinburgh agents of the defendant, directing them to 
 pay to the bank the amount of the note, (describing it,) as 
 soon as they should have funds in their hands belonging 
 to the defendant ; adding that he would credit the defend- 
 ant therefor, "having received his order to this effect." 
 This letter was presented to Anderson and Rhind by the 
 bank, and they verbally promised to pay the amount accord- 
 ing to its terms. The plaintiff' s note was not paid at matur- 
 ity ; but various collections were made from time to time 
 by the bank, on account of it ; and ultimately the plaintiff 
 gave the bank an accepted bill, due in November follow- 
 ing, for the balance still unpaid. Meanwhile the plaintiff 
 had endeavored to collect at Trinidad, the debt due him 
 by the defendant, for the benefit of another creditor ; and 
 by his authority, the defendant had given the latt(^r an 
 agreement to pay the debt to him, deducting any payment 
 which might have been made in Scotland. The accept- 
 ance given to the bank by the plaintiff was not paid ; and 
 after its maturity the defendant, (who had previously 
 arrived in Scotland,) was notified by the holder of the 
 writing not to pay the bank ; but afterwards, Anderson 
 and Rhind, on receiving from the bank an indemnity, paid 
 to the bank the amount of the acceptance ; for which the 
 setoff was claimed. 
 
 § 516. The question, it will be seen, was whether Ander- 
 son and Rhind, or in other words the defendant, were 
 bound by the verbal promise to pay the bank, the con- 
 sideration of it having been, not the discharge of the debt 
 due by the plaintiff, but a mere forbearance upon it. The
 
 516 Collateral Undertakings. [Ch. xiv, 
 
 plaintiff having recovered a verdict, (disallowing the 
 setoff,) a rule nisi for a new trial was obtained, wliich, 
 after argument, was made absolute. Bayley, J., wlio 
 delivered the opinion, held that it was fairly to be inferred 
 from the plaintiff's letter, as well as the other evidence, 
 that the defendant had assented to the transfer to the 
 bank, of the debt owing by him to the plaintiff ; and that 
 liaving once done so, and promised to pay it to the bank, 
 he was not at liberty to withdraw ; and the plaintiff could 
 no longer revoke the authority to pay the bank. But 
 although he quoted Buller's rule in Tatlock v. Harris ^{d) 
 he made no allusion to the fact that here the plaintiff was 
 not discharged, merely adding: "So in this case, upon 
 payment by Anderson to the company, Hodgson would 
 1)6 discharged." Then passing to the question whether 
 the statute of frauds applies, he said that it does not 
 apply ; because the promise was not to pay a debt of 
 Hodgson, but his own debt ; and it was made upon a valid 
 consideration moving from the bank, to wit, their forbear- 
 ing to sue the plaintiff. 
 
 § 517.- The American authorities, as we have already 
 said, generally coincide with the ruling in the case last 
 cited. Several cases to that effect will be found in the 
 note at the conclusion of this chapter ; and it will sufltice 
 to cite one in this place, PMllips v. Gray^ 3 E. D. Smith, 
 69, decided by the New York Common Pleas in 1854. 
 There the defendant was indebted to one Chittenden, his 
 contractor ; and the defendant and Chittenden having 
 together applied to the plaintiff to purchase some lumber, 
 the plaintiff refused to deliver it upon the credit of Chit- 
 tenden ; whereupon the defendant said that he owed 
 Chittenden money enough, and if the plaintiff would 
 deliver the lumber, and procure Chittenden's order as a 
 voucher to him for making the payment, he would pay 
 the money to the plaintiff ; and upon this promise the 
 lumber was delivered. A judgment of the Marine Court 
 
 (d) See § 326, ante ; and the note at the end of this chapter.
 
 Art. IV.] Collateral Undertakings. 517 
 
 in favor of the plaintiff, rendered upon this evidence, was 
 affirmed ; the Court of Common Pleas holding that this 
 was not witliin the statute of frauds, because it was a 
 promise to pay the defendant's own debt ; the transaction 
 being in the nature of a transfer to the plaintiff of the 
 defendant's debt to Chittenden, upon a sufficient con- 
 sideration. 
 
 § 518. The distinction, which the English cases' take 
 in this connection, between an ascertained and defined 
 debt, and a demand which may ripen into a debt, upon 
 the happening of a future contingency, appears to have 
 been the turning point of tlie decision in The First Baptist 
 Church of Chicago v. Hyde, 40 Illinois, 150, A. D. 1866. 
 There Hyde, the plaintiff in the court below, had recovered 
 a judgment against one Rosbrook, upon which tlie church 
 had been garnisheed as a debtor to Rosbrook ; and the 
 question was whether any thing was due to Rosbrook by 
 the church, which could be svibjected to the garnishee 
 process. It appeared that Rosbrook had made a contract 
 with the church to perform certain labor ; that he had 
 entered upon the performance but had not completed it ; 
 and an arrangement had been made between him and the 
 church, that the church should employ others to complete 
 the work and pay for it out of the moneys to be paid 
 to him, the residue of the contract price to be paid to 
 Rosbrook. But before the contract was abandoned, 
 Ferry & Son, who were creditors of Rosbrook, presented 
 to the architect who was to certify to the bills, an order 
 from Rosbrook to pay them a certain sum, which was in 
 fact larger than the amount which, upon the subsequent 
 settlement, was found to be due to him; the architect 
 declined to accept or certify the order, because it was 
 then uncertain whether Rosbrook would complete the 
 contract; but he promised to give them a certificate as 
 soon as the amount was payable. Subsequently he made 
 the same promise to Rosbrook, in answer to an appli- 
 cation for a certificate in favor of Ferry & Son, and a 
 request that the money coming to him under the contract
 
 618 COLLATEKAL UNDERTAKINGS. [Ch. XIV. 
 
 should be paid to tliem. The order was then presented 
 to the proper officers of the church, who declined to accept 
 or pay it without the architect's certificate, but promised 
 to pay it with such certificate. This was the state of the 
 matter, when the garnishee process was served, several 
 months afterwards ; and at a still later period a settlement 
 was made, and the amount payable to Rosbrook under the 
 contract was ascertained. The question being whether 
 the plaintiff or Ferry & Son were entitled to the money, 
 the court below decided it in favor of the plaintiff ; and a 
 judgment was rendered against the church, upon the gar- 
 nishee process, for the amount so ascertained. Upon 
 appeal the judgment was affirmed. Walker, C. J., who 
 delivered the opinion, after reciting the facts, said that 
 there was no transfer of the debt to Ferry & Son. And, 
 he continued, if what was said by the architect and offi- 
 cers amounted to a promise to pay Ferry & Son the 
 debt due by the church to Rosbrook, it was without con- 
 sideration, and also void by the statute of frauds, as being 
 a verbal promise to pay Rosbrook' s debt to them ; so that 
 the plaintiff in the judgment acquired a legal lien upon 
 the sum due to Rosbrook from the church, (e) 
 
 (e) The question, whether an action will lie at common law, upon a prom- 
 ise of a debtor, to pay his debt to a person to whom it has been transferred by 
 the creditor, in consideration of a debt due to the transferee by the trans- 
 feror, unless, as a part of the transaction, the debt due by the transferor 
 to the transferee was extinguished, has already been adverted to in the tenth 
 chapter; but it was then passed over; and it will now be examined in the 
 light of the cases cited in tne text of the foregoing article, as well as those 
 contained in chapter x. In the civil law, it seems to be free from any diffi- 
 culty. This is the third species of novation mentioned in the extract from 
 Pothier contained in the 322d suction, namely, that which " takes place by 
 the intervention of a new creditor, where a debtor, for the purpose of being 
 discharged from his original creditor, by the order of that creditor contracts 
 some obligation in favor of a new creditor." The discussion of the validity 
 of this kind of novation, at common law, involves an examination into the 
 question how far the second of the three propositions, which are deduced 
 from Mr. Justice Boiler's proposition in Tatlock v. Harris, 3 Term Reports, 
 ISO, as mentioned in the 32Gth section, is sustained by the authorities. No 
 doubt at common law there must be some consideration, for the promise of
 
 CHAPTER FIFTEENTH. 
 
 OASES WHERE A PROMISE TO PAY A THIRD PERSON'S PRE- 
 EXISTING DEBT IS NOT WITHIN THE STATUTE, BECAUSE 
 IT WAS SUBSTANTIALLY TO BE FULFILLED OUT OF THE 
 MEANS OF THE DEBTOR. 
 
 § 519. We are now to examine those cases constituting 
 the second class of this general division, namely, where 
 the promise was to be fulfilled out of the means of the 
 
 the debtor to pay the transferee; but it is beheved that sound principle, and 
 adjudicated cases which oannot be disregarded, establish the doctrine that 
 any valuable consideration is sufficient for the purpose. In the first place 
 when the transferee can maintain an action, he founds it upon the promise 
 and not upon the transfer. It is true that Lord Tenterden in Fairlie v. 
 Denton, 8 Barnewall and Cresssvell, 395, said that this is an exception to the 
 common law rule that a chose in action cannot be assis^ned, and this dictum 
 has been copied by some of the text writers. Chitty on Contracts, 8th 
 edition, page 569. But it is clear that this is only a form of expression; for 
 the substantial foundation of the action is the defendant's promise, and not 
 the assignment, as will appear from the cases cited in the tenth and in this 
 chapter. See particularly Lilly v. Hays, 5 Adolphus and Ellis, 548, cited in 
 the note to § 368, and Israel v. Douglas, cited hereinafter. No reason is per- 
 ceived why this species of promise should require, in order to give it validity, 
 any specific kind of consideration. In the case put by Buller, namely, 
 "Suppose A owes B 100?. and B owes C 100/.; and the three meet, and it 
 is agreed between them that A shall pay C the 100/., B's debt is extinguished, 
 and C may recover that sum against A," it is easy to understand why A's 
 debt toB must be extinguished, (at least sub mode,) before he is liable to pay 
 it to C; but no apparent reason exists why it is necessary that B's debt to 
 C should be extinguished, in order to sustain A's promise to C. To say that 
 otherwise B could revoke his order, or that C might put the money in hia 
 pocket twice, is only reasoning in a circle. But it is said that if the debt 
 from A to B is discharged, and at the same time C gives up his claim on B, 
 as the ground upon which B orders A to pay C, then the consideration 
 moves from C. Undoubtedly that is true ; but it is equally true that if any 
 other valuable consideration passes from C to A with B's a^^sent, or from C 
 to B with A's assent, all the parties are privies to the consideration. The
 
 620 Collateral Undertakings. [Ch. xv. 
 
 debtor, (a) It needs but little argument to show that a 
 promise which in terms binds the promisor, merely to 
 
 text writers give no intelligible reason for the contrary opinion. 1 Parson? 
 on Contracts, fifth edition, pages 219, 220; Chitty on Contracts, eighth 
 edition, pages 569, 570; Addison on Contracts, sixth edition, pages 816, 
 817. The cases are equally unsatisfactory; they go upon the supposition 
 •'ita lex scripta est." Secondly, there are several cases where the facts must 
 be utterly perverted to conform them to such a rule, and others where no 
 perversion of the facts will succeed in doing so. In Israel v. Douglas, 1 
 Henry Blackstone, 239, decided in the Common Pleas, in the same year with 
 Tatlock V. Harris (1789), an action was sustained in favor of a transferee, 
 upon a promise of the defendants to pay him the debt; the consideration 
 having been money loaned to the transferor (one Delvalle) by the plaintiff, 
 on the .faith of the promise. The promise consisted of the defendants' 
 acceptance of an order from Delvalle, to pay to the plaintiffs whatever was 
 due ; they having twice refused to accept his order for a definite sum. Lord 
 Loughborough, C. J., in his opinion, said that it was "admitted that the plaintiff 
 has the law with him in some action." Yet it was contended that the 
 suit should have been in the name of Delvalle; but the Chief Justice 
 overruled that point, his reasons being, it is supposed, contained in this 
 extract from a subsequent part of his opinion, generally cited as the 
 authority for maintaining the action in the name of an assignee. " The 
 debt is with the consent of the parties assigned to the plaintiff. Douglas 
 has due notice of it, and assents; by which assent he becomes, with his 
 partner, liable to the plaintiff." "When Douglas had admitted the money 
 to be due, he was that moment estopped, as it were, from saying that the 
 money was not due." All the judges concurred upon the merits; and it is 
 believed that the case has never been questioned upon that ground ; although 
 it has been much criticised, because it decided that the plaintiff could recover 
 under a count for money had and received. See Johnson v. Collings, 1 
 East, 98; Taylor v. Higgins, 3 East, 169; Per Bayley, J., in Wharton v. 
 Walker, post. In Liversidge v. Broadbent, hereinafter cited, Martin, B., 
 said: " In Israel v. Douglas there was a consideration to support the prom- 
 ise." In Wilson v. Coupland, 5 Barnewall and Alderson, 228, decided in the 
 King's Bench, A. D. 1821, the plaintiffs' debtors, Taillasson & Co., of St. 
 Lucia, "inclosed to the plaintiffs the account current, rendered to them by 
 the defendants, accompanying it with a memorandum at the foot, transferring 
 to the plaintiffs the balance of 768?. then due." Nothing was said about a 
 discharge; and the 768?. was but part of the debt due from Taillasson & Co, 
 to the plaintiffs. The defendants subsequently promised in writing to pay 
 the plaintiffs in three months; but in the mean time they settled with 
 Taillasson & Co. and procured their receipt in full. The plaintiffs brought 
 fa) See section 71.
 
 Collateral Undertakings. 521 
 
 apply to the payment of a third person's debt, the money 
 or property of the debtor in liis hands, or tliereafter to 
 
 this action for money had and received, and at the trial had a verdict. The 
 defendants moved for a rule to enter a nonsuit; upon which motion, their 
 counsel pressed upon the court the argument, that the defendants' agree- 
 ment was void for want of consideration, because Taillasson & Co. had not 
 been discharged. But the court refused any rule. Nothing was intimated 
 in any of the opinions, to the effect that Tailliis.son & Co. had been discharged. 
 Abbott, C. J., said that, by consent of all parties, an arrangement was made 
 that the defendants should pay the plaintiffs the debt they owed Taillasson 
 & Co. ; and as this was for money had and received, the defendants, by 
 acceding to the arrangement, made themselves liable for money had and 
 received. Bayley, J., said that the bargain between Taillasson &, Co. and 
 the plaintiffs, was that the money had and received by the defendants to the 
 use of Taillasson & Co., should be money had and received to the use of the 
 plaintiffs ; and that the assent of the defendant?' thereto made them debtors 
 and liable for money had and received. He added, that the effect of the 
 agreement was to give the defendants three months in which to pay the 
 debt, which was an advantage to them. Holroyd, J., concurred without 
 giving any reasons. Best, J., said that a chose in action was not assignable 
 without consent of all parties; but here all parties had assented, and from the 
 moment of the defendants' assent the 768?. became money had and received 
 to the plaintiffs" use. Not only was there no proof of any discharge of 
 Taillasson & Co., but the circumstances repelled such an idea, for the plaint- 
 iffs had " a long correspondence " with the defendants, before they procured 
 their promise, and of course had not then di.-^charged their debtors; and it 
 does not appear that after the promise they communicated with the latter in any 
 way. The next case was Lacy v. McNeile, 4 Dowling and Ryland, 7, (cited 
 in the text, § 512.) It is impossible to understand the Chief Justice's remark, 
 during the argument of that case, that the debtor was discharged; even the 
 decision in Warren v. Batchelder, 16 New Hampshire, 580, (chapter xii, 
 § 400,) will not sustain such a conclusion; for it was expressly in evidence 
 that the assignment was made by way of security for tlie debt. The next 
 case was Wharton v. Walker. 4 Barnewall and Cresswell, 16.3, and 6 Dowling 
 and Ryland, 288 (also cited in the text, § 514). Here the old doctrine that 
 the debtor's promise to pay the debt to the transferee is without con.sidera- 
 tion, unless the debt due from the transferor to the plaintiff is discharged, 
 was reiterated in the decision. But the argument turned upon the question 
 of pleading, which was apparently uppermost in the mind of the court and 
 counsel ; and the decision can be clearly supported not only on that, but on 
 two other grounds, viz.: first, thai there was no consideration whatever for 
 the defendant's promise, at least none moving from the plaintiff; and 
 gecondly, that the promise itself was made to Lythgoe, and not to the 
 66
 
 522 Collateral Undertakings. [Ch, xv. 
 
 come to liis hands, if made with the assent of the debtor, 
 is not within the spii'it of the statute. Some cases, pre- 
 
 plaintifif. The next case was Hodgson v. Anderson, decided in the same 
 year and by the same court, and abstracted in full in the text, § 515. This 
 decision should have given the death blovr to the doctrine that a discharge 
 of the original debtor is essential to the validity of the transaction. It is 
 true that it can be nominally distinguished from the others, by the circum- 
 stance that the bank had already got its money, without the aid of an 
 action ; but the decision expressly takes the ground, and necessarily so, that 
 the defendant's promise to the bank with the assent of the plaintiff, was 
 binding upon him and upon the plaintiff; being founded upon a valuable 
 consideration, namely, the forbearance given by the bank to its debtor. 
 Suppose the money had not been actually paid ; how could the court have 
 held, after this decision, that the bank could not sustain an action, on the 
 ground that the defendant's promise was without consideration? The 
 remark of Bayley, J., to the effect that upon payment by the debtor to the 
 transferee, the transferor's debt would he discharged, ought to have exploded 
 the whole doctrine that it must be discharged at the time of the promise to 
 pay. In Fairlie v. Denton, 8 Barnewall and Cresswell, 395, and 2 Manning 
 and Ryland, 353, A. D. 1828, the Court of King's Bench determined that 
 where it did not appear that a defined and ascertained sum was due to a 
 person, drawing an order on his alleged debtor, at the time when the latter 
 promised to pay it, the holder could not enforce the promise. The doubt 
 here arose whether the work had so far progressed, under a contract for 
 building certain houses, which had been entered into between the defend- 
 ants and the person drawing the order, (whereby the defendants were to pay 
 in certain instalments as the work progressed), that the drawer of the order 
 was entitled to any further instalments. But in Crowfoot v. G-urney, 9 
 Bingham, 372, A. D. 1832, a similar contract had been made between the 
 defendant and a builder who had since become bankrupt; and the work had 
 been completed ; but the precise amount payable to the builder could not be 
 ascertained without measurement ; thereupon the builder gave an order to 
 one of his creditors upon the defendant, for the payment of whatever was 
 due to hira ; upon presentation of which the defendant promised the creditor 
 to pay him when the amount should be ascertained. After the measurement 
 was made, but before payment, the builder became bankrupt ; and the assignees 
 brought this suit, to recover the sum payable to him by the contract. It 
 was held that they could not recover; because there was an equitable assign- 
 ment to the creditor, and he had the right to go into equity to compel a 
 formal assignment. Tindal, C. J., said that the creditor appeared to have 
 looked to the defendant alone, and to have abstained from any application to 
 the bankrupt; but the other judges did not mention that circumstance ; and 
 Alderson, J., thought the case exactly parallel with Hodgson v. Anderson.
 
 Collateral Undertakings. 523 
 
 aenting that precise state of facts, will be presently cited ; 
 and whatever question may arise at common law, respect- 
 In Tibbitts V. George, 5 Adolphns and Ellis, 107, A. D. 1836, Lord Denman, 
 speaking of the equitable interest of an assignee of a cliose in action, said 
 (on page 115): "As to express assent, it is undoubtedly hold, that in order 
 to give an action at law, the debtor must consent to the agreed transfer of 
 the debt, and that there must be some consideration for his. promise to pay 
 it to the transferee, but in equity it is otherwise." The correct rule, upon 
 principle, is to be found in the opinion delivered by Martin. B., in the recent 
 case of Liversidge v. Broadbent, 4 Hurlstone and Norman, 603, and 28 Law 
 Journal, N. S., Exchequer, 332, decided A. D. 1859. There it appeared that 
 one Clapham, a builder, was indebted to the plaintiff, as acceptor of two 
 bills of exchange, one of which was dishonored, and the other not yet 
 payable, amounting together to 113/. 13."!. ; and that Clapham was erecting 
 some cottages at Wetherby, for the defendant under a contract with him, by 
 virtue of which he was entitled to receive about 1201. The plaintiff, the 
 defendant and Clapham met, and Clapham signed a document saying, " I 
 hereby agree to authorize " the defendant to pay to the plaintiff 113/. 13s., the 
 amount of the acceptances, also other expenses upon the bills and interest, 
 " towards ray account for building the cottages, at Wetherby, Mr. Broadbent 
 to debit my account with the above money," and the plaintiff's receipt to be 
 binding between Clapham and the defendant in the contract. The defend- 
 ant wrote at the foot of this document "Acknowledged, Stephen Broad- 
 bent." And this action was brought upon that agreement, the declaration 
 setting it forth specially, and containing also a count for money payable, and 
 upon an account stated. At the trial it was objected that there was no con- 
 sideration for the defendant's promise, and thereupon the plaintiff was non- 
 suited; and he afterwards obtained a nil' nisi to enter a verdict in his 
 favor. The rule was discharged after argument, all the Barons present 
 delivering opinions. Pollock, C. B., said that the debt due from the defend- 
 ant to Clapham was not transferred to the plaintiff by the document; and 
 the debt due from Clapham to the plaintiff was not extingui.shed ; he also 
 thought that what the defendant wrote at the foot of the document did not 
 amount to any agreement whatever on his part. Martin, B., said that there 
 are two legal principles which have never been departed from; the first, that 
 at common law a debt cannot be assigned, ,so as to give the assignee a right 
 to sue for it in his own name, except in the ease of a negotiable instrument; 
 and the other that a promise cannot be enforced without a consideration. 
 That assuming that the defendant did promise to pay the money to the 
 plaintiff, there was no consideration for the promise; if the document 
 meant that the debt from Clapham to the defendant was immediately extin- 
 guished, there would be a consideration ; but here there was only a consent 
 that it should be extinguished, when the money should be paid to the plaintiff.
 
 524 Collateral Uistdertakings. [Ch. xv. 
 
 ing t-lie right of the promisee to maintain an action upon 
 the promise, they seem to command general acquiescence 
 
 He added: "No doubt a debtor may, if he thinks fit, promise to pay his debt 
 to a person other than his cseditor, and if there is any consideration for the 
 promise he is bound to perform it. But here there was none whatever. 
 There was no agreement to give time, or that the debt of Clapham should 
 be extinguished — no indulgence to him or detriment to the plaintiff. There 
 was nothing in the nature of a consideration moving from the plaintiff to the 
 defendant, but a mere promise by the defendant to pay another man's debt." 
 Bramwell, B., doubted whether the Chief Baron was correct in supposing 
 that there was no agreement by the defendant, and put his judgment upon 
 the grounds stated by his brother Martin ; namely, that at common law a 
 chose in action is not assignable, and here there was no consideration for 
 the promise to pay Clapham's debt. He quoted approvingly the early 
 authorities, to the effect that the consideration must move from the plaintiff, 
 and that if either the defendant or a stranger derived a benefit, from any 
 act done by the plaintiff, at the request of the defendant, it would suffice as 
 a consideration. But '' here the plaintiff was under no obligation to do any 
 act, or to forbear or to suffer any inconvenience." Watson, B., said that the 
 first count of the declaration alleged that the plaintiff and Clapham accepted 
 the agreement in discharge of their debts, and the averment was necessary, 
 '• for all the cases proceed on the ground that the debt due from the third 
 party to the plaintiff was extinguished, and therefore there was a good con- 
 sideration moving from him to support the defendant's promise." Here 
 there was no extinguishment of Clapham's debt, and nothing to prevent the 
 plaintiff from suing Clapham. There was therefore a total want of con- 
 sideration for the defendant's promise. This decision was mentioned approv- 
 ingly in the subsequent case of Noble v. The National Discount Company, 
 5 Hurlstone and Norman, 225, where it was said by Martin, B., that all the 
 court were anxious to decide the case in favor of the plaintiff, but it did not 
 quite reach the line. But the Common Pleas in the recent case of Cochrane 
 V. Green, 9 Common Bench Reports, N. S., 448, A. D. 1860, (S. C, 30 Law 
 Journal, N. S., C. P., 97; 9 Weekly Reporter, 124; 3 Law Times, N. S.,475; 
 7 Jurist, N. S., 548), adhered to the old ruling. There the defendant pleaded 
 several pleas to a declaration in assumpsit, the seventh and eighth of* which 
 were pleaded as partial defences ; each of them being to the effect that the 
 plaintiff was indebted to a third person, and the defendant, at the plaintiff's 
 request, agreed with the plaintiff's creditor to pay him the sum due to him, 
 and the creditor "agreed to accept the defendant as his debtor instead of 
 the plaintiff." There was a separate demurrer to each plea; and the court 
 gave judgment then on for the plaintiff, holding that the creditor had received 
 the defendant's pr( mise only as collateral security, and there was nothing to 
 estop him from suing the plaintiff. But the pleas did not set out any con-
 
 Collateral Undertakings. 625 
 
 upon the question arising under the statute. And it would 
 seem to be very clear upon principle, that although the letter 
 
 sideration whatever, as between the plaintiff and his creditor, nor indeed 
 any valid consideration between the defendant and the creditor. Still most 
 of the reports make the Chief Justice (Erie) and Williams. J., say that 
 nothing short of the plaintiff's discharge would sustain the plea. Of this 
 case it may also be remarked that the facts disclosed by the pleas were much 
 stronger to show a discharge, than those disclosed by the evidence in either 
 Wilson V. Coupland or Lacy v. McNeile. Some cases in the United States, 
 mostly of an early period, sustain this doctrine ; and a recent New York case 
 seems to have proceeded upon the same principle. In Rupp v. Blanchard, 
 34 Barbour, 627 (A. D. 18G1), the plaintiff sued to recover a debt contracted 
 by the defendant to. the firm of Lawson and Carll ; and the facts, as found 
 by a referee, were (briefly) that Lawson and Carll, against whom ihe plaintiff 
 had recovered a judgment, " made a verbal agreement" with him that they 
 would "turn over and as^^ign" to him the debt due to them by the defend- 
 ant, to be applied, when collected by the plaintiff, to the payment of the 
 judgment; and at the same time handed to him a bill of items of the account, 
 without any written order or transfer of the debt ; which the defendant 
 subsequently promised to pay to the plaintiff, after making certain deductions 
 therefrom. Upon these facts the referee held as matter of law, that the 
 defendant was entitled to judgment ; and a judgment in his favor was 
 affirmed upon appeal to the general term of the Supreme Court. The 
 material portion of the opinion is as follows: "Although there may be .in 
 assignment of a chose in action by parol, yet to constitute such an assign- 
 ment, it must be shown that the owner surrendered all control over it, and 
 had made an absolute appropriation of it. And where a debtor agrees to 
 assign to his creditor a claim which he has against another; in order to make 
 it a valid assignment, the creditor must relinquish his claim against the 
 owner of the chose in action. Otherwise the agreement is without con- 
 sideration, and cannot be construed even into an equitable assignment of the 
 claim." But it was held in two earlier cases in the same State, that an 
 authority, given by a debtor to his creditor, to collect a debt due to him, 
 and apply the proceeds, when collected, to the payment of the debt of the 
 person giving the authority, amounts to an equitable assignment of the first 
 mentioned debt. Canfield v. Monger, 12 Johnson, 34G ; Taylor v. Bates, 
 5 Cowen, 376. But Ford v. Adams, 2 Barbour, 349, in the same State, and 
 Benson v. Walker, 5 Harrington (Delaware), 110, both decided A. D. 1848, 
 apparently afford some countenance to the doctrine that the intermediate 
 debts must be extinguished, in order to render binding a promise to pay a 
 debt, where there was no actual assignment of it, but merely an order to 
 pay to another. But it is well settled in the United States that a debtor's 
 promise, for a valuable consideration, to pay a debt to a transferee thereof
 
 526 Collateral Undertakings. [Ch. xv. 
 
 of the statute might include, its spirit would also exclude 
 all cases, where the promisor and promisee contract with 
 reference to the fulfilment of the promise, either directly 
 or by reimbursing the promisor, out of a similar fund ; 
 although the promise might have been couched in the 
 terms of a general undertaking to pay the debt. But 
 there is sufficient conflict in the decisions upon this point, 
 to render it a matter of considerable embarrassment to 
 frame any rule upon the subject, as containing a generally 
 recognized principle of law. 
 
 § 520. This embarrassment is increased by the fact that 
 those cases which admit the general principle to be sound, 
 are not entirely of accord respecting the distinctive terms 
 of the rule in which it should be embodied ; and thence 
 arises a discussion, which embraces also the question what 
 is the true rule to be derived from those cases, where a 
 verbal promise to pay the debt of another was sustained, 
 which had for its consideration the surrender of a lien or 
 other security, available to the promisee for the collection 
 of the debt. It has been argued, with no little force, that 
 
 is valid, and entitles the latter to maintain an action in his own name ; and 
 the weight of American authority is decidedly to the effect, that it is valid 
 without any new consideration. Compton v. Jones, 4 Cowen, 13 ; Lang v. 
 Fiske, 2 Fairfield (Maine), 385 ; Gordon v. Downey, 1 Gill (Maryland), 41 ; 
 Allstan V. Contee, 4 Harris and Johnson (Maryland), 351; Barger v. Collins, 
 7 Harris and Johnson (Maryland), 213, 219 ; Mount Olivet, etc., Company v. 
 Shubert, 2 Head (Tennessee), 116; Jessel v. Williarasburgh Insurance Com- 
 pany, 3 Hill (New York), 88; Smith v. Berry, 18 Maine, 122; Warren v. 
 Wheeler, 21 Maine, 484; Creel v. Bell, 2 J. J. Marshall (Kentucky), 309; 
 Matheson v. Crain, 1 McCord (South Carolina), 219 ; Crocker v. Whitney, 
 10 Massachusetts, 3 IG ; Mowry v. Todd, 12 Massachusetts, 281 ; Currier v. 
 Hodgdon, 3 New Hampshire, 82; Morse v. Bellows, 7 Now Hampshire, 
 549, 555; RoUison v. Hope, 18 Texas, 44G; Moar v. Wright, 1 Vermont, 
 57; Bucklin v. Ward, 7 Vermont, 195; Hodges v. Eastman, 12 Vermont, 
 358; Stiles v. Farrar, 18 Vermont, 444. For a case very similar to Lilly v. 
 Hays, where, upon substantially the same facts, it was held that the plaintiff 
 was entitled to recover, both at common law and under the statute of frauds, 
 see Wyman v. Smith, 2 Sandford, 331, A. D. 1849, in the New York Superior 
 Court.
 
 Collateral Undertakings. 627 
 
 they belong to tlie same class, with the cases where the 
 promise was based upon a fund received from the debtor. 
 But those who maintain that proposition, do not agree 
 respecting the principle which governs the supposed com- 
 prehensive class. 
 
 § 521. The conflict of authority upon this subject is well 
 illustrated by two very recent decisions, each proceeding 
 from a tribunal commanding great respect through- 
 out the United States. (6) These two adjudications agree 
 in holding that both these descriptions of cases constitute 
 one class ; but they are flatly in contradiction to each 
 other, with respect to the very foundation of the rule which 
 controls it. One entirely repudiates the idea that there is 
 any rule based upon a fund ; contending that all rightly 
 determined cases, where such a rule was supposed to con- 
 trol, depended upon the proposition that where the lead- 
 ing object of the promisor was to benefit himself, the 
 promise is not within the statute. The other denies that 
 there is any rule depending on the leading object of the 
 promisor; and holds that all rightly determined cases, 
 where it was supposed to control, depended upon the 
 existence of a fund. On the other hand numerous cases 
 hold that the two classes are distinct ; but they are far 
 from being entirely of accord, with respect to the true 
 rule which governs either. 
 
 § 622. It is needless to say, that under such circum- 
 stances, the elementary writer would endeavor in vain to 
 ascertain the true rule from precedents merely. Pro- 
 nouncing, as we are bound to do, an opinion based upon 
 what appears to be the weight of reasoning, as derived from 
 the arguments advanced upon either side, and the weight 
 of authority, as derived from all the adjudications ; we 
 reject both the cases in question, and all others to the 
 same effect, as far as they insist that the two classes are 
 
 (b) Furbish v. Goodnow, 98 Massachusetts, 296, post, § 563, and Fullam v. 
 Adams, 37 Vermont, 391, post, § 620.
 
 628 COLLATERAJL UNDERTAKINGS. [Cll. XV. 
 
 the same ; holding them to be distinct from each other, 
 and that each is governed by its own peculiar rule. That 
 which governs the class now to be examined, is the seventh 
 of our series, namely : 
 
 RULE SEVENTH. 
 
 A promise to pay the pre-existing debt of a third perBon to the promisee, is not within the 
 statute, if the substantial effect of its fulfilment will be to discharge the debt, out of a fund 
 furnished to the promisor by the debtor, in contemplation of whioh the promise wag 
 made. 
 
 ARTICLE I. 
 
 Origin and effect of the rule ; English cases recognizing the principle which it embodies. 
 
 § 523. In most of the cases which will be considered in 
 this chapter, the action was founded, either upon a prom- 
 ise made to the creditor, at the time when the fund was 
 delivered to the promisor by the debtor, or upon a subse- 
 quent promise to the creditor, without any new considera- 
 tion proceeding from him. It has been shown in preceding 
 portions of this volume, that as the common law is admin- 
 istered in England, a stranger to the consideration cannot, 
 in general, maintain an action upon a contract ; and this 
 doctrine has prevented the foregoing rule from obtaining 
 much recognition in that country. Still it is derived from 
 English cases, the principle of which has been modified, 
 when a modification was required, in accordance with the 
 understanding which prevails in the United States, respect- 
 ing the creditor' s right to enforce such a contract, although 
 the consideration proceeded entirely from the debtor. 
 
 § 524. The principle was very clearly stated, although 
 applied to a debt thereafter to be created ; and a question 
 incidentally arising, which we shall hereafter have occa- 
 sion to examine, was correctly disposed of, in a nisi prius 
 case before Lord Ellenborough, Ardern v. Rowney, § 
 Espinasse, 254, A. D. 1804. There one Alder had applied 
 to the plaintiff to discount a check for lOOZ. drawn by 
 Alder upon the defendant, but before advancing the money 
 the plaintiff sent his clerk to the defendant to know if the 
 check would be honored, and the latter said that it would
 
 Art. I.] COLLATEEAL UNDERTAKINGS. 
 
 be honored, as he was in Alder's debt200Z.; the clerk then 
 said tliat as the check was post dated, it could not be 
 recovered, and tln^ defendant aiiswci-cd that did not sif;nify, 
 and it sliould be paid ; wher(.'Ui)on tlie i)laintiir advanc(.'d 
 the money. At the trial it was admitted that the jDlaintiif 
 could not recover upon the check ; and the defendant 
 objected that he could not recover upon the parol request 
 to advance the money, and promise to repay it; as the 
 promise was within the statute. But Lord Ellenborough, 
 C. J., said that if it was an agreement to pay the amount 
 of any money which the plaintift' might advance to Alder, 
 the case would be within the statute ; but it appeared to 
 him that this was an appropriation of part of tlie money 
 which the defendant said he owed Alder, and that the 
 plaintiff could recover. It was then suggested by the 
 defendant's counsel, that the plaintiff could not recover 
 beyond the money actually due to Alder by the defendant, 
 and he offered to show that the defendant was mistaken 
 in saying that it was 200^. ; to which Lord Ellenborough 
 assented ; and evidence was accordingly produced to show 
 that the real balance was 80Z., for which sum the plaintiff 
 had a verdict. 
 
 § 625. Tlie same principle would have very satisfactorily 
 disposed of a more recent case, where the court neverthe- 
 less ignored it, and put the decision upon a more ques- 
 tionable ground. In Dixon v. Hatfield, 10 Moore, 42, 
 A. D. 1825, the i)laint)ffs sued as assignees in bankruptcy 
 of one Moore, upon a written agreement of the defendant, 
 to the effect that he would pay Moore 50Z. for timbei* to 
 a certain house, "out of the money that I have to pay 
 AVilliam West, provided West's work" is completed;" 
 and it appeared at the trial, that West had undertak(m to 
 complete the carpenter's work on the house fcjr tlie defend- 
 ant, and find all the materials ; but being unable, for want 
 of funds, to procure timber, it was fni'nislied by Moore 
 upon tlie defendant's signing the agreement. The jury 
 having found a verdict for the plaintiff, the defendant 
 moved for a rule nisi to set aside the verdict, because the 
 G7
 
 630 COLLATEEAL UNDERTAKINGS. ' [Ch. XV. 
 
 agreement did not express the consideration ; but the court 
 refused any rule. Opinions were delivered seriatim by all 
 the judges ; but the decision was placed upon the ground 
 that it was a purchase of the property by the defendant, 
 no credit having been given to West, and consequently that 
 West was not liable, (a) But it may be doubted whether 
 the verdict could have been sustained on that ground, as 
 it is hardly to be supposed that the plaintiff intended to 
 lose his property altogether, in case West did not com- 
 plete the work ; and nothing appears to have been left to 
 the jury upon the question whether any credit was given 
 to West. The fact that the defendant agreed to pay out 
 of the moneys due to West was entirely disregarded ; and 
 the condition annexed to the promise was treated by the 
 court as a mere limitation of the period of the credit. 
 
 § 526. That a promise in terms to apply a fund there- 
 after to be received from the debtor, to the discharge of 
 a debt incurred on the faith thereof is not within the 
 statute, was settled by the judgment of the court of Ex- 
 chequer in Andrews v. SmiM, 2 Crompton, Meeson and 
 Roscoe, 627, A. D. 1835.(5) There the declaration stated 
 in substance that one Hill was employed to do work on 
 certain houses ; and the defendant was employed as sur- 
 veyor over him, and, as such, was to receive and pay over 
 to Hill the moneys to be paid to him for his work ; and 
 the defendant undertook, in consideration that the plaint- 
 iff would furnish to Hill materials for the work, to pay him 
 "out of such moneys, received by the defendant, as afore- 
 said, as should become due to the said J. Hill," if he would 
 procure an order from Hill for that purpose ; that he did 
 procure and present such an order and furnish materials ; 
 and that the defendant afterwards had funds with which to 
 
 (a) This was the view taken by Park and Gaselee, J. J., and apparently 
 concurred in by Best, C. J., of the question arising under the statute; but 
 Gaselee, J., also thought that the defendant would have been liable, if credit 
 had been given to West. Burrough, J., gave no special reason for concur- 
 rence. The case is veiy imperfectly reported in 2 Bingham, 439. 
 
 (h) S. C, 1 Gale, 335; Tyiwhitt and Granger, 173.
 
 Art. I.] Collateral Undertakings. 631 
 
 pay the same, but, etc. To wliicli the defendant pleaded, 
 with other matters, that there was no writing, etc., and the 
 plaintift* demurred to the plea. Judgment was rendered 
 for the plaintiff on the demurrer, on the ground that it 
 did not appear that Hill became liable to the plaintiff ; and 
 also on th(^ principle above mentioned. Upon that point 
 Lord Abinger, C. B., remarked that if the defendant 
 contracted, not to pay nilFs debt out of his own funds, 
 but only faithfully to apply Hill's funds for that purpose, 
 when they should come to his hands, that contract would 
 not be within the operation of the statute. Parke, B., 
 also delivered an opinion concurring on both points ; and 
 with them the other barons concurred generally, (c) 
 
 § 527. In all the preceding cases the promise was to pay 
 a debt, to be thereafter contracted by the third person wpon 
 the faith thereof. The principle is precisely the same, 
 where the promise was to pay a debt theretofore con- 
 tracted ; but it does not seem to have been recognized in 
 England, when cases presenting that feature have been 
 before the courts. Those where the promisor received 
 moneys from the debtor, to be paid to the creditor *, and 
 those where he undertook to pay to the promisee a debt 
 due by himself to the third person, in discharge of a debt 
 due by the third person to the promisee, have been made 
 to depend, as far as the statute was in question, upon a 
 different principle ; and have been fully examined hereto- 
 fore, (d^) The door is entirely closed in England by the 
 doctrine already mentioned, to the recognition of another 
 class of cases, which, in the United States, is quite large, 
 and depends entirely upon this principle ; nann^ly, where 
 a tripartite agreement was made, whereby the promisor, 
 in consideration of a fund then placed in his hands by the 
 debtor, undertook with the creditor to pay tlie debt. 
 
 § 528. But in the series of important English decisions, 
 which we shall have occasion to cite, in examining the origin 
 
 (c) And see Hodgson v. Anderson, cited ante, §§ 515, 516. 
 
 (d) Cliapler fourteenth, article fourth.
 
 532 Collateral Undertakings. [Ch. xv. 
 
 of the next succeeding nile,(c) there are some, where the 
 result might well have been made to depend exclusively 
 upon the principle now under consideration. In the pro- 
 cess of settlement of the principle, upon which it was 
 ultimately ruled that they depended, reasons were fre- 
 quently assigned by different judges for holding that the 
 particular promises were not within the statute, bearing a 
 close analogy to the proposition embodied in our seventh 
 rule. The doctrine stated in some of those cases, that 
 where a person has received property subject to a prior 
 lien in favor of the creditor, a promise to pay the debt, in 
 consideration of the waiver of that lien, is not within the 
 statute, because the promisor was the holder of a fund 
 charged with an incumbrance existing in favor of the 
 promisee, is in reality, with the exception of the statement 
 of the consideration, one of the corollaries derived from 
 this rule. And it is believed that the nature of the consid- 
 eration is not an essential fact upon which the principle 
 depends. But in the references there made to the prop- 
 erty, as a fund from which to pay the debt, it was gener- 
 ally regarded as having proceeded from the creditor, 
 through the process of waiving his lien. This inference 
 involved so much straining of the palpable facts, in order 
 to accommodate them to a legal theory, that it failed to 
 survive the test of time ; and in England, the various, and 
 sometimes inconsistent propositions advanced in those 
 cases, have apparently become cryetallized into the doc- 
 trine, that the promise is valid, because the previous lia- 
 bility of the promisor's property is equivalent, for the 
 purposes of the statute, to a previous personal liability on 
 his part for the debt. 
 
 § 529. The cases to which we allude are so fully ab- 
 stracted in the next succeeding chapter, with reference to 
 this question, as well as the one there discussed, that it 
 will be unnecessary, in this connection, to dwell at any 
 length upon this feature of them. An examination of 
 
 (e) Chapter sixteenth, article first.
 
 Art. I.] Collateral Undertakings. 633 
 
 tliem will shed considcrabh^ light, not only upon the gen- 
 eral principle now under discussion, but also upon some 
 subordinate, but important questions which attend its ap- 
 plication. Chief among these is one, which will be made 
 the subject of a separate article of this chapter ; namely, 
 whether the promisee can recover damages for a breach 
 of the promise, exceeding the amount of the fund, if it 
 should prove to be insufficient to pay the debt.(/) 
 
 § 530. It remains only to add, before proceeding to the 
 examination of the American cases, that it is not necessary, 
 for the purpose of satisfying this rule, that the fund should 
 be applicable to the discharge of the debt, in the same 
 form in which the promisor received it from the debtor. 
 On the contrary, in most of the cases, the transaction be- 
 tween the debtor and the promisor assumed the form of a 
 sale, or other transfer of property, by the former to the 
 latter ; upon the agreement that the transferee would pay 
 to the creditor, in discharge of the debt, or otherwise 
 apply to the use of the transferor, the whole or some part 
 of the consideration of the transfer. Tlie distinction be- 
 tween cases of this character, and those where the promise 
 was to pay to the creditor a debt due by the promisor to 
 the debtor, although apparently narrow, is very clearly 
 defined. For in this class of cases the promisor did not 
 become, (at least not until a breach of his contract,) the 
 debtor of the transferor ; inasmuch as the promise was 
 to apply the consideration, in the particular manner pointed 
 out by the agreement between them. Evidently the prac- 
 tical effect of the transaction is the same, as if so much 
 money of the debtor had been placed in the hands of the 
 promisor; and accordingly the consideration is very 
 properly treated as a fund in his hands. 
 
 (/) See article iv.
 
 534 Collateral Undertakings. [Ch. xv. 
 
 ARTICLE II. 
 
 Where the promisor, having the fund in hand, undertook to pay a debt due to the promisee 
 from the person who furnished the fundi 
 
 § 531, When the fund was placed in the hands of the 
 promisor, for the express purpose of paying therewith a 
 debt due to the promisee by the. person from whom it pro- 
 ceeded, the case frequently presents some feature, which 
 determines the validity of the promise, at common law 
 and under the statute of frauds, without resorting to the 
 principle now under examination. Hence many of those 
 cases have been incidentally considered under some of 
 the former divisions of our subject. Of those which 
 remain to be considered in this connection, some are cases 
 where the promisor, the promisee and the creditor were 
 parties to the contract. They will be examined, Avith 
 others possessing that feature, under the next succeeding 
 article. Those cases where the creditor seeks to enforce a 
 trust, strictly so called, also fall within this principle ; but 
 they demand only a passing notice. It is well settled that 
 the statute of frauds has no application to the duty or 
 implied promise of an assignee for the benefit of creditors, 
 faithfully to administer the fund and to pay over its pro- 
 ceeds, in accordance with the terms of the trust ; although 
 the effect of his doing so is to discharge, in whole or in 
 part, the debts of the assignor. This principle was stated, 
 and some of the authorities which sustain it were cited, 
 in a previous chapter, (a) 
 
 § 532. So where an express promise was made to the 
 creditor, founded upon the duty or implied obligation of 
 the assignee, as in Merrill v. Engleshy, 28 Vermont, 150, 
 A. D. 1855. This was a contest between the unsecured 
 creditors of an insolvent debtor, and certain sureties of the 
 insolvent, together with an assignee, to whom property, 
 vvhich the plaintiff attempted to reach by a trustee process, 
 had been conveyed by the insolvent for their protection. 
 
 (o) See ante, note to § 101.
 
 Art. II.] Collateral undertakings. 636 
 
 And upon the question, whether the assignment had been 
 sufficiently ratified, before the service of the trustee process 
 upon t]i(' assignee, it was held that an express ])roniiso, 
 without any new consideration, made by the assignee to 
 the sureties, to the effect that he would keep the property 
 for their security, was valid without writing. 
 
 § 633. But questions of difficulty, upon which the cases 
 are somewhat in conflict, arise when there was no specific 
 trust in favor of the plaintiff ; but he founds his action 
 upon an express promise to pay the debt, made by a per- 
 son holding a fund proceeding from his debtor. In such 
 a case, it would seem upon principle, although some au- 
 thorities hold otherwise, that in order to sustain the prom- 
 ise at common law, it must be founded upon some new 
 and distinct consideration. It is impossible to reconcile 
 all the decisions upon the subject of the application of the 
 statute to such a promise ; but it is believed that the weight 
 of reason and authority sustain the three propositions 
 which follow : 1. That where the promisor absolutely con- 
 trols the fund, but his application thereof to the payment 
 of the debt due to the promisee, will acquit him of a duty, 
 which he owed to the person who furnished it, the promise 
 is not within the statute. 2. That where he controls the 
 fund, but there is nothing to show that he owes any duty 
 of which he will be acquitted by paying the promisee, the 
 promise is merely to pay the debt of a third person out of 
 a particular portion of his own property, and it is con- 
 sequently within the statute. 3. That where he does not 
 absolutely control the fund, the promise is within the 
 statute, because there is nothing to show that its fulfil- 
 ment will not result in paying the debt of a third person 
 out of his own means. 
 
 ^ 534. To commence with the cases maintaining the first 
 of these propositions. In Madden v. McCray, 1 ^fcCord 
 (South Carolina), 48G, A. D. 1821, the defendant's brother, 
 who was out of the State, was indebted to the plaintiff; 
 and the plaintiff applied, through an agent, to the defend-
 
 636 Collateral Undeetakings. [Ch. xv. 
 
 ant for payment ; saying that he would attach if payment 
 was not made. Thereupon the defendant said to the 
 plaintiff's agent, that he had effects which had been placed 
 in his hands by his brother to make himself safe as his 
 surety, and also for the payment of his (the brother' s) debts ; 
 and if the plaintiff would wait until fall, he (the defendant) 
 would pay the debt. Upon this promise the plaintiff 
 "declined" taking out an attachment. It was objected 
 that the promise was within the statute, but the plaintiff 
 had judgment ; and the judgment was affirmed upon ap- 
 peal, on the ground, that as the defendant possessed a 
 fund applicable to the payment of the debt, whether it was 
 specially designed for payment of the plaintiff's debt or 
 not, his promise was obligatory upon him.(&) 
 
 § 535. The same principle, although the case is some- 
 what obscure, apparently controlled the decision of Clark 
 V. Hall, 6 Halsted (New Jersey), 78, A. D. 1829. There 
 the plaintiff and the defendants had conflicting claims 
 upon a quantity of hats, belonging to a person who was 
 debtor to both of them, the plaintiff having the earlier 
 order for the delivery of the hats to him, and the defend- 
 ants having taken possession of them, under a bill of sale 
 of a later date ; the precise purpose of the order and bill 
 of sale not appearing in the case, except that each was 
 given to enable the party receiving the same to effect pay- 
 ment of his demand. Under the supposition, on the part 
 of both parties, that the value of the hats exceeded the 
 amount of both the debts, a verbal agreement was made 
 between them, that the defendants should sell them, and 
 that the parties should share the proceeds equally, until 
 the plaintiff's claim, which was the smaller of the two, 
 
 (i) The judge who delivered the opinion of the appellate court was the 
 same before whom the cause was tried ; and he said that it appeared in his 
 notes, that the defendant acknowledged that the fund was placed in his 
 hands for the purpose of paying the plaintiff; but the "brief" (bill of excep- 
 tions) expressly stated, that he " did not say that he had effects to pay this 
 debt."
 
 Art 11 ] Collateral Undertakings. 537 
 
 slioiild be paid ; but altlioiigli tlu^ hats sold for twice the 
 amount of the plaintiff's demand, they did not sell for 
 enough to pay both the debts. The plaintiff brought this 
 action to recover the amount of his demand, and at the 
 trial he succeeded, notwithstanding the defendants' objec- 
 tion that the promise was within the statute. Upon certi- 
 orari the judgment was affiruK^d, the court merely saying, 
 that in their opinion "the undertaking of the defendants 
 below was not within the statute of frauds." 
 
 § 636. So in Russell v. BahcocJc, 14 Maine, 138, A. I). 
 1836, the plaintiffs had recovered judgment against one 
 Sprague, and the defendant said to them that he was to 
 pay the judgment, and would pay it if the plaintiffs 
 would withhold the execution. Afterwards he repeated the 
 promise several times, but finally, upwards of a year after 
 the judgment was recovered, he said that he would not 
 pay the whole of it. The plaintiffs, upon the faith of 
 the defendant' s promise, had forborne execution during the 
 whole period, and now commenced this action ; and after 
 its commencement, the defendant said that he should lose 
 nothing, as Sprague had secured him, but had directed 
 him not to pay the whole. The court held that the prom- 
 ise was an original one, without assigning the reasons for 
 its conclusion upon that point. This case has been sup- 
 posed to liold that the forbearance alone sufficed to take 
 the promise out of the statute, and the head note of the 
 reporter is to that effect. 
 
 § 537. But in Hilton v. Dinsmore, 21 Elaine, 410, A. P. 
 1842, the court said that Russell v. Babcock was decided 
 upon the same grounds, which controlled the decision then 
 pronounced. There it was shown at the trial that the 
 plaintiff held notes against one Dryden, and th(' defend- 
 ant sent him word that "Dryden had put property in his 
 hands, wherewith he could help him to his pay, and that 
 he would do it, if he would not sue the notes;" to which 
 the plaintiff answered, agreeing "to be easy." The 
 plaintiff was nonsuited at the trial ; but the Supreme 
 68
 
 638 Collateral Undertakings. [Ch. xv. 
 
 Court granted a new trial, saying that if Russell v. Bab- 
 cocJc was decided upon the ground that the forbearance 
 sufficed to take the promise out of the statute, it was not 
 law ; but there, as well as in this case, there was evidence 
 from which the jury might have inferred, that a fund had 
 been placed in the defendant' s hands by the debtor, "with 
 a view to the pajrment of this debt ;" and such a consid- 
 eration, together with the promise on the part of the 
 plaintiff to forbear, would suffice to support the action. 
 
 § 538. In Robins on v. Oilman, 43 New Hampshire, 485, 
 A, D. 1862, the question arose upon a setoff to the demand 
 of the plaintiff, who sued as administratrix, the defendants 
 being also sued as administrators. It appeared that the 
 plaintiff's intestate had had large dealings with one 
 Rollins, who had failed, claiming that the plaintiff's 
 intestate owed him a large sum of money, which the 
 latter denied ; and two of Rollins' s creditors had taken out 
 trustee process against the plaintiff' s intestate, whereon he 
 had been examined at length respecting his transactions 
 with Rollins, and was unwilling to answer further. 
 The defendants' intestate was a creditor of Rollins, and 
 proposed to take out a similar process against the plaint- 
 iff' s intestate ; thereupon a conversation took place 
 between the plaintiff' s intestate, and the person then acting 
 as attorney for the defendants' intestate, the purport of 
 which was rather vague ; but the Supreme Court held that 
 the jury might have found, that it was to the effect, that 
 in consideration that no trustee process should be taken 
 out against him, the plaintiff' s intestate promised that he 
 would pay the debt. The judge at the trial ruled that 
 the evidence did not sustain the setoff, because of a 
 variance and because of the statute of frauds ; and accord- 
 ingly he directed a verdict for the plaintiff for the full 
 amount of her demand. 
 
 § 539. A new trial was granted by the Supreme Court 
 upon an exception to this ruling. Bell, C. J., delivering a 
 very able and instructive opinion, from which we have
 
 Art. ir.] Collateral Undertakings. 639 
 
 had occasion previously to quot(\(c) Upon the precise 
 question now under examination, tlie learned Chief Justice 
 summed uj) his conclusions as follows: "He" (Robinson) 
 "was assumed by Gilman to have in his hands property 
 or funds, for which he might be charged as the trustee of 
 Rollins. If he had such funds or property, and of suffi- 
 cient amount to pay Gilman's debt, the waiver by Gilman 
 of his right to commence a trustee suit would form such 
 a consideration for his promise, as would make it valid 
 without writing, according to the principles adopted by 
 the authorities. The promise to pay tlic^ debt was an ad- 
 mission, or might be regarded as an admission by the jury, 
 that he had property for which he might be chargeable to 
 the amount of these notes, as was held in Jackson v. 
 Rayner, 12 Johnson, 291." (^) 
 
 § 540. To these we add a case where the defendant' s 
 promise was held to be valid, without any new considera- 
 tion, under the peculiar circumstances attending his receipt 
 of the fund. In Shatier v. Adams, 10 Iredell (iS'orth Caro- 
 lina), 13, A. D. 1848, the defendants and one B. entered 
 into a copartnership to run a line of stages, and B. put 
 into the common stock, at a specified price, a wagon which 
 he had purchased from the plaintiff for the use of the firm, 
 and for which he had given his individual note ; then B. sold 
 out his interest to the defendants. It did not appear 
 that there was any express agreement that they should 
 pay the note ; although in the settlement of their accounts, 
 he informed them that the note was outstanding, and for 
 that reason he was not entitled to any credit for tlie wagon ; 
 to which the defendants assented, and the wagon was left 
 in the common stock and worn out in the defendants' ser 
 vice. Subsequently the defendants promised to the 
 plaintiff to pay the note, and it was surrendered by the 
 plaintiflf to B. A judgment for the plaintiff upon a ver- 
 iict was affirmed on appeal. The court held that it was 
 
 (c) See § 184, and note to § 65. 
 
 (d) See this case in § 545, post.
 
 640 Collateral Undertakings. [Ch. xv. 
 
 unnecessary to inquire, whether the defendants would be 
 liable upon the contract of purchase ; that their opinion 
 was "founded upon the agreement made by the parties to 
 take the wagon and pay the plaintiff for it," and conse- 
 quently "the contract on which the action is brought," 
 was an original contract not within the statute, founded 
 upon a sufficient consideration. 
 
 § 541. These cases maintain very clearly and satisfac- 
 torily the first of the three propositions which we have 
 indicated as tests of the validity of the promise, and it is 
 believed that those which proceed on the contrary prin- 
 ciple, were not correctly decided. Such an error, it is 
 thought, was committed upon this point in Emerick v. 
 Sanders, 1 Wisconsin, 77, A. D. 1853 ; although the decis- 
 ion might perhaps have been supported, had it been put 
 upon the ground that the promise was not obligatory at 
 common law, for want of consideration ; and upon the 
 proposition that there was no privity between the parties, 
 the case is an authority upon one side of the disputed 
 question thence arising, (e) There the evidence at the 
 trial was to the effect that the defendant' s son had placed 
 property in her hands for the purpose of paying his debts, 
 and particularly the debt which he owed to the plaintiff ; 
 and had then left the country. Afterwards she promised 
 the plaintiff, without any new consideration, to pay him 
 the amount of the debt which the son owed him ; saying 
 that the latter had left plenty of property in her hands, 
 with which to pay his debts, or this debt. The plaintiff 
 had a verdict in the court below, but the Supreme Court 
 reversed the judgment rendered thereon ; holding that 
 the promise was within the statute ; because, whether the 
 defendant received the goods as a bailee, or as a purchaser 
 upon a promise to pay for them, there was no privity be- 
 tween herself and the plaintiff ; and any subsequent prom- 
 ise to the plaintiff, without the concurrence of the original 
 debtor, was necessarily collateral to his indebtedness. 
 
 (e) See chapter twelfth, section 426.
 
 Art. II.] Collateral Undertakings. 641 
 
 § 542. The case of Johnson v. Morris^ 21 Georgia, 238, 
 A. D. 1857, also contains a ruling in conflict with this 
 principle; although the decision might be sn])ported, on 
 the ground that there was no consideration for the defend- 
 ant's promise to the plaintiff". There the action was 
 brought to recover a balance of account for the liire of a 
 negro ; and the evidence tended to show that one Jones 
 hired the negro from the plaintiff* for one year at a speci- 
 fied price ; that soon afterwards he transferred the negro 
 to the defendant, who agreed with him to pay the plaint- 
 iff"; and that the defendant afterwards agreed with the 
 plaintiff", to pay him ; and paid part of the stipulated price. 
 At the trial in the court below, the jury found a verdict 
 for the plaintiff, under the instructions of the judge ; but 
 the judgment was reversed by the Supreme Court upon a 
 writ of error. It is to be inferred from the report that the 
 only questions raised at the trial, and argued before the 
 Supreme Court, related to the competency of certain testi- 
 mony off"ered to impeach a witness, and to the terms of 
 the contract between the parties to this suit. The Supreme 
 Court declined to pass upon either question, saying, with 
 respect to the construction of the contract, "Let it be 
 either way, it was a parol understanding to pay the debt 
 of another, and therefore void. Let Morris sue Jones ; 
 and Jones, Johnson; and if the latter" (sic) " be insolvent, 
 Johnson can be garnisheed." 
 
 § 543. In Westheimer v. PeacocTc, 2 Iowa, 528, A. D. 
 1856, there was no proof of the existence of any fund, and 
 the case may be well supported on that ground, although 
 the distinction was not clearly taken in the opinion. 
 There it appeared upon the trial that the plaintiff"' s 
 assignors, before the assignment to the ])hiiiitiff, were 
 about to commence an action agamst the defendant" s son 
 upon a note made by him, and to attach his property 
 therein ; when the defendant requ(^sted them to forbear, 
 saying " that he was getting his son's property into his 
 hands, and that he would pay the note." The promisees 
 forbore accordingly, and in consequence thereof the debt
 
 542 CoLLATEEAL Undeetakings. [Ch. XV. 
 
 was lost ; but the report says that there was nothing to 
 show, that the defendant did get his son's property into 
 his hands. The plaintiff had a verdict ; and a judgment 
 thereon was reversed on appeal, the Supreme Court holding 
 that the promise was within the statute ; it being, in their 
 opinion, a common contract of guaranty, made upon the 
 consideration of forbearance to the original debtor. 
 
 § 544. The case of Simpson v. Patten^ 4 Johnson, 422, 
 decided A. D. 1809, which has frequently been cited as an 
 authority against the validity of any verbal promise to 
 pay a creditor, founded upon a fund proceeding from the 
 debtor, is distinguishable from those previously cited, and 
 comes within either the second or the third proposition. 
 It was brought before the New York Supreme Court by a 
 certiorari to a justice's court. In the court below, the 
 declaration counted upon a promise of the defendant, that 
 if the plaintiff would forbear to sue one J. S. , the defend- 
 ant would pay the plaintiff the amount of the note of 
 J. S. to the plaintiff, which was then due, ' ' as soon as he 
 could sell an acre of land belonging to the said J. S. which 
 he was authorized to sell," and which the declaration 
 further averred that he had sold. Evidence of a verbal 
 agreement to that effect, having been admitted in the court 
 below, the Supreme Court reversed a judgment for the 
 plaintiff, holding that the promise was within the stat- 
 ute of frauds. The case is meagerly reported, and no 
 reason was given for the decision, except that the promise 
 was to pay a third person' s debt ; but it did not appeal 
 what was the nature of the authority of the defendant to 
 sell the property, or whether he controlled the proceeds 
 after the sale. Still it must be acknowledged that the 
 evidence ran very close to that, upon which, in the 
 other cases, the court permitted the jury to infer that the 
 defendant controlled the fund, subject to a trust to pay 
 the debt of the person who furnished it. 
 
 § 545. But Jackson v. Jiayner, 12 Johnson, 291, A, D, 
 1815, in the same court, admits of no distinction, which
 
 Art. II.] Collateral Undertakings. 643 
 
 will reconcile it with tlie others ; and it must be regarded 
 as having been overruled by later decisions ; and perhaps 
 as having proceeded upon an erroneous view of tlie pre- 
 ceding case. This was also an action which came into the 
 Supreme Court on certiorari to a justice's court. It 
 appeared from the testimony in the court below, that the 
 plaintiff had commenced an action by warrant against 
 Micliael Jackson, the defendant' s son, upon a note ; and 
 when the constable was about to serve the warrant, the 
 defendant told him not to serve it, as lu? would pay the 
 debt if it was an honest one ; upon whicli the phiintiff 
 withdrew the suit. Soon afterwards the defendant saw 
 the constable again, and requested him to tell the pLaintiff 
 "to give himself no further trouble about it, for lie would 
 pay the debt, as he had taken his son Michaer s property, 
 and meant to pay his honest debts." Upon this evidence, 
 the justice gave judgment for the plaintiff, overruling the 
 defendant's objection that the promise was within the 
 statute of frauds. The opinion of the Supreme Court was 
 as follows: "The fair construction of the parol proof in 
 this case is, that the defendant below had received an 
 assignment of his son' s property, in trust for the payment 
 of his son' s debts ; and from that fund he promised to 
 pay the debt now in question. He is to be regarded as 
 a trustee for the creditors of his son, and his absolute 
 promise to this creditor, is evidence that the fund was 
 adequate. But the original debt of the son w^as still sub- 
 sisting ; and according to the decision in the case of JSimj^- 
 son V, Patten and the authorities there cited, it seems 
 well settled, that a promise to ])ay the debt of a third 
 person must be in wa-iting, notwithstanding it is made 
 on a sufficient consideration. The judgment must there- 
 fore be reversed." (/') 
 
 (/) See the later New York cases in the next article. In Barker v. Buok- 
 lin, 2 Denio, 45, Jewett, J., coinmentin<^ upon Simpson v. Patten, approves 
 it, on the ground that the defemlant had not sold the land or received the 
 proceeds, when he made the promise; but, as the promise was expressly 
 conditioned upon his thereafter sclHng the property, the force of part of this 
 criticism is not apparent. However it is true that the declaration did
 
 644 COLLATEKAL UnDEKTAKIKGS. [Ch. XV. 
 
 § 546. The case of Dllts v. ParTce, 1 Southard (Nevv 
 Jersey), 219, A. D. 1818, recognizes the first proposition, 
 and was decided upon the application of the second. On 
 certiorari from the judgment of a justice of the peace, it 
 appeared from the return, that the plaintiff's claim was 
 that he had become surety upon a note for one Huffman, 
 deceased ; that a judgment had been recovered upon the 
 note against the plaintiff; that the defendant "having the 
 property of Huffman in his hands, refused to deliver it up 
 to satisfy the judgment ; and that the defendant agreed 
 with the plaintiff that he should not lose the money, but 
 that he would pay it." At the trial the plaintiff gave evi- 
 dence, "that the defendant confessed that he had property 
 of Jacob Huffman in his hands to pay the debt." The 
 plaintiff having recovered judgment, the defendant sued 
 out a certiorari, upon which the judgment was reversed by 
 the Supreme Court. Southard, J., delivering the opinion, 
 said: "The phraseology of the papers does not make it 
 very manifest, how the defendant obtained possession of 
 the property. From the testimony of Johnson, as detailed 
 by the justice, it might perhaps be inferred that it had 
 been put into his hands for the purpose of paying his 
 debt ; and if this were so, the case would be free from all 
 doubt. But the language of the plaintiff in his statement 
 of demand contradicts this idea, and leaves it as the fair 
 conclusion that he came into possession of it, without any 
 
 not say that he had received the proceeds. In the same opinion the learned 
 judge also approved the decision in Jackson v. Rayner. But in the earlier 
 case of Watson v. Randall, 20 Wendell, 201, Nelson, C. J., referring to the 
 opinion of Savage, C. J., in Farley v. Cleveland (§ 553), said that there the 
 latter evidently doubted the soundness of both of those cases, because in 
 each the defendant had received property from the debtor as an inducement 
 to the undertaking; a doubt manifestly shared by him. Comstock, C. J., in 
 the course of his opinion in Mallory v. Gillett, 21 New York, 412, A. D. 
 1860, frequently referred to in the course of this work, cited Simpson v. 
 Patten without disapprobation; but with respect to the other case he saidr 
 " I have some hesitation in citing Jackson v. Rayner, because it seems to me 
 to have gone too far." " Upon the discrimination made in the later cases, 
 the conveyance of the property to the defendant was a new consideration, 
 moving to him from the debtor, and made the promise an original one."
 
 Art. II. J Collateral "Undertakings. 545 
 
 reference to the payment of this debt. Was then the 
 recovery against him right ? I think not. The debt due 
 to Parke" (the plaintiff in the court below) "was due 
 from Huffman. He or his representatives were originally 
 liable to be sued for it. The assumption by Dilts to pay 
 was clearly within the statute of frauds. It was a prom- 
 ise to pay the debt of another." Here also there was no 
 allegation or proof of forbearance against Huffman, or any 
 other consideration for the defendant' s promise. 
 
 §547. Thecaseof-S'co^v. T7iomas,l Scammon (Illinois), 58, 
 A. D. 1832, (,^) also illustrates the application of the second 
 principle. The declamtion alleged, among other things, 
 that in consideration of forbearance to sue the plaintiff's 
 debtors, the defendant agreed that if the debtors did not 
 pay the plaintiff by the next court, he would foreclose a 
 mortgage which he held upon their property, and the 
 plaintiff might buy in the land for ^1.25 an acre, if it would 
 not sell for more ; and after satisfying his debt, pay the 
 surplus to the defendant, but that the defendant did not 
 foreclose, etc. To this declaration the defendant pleaded 
 the statute ; and the plaintiff demurred to the plea. The ' 
 court below gave judgment for the plaintiff on the de- 
 murrer, and the Supreme Court reversed the judgment. 
 Wilson, C. J., after dwelling upon the fact that the cir- 
 cuity of the process whereby the debt of another was to 
 be paid, could not affect the question whether the statute 
 applied, said that the promise was in effect to pay the 
 debt out of a particular fund, and in a particular way ; 
 and it was accordingly held, that as there was no distinct 
 consideration for the promise, moving from the promisee 
 to the promisor, but the original liability of the debtors 
 was in fact the only moving consideration, the promise 
 was within the statute, and the defendant was entitled to 
 judgment upon the demurrer. (^) 
 
 (jr) Cited also ante, § 117. 
 
 Qi) The intimation that a new and distinct consideration would take the 
 promise out of the statute, was in accordance with a doctrine then prevail- 
 ing in this country, but now, we believe, abandoned. See chapter xvii. 
 69
 
 546 Collateral Undeetakin^gs. [Ch. xv. 
 
 § 548. The third principle is well illustrated by Quin 
 V. Hanford, 1 Hill, 82, A. D. 1841, in the New York Su- 
 preme Court. The action was originally brought in the 
 New York Common Pleas ; and it appeared at the trial that 
 a religious society had made a contract with one Dempsey 
 for work to be done on its church edifice, upon which 
 Dempsey would be entitled to a certain sum of money, 
 beyond what he had already received, when the work 
 should be completed. The defendant was the treasurer of 
 the society ; but had no authority to pay out moneys except 
 upon orders countersigned by the building committee, 
 of which he was one. Dempsey, being indebted to the 
 plaintiflf, gave him an order upon the building committee 
 or the treasurer ; the defendant, as treasurer, then having 
 funds in his hands, applicable to the payment of Dempsey, 
 when his contract should be completed ; and on presenta- 
 tion of the order, the defendant promised to pay it within 
 a few days. Soon afterwards the work was completed. 
 The jndge at the trial charged the jury that the plaintiff 
 was entitled to recover, and he had a verdict, upon which 
 judgment was rendered in the Common Pleas. On error, 
 the Supreme Court reversed the judgment ; holding that 
 the promise was void, as well for want of consideration, 
 (the plaintiff not having promised to forbear,) as because 
 it was within the statute. Upon both points, Bronson, J., 
 delivering the opinion of the court, said that the case bore 
 some analogy to those where an executor or administrator 
 was held to be liable de bonis propriis, upon a promise 
 made in consideration of assets ; but the distinction was, 
 that there the promisor controlled the fund. Here the 
 defendant was a mere bailee or depositary of the society, 
 having no direct control over its funds. The church could 
 have directed him to pay any other creditor in preference 
 to Dempsey ; or it could have recalled the fund and 
 placed it in the hands of another agent, {i) 
 
 (t) It is somewhat hazardous to cite any modern English authorities in 
 connection with the rule now under examination, but there is one case, the 
 decision in which, as far as it relates to the application of the statute, is quite
 
 Art. III.] Collateral Undertakings. 647 
 
 ARTICLE III. 
 
 Where the reception of the fnnd, and the making of the promise, were parts of an agreement 
 to which the creditor, the original dehtor, and the promisor were parties. 
 
 § 549. It will be remembered that in discussing the ques- 
 tion, whether a creditor could maintain an action for the 
 breach of a promise to pay the debt, which had been made 
 to his debtor, on a consideration moving from the latter, 
 we confined ourselves to the cases, where he was a stranger 
 to the agreement and to the cousideration ; separating them 
 
 obscure upon any other ground, but very intelligible if vre suppose it to 
 have been governed by the third of the principles mentioned in § 533. We 
 refer to Morley v. Boothby, 10 Moora. 395, and 3 Bingham, 107, decided 
 A. D. 1825. The first count of the declaration alleged, in substance, that in 
 consideration that the plaintiffs would sell and deliver to certain persons, 
 using the firm name of William Clark, Son & Co., certain goods, etc., to be 
 used in and about building St. Philip's church at Shefi&eld, to be paid for 'by 
 a bill of exchange to be drawn by the plaintiffs upon them, particularly 
 described, the defendants undertook "that the said bill should be paid, when 
 due, out of such moneys as the defendants should receive, before the said 
 bill should become due, for and on account of the building of the said 
 church;" that the plaintiffs, confiding in the promise, did afterwards sell and 
 deliver to the said William Clark, Son & Co., goods, etc., to be used in and 
 about the building of said church, and did draw their bill of exchange to 
 the terms mentioned, which was accepted, and afterwards dishonored. It 
 was further alleged that " although the defendants received, before the bill 
 became due, and from thence hitherto had had sufiScient moneys for and on 
 account of the building the said church to satisfy the said bill," yet they 
 had not guarantied the payment of the bill or paid the same. There were 
 several other counts, the particulars of which are not given, except that it is 
 said that they varied the terms of the consideration for the defendants' 
 promise, and the time when the bill matured. To all these the defendants 
 pleaded that there was no writing, etc., and the plaintiffs in their replication 
 set out a writing signed by the defendants, and agreeing that the draft 
 (describing it) should at maturity, "be then paid out of money to be received 
 from St. Philip's church." The defendants interposed a special demurrer to 
 the replication, on the ground that no consideration was expressed in the 
 writing. The court gave judgment for the defendants on the demurrer, the 
 principal part of the opinion (by Best, C. J.,) relating to the sufficiency of 
 the writing. The learned Chief Justice assumed "that the instrument was 
 given after the sale was made ; but as this is inconsistent with the only count 
 of the declaration of which the substance is given in the reports, it is pre-
 
 648 CoLLATEKAL Undeetakings. [Ch. XV. 
 
 from those where he was a party to the agreement, although 
 a stranger to the consideration. (<x) Those cases of the 
 latter description, where the consideration of the promise 
 was a fund placed in the hands of the promisor by the 
 debtor, will form the subject of this article. The Ameri- 
 can authorities recognized the right of the promisee to sue 
 in this class of cases, even before the doctrine that a 
 stranger could enforce a contract, made for his benefit, had 
 obtained much recognition. 
 
 § 550. The question whether the statute of frauds is 
 applicable to the promise, is essentially diJfferent in the 
 two classes ; for in this class the promise was made to the 
 creditor, and it cannot therefore be saved from the opera- 
 tion of. the statute, upon the principle, which saves the 
 promise in the other class, that the promisee is not the one 
 to whom the expression "another person" applies. The 
 existence of the fund is therefore the distinguishing feature 
 upon which the promise is sustained, when it was verbal. 
 And although the weight of authority in the United States 
 decidedly favors the doctrine that it is sufficient for that 
 purpose, one of the most venerable and eminent of our 
 tribunals still maintains the contrary opinion ; and some 
 adjudications in other courts may possibly be open to the 
 same construction. (5) 
 
 § 551. In New York the rule is now well settled, that 
 agreements of this description are not within the statute ; 
 
 sumed that the allegations to that effect were contained in the other counts. 
 He concluded however with this observation, of which the last sentence is 
 equally applicable to the first count : " No benefit or advantage accrued to 
 them " (the original debtors) " from that instrument, nor did the plaintiffs 
 suffer any detriment or inconvenience in consequence of the execution of It; 
 and although it speaks of money to be received from St. Philip's church, 
 still it does not appear that the defendants had any particular interest in, or 
 would be in any degree affected by such money," or, as the report in Bing- 
 ham makes him say, " that the persons subscribing such paper had any thing 
 to do with any such money." 
 
 (a) See § 395. 
 
 (b) See post, §§ 563, 564, and note at the end of this article.
 
 Art. III.] Collateral Undertakings. 649 
 
 although the cases of Simpson v. Patten^ 4 Johnson, 422, 
 A. D. 1809, and Jackson v, Rayner^ 12 Johnson, 291, 
 A. D. 1815, have been frequently supposed to sanction a 
 contrary opinion. But they belong among the cases where 
 a verbal promise made to the creditor, after the receipt of 
 the fund, was held to be within the statute ; and they have 
 been commented upon in the preceding article in that con- 
 nection, (c) Probably the same state of facts was presented 
 in Gold V. Phillips, 10 Johnson, 412, A. D. 1813, where 
 it was held that the promise was not within the statute. 
 But it possessed the additional feature that a like promise 
 was also made to the debtor, at the time of the receipt of 
 the fund ; and as the promise to the plaintiff appears not 
 only to have been made subsequently, but also to have 
 lacked consideration, the case has been treated as depend- 
 ing upon the agreement between the defendant and the 
 debtor ; and it was accordingly examined with other cases 
 depending upon similar agreements. ((^) But it is cited 
 again here, because the court disposed of it upon the hy- 
 pothesis that both promises were part of one transaction ; 
 and it is therefore perhaps the earliest case, in 'which the 
 principle now under consideration, was sanctioned by a 
 judicial decision. 
 
 § 552. The question was presented squarely for the 
 decision of the New York Supreme Court in Olmstead v. 
 Greenly, 18 Johnson, 12, A. D. 1820. There the plaintiff 
 declared upon an agreement, alleging that it was made at 
 his request and by his procurement, to which the plaint- 
 iff, the defendant, and one Bristol were parties ; whereby 
 Bristol placed in the hands of the defendant goods and 
 money, to an amount exceeding a debt due from Bristol to 
 the plaintiff, and a dishonored note of Bristol and one Hig- 
 gins, upon which the plaintiff had been charged as indorser ; 
 in consideration of which the defendant agreed to pay the 
 debt and the note, but had not done so. The defendant 
 
 (c) See.^§ 544, 545. 
 
 (d) See §§ 404, 405.
 
 650 COLLATEBAL UNDERTAKINGS. [Ch. XV. 
 
 pleaded the statute, and the plaintiff demurred to the plea. 
 Judgment was rendered upon the demurrer for the plaint- 
 iff; the court saying that this was "an original contract 
 on an independent consideration, received by the defend- 
 ant, by the procurement of the plaintiff. The plaintiff 
 has the same ground of action, as if he had delivered his 
 own goods to the defendant, as the consideration of the 
 promise." 
 
 § 553. The next case, which has attained considerable 
 celebrity, was Farley v. Cleveland, 4 Cowen, 432, A. D. 
 1825, affirmed in the Court of Errors, A. D. 1827, under 
 the title of Cleveland v. Farley, 9 Cowen, 639 ; but only 
 the opinion delivered in the Supreme Court has been pub- 
 lished. Farley sued Cleveland in the Common Pleas; 
 and at the trial he offered to prove that one Moon delivered 
 to the defendant fifteen tons of hay, of the value of one 
 hundred and fifty dollars, in consideration of a verbal 
 promise, then made by the defendant to the plaintiff, to 
 pay him Moon' s note of one hundred dollars held by him ; 
 but the Common Pleas nonsuited the plaintiff, on the 
 ground that the promise was within the statute of frauds. 
 The judgment thereon was reversed in the Supreme Court, 
 Savage, C. J., delivering an opinion ; in which, after review- 
 ing the principal cases in England and in New York, he 
 concluded that the case at bar was similar to Gold v. 
 Phillips and Olmstead v. Greenly, differing from the 
 latter only in the particular that there it was alleged that 
 the transaction was accomplished by the procurement of 
 the plaintiff. And he laid down the general rule that "in 
 all these cases, founded upon a new and original consid- 
 eration of benefit to the defendant, or harm to the plaintiff, 
 moving to the party making the promise, either from the 
 plaintiff or the original debtor, the subsisting liability of 
 the original debtor is no objection to the recovery," a 
 proposition which, as will be seen in the two succeeding 
 chapters, has since undergone considerable modification. 
 
 § 554. This case was followed by Jennings v. Webster, 
 7 Cowen, 256, A. D. 1827, and Ellwood v. Monk, 5 Wen-
 
 Art. III.] Collateral Undertakings 651 
 
 dell, 235, A. D. 1830 ; in each of which the Supreme Court 
 held that an agreement to which the debtor, the plaintiif 
 and the defendant were parties ; whereby the defendant, in 
 consideration of property then delivered to him by the 
 plaintiff's debtor, sufficient in value for the purpose, 
 agreed to pay to the plaintiff the debt, was not within 
 the statute. But in neither case was this proposition 
 discussed upon principle, the court evidently regarding 
 it as settled by the former adjudications. 
 
 § 565. The case of Mather v. Perry, 2 Denio, 162, A. D. 
 1846, may also be properly included in this class, although 
 the decision was put upon a different ground, which makes 
 it sui generis. There the defendant applied to one Hewitt 
 to make some machine frames, for which he proposed to 
 pay Hewitt in lumber ; but Hewitt wished to be paid in 
 goods out of the plaintiff's store. Thereupon the defend- 
 ant, the plaintiff and Hewitt agreed verbally that Hewitt 
 should make the frames for the defendant ; that the defend- 
 ant should pay the plaintiff their value in lumber ; that part 
 of the value of the lumber should be applied upon a debt 
 due from Hewitt to the plaintiff, and for the residue he 
 should be entitled to goods out of the plaintiff's store. 
 Hewitt did the work, and the defendant refusing to pay 
 the plaintiff according to the agreement, this action was 
 brought in a justice's court, and the plaintiff recovered 
 the value of Hewitt's work. The judgment was reversed 
 by the Common Pleas ; and the plaintiff brought error to 
 the Supreme Court, where the judgment of the Common 
 Pleas was reversed, and that of the justice affirmed. 
 Bronson, C. J., delivering the opinion of the Supreme 
 Court, said that in making the frames Hewitt was the 
 servant of the plaintiff, and the defendant' s engagement 
 was not to pay Hewitt' s debt to the plaintiff, or to pay 
 for goods which the plaintiff should deliver to Hewitt; 
 but to pay the plaintiff for work which he, by Hewitt, 
 should do for the defendant ; that it was wholly unim- 
 portant whether the plaintiff had paid Hewitt ; or whether 
 he was to pay him ; or whether Hewitt ever got his pay.
 
 552 Collateral Undertakings. [Ch. xv. 
 
 But it is a very strained inference to call Hewitt the 
 plaintiff's servant, as he was manifestly acting in his own 
 behalf ; and the decision can be much more logically sus- 
 tained upon the ground that his labor furnished the fund 
 from which his own debt was to be paid ; and that the 
 goods were to be delivered exclusively upon the defend- 
 ant' s credit. 
 
 § 556. Two cases in the New York Comman Pleas, 
 Cailleux v. Hall, 1 E. D. Smith, o, A. D. 1850, and 8tU- 
 well V. Otis, 2 Hilton, 148, A. D. 1858, also affirm the 
 general principle that a tripartite agreement of the same 
 general character as those in question in the cases decided 
 by the Supreme Court is not within the statute ; but they 
 do not present any features requiring a detailed abstract. 
 
 § 557. Passing to the decisions in the other states, we 
 first notice Wait v. Waifs Executor, 28 Vermont, 350, 
 A. D. 1856, (e) which is open to the same observations as 
 those made upon Gold v. Phillips ; a promise made to 
 the debtor at the time of the conveyance of the property, 
 and one subsequently made to the creditor without a new 
 consideration, having been treated by the court as one 
 transaction, and the ruling being that the statute of frauds 
 did not apply to it. 
 
 § 558. The validity of these tripartite agreements has 
 also been recognized by some recent decisions of the 
 Supreme Court of Pennsylvania ; a ruling which is some- 
 what remarkable, from the circumstance that the same 
 court had previously held, that where the creditor was not 
 a party to the agreement, the statute of frauds prevents 
 him from maintaining an action upon a like promise made 
 to the debtor. (/) In the earliest, the fund was placed by 
 the debtor in the hands of the promisor as his agent, 
 before the promise was made ; and he subsequently 
 
 (e) See § 402. 
 
 (/) See Shoemaker v. King, ante, § 423
 
 Art. III.] Collateral Undertakings. 553 
 
 directed the promisor to pay his creditor out of the fund. 
 This case is Stoudt v. Hine, 45 Pennsylvania, 30, A. D. 
 1863. There the defendant, under a power of attorney 
 from one Kallahan, had drawn moneys due to Kallahan 
 upon a canal contract ; and subsequently the plaintiff, 
 the defendant, and Kallahan met; Kallahan and the 
 plaintiff, after some dispute as to the amount of a debt 
 due from the former to the latter, agreed upon a cei"tain 
 sum as the amount to be paid to the plaintiff ; and there- 
 upon the defendant, by direction of Kallahan, verbally 
 agreed with the plaintiff to pay him the amount so fixed, 
 which was less than the sum in his hands. It was held 
 by the Supreme Court, affirming a judgment for the 
 plaintiff, that the promise was not within the statute. It 
 is manifest that the transaction was the same in substance, 
 as if the agreement to pay the plaintiff had been made at 
 the time of the deposit. 
 
 § 559. In WMtcomh v. Kepliart, 50 Pennsylvania, 85, 
 A. D. 1865, it was held, as in Mather v. Perry, that an 
 agreement to pay for work thereafter to be done for a 
 third person was not within the statute, where the consid- 
 eration was a fund thereafter to be received ; but here it 
 was to be received from a fourth person for the benefit of 
 the third ; and there was the additional peculiarity that 
 the promisee was to look to the debtor in the first instance. 
 The question arose upon a case stated from the opinion 
 of the court ; and the facts, as far as any question arose 
 under the statute, were as follows : One Goss had made 
 a contract with the firm of Langdon and Diven, whereby 
 he was to cut from their land and deliver to them, certain 
 saw logs, at a specified price : and afterwards he had made 
 a. subcontract with the plaintiffs to do part of the work, 
 for which he was to pay them a certain price. The 
 defendants were agents of Langdon and Diven, and were 
 furnished with money by them to pay Goss, as the work 
 progressed. It was agreed between the plaintiffs, the 
 defendants and Goss, in substance, that the defendants 
 would pay the plaintiffs for their work the price to be 
 70
 
 664 Collateral Undertakings. [Ch. xv. 
 
 paid to tliem by Gross, according to his contract with, 
 them, except as far as Goss himself should pay them ; 
 and that they would retain the amount which they 
 should so pay, out of the moneys payable to Goss under 
 his contract with Langdon and Diven. As this was con- 
 strued by the court, it was not a promise to pay out of 
 moneys to be furnished by Langdon and Diven, but to 
 pay absolutely, looking to those moneys for reimburse- 
 ment ; but the case stated found that they had such 
 funds. A judgment in the court below for the plaintiffs, 
 upon the case stated, was affirmed on error ; the Supreme 
 Court holding that "the undertaking of the defendants 
 was an original one ; the debt had become their own." 
 
 § 560. An agreement, in the ordinary form in such cases, 
 was also sustained by the court in Olymer v. De Young, 
 54 Pennsylvania, 118, A. D. 1867, wherein is to be noticed 
 an extraordinary error in the charge, putting the decision 
 upon a principle entirely inapplicable to the facts. This 
 was an action of assumpsit against Clymer, as adminis- 
 trator of one Frederick Hunter ; and it appeared on the 
 trial, that one Samuel Hunter, being indebted to the plaint- 
 iff and also to Frederick Hunter, sold his stock of goods 
 to the latter, in payment of his indebtedness to him, and 
 in consideration of his agreeing to pay to the plaintiff the 
 money due to her by Samuel. There was other evidence of 
 the promise ; and, according to the report, the judge charged 
 the jury that "if they should find that Samuel Hunter 
 was indebted to the plaintiff, and Frederick had become 
 indebted to Samuel, and it was agreed among the three 
 that Frederick should pay to her, in lieu of Samuel, the 
 amount due by Samuel, and he did pay a part but not 
 the whole, they might give a verdict for the plaintiff for 
 the balance." The jury found a verdict for the plaintiff; 
 and the defendant brought a writ of error upon the judg- 
 ment, relying upon the objection that the promise was 
 within the statute. The judgment below was affirmed. 
 Read, J., delivering the opinion of the court as follows : 
 "The simple question then is, was the agreement within
 
 Art. III.] Collateral Undertakings. 656 
 
 the provisions of this section, Samuel V. R. Hunter, as 
 executor of De Young's estate, received moneys belonging 
 to the plaintiff, which were i)ut into the stock of his store, 
 and belonged to her. Being indebted to the decedent. 
 Hunter transferred the stock to him, with the agreement 
 that out of tlie stock so transferred, the decedent sliould 
 pay the plaintiff the amount due her. This arrangement 
 was made and agreed to by Hunter, the decedent, and the 
 plaintiff. This brings the case clearly within Stoudt v. 
 Iliiie, 9 Wright, 30, ((7) as the fund was provided for by 
 the original debtor, whether his own or that of the plaint- 
 iff, to pay the very debt which the decedent promised to 
 pay, and which promise he partly fulfilled. The judge 
 was therefore substantially correct." 
 
 § 561. The principle of these cases was also approved in 
 Nelson v. Hardy, 7 Indiana, 364, A. D. 1856, where it was 
 assigned, with other reasons, as a ground for taking out of 
 the statute, a verbal agreement between the plaintifis, the 
 defendants and one Givens ; to the effect that the plaintiffs 
 would forbear against Givens upon a debt which he owed 
 them ; and in consideration thereof, the defendants would 
 pay the debt, out of the next moneys to become due from 
 them to Givens, upon a subcontract for work upon a 
 railroad, for which the defendants were the principal 
 contractors, whereby Givens was to be paid upon monthly 
 estimates of his work. It appeared in this case that the 
 defendants had in fact deducted the amount of tlie debt, 
 from the sum due to Givens upon the next monthly 
 estimate. 
 
 § 562. So in Lucas v. Payne, 7 California, 92, A. D. 
 1857, one Moulton, a debtor to the plaintiffs, had conveyed 
 to the defendant Payne, one of tlie firm of Payne and 
 Dewey, real estate auctioneers, certain real estate equal in 
 value to, or greater than his debt to the plaintiffs, to be 
 sold by the firm for and on account of Moulton ; and on 
 
 (g) See § 558.
 
 566 COLLATEEAL UNDERTAKINGS. [Ch. XY. 
 
 the same day he gave the plaintiffs an order on the de- 
 fendants for the proceeds of the property, which they 
 accepted ; the object of making the conveyance, the order 
 and the acceptance being to secure the plaintiffs' debt. 
 Subsequently Payne and Dewey reconveyed a part of the 
 property to Moulton without consideration, and sold 
 another portion to other persons ; and, as it would seem, 
 held the remainder in their hands. On a bill in equity 
 against Payne, Dewey and Moulton, charging confeder- 
 acy, and praying a decree that Payne and Dewey should 
 perform and execute the trust in favor of the plaintiffs, a 
 decree was rendered in favor of the plaintiffs, and against 
 Payne and Dewey " for the amount of their claim against 
 Moulton," from which, and from the order of the court 
 refusing a new trial, the defendants appealed. And it 
 was held, on the appeal, that the promise of Payne and 
 Dewey was not void by the statute of frauds ; and that 
 they could not escape their trust by reconveying to Moul- 
 ton. And so the judgment was affirmed. 
 
 § 563. On the other hand, in Massachusetts, the rule 
 seems to be quite as conclusively settled that such a prom- 
 ise is within the statute, as it is settled the other way in 
 New York. The case of Curtis v. Brown, 59 Massachu- 
 setts (5 Gushing), 488, which has already been cited, (A) is 
 open perhaps to considerable criticism, for other reasons 
 besides its repudiation of the New York rule ; but the doc- 
 trine there affirmed, was reiterated, as far as this question 
 is involved, in the very recent case of Furbish v, Goodnow, 
 98 Massachusetts, 296, A. D. 1867. The report says that 
 upon the trial the plaintiffs relied upon the case stated in 
 their declaration, namely, that one "Redding was in- 
 debted to them on a promissory note which they continued 
 to hold ; and that by an agreed arrangement between 
 the defendant, Redding and the plaintiffs. Redding con- 
 veyed certain real estate to the defendant, and as part 
 of the consideration therefor, the defendant promised to 
 
 Qi) See § 418,
 
 Art. III.] Collateral Undertakings. 557 
 
 pay the plaintiffs the amount of the note." It being ad- 
 mitted that the promise was merely verbal, the judge 
 ruled that the action could not be maintained, and there 
 was a verdict for the defendant. The Supreme Court 
 overruled the exceptions taken by the plaintiffs. Gray, J., 
 delivering the opinion of the court. The general rule, 
 laid down by him, as being the only one whereby a prom- 
 ise within the letter of the statute can be excluded from its 
 provisions, is that " if the principal and immediate object 
 of the transaction is to benefit the promisor, not to secure 
 the debt of another person, the promise is considered not 
 as collateral to the debt of another, but as creating an 
 original debt from the promisor, which is not within the 
 statute, although one effect of its payment may be to dis- 
 charge the debt of another." 
 
 §564. "But," he added, "if no consideration moves 
 from the creditor to the new promisor, and the original 
 debtor still remains liable for the debt, the fact that the 
 promisee gives up something to that debtor, or that a 
 transfer of property is made or other consideration moves 
 from that debtor to the new promisor, to induce the latter 
 to make the new promise, does not make this promise the 
 less a promise to answer for the debt of another ; but on 
 the contrary, the fact that the only new consideration 
 either enures to the benefit of that other person, or is paid 
 by him to the new promisor, shows that the object of the 
 new promise is to answer for his debt." This conclusion 
 was sustained by an elaborate examination of the previous 
 Massachusetts cases, among others Curtis v. Broion., the 
 ruling in which was approved ; and the learned judge said 
 that such is also the construction in England, examining 
 in detail the modern cases. Emerson v. Slater, 22 How- 
 ard, 28, (z) is not, he contended, opposed to Curtis v. 
 Broion, "for in that case the promise of the defendant 
 was an original undertaking on a good and valid consid- 
 eration moving from the plaintiff to the defendant." He 
 
 (z) A case which will receive a very careful examination in chapter xvii.
 
 568 Collateral Undertakings. [Ch. xv. 
 
 continued as follows: "The other cases cited for the 
 plaintiff indeed show that by the later decisions in New 
 York, Maine and Vermont, the application of the statute 
 has been so far relaxed in those states, as to treat a trans- 
 fer of property from the original debtor to the new prom- 
 isor, as taking the promise of the latter to the original 
 creditor out of the statute," but the authorities in Mas- 
 sachusetts, being the other way, should be followed by this 
 court. "In this action," he concluded, "brought upon 
 an express promise of the defendant to pay the debt of a 
 third person to the plaintiff, no evidence being offered of 
 a discharge of the original debtor, or of any consideration 
 whatever moving between the creditor and the new prom- 
 isor, but the only consideration being a conveyance of 
 real estate to the latter from the original debtor ; the new 
 promise was, according to the weight of authority, and in 
 our opinion, upon principle, a promise to answer for the 
 debt of another within the statute, and the action cannot 
 be maintained. "(/) 
 
 AETICLE IV. 
 
 Wiether, if the fund proves to be insufficient to discharge the promise, the promisor can ever be 
 made liable for the excess of the debt, 
 
 § 565. Several of the preceding cases hold that the 
 promise to pay the debt is presumptive evidence of the 
 sufficiency of the fund for that purpose, and such may be 
 assumed to be the settled rule ; so that the plaintiff will 
 
 (/) This and Curtis v. Brown are, we believe, the only modern cases in 
 the United States, which distinctly hold that a promise is within the statute, 
 when it was made in contemplation of a fund, adequate for its fulfilment, 
 furnished by the debtor to the promisor, for the purpose of paying the debt. 
 Still it is proper to say that in Emerick v. Sanders, 1 Wisconsin, 77 ; West- 
 heimer v. Peacock, 2 Iowa, 528, and Johnson v. Morris, 21 Georgia, 238, 
 (ante, §§ 541, 542, 543), the court may have intended to hold that 
 the receipt of a fund from the debtor makes no difference with respect 
 to the application of the statute; instead of those cases being, as we have 
 considered them, instances where the seventh rule was either overlooked or 
 erroneously applied. The case of Curtis v. Brown is also mentioned approv- 
 ingly in Clapp V. Lawton, 31 Connecticut, 95.
 
 Art. IV.] Collateral IJNDERTAKrxGS. 669 
 
 not be under the necessity of making any affirmative 
 proof of its sufficiency. But generally the defendant 
 may exonerate himself, in whole or in part, from liability, 
 by showing that the fund was insufficient. The promise 
 is taken out of the statute, upon the presumption that it 
 was to be fulfilled out of the means of the debtor, and 
 not those of the promisor ; and where the contrary clearly 
 appears, a recovery beyond the amount of the debtor s 
 means in the hands of the defendant, would be a plain 
 violation of the spirit of the statute, which the plaintiff 
 has already been compelled to invoke to sanction the 
 violation of its letter. 
 
 § 566. This is sufficiently evident from the cases already 
 cited, and the principles upon which they proceeded, 
 although the question appears to have rarely presented 
 itself directly. It arose, however, very clearly in a case 
 decided by the New York Superior Court, A. D. 1847, 
 PiJce V. Irwin^ 1 Sandford, 14. There the plaintiff, as 
 part of the proceedings to enforce a mechanic' s lien, under 
 a statute of New York, sued in the court below for 
 work done by him iipon certain buildings, which were 
 being erected for the defendant by a firm of builders, the 
 plaintiff being one of their workmen ; and it was shown 
 that the defendant had requested the plaintiff to serve 
 papers upon him under the lien law, and had promised 
 to pay him, if he would procure an order from the con- 
 tractors, which he had done. At the trial the defendant 
 offered to prove that all the payments upon his contract 
 with the builders had been made, except the last, which 
 never became due, because the contract had not been 
 fulfilled ; and the court below rejected this evidence, and 
 rendered judgment for the plaintiff. The judgment was 
 'reversed upon certiorari, the Superior Court holding that 
 the promise and request to serve the lien papers, were at 
 most an admission that there was something due upon the 
 contract, which the defendant had a right to rebut, by 
 showing the truth of the case to be otherwise. And that the 
 verbal promise could not be sustained upon a considera-
 
 560 COLLATEEAL UNDERTAKINGS. [Ch. XV. 
 
 tion moving to the defendant, because the proof that 
 nothing was due would bring it within the statute. 
 
 § 567. And there seems to be no reason why, when the 
 fund consists of property not yet converted into money, 
 and the promise does not in terms depend for its fulfilment 
 upon the receipt of the proceeds by the promisee, the jury 
 should not estimate its value, for the purpose of determining 
 the extent of the liability of the promisor. But when the 
 property transferred became, by the agreement between 
 the debtor and the promisor, the absolute property of the 
 latter, the fact that it fell short in value, or in the proceeds 
 actually realized therefrom, of the amount of the liability 
 assumed in consideration of its transfer, appears to be 
 unimportant. For in that case the fund does not consist 
 of the property or of its proceeds, but of the portion of 
 the purchase price, which the promisor retained in his 
 hands ; and if the debts which he has assumed to pay are 
 larger in amount, than the sum which he is able to realize 
 from the property, that fact proves only that he made a 
 bad bargain, not that he is paying the debt of another 
 from his own means. 
 
 § 568. It has, however, been held, in some exceptional 
 cases, that the promisor may be made liable for more than 
 the amount of the fund, without regard to . the question 
 whether he became its absolute owner. Such an opinion 
 was expressed by the New York Superior Court in decid- 
 ing Lippincott V. AsJifield, 4 Sandford, 611, A. D. 1851. 
 There the complaint alleged that the defendant represented 
 to the plaintiffs that he had under his control certain prop- 
 erty of a debtor to the plaintiffs, which was worth more 
 than the plaintiffs' demand ; and in consideration that the 
 plaintiffs would forbear against the debtor for twelve 
 months, the defendant verbally promised to sell the prop- 
 erty, and pay to the plaintiffs the proceeds within the 
 twelve months ; and that the property should sell for 
 enough to pay the demand. It was further alleged that 
 the plaintiff forbore accordingly, but the defendant had
 
 Art IV.] Collateral Undertakings. 56J 
 
 not performed his agreement. Upon demurrer to the 
 complaint, the court gave judgment for the plaintiff, and 
 this was affirmed upon apjK^al. Paine, J., in delivering 
 the opinion of the court, said, that there were two promises, 
 neither of which was to pay the debt of another ; that the 
 promise by a third person to apply the debtor' s own prop- 
 erty to pay his debt, was not a prohiise to pay it himself; 
 and the guaranty added to tliis promise, tliat the property 
 shall sell for enough to pay it, was not a promise to pay it. 
 "Neither are both promises, taken together, a promise to 
 pay the debt, although their effect may be to render the 
 promisor liable for so much of it as the property should 
 be insufficient to pay. We do not think the statute is to 
 be extended by a forced construction, to embrace a 
 case which is clearly not within its letter or meaning. The 
 statute, no doubt, means the ordinary promise to pay 
 another' s debt ; that is, a promise which simply binds the 
 promisor himself to pay the debt with his own means." 
 The learned judge added, but upon the question of the 
 consideration rather than the aj^plication of the statute, 
 that the forbearance was not only a detriment to the 
 plaintiffs but also a benefit to the defendant. He had the 
 debtor' s property in his hands, and the presumption was 
 that the agreement was made with the debtor's assent. 
 If the promise had been made directly to the debtor, there 
 could have been no question that the consideration was 
 sufficient, and the promise was binding ; and the plaintiff''^ 
 could have maintained an action upon it. There was no 
 reason therefore why he should not sue upon it, when 
 made directly to himself, (a) 
 
 § 569. A ruling to the same effect was made upon a 
 different state of facts in McK^nzie v. Jaclison, 4 Alabama, 
 230, A. D. 1842. There the defendant had been in part- 
 nership with one Gerald; and Gerald had sold out his 
 interest in the partnership stock and credits to the defend- 
 ant and one Adams ; they covenanting, as part of the 
 
 (a) See Ardern v. Rowney, 5 Espinasse, 254, ante, § 524. 
 71
 
 662 Collateral Undeetakings. [Ch. xv. 
 
 consideration, to pay certain firm debts, and certain 
 individual debts of Gerald, among them a debt due to 
 the plaintiff. The defendant subsequently promised the 
 plaintiff to pay him this debt ; and he repeated the prom- 
 ise from time to time during nearly four years. The 
 action was founded upon that promise, the arrangement 
 with Gerald being set forth in the declaration, merely by 
 way of inducement thereto. There was also evidence of 
 forbearance as the consideration of the promise, and that 
 the plaintiff and his relations, at the request of the defend- 
 ant, had dealt at the latter' s store on account of the debt, 
 whereby part of it had been paid. It also appeared that 
 the effects received by the defendant and Adams largely 
 exceeded in value, the amount which they were bound to 
 pay, or at least that such was the estimate ; but the evidence 
 also showed, as was assumed upon the trial and the argu- 
 ment, that there was a deficency in the amount, caused by 
 offsets against the demands transferred by Gerald ; but 
 the defendant made no complaint on that account, until 
 about six weeks before the trial. On these facts the 
 defence of the statute of frauds was interposed and over- 
 ruled, and the plaintiff had judgment ; whereupon the 
 defendant brought error to the Supreme Court, where the 
 judgment was affirmed. After discussing the question 
 whether the action could be sustained, upon which point 
 it was held that the promise to the plaintiff constituted 
 the cause of action, and that the consideration of it was 
 the fund received from Gerald ; the court proceeded to 
 consider whether the alleged deficiency in the fund con 
 stituted any defence to the action. Upon that point the 
 opinion said: "However valid such an objection might 
 be, if seasonably urged, it cannot prevail under the 
 circumstances of this case. The repeated promises of the 
 defendant, made with the opportunity of full knowledge 
 of the facts, are obligatory upon him. It might, and in 
 all probability would operate most injuriously upon the 
 plaintiff, if after having been lulled into a false security 
 for so many years, by the repeated promises of the defend- 
 ant, and the delays in the collection of the debt conse-
 
 Art. IV.] Collateral Undertakings. 563 
 
 quent thereon, he should now be permitted to allege a 
 failure of the fund from which the payment was to be 
 made. The objection comes too late." 
 
 § 570. It can hardly be said that either of these cases is 
 a conclusive precedent for the rule which it assumes to lay 
 down, because either decision can be very clearly sup- 
 ported, upon a different ground from that upon which it 
 was put by the court. In Lippincott v. AsJifield, the 
 plaintiff stated enough in his complaint to have sustained 
 it upon the demurrer, without regard to the question of 
 the amount of damages. Indeed upon proof of the repre- 
 sentation and promise to pay the debt, without the guar- 
 anty of the sufficiency of the fund, he would have been 
 prima facie entitled at the trial to a verdict for the full 
 amount of his debt, according to the weight of authority 
 of the cases cited in the preceding portions of this chapter. 
 And in McKenzie v. Jackson, the defendant was a pur- 
 chaser from the debtor, upon a promise to pay the plaint- 
 iff a part of the purchase price. So the amount actually 
 realized by him was of no importance, within the principle 
 stated in the 567th section. The question whether circum- 
 stances can ever occur where the promisor will be held to 
 liability beyond the amount of the fund, may therefore be 
 considered as yet open ; and whatever may be the rule in 
 an exceptional case, it is clear that ordinarily the fund 
 limits the liability.
 
 CHAPTER SIXTEENTH. 
 
 CASES WHEKE A PEOMISE TO PAY A THIRD PERSON'S DEBT 
 IS NOT WITHIN THE STATUTE, BECAUSE THE PROPERTY 
 OF THE PROMISOR WAS THEN SUBJECT TO A LIEN OR 
 CHARGE FOR THE PAYMENT OF THE SAME DEBT. 
 
 § 571. The classification whicli we have pursued thus 
 far, now leads us to the examination of the third class of 
 this general division, consisting of cases where the debt 
 assumed by the promise was already a charge upon the 
 property of the promisor, (a) As we have already inti- 
 mated several times, this subject necessarily involves the 
 consideration of the question, whether the rule which 
 properly governs those cases, should in terms be restricted 
 to them, or whether it should take a much wider range. 
 The proposition has been maintained, upon authority en- 
 titled to the greatest respect, that the reason why such 
 cases are not within the statute, is that the leading object 
 of the promisor was to subserve some purpose of his own, 
 distinct from the discharge of the original debtor. Hence 
 it has been argued, that every case is without the statute, 
 where such was the promisor's leading object, and the 
 consideration of the promise moved to hini, and tended to 
 promote that object. If these conclusions are correct, it 
 follows that these cases constitute merely a group or sub- 
 division of a more comprehensive class, governed by a 
 rule which makes the existence of this common feature, 
 the test of their exclusion from the provisions of the 
 statute. 
 
 § 572. The question is of much practical importance 
 and can be intelligently discussed only in the light of those 
 cases, which possess the supposed common feature ; but 
 
 (ri) Ante, ^71.
 
 Collateral Undertakings. 6G5 
 
 lack the one which we have adopted as the distinguisliing 
 characteristic of this class. Such a discussion will neces- 
 sarily extend itself to a considerable length ; and clear- 
 ness and convenience will be promoted by deferring to a 
 subsequent chapter the process of reasoning, and the 
 critical examination of adjudications, by which the rejec- 
 tion of the more comprehensive rule may be justified. 
 And as it is conceded, on both sides of the question, that 
 the cases of this description form a distinct group, if not 
 a class ; let us commence the investigation, by endeavor- 
 ing to define its true limits, and to ascertain the principles 
 upon which the cases within it are taken out of the 
 statute, and the rule which governs them. But in order 
 to avoid needless repetition, the foundation of the sub- 
 sequent discussion will be laid, by appropriate observa- 
 tions upon the cases, as they may present themselves. 
 And, as we have already remarked, the principle embodied 
 in the foregoing seventh rule was derived from the earlier 
 cases of the same series ; so that our comments upon them 
 will be framed, and the subsequent inquiry into the true 
 principles which they establish, will be prosecuted with 
 reference to that question also. 
 
 § 573. In most of the modern cases, especially in the 
 United States, it seems to be assumed, rather than ex- 
 pressly decided, that the promisee, in consideration of 
 the promise, must actually surrender the lien or charge 
 upon the promisor's property. Perhaps the true prin- 
 ciple will be satisfied, if in fkct the fulfilment of the prom- 
 ise will discharge the lien. But in practice it has almost 
 invariably happened, that when a verbal promise to pay 
 the debt has been sustained, it has been founded upon a 
 cotemporaneous surrender of the lien ; and as most of 
 the authorities lay much stress upon that circumstance, it 
 has been adopted as a basis in framing the governing rule, 
 which is accordingly stated in these terms : 
 
 RULE EIGHTH. 
 A promise to pay the debt of another is Bot within tho statute, if its consideration was the 
 abandonment to the promisor of a security for the payment of the debt, consisting of a lien 
 upon, or interest in property, to which the promisor then had a subordinate title.
 
 566 Collateral Undertakings. [Ch. xvi. 
 
 § 574. There is one essential condition of this rule, 
 respecting which the English and American cases now 
 agree ; although for a long time there was much confu- 
 sion upon the subject. It is that the lien must have 
 attached to the property of the promisor ; for if it was upon 
 the property of the debtor, or of a stranger, the case will be 
 within the statute. We think that upon a fair construction 
 of the English authorities, and perhaps also of the best 
 American authorities, the rule, as thus explained, rests 
 upon the idea that the existing liability of the promisor' s 
 property to pay the debt, is equivalent, for this purpose, 
 to his existing personal liability therefor ; and conse- 
 quently that it is immaterial whether the lien be surren- 
 dered, if there was some other consideration, sufficient to 
 sustain the promise at common law. But however this 
 may be, it would seem that the interest of the promisor 
 may be acquired simultaneously with the making of the 
 promise, and that it need not be an absolute ownership. 
 The rule is satisfied, according to several cases, if the 
 promisor controlled the property, as the representative of 
 the true owner. (5) 
 
 AETICLE I. 
 
 English decisions npon the suliject matter of this role, and also involving the q^nestions to be 
 discussed hereafter in this connection. 
 
 § 575. The series of English decisions, to the examina- 
 tion of which this article is devoted, will be continued to 
 the present time ; so as to show the principle which has 
 been established in that country by the modern cases, as 
 properly to be deduced from those of earlier dates. But 
 long before the elBTect of the latter had thus been settled 
 by the English courts, they had been otherwise construed 
 by American adjudications, which had become local prece- 
 
 (6) Houlditch v. Milne, 3 Espinasse, 86; Castling v. Aubert, 2 East, 325; 
 Edwards v. Kelly, 6 Maule and Selwyn, 204; Bampton v. Paulin, 12 Moore, 
 497 ; Walker v. Taylor, 6 Carrington and Payne. 752 j cited in the follow 
 ing article,
 
 Art. I.] Collateral Undertakings. 667 
 
 dents ; whence ensued, for a long time, a wide divergence 
 of opinion between the courts of the two countries. As 
 some of the perplexity to which these early cases have 
 given rise, was caused by insufficient and sometimes 
 incorrect reporting, the reports have been corrected in the 
 following summaries, wherever errors could be detected, 
 either by comparing two or more reports of the same case, 
 or from intrinsic evidence furnished by a careful examina- 
 tion of the only report extant. 
 
 § 676. The earliest of these decisions is the equity case 
 of Tomlinson v. Gill, Ambler, 330, A. D. 1756, previously 
 cited in considering the question of the liability of exec- 
 utors and administrators, (a) There the defendant had 
 promised the widow of an intestate, that if she would 
 permit him to be joined with her in the letters of adminis- 
 tration, he would make good any deficiency of assets to 
 discharge the debts ; and joint administration was accord- 
 ingly taken out. On a bill in equity, tiled by creditors 
 of the intestate for satisfaction of their debts, it was 
 objected that the promise was within this branch of the 
 fourth section of the statute, as well as that relating to 
 special promises by executors and administrators. But 
 Lord Hardwicke upon that point said : "It is not within 
 the second branch of that clause ; the modern determina- 
 tions have made a distinction between a promise to pay the 
 original debt, and on the foot of the original contract, and 
 where it is on a new consideration." Then, after saying 
 that the distinction taken in Buckmyr v. Darnell was 
 "avery slight and cobweb distinction," he added : "Here 
 is quite a new distinct consideration. Read v. Nash is 
 strong to the purpose." And the complainants had a 
 decree. This is believed to be the fijst foreshadowing of 
 the doctrine, w^hich long obtained general recognition in 
 the United States, that any new consideration, distinct 
 from the original debt, and moving to the promisor, would 
 suffice to take the case out of this clause of the statute. 
 
 (a) See §§ 18 to 20, and note, where the case is fully commented upon.
 
 668 COLLATEEAL UNDERTAKINGS. [Ch. XVI. 
 
 § 577. The next, and by far the most famous of the 
 serieSj was Williams v. Leper, 3 Burrow, 1886, decided in 
 the King's Bench A. D. 1766.(6) There one Taylor, a 
 tenant of the plaintiff, being in arrear for rent to the 
 amount of 45?., and insolvent, conveyed all his effects,- for 
 the benefit of his creditors, to the defendant, who adver- 
 tised them for sale.(e) On the morning advertised for the 
 sale, "Williams, the landlord, came to distrain the goods 
 in the house. Leper, having notice of the plaintiff's 
 intention to distrain them, promised to pay the said 
 arrear of rent if he would desist from distraining ; and he 
 did thereupon desist" At the trial the plaintiff had a 
 verdict for 45?., subject to the opinion of the court on a 
 case, whether the promise was within the statute of frauds. 
 The plaintiff' s counsel contended that the statute was not 
 intended to apply to a "direct undertaking," founded 
 upon a "new consideration moving from the party 
 making the promise, to the party to whom it was made" 
 (sic), as he said was the case here ; the goods being liable 
 to the distress, the plaintiff having lost his interest in them 
 in consequence of reliance on the promise ; and the defend- 
 ant having undertaken directly for himself and not for 
 another. The defendant's counsel, on the other hand, 
 argued that it was directly within the words of the statute, 
 the promise being to pay absolutely, and not out of the 
 goods sold ; that the original debtor remained liable ; and 
 
 (b) S. C, more briefly, and erroneously stated to have been iathe Com- 
 mon Pleas, 2 Wilson, 308. Both reports, bear evident marks of carelessness. 
 
 (c) The report in 3 Burrow, which is generally followed, and from which 
 this abstract is mostly taken, says that the defendant was merely a broker 
 employed to sell the goods by another person, who was the trustee. This 
 is, we think, an error. In the report of the case in 2 Wilson, 308, it is said 
 that Taylor " made a bill of sale to the defendant Leper of all his goods in 
 the said messuage, in trust to be sold for the use of his creditors." And in 
 the course of the argument, as given in Burrow, the plaintiff's counsel at 
 one time spoke of the assigned property as being '' the goods of Leper " and 
 at another time said: "The property of these goods was in Leper as trustee 
 for the creditors, at the time when he made this promise," And gee Lord 
 Mansfield's remarks as quoted in the text.
 
 Art. I.] Collateral Undertakings. 669 
 
 therefore the promise was collateral. He added: "The 
 plaintiff cannot recover upon this declaration ; it is upon 
 a promise ' to pay tlie debt to which Taylor was before 
 liable/ If indeed the declaration had averred that Leper 
 promised to pay it out of the produce of the goods when 
 sold ; and that in consideration of that promise he had 
 desisted from distraining, that had been a different case." 
 
 § 678. The court Unanimously thought that the promise 
 was not within the statute, and directed a judgment for 
 the plaintiff, each of the judges pronouncing an opinion. 
 Lord Mansfield, C. J., said that the case had nothing to 
 do with the statute. "The res gesta would entitle the 
 plaintiff to his action against the defendant. The land- 
 lord had a legal pledge ; he enters to distrain ; he has the 
 pledge in his' custody. The defendant agrees, 'that the 
 goods shall be sold and the plaintiff paid in the first 
 place.' The goods are the fund ; the question was not 
 between Taylor and the plaintiff. The plaintiff had a lien 
 upon the goods. Leper was a trustee for all the creditors, 
 and was obliged to pay the landlord, who had the prior 
 lien ; this has nothing to do with the statute of frauds." 
 Wilmot, J., said: "The plaintiff is in possession of the 
 goods, having entered with intent to distrain them. Leper 
 was the agent for the creditors. He makes this promise in 
 order to discharge the goods of this distress. I consider 
 this distress as being actually made. Leper says 'if 
 you will quit the goods and disencumber tlie fund I will 
 pay you.' Leper became the bailiff of the landlord, and 
 when he had sold the goods, the money was the landlord"'s 
 (as far as 45^.) in his own bailiff's hands ; therefore an 
 action would have lain against Leper for money had and 
 received to the plaintiff's use." Yates, J., is said hi the 
 3d of Burrow to hav(^ put his opinion on the ground that it 
 was ' ' an original consideration to the defendant. ' ' Aston, 
 J., said : " If this was a promise to pay the debt of Taylor, 
 I should think it within the statute." "But 1 look ujion 
 the goods here to be the debtor, and I think that Leper was 
 aot bound to pay the landlord more than the goods sold 
 73
 
 570 COLLATEKAL UnDEKTAKINGS. [Ch. XVI. 
 
 for, in case they liad not sold for 451. The goods were a 
 fund between both ; and on that foot I concur." (^) 
 
 § 579. In Houlditch v. Milne., 3 Espinasse, 86, A. D. 
 1800, the action was in assumpsit for the repair of car- 
 riages ; and it appeared in evidence that the carriages be- 
 longed to one Copey ; that the defendant had sent them 
 to the plaintiffs to be repaired, and had given orders 
 respecting them ; that the bill was made out in the name 
 of Copey ; and that when the carriages were repaired, the 
 defendant sent an order to pack them up and send them on 
 board ship. On the plaintiffs' inquiring who was to pay 
 for them the defendant answered, "he had sent them and 
 he would pay for them ; ' ' the carriages were accordingly 
 packed up and sent on board ship, (but it does not 
 appear to whom they were consigned or delivered) ; and 
 the bill was sent to the defendant, who was afterwards 
 called upon twice to pay it. On the first occasion he com- 
 plained of its amount, but said that "he would settle it ;" 
 
 (d) In the 2d of Wilson, Yates, J., is reported to have said : " The defend- 
 ant's promise is an admission that the goods were sufficient to satisfy the 
 plaintiff's demand, and it was a new contract upon a good consideration ; 
 the defendant had an interest, and the plaintiff gave up his right to distrain.' 
 It is also said there, that the court held that if the defendant liad sold the 
 goods and received the njoney, an action for money had and received would 
 have lain ; from which, as well as from the argument of the counsel as reported 
 in the 3d of Burrow, it is quite evident that the declaration did not contain 
 the common counts, and that it did not appear that the money had been 
 received upon the sale of the goods. Were not the remarks of Aston, J., 
 quoted in the text, as well as the above mentioned remark of Yates, J., 
 called out in answer to the suggestion of the defendant's counsel that the prom- 
 ise would be good if it was to be fulfilled out of the fund? Messrs. Patteson 
 and Williams, in their note to Forth v. Stanton, 1 Williams's Saunders, 211, say 
 that the remark that the goods were the debtor means that the promise was 
 not to pay another's debt, but a debt for which the defendant's goods were 
 liable, and they add : " It is submitted that this is the true ground of the 
 decision, and that if the defendant had not been the owner of the goods, the 
 promise must have been in writing," and this is now regarded by the English 
 courts as containing the true explanation of the case. See Fitzgerald v. 
 Dressier, 7 Common Bench, N. S., 374 (§ 590, post), and the citations from 
 the text books in the note to § 606.
 
 Art. I.] Collateral Undertakings. 571 
 
 and on the second occasion he said that it was most exor- 
 bitant, and a fit subject to refer ; " he however said he had 
 the money to pay it, but did not say whether his own or 
 Mr. Copey's." Upon this, Best, Serjeant, for the de- 
 fendant, contended that there being no proof of the defend- 
 ant' s having money of Mr. Copey' s in his hands, to apply to 
 the count in the declaration for money had and received, 
 the plaintiffs must be nonsuited, as Copey was liable to 
 them, the bill having been made out to Copey, and con- 
 taining charges for work done by Copey's own order. 
 But Lord Eldon declined to nonsuit, thinking that the prin- 
 ciple in Williams v. Leper, where the defendant was held 
 to be liable, "though it was clearly the debt of another," 
 applied to this case, and adding : "The plaintiffs had to 
 a certain extent a lien upon the carriages, which they 
 parted with on the defendant' s promise to pay ; that, he 
 thought, took the case out of the statute, and made the 
 defendant liable for the amount of the bill." So the 
 plaintiffs had a verdict, (e) 
 
 § 680. The next case of the series was Castling v. Aubert, 
 2 East, 325, decided in 1802. This was an action to re- 
 cover damages for the breach of an agreement, and there 
 was also a count for money had and received. At the 
 trial the plaintiff had a verdict, subject to the opinion of 
 the court upon a case, the contents of which may be thus 
 briefly stated. The plaintiff, a broker, had in his hands 
 certain policies of insurance belonging to one Grayson, 
 upon which losses had occurred ; and the plaintiff had 
 a lien upon the policies, to indemnify him against his 
 
 (e) In the note to Forth v. Stanton, 1 Williams's Saunders, 211, this case 
 is explained, on the ground that the circumstances showed that the entire 
 credit was given to the defendant, and that Copey was not liable. But some 
 of the circumstances repel such an idea. And see note to § 586, post. Accord- 
 ing to the American ruling, the defendant's statement would be regarded as an 
 admission that he had been put in funds by Copey to pay the debt, and he 
 would be holden on that ground. But independently of that principle, the 
 case may be supported on the ground tha< the defendant controlled the 
 possession of the goods.
 
 572 Collateral Undertakings. [Ch. xvi. 
 
 acceptances of accommodation bills, drawn on liim by 
 Grayson. The defendant, another broker, to whom Gray- 
 son had transferred his insurance business, wished to pro- 
 cure the policies, in order to collect the moneys due thereon 
 for his principal ; whereupon the plaintiff, the defendant 
 and Grayson met, and the defendant, in consideration that 
 the plaintiff would surrender them to him, verbally prom- 
 ised to the plaintiff to provide for the acceptances, and did 
 so in part ; but in consequence of his failure fully to provide 
 for them, the plaintiff sustained damages to the amount 
 found by the jury. It also appeared that the defendant 
 had received from the underwriters moneys much beyond 
 the sum in dispute. It was held by the whole court that 
 the promise was not within the statute. 
 
 § 581. Lord EUenborough, C. J., said that in this case 
 the plaintiff would be entitled to recover upon the count 
 for money had and received, as it appeared that the de- 
 fendant had collected upon the policies more money than 
 the amount of the plaintiff's lien. And upon the question 
 whether the promise was within the statute he added, that 
 the defendant ' ' procured from the plaintiff the securities 
 upon the faith of this engagement, in entering into which 
 he had not the discharge of Grayson principally in his 
 contemplation, but the discharge of himself. That was his 
 moving consideration, though the discharge of Grayson 
 would eventually follow. It is rather therefore a pur- 
 chase of the securities which the plaintiff held in his 
 hands." "In the case of a bill of exchange for which 
 several persons are liable, if it be agreed to be taken up 
 and paid by one, eventually others may be discharged ; 
 and the same objection might be made there ; but the 
 moving consideration is the discharge of the party him- 
 self and not of the rest, though that also ensues." He 
 concluded that he agreed with Williams v. Leper, to its 
 full extent, namely, that the case was not within the stat- 
 ute of frauds, and with Mr. Justice Aston, "that the evi- 
 dence sustains the count for money had and received." 
 Grose, J., agreed on both points; and Lawrence, J., said
 
 Art. I.] Collateral Undektakings. 57:J 
 
 that it was a purchase of the plaintiff's interest, not a 
 bare promise to pay another' s debt, but a promise to jiay 
 what the ])hiiiitiff woukl be liable to pay, if the plaintiff 
 would furnish him the means of so doing. Le Blanc, J., 
 concurred, on the ground that the fund was adequate to 
 the discharge of the incumbrances, and the defendant 
 took it with the incumbrances upon it. !So the plaintifi" 
 had judgment upon his verdict. (/) 
 
 § 582. The next case in the series, Barrell v. Trussell^ 
 4 Taunton, 117, A. D. 1811, in the Common Pleas, al- 
 though frequently cited with the rest, is believed to have 
 no application to any of the principles to be examined in 
 this connection ; as the declaration and the proofs did not 
 show that the plaintiff had any thing but an absolute title 
 to the goods. Mansfield, C. J., said that it was unintelli- 
 gible, and that "there is nothing to show it is an under- 
 
 (/) In 3 Parsons on Contracts, fifth edition, page 27, note, Lord Ellen- 
 borough's remark, relative to the principal object of the contract, is stated to 
 have been that the defendant had his own discharge in view, which, it is 
 said, cannot be sustained upon the facts as reported, because he was acting 
 exclusively for Grayson ; and it is therefore intimated that the defendant 
 must himself have been liable upon the bills. Mr. Roberts, in his Treatise 
 on the Statute, page 229, also comments upon the case as if Lord Ellen- 
 borough referred to the defendant, although he does not attempt to explain 
 the apparent inconsistency. But although the expression is certainly very 
 awkward, we understand it to mean that in making the contract, the plaint- 
 iff and the defendant had not in view the discharge of Grayson from lia- 
 bility, absolute or contingent, to the plaintiff; but rather the discharge of the 
 plaintiff from liability to the holder of the acceptances. This accords with 
 the remark, immediately following, that it was a purchase. The illustration 
 drawn from the parties to a bill of exchange is equally obscure, not to say 
 unfortunate. It was remarked in another place, that the promise in Ca-^tling 
 V. Aubert was made to the debtor, and might have been taken out of the 
 statute on that ground, had it been thought of; but regarding the promise as 
 an undertaking for Grayson's debt, it comes fairly within our eighth rule. 
 But it is now settled in England that this case was decided upon the ground 
 that the transaction was a purehase. See note to Forth v. Stanton, 1 Williams's 
 Saunders, 211, and extracts from English text books in the note to section 
 606, post; also Fitzgerald v.-Dressler, 7 Common Bench, New Series, 374, 
 DOSt, § 590. This view is commented upon in the note to § 647.
 
 574 Collateral Undertakings. [Ch. xvi. 
 
 taking to pay the debt of another." A remark of Heath, 
 J., during the argument, has been erroneously construed 
 as intimating that the mere surrender of a lien would take 
 a promise out of the statute ; what he said was that such 
 a surrender was 2. good consideration^ which was followed 
 by a remark from "the court," to the effect that a good 
 consideration is required, whether the promise is in writ- 
 ing or not. 
 
 § 583. But the question of the application of the statute 
 was directly presented in Edwards v. Kelly, 6 Maule 
 and Selwyn, 204, decided in the King' s Bench, A. D. 1817. 
 There the plaintiff, having distrained, for rent in arrear, 
 goods which the tenant was about to sell, and which were of 
 greater value than the amount due for rent, agreed with 
 the defendants to deliver up the goods, and to permit them 
 to be sold by one of the defendants for the tenant, upon 
 the defendants' joint undertaking to pay the plaintiff the 
 rent in arrear. The goods were thereupon delivered to 
 the defendants, and sold according to the agreement, by 
 the defendant designated thereby. At the trial the plaint- 
 iff had a verdict, subject to the opinion of the court upon 
 a case stating the foregoing facts. The court held that 
 the agreement was not within the statute. Lord Ellen- 
 borough, C. J., said: "Perhaps this case might be dis- 
 tinguishable from that of Williams v. Leper, if the goods 
 distrained had not been delivered up to the defendants. 
 But here was a delivery to them, in trust, in effect to raise 
 by sale of the goods sufficient to satisfy the plaintiff's 
 demand ; the goods were put into their possession, subject 
 to this trust, so that in substance this was an undertaking 
 by the defendants that the fund should be available for the 
 purpose of liquidating the arrears of rent. There was 
 therefore a consideration for this promise, partly falling 
 within the authority of Williams v. Leper, partly within 
 that of Read v. Nash.''\g) Abbott, J., concurred with 
 the chief justice. But Bayley, J., while agreeing that 
 
 (?) See § 130.
 
 Art. I.] Collateral Undertakings. 675 
 
 Williams V. Leper decided this case, also thought that as 
 in this case the distress had been actually made, the debt 
 due from the tenant was suspended at the time the prom- 
 ise was made, so that there was no debt then owing to 
 which it could be collateral ; and with him Holroyd, J., 
 agreed. (A) 
 
 § 584. The next case, Bampton v. Paulin, 12 Moore, 
 497, A. D. 1827, has been, we think, misunderstood, chiefly 
 on account of an imperfect and in some respects erroneous 
 report of the case in 4 Bingham, 264. The declaration 
 was to the effect that one Donaldson and one Smith were 
 tenants of the plaintiff and in arrear for their rent ; that 
 the defendant had been employed by them to sell certain 
 goods on the premises, which were liable to be distrained 
 for the rent, and which the plaintiff intended to distrain 
 accordingly ; and the defendant, in consideration of for- 
 bearance to distrain, "undertook to pay the rent out of 
 the proceeds of the sale.'''' At the trial the proof was that 
 r^ the defendant was an auctioneer, who had been employed 
 by a mortgagee of Smith and Donaldson ; and on a demand 
 being made for the rent by the plaintiff' s sister he said, 
 "Madam, I will see that you shall be paid." A verdict 
 having been rendered for the plaintiff, the defendant applied 
 for a rule nisi to set it aside, on the ground that the prom- 
 ise was within the statute, which the court refused. Best, 
 C. J., ciie^Williams v. Leper ; but he rested his decision 
 upon the authority of Castling v. Auhert, detailing the 
 facts of that case, including the receipt of the money by 
 the defendant, and saying that "it embraces the very same 
 principle that is involved in the present case." However 
 Park, J. , referred to Williams v. Leper alone. (/) 
 
 {h) Unless the plaintiff in Williams v. Leper is to he regarded as having 
 actually made a distress, this case, Castling v. Aubert, and Walker v. Taylor, 
 are the only cases of the series, where the consideration of the promise can 
 be regarded as having been a fund proceeding fi >m the creditor, without 
 doing some violence to the facts. Here the plaintiff had the fund in hand, 
 but according to the suggestion < of Bayley, J., and Holroyd, J., that fact 
 sufficed to show that there was no debt. 
 
 (»^ The principal error of the report in 4 Bingham is that it omits all refer-
 
 576 COLLATEEAL UnDEETAKINGS. [Cll. XVI. 
 
 § 585. In Thomas v. Williams, 10 Barnewall and Cress- 
 well, 664, A. D. 1830, there was a special count in the 
 declaration, founded upon the defendant's promise, upon 
 which the verdict was rendered. At the trial it was shown 
 that the defendant was an auctioneer, and had been 
 employed to sell the goods of the plaintiff's tenant ; and 
 the plaintiff, on the day of the sale, ' ' went on the premises 
 with a bailiff and a notice of distress" for an unpaid 
 balance of rent due the preceding Lady day ; and in con- 
 sideration that he would forbear from distraining, the 
 defendant promised to pay him the said balance of rent, 
 and also another instalment of rent to become due, under 
 the same lease, at Michaelmas following. The plaintiff 
 did not distrain and the sale proceeded. The plaintiff 
 had a verdict for a sum formed of the balance of the 
 rent due at Lady day, and the rent to become due at 
 Michaelmas ; and a rule nisi was obtained to set it aside 
 on the ground that the promise was within the statute. 
 The rule was made absolute, the court holding that the 
 promise was within the statute, because it included the 
 rent yet to accrue ; and being entire, and void as to that, 
 it was void in toto. But the opinion of the court, delivered 
 by Lord Tenterden, C. J., contains an instructive criticism 
 upon some of the preceding cases. (,/ ) 
 
 ence to the fact that the debt was payable out of the proceeds, upon which 
 we conceive that the case turned. It is true that the very brief report of 
 the facts proved, contained in 12 Moore, does not in terms state that the 
 promise was express to pay out of the proceeds; but the declaration so 
 stated, and had it not been so proved, or to be inferred by the jury, it is clear 
 that there would have. been a variance. And the manner in which Best, 
 C. J., states the points of Castling v. Aubert indicates very strongly that 
 such was the promise. 
 
 (y) His Lordship said: "Several cases were quoted at the bar, in support 
 of the plaintiff's claim ; but there is no case in which the promise of pay- 
 ment has gone beyond the amount of the right vested in the party to whom 
 the promise was made, or beyond the assumed value of the fund out of 
 which the payment was to be made." Referring to Edwards v. Kelly and 
 Castling v. Aubert, he said that in each of them the plaintiff actually gave up 
 to the defendant property in his possession, and the promise was founded 
 upon a new consideration distinct from the original debt. And in Williams
 
 Art. I.] CoLLATEKAL Undkhtakings. 677 
 
 § 586. In the nisi prius case of WaUier v. Taf/lor, 6 
 Carrino-toii niid Payne, 7o2 (A. T>. 1834), one Cuiidcll, a 
 publican, liad died, and the phiiutift", an undertake!-, liad 
 been employed by the widow to conduct the funeral ; and 
 she had placed in his hands the beer and spirit licenses 
 of the deceased, as security for the payment of his bill. 
 The defendant and his partner were creditors of the estate, 
 and the defendant, wishing to administer on tlie effects of 
 the deceased, offered the widow 301. to allow him to do so. 
 She consented, but in addition stipulated that he should 
 pay the plaintiff's bill ; and the defendant gave orders to 
 make an inventory and value the stock ; but the lett(n-s of 
 administration were granted to the defendant's partner. 
 The defendant after the grant of letters, (and after a threat 
 of proceedings against the plaintiff had been mad*,^ by the 
 administrator), applied to the plaintiff to deliver up the 
 licenses to him ; and the plaintiff did so on his promising 
 to pay the bill, which was delivered at the same time to 
 the defendant, made out against the administrator. The 
 plaintiff having brought this action upon the defendant's 
 promise, it was objected at the trial that it was within the 
 statute, but Tindal, C. J., said: "But it is a new contract 
 
 V. Leper there was a power of distress and an intention to enforce it, and 
 the judges must have considered that power as equivalent to an actual dis- 
 tress. After intimating a doubt respecting the correctness of that decision, 
 he said that at all events it did not go beyond the rent then actually due, and 
 he added: "But this reasoning will not apply to the accruing and future 
 rent. The plaintiff could not have distrained for that rent. The defendant, 
 by paying all that was due at Lady day, might have proceeded to sell the 
 goods. If that sum were paid or secured, the plaintiff sustained no loss or 
 detriment by the sale of the goods. So that the promise to pay the accruing 
 rent exceeded the consideration, and cannot be sustained on the ground on 
 which the cases referred to are to be sustained ; but is nothing more than 
 a promise to pay money that would become due from a third person, and is 
 within the words of the statute, and the mischief intended to be remedied 
 thereby.*' This case seems to be entirely at war with the theory, that those 
 where the property delivered to the defendant was not in the actual possess- 
 ion of the plaintiff, can be sustained on the ground of a purchase. P'or in 
 that aspect it would be immaterial what price the defendant agreed to pay 
 therefor. 
 
 73
 
 678 Collateral CJndeetakings. [Ch. xvl 
 
 under a new state of circumstances. It is not ' I will pay 
 if the debtor cannot ; ' but it is ' in consideration of that 
 which is an advantage to me, I will pay you this money.' 
 There is a whole class of cases, in which the matter is 
 excepted from the statute, on account of a consideration 
 arising immediately between the parties. It is a new con- 
 tract ; it has nothing to do with the statute of frauds at 
 all." Afterwards in summing up to the jury, he said that 
 the plaintiff had a claim on Mrs. Cundell for the expenses 
 of the funeral, and the administrator was also liable for 
 them ; but it was for the jury to say whether the defend- 
 ant made the promise ; and the plaintiff had a verdict. (A:) 
 
 § 587. In Clancy v. Piggott, 4 JSTevile and Manning, 496, 
 A. D. 1835, (Z) the declaration stated that one Moore was 
 indebted to the plaintiff in the sum of five pounds ; that 
 the plaintiff had in his possession goods of Moore, of the 
 value of twenty pounds, as security for the payment of 
 his debt, and having a lien thereon ; and in consideration 
 that the plaintiff, at the defendant' s request, would give 
 up the possession of the goods to Moore, and abandon his 
 lien thereon, the defendant promised to pay him the five 
 pounds. To which the defendant pleaded that the sup- 
 posed promise was contained in a writing set forth in the 
 
 (h) In Selwyn's Nisi Prius, thirteenth EngUsh edition, page 775, the 
 author cites the remark contained in the note to Forth v. Stanton, 1 Wil- 
 liams's Saunders, 211, that in Houlditch v. Milne, 3 Espinasse, 86, (§ 579), 
 the credit must have been exclusively given to the defendant; but he says 
 that this explanation will not apply to Walker v. Taylor, and that it would 
 seem that both of those cases are overruled by Gull v. Lindsay, 4 Exchequer 
 45 (§ 589). And in Chitty on Contracts, eighth English edition, 478, it is 
 said that Walker v. Taylor cannot be supported within the rule in W^illiams's 
 Saunders. The chief justice's remark affords considerable support to the 
 doctrine, that where the leading object of the promisor is to subserve his 
 own interest, the promise is not within the statute; but upon the facts of 
 the case, it was simply the surrender of a lien (although perhaps untenable) 
 to the representative of the owner. 
 
 (0 S. C, 2 Adolphus and Ellis, 473, and 1 Harrison and Wollaston, 20. 
 The former report contains a serious error, in stating the amount of the debt 
 as 50?., while agreeing with the others that the fund amounted to only 20?.
 
 Art. I.] Collateral Undertakings. 579 
 
 plea, and which was iu the i'olh)wiiig words: " Sir, I 
 hereby agree to see you paid witliin three montl.s from 
 date hereof, the amount of 5Z. due to you on account of 
 Mr. George Moore, junior." On demurrer to this plea, 
 the court unanimously gave judgment for the defendant, 
 because the writing did not express the consideration, and 
 the plaintiff by his demurrer had admitted that it con- 
 tained the real contract between the parties, the case being 
 one to which the statute applied. (7/i) 
 
 § 588. In Tomllnson v. Gell, G Adolphus and Ellis, 664, 
 A. D. 1837, (?i) the declaration stated iu substance that the 
 defendant and tlie plaintiff, the latter acting with the con- 
 sent of one Buxton, had settled a suit in equity, which had 
 theretofore been pending in favor of Buxton against the 
 defendant, in wliich the plaintiff had been solicitor for 
 Buxton, and wherein certain costs and charges had be- 
 come due to him as such ; that the terms of such settle- 
 ment were that the suit should be discontinued, and that 
 the defendant should pay to the j^laintiff his costs ; and 
 that in consideration thereof the defendant promised the 
 
 (m) None of the judges made special reference to the previous lien cases 
 (although counsel cited and discussed them,) except Littledale, J., who said: 
 " It is clear to me even upon the declaration in this case, that this was a 
 promise to pay the debt of another person, notwithstanding all that is said 
 about the lien on the goods; but upon the construction of tlie statute of 
 frauds, it has been held that if there be a nev/ consideration moving from the 
 plaintiff to the defendant, though it is a promise to pay the debt of another 
 person, it need not be in writing. Upon the face of this declaration there 
 is a new consideration, which prima facie would appear to make a promise 
 in writing unnecessary. But the defendant, in the beginning of his plea, 
 avers that the promise mentioned in the declaration is a special promise to 
 answer for the debt and default of another person, which is no more than 
 what is stated in the declaration itself; and then it goes on to state that 
 there was no agreement," etc. Although these remarks are obscure, and 
 doubtless badly reported, they sufiicicntly indicate that the grt^und of the 
 distinction between this case and the others was that the property was 
 delivered back to the debtor. 
 
 (n) S. C, 1 Nevile and Perry, 588, and Wiilniore, WoUaston and Davi- 
 son, 229.
 
 580 COLLATEEAL UNDERTAKINGS. [Cll. XVI. 
 
 pliiintiff to pay the costs. The defendant pleaded that 
 there was no writing, etc., and the phiintiff demurred to 
 the plea. Judgment was given for the defendant upon 
 the demurrer, on the ground that the phiintiff' s client was 
 primarily his debtor, and the plaintiff had not discharged 
 him. But Patteson, J., after concui'ring with the other 
 judges, in their ruling that this wag a promise to pay the 
 debt of another, added: "It is said, however, that a new 
 consideration arose from the discontinuance of the suit. I 
 do not think it is a new one. The cases on that point have 
 been where something has been given up by the plaintiff 
 and acquired by the party making the promise ; as the 
 security of goods for a debt."(o) 
 
 § 589. The next case of the series is Oull v. Lindsay^ 
 4 Exchequer, 45, A. D. 1849, (^) which is frequently cited 
 as having some bearing upon the proposition, that the 
 promise is out of the statute, where the leading object of 
 the promisor was to subserve his own interest. But 
 although the declaration was perhaps adapted to present 
 that question, the case seems to have been disposed of on 
 the ground of a variance between the declaration and the 
 proof ; and its effect upon the present subject of inquiry 
 is consequently quite obscure ; although some of the 
 observations of Pollock, C. B., militate against the exist- 
 ence of such a rule of law.(2') 
 
 (o) The report in 1 Nevile and Perry omits from this remark the import- 
 ant words, "and acquired by the party making the promise;" but in Will- 
 more, Wollaston & Davison the expression is even stronger than that quoted 
 in the text, viz. : " Where the plaintiff, having acquired something more than 
 the original claim," "as a lien by distraining goods in the hands of the 
 defendant, has given up that advantage to the defendant." See Prentice v. 
 Wilkinson, 5 Abbott's Practice Reports, N. S., 49, cited ante, § 137. 
 
 (p) S. C, 18 Law Journal, N. S., Exch., 354. 
 
 {(]) The first count of the declaration stated, in substance, that the plaintiff 
 was a ship broker, and had been employed by the owners of a certain ship 
 to procure a charter party, upon terms that he should collect the fieight and 
 thereout retain his commissions ; that he procured such a charter party, and 
 the ship arrived in London pursuant thereto; that before her arrival, one of 
 the original owners had sold out his interest in the ship to another person;
 
 Alt. I.] Collateral IJNDEiiTAKiNCis. 581 
 
 § 590. The most recent of tliese cases is Fitzgerald v. 
 Dressier, 7 Common Bencli Eeports, New Series, 374, 
 
 that the plaintiff was about to collect the freijjht so as to satisfy his com- 
 mission; that the defendants had been employed as the brokers of one of the 
 original owners, and of the person who had purchased an interest as aforesaid, 
 the two interests represented by them amounting to 60-64ths of the whole, 
 that by obtaining possession of the ship they would receive their commissions 
 for rechartering her; that they were otherwise interested in obtaining 
 possession and control of her; and that in consideration thereof, and that the 
 plaintiff would relinquish his right to collect the freight, the defendants 
 promised to pay him his commission. There were the usual averments of 
 performance by the plaintiff, and of a breach on the part of the defendanL'?. 
 To this was subjoined the common counts. At the trial the plaintiff proved 
 substantially the facts set forth in the declaration, to the time of the arrival 
 of the ship. It further appeared that after her arrival, the defendants' 
 principals had directed a stop to be put upon the cargo, for the freight 
 payable under the charter party; as the charterers claimed to hold a bottomry 
 bond on the ship for advances, etc., and to retain the freight due from them 
 on account thereof; and also that the captain refused to deliver up the ship's 
 certificate till his accounts should be settled ; thereupon the plaintiff, the 
 defendants, the captain, and the charterers entered into a written agree- 
 ment; the substance of which was, as far as the plaintiff's claim was con- 
 cerned, that none of the parties to the agreement should put any stop on 
 the freight, and that the defendants would pay the plaintiff his commission. 
 The defendants objected that there was a variance between the declaration 
 and the agreement, and that the latter was incompetent within the statute 
 of frauds, because it did not disclose any consideration moving from the 
 plaintiff. The plaintiff had a verdict, with leave to the defendants to move 
 to set it aside and enter a verdict for the defendants or a nonsuit, the court 
 to have the same power of amendment as the judge at nisi prius. A rule 
 nisi was obtained accordingly, which after argument was made absoluto, 
 Pollock, C. B., delivering the opinion. He said that the consideration stated 
 in the written agreement was essentially different from that alleged in the 
 declaration. " It is not," said he, " an agreement by the defendant to pay, 
 in consideration of the plaintiff abandoning his rights, arising from several 
 matters stated by way of inducement; but it is an agreement in considera- 
 tion of his agreeing not to put, or cause to be put, a stop on the freight It 
 is not in consideration of his not asserting any lien upon the freight, with- 
 out regard to the question whether he was or was not entitled to such lien." 
 The learned Chief Baron added that the inducement was material as the 
 declaration was framed; but immaterial as to the contract established. This 
 was a contract to pay the debt cf another within the statute of frauds; for, 
 although the defendants agreed to pay the plaintifl, the debt still remained 
 due to him from the former owners. " It was therefore necessary that the
 
 582 Collateral Undertakings. [Cli. xvi. 
 
 decided in tlie Common Pleas A. D. 1859. (;*) There the 
 evidence given at the trial, on the part of the plaintiffs, 
 tended to prove the following facts. The plaintiffs, who 
 were the importers of a cargo of linseed which was yet to 
 arrive, sold the linseed, through their brokers, to Haakman 
 and Co. at a certain price per quarter, payable fourteen 
 days after landing ; subsequently, and before the arrival 
 of the linseed, Haakman and Co., through the same 
 brokers, sold it to one Schenck at an increased price, 
 payable at the same time ; and after the linseed had 
 arrived, but before it had been landed, Schenck, through 
 the same brokers, sold it to the defendant at a further 
 advance, payable at fourteen days from the day of sale. 
 Five days after the last sale, the defendant, through his 
 clerk, applied to the brokers for a delivery order for the 
 seed ; and they having referred the clerk to the plaintiffs, 
 a conversation took place between the plaintiffs' clerk and 
 the defendant' s clerk, the substance of which was, that if 
 the plaintiffs would give the defendant the delivery order, 
 the defendant would pay them for the seed. An order 
 was accordingly given to deliver the seed to the brokers, 
 and it was taken by the defendant' s clerk to the brokers, 
 who, on being informed by him that he had promised 
 the plaintiffs, in behalf of the defendant, to pay for the 
 seed, indorsed the order so as to make the seed deliverable 
 to the defendant ; and upon the order the defendant received 
 the seed. The next day he sent to the brokers a check for 
 900Z. on account of his purchase. The seed having been 
 afterwards landed and measured, it was discovered that 
 the amount payable to the plaintiffs by the terms of their 
 contract with Haakman and Co. was 971Z. 155. Qd., and 
 this action was brought to recover the difference of 111. 
 155. Qd. At the trial the plaintiffs had a verdict ; and the 
 
 consideration should appear in writing, signed by the defendants; and the 
 consideration, we have already stated, is a very different consideration from 
 that declared on." There could be no amendment, he continued, because it 
 was not a variance ; the amendment would require striking out the induce- 
 ment, and introducing new matter creating a totally different consideration. 
 (r) S. C, 29 Law Journal, N. S., C. P., 113; 5 Jurist, N. S., 598.
 
 Art. I ] Collateral Undertakings. 683 
 
 defendant obtained a rule nisi to set aside the verdict and 
 enter a nonsuit, on the ground that the contract slioiild 
 have been in writing ; and on two other grounds, one of 
 whicli was that the evidence did not show that the defend- 
 ant authorized his clerk to make the contract. 
 
 § 591. Upon the last mentioned ground the rule was 
 made absolute by a majority vote ; but all the judges 
 agreed that the contract was not within the statute. 
 Cockburn, C. J., upon that point said that the rule is 
 correctly laid down in the notes to Forth v. Stanton^ 
 1 Williams's Saunders, page 211e, that "the question 
 whether each particular case comes within this clause of 
 the statute or not, depends, not on the consideration of 
 the promise, but on the fact of the original party remain- 
 ing liable, coupled with the absence of any liability on 
 the part of the defendant or Ms property except such as 
 arises from his express promise." His Lordship added 
 that the proposition must be considered as embracing 
 the qualification at the end of this passage ; that it is 
 "truly stated there, as the result of the authorities, that 
 if there be something more than a mere undertaking to 
 pay the debt of another, as where the property, in con- 
 sideration of the giving up of which the party enters into 
 the undertaking, is in point of fact his own, or is property 
 in which he has some interest, the case is not within the 
 provision of the statute; which was intended to apply to 
 the case of an undertaking to answer for the debt, default, 
 or miscarriage of another, where the person making the 
 promise has himself no interest in the property which is 
 the subject of the undertaking." In this case, he added, 
 the seed was the property of the defendant, subject to the 
 plaintiffs' lien for the price, the giving up of this lien 
 being the consideration for the promise ; consequently the 
 case clearly comes within the qualification in the note to 
 Williams's Saunders. Williams, J., said that the defend- 
 ant was at the time of the promise the owner of the linseed, 
 subject to the plaintiff's' lien for the contract price, and the 
 effect of the promise was neither more nor less than to get
 
 584 Collateral Undioktakinos. [Cli. xvi. 
 
 rid of the incumbrance ; or, in other words, to buy off tlie 
 plaintiffs' lien, and for tliat reason the case was not within 
 the statute. He added that Williams v. Leper proceeded 
 upon the ground, that the promise was to pay a debt to 
 which the defendant' s property was subject, and not simply 
 a promise to answer for tlie debt or default of another. 
 That this was in accordance with Castling v. Auhert and 
 Anstey v. Marden, which, as the note referred to by the 
 Chief Justice stated, proceeded upon the ground that the 
 transaction was in effect a purchase of an interest in the 
 property, and not a mere promise to pay the debt of 
 another. And in these opinions Crowder, J., and Willes, 
 J., concurred. (5) 
 
 (s) In the Law Journal report it is said that a case was settled for an appeal 
 from this decision to the Court of Exchequer Chamber, but the appeal was 
 abandoned. The head note to the report in the Jurist states the decision 
 upon the application of the statute thus: "In such case, the time for B's 
 payment to A of the price agreed on not having arrived, when C applied 
 for the delivery order, his promise to pay for the goods, if A would take oft 
 his lien, would not have been a promisQ to pay for the debt, default, or mis- 
 carriage of another." But none of the judges made any allusion to the fact 
 that the debt from Haakman and Co. to the plaintifis, was not payable 
 when the defendant applied for the order; on the contrary the decision was 
 expressly put upon a ground, equally appHcable to a case where the debt was 
 presently payable. As a part of this series of cases are sometimes also cited 
 Love's case, 1 Salkeld, 28, A. D. 1706, Anstey v. Harden, 4 Bosanquet and 
 Puller, 124, and Stephens v. Pell, 2 Crompton and Meeson, 710, A. D. 
 1834. Love's case holds that a sheriS" may recover upon a promise of a 
 stranger to the judgment, that he would pay the amount due on a fieri 
 facias, in consideration that the sheriff would restore goods which he had 
 levied on ; but nothing was said in the case relative to the effect of the statute. 
 Anstey v. Harden has been heretofore fully cited. (See ante, § 118.) 
 Stephens v. Pell is merely to the effect that where the defendant, an assignee 
 in bankruptcy, promised the plaintiff to pay him a sum due from the bank- 
 rupt for rent in arrear, "out of the sale of the produce of the effects," in 
 consideration of his withdrawing a distress upon the goods; and the goods 
 in fact sold for more than the amount of the rent in arrear; the plaintiff, 
 upon the execution of a writ of inquiry, cannot be required to prove that 
 there was a surplus to meet his demand, after satisfying certain executions 
 which were prior to the distress. The case turned upon the true construction 
 of the defendant's promise ; which, for aught that appears, was in writing.
 
 Art. II.] Collateral Undertakings. 586 
 
 ARTICLE 11. 
 
 Ameriogn oases wherein the role is established, and its application illnstrated. 
 
 § 502. The order wliich we liavi^ adopted, for tlie discus- 
 sion of tlie perjjlexiiig cxuestioiis connected with the sub- 
 ject now under examination, defers till the next chapter 
 the consideration of most of the legal tlieories, based upon 
 the earlier decisions of the foregoing series. Chief among 
 these is the doctrine adopted by Chief Justice Kent, in 
 Leonard v. Vredenburgh, 8 Johnson, 23, as the definition 
 of his third class of cases; namely, "when the promise 
 to pay the debt of another arises out of some new and 
 original consideration of benefit or harm, moving between 
 the newly contracting parties. " ('"'^) Such cases, he said, 
 are not within the statute of frauds. The application of 
 this doctrine to the principles now under examination is 
 so direct, that a glance at its consequences upon this class 
 of cases is also necessary in this place. 
 
 § 693. It seems to be quite evident, although a very able 
 jurist has forcibly defended the contrary conclusion, (/>) 
 that this doctrine practically makes the application of the 
 statute depend, in this class of cases, upon the nature or 
 character of the consideration. Whether the discharge 
 of the lien would operate to relieve the property of the 
 promisor, or of the original debtor, is immaterial under a . 
 rule, which merely requires the consideration to be new 
 and original ; to move between the newly contracting 
 parties ; and to consist of benefit to the one, or harm to 
 the other. It must of course be new, or it could not 
 satisfy the common law ; it must be original, that is to 
 say, something more than forbearance to the debtor ; but 
 in either event, the request of the promisor is ample to 
 satisfy the requirement, that it should move between the 
 new parties ; and if it w^as of no benefit to him, it was at 
 least a damage to the promisee. 
 
 (a) See ante, § 63. 
 
 Q}) Comstock, C. J., in Mallory v. Gillett, post, § 597 and note. 
 74
 
 /586 COLLATEKAL U:NDERTAKINGS. [Cll. XVI 
 
 § 594. Accordingly the doctrine that the surrender, 
 either to the new promisor or to the original debtor, of 
 any lien available for the security of the promisee, suf- 
 fices to take out of the statute a promise to pay another's 
 debt, became generally prevalent in the United States ; 
 and was understood, until comparatively recently, to be 
 a settled principle of American jurisprudence. But it is 
 now admitted by the best authorities, that the true rule 
 requires that in all such cases the promisor must have 
 been interested in the property, upon which the lien at- 
 tached, so that he acquired whatever was surrendered by 
 the promisee ; and that wherever the lien was surrendered 
 to the original debtor, the promise cannot be taken out of 
 the statute for any reason depending upon the existence 
 of a lien. This doctrine must, we think, be regarded as 
 a distinct declaration that Chief Justice Kent's third 
 proposition is not law. The American authorities have 
 not, however, quite adopted the comprehensive reason for 
 this conclusion which aj)pears to prevail in England ; 
 although we think the tendency of the more recent decis- 
 ions is in that direction. 
 
 § 595. It is unnecessary to examine the cases, where a 
 verbal promise to pay another's debt has been sustained, 
 under the old rule, by reason of the surrender of a lien 
 upon the debtor' s property. Some of them have already 
 been cited in the preceding pages, the circumstances per- 
 mitting them to be ranged under some other principle 
 which is yet recognized as controlling. In many of the 
 others, the facts were such, that the decision can be sus- 
 tained within the rule as it is now understood ; but as these 
 profess to depend upon the obsolete rule it would be a 
 needless consumption of time and space to examine them 
 in detail. However, some of them will be incidentally 
 referred to in the notes. 
 
 § 596. The modern doctrine upon this subject derives 
 its origin from Nelson v. Boynton, 44 Massachusetts (3 
 Metcalf ), 396, decided A. D. 1841. There the plaintiff had
 
 Art. II.] Collateral Undertakings. 587 
 
 commenct^d a suit against the father of tlie defendant, 
 upon two notes made by the latter, and had issued an 
 attachment in that suit, and levied the same upon the 
 father's real estate; wh(^reupon, in consideration that the 
 plaintiff would discontinue that suit, the defendant orally- 
 promised to pay the notes ; and this action was brought 
 upon that promise. In the court below, the jury were 
 instructed that the promise was not within the statute, 
 and the plaintiff had a verdict, which was set aside by the 
 Supreme Court and a new trial granted, Shaw, C. J., 
 delivering the opinion of the court, after pointing out 
 the general object of the statute, and the general rules 
 for its construction, said that it has been argued that 
 this case was within Williams v. Leper, and its kindred 
 cases, in which the creditor had a lien upon })roperty, 
 which was discharged at the request and for the benefit 
 of the party promising. He cited and commented upon 
 several of those cases, and added: "The rule to be 
 derived from the decisions seems to be this : that cases 
 are not considered as coming within the statute, when 
 the party promising has for his object a benefit which he 
 did not before enjoy, accruing immediately to himself; 
 but where the object of the promise is to obtain the release 
 of the person or property of the debtor, or other forbear- 
 ance or benefit to him, it is within the statute.'" Apply- 
 ing that rule to the present case, he said that although 
 the effect of the discontinuance of the action w^as to dis- 
 charge the attachment, yet that was incidental only ; 
 and the leading object and purj)ose were the relief and 
 benefit of the father, and not of the defendant. ' ' It does 
 not appear," he remarked, "that the son had any interest 
 in the estate released, or object or piirpose of his owm to 
 subserve." It was therefore the ordinary case of a son 
 becoming surety for his father's debt, in consideration of 
 forbearance ; and therefore, not being in writing, it was 
 within the statute, (c) 
 
 (c) The principle that the surrender by the promisee of a lien upon prop- 
 erty, or othel security for the payment of the debt, will take the promise
 
 588 COLLATEIIAL UNDERTAKINGS. [Cll. XVI. 
 
 § 597. But tlie question received sucli a tliorougli dis- 
 cussion, and the rule now recognized was so ably sustained, 
 upon principle and authority, in Mallory v. Oillett, 21 
 New York, 412, (cZ) decided in the Court of Appeals of that 
 State, A. D, 1860, that it may be regarded as having been 
 set at rest by that decision. There the plaintiff, at the 
 request of one Haines, had taken upon his dry dock a 
 canal boat, and put upon it repairs to the value of $125 ; 
 and having a lien upon it for the repairs, he refused to 
 deliver it to Haines or any other person, till that amount 
 should be paid ; whereupon the defendant, in considera 
 tion of the delivery of the boat to Haines, verbally prom- 
 ised the plaintiff to pay the amount due for repairs. The 
 boat was thereupon delivered to Haines, and the defend- 
 ant paid the plaintiff $50, and refused to pay tlie residue ; 
 whereupon this action was brought to recover upon the 
 promise. The defendant succeeded in the court below, 
 upon his objection that the promise was within the statute 
 of frauds ; and the plaintiff appealed to the Court of 
 Appeals, where the judgment of the Supreme Court was 
 affirmed by a vote of five judges against three. The 
 opinion of the majority, delivered by Comstock, C. J., 
 from which quotations have been frequentlj'^ made in 
 previous portions of this volume, covers upwards of 
 twenty pages of the printed report ; and notwithstanding 
 that it is fairly open to criticism, upon some of the col- 
 lateral points discussed by him, we exaggerate nothing in 
 saying that upon the whole, it surpasses in clearness and 
 precision of language, force of reasoning, and discriminat- 
 ing criticism of previous adjudications, any judical 
 determination ever delivered upon this branch of the 
 statute of frauds. The most meagre outline of the argu- 
 ment is all that our limits permit us to give in the sub- 
 out of the statute, only when the defendant acquired what was surrendered, 
 was also clearly stated in Curtis v. Brown, 59 Massachusetts (5 Gushing,) 
 488, A. D. 1850; Dexter v. Blanchard, 93 Massachusetts (11 Allen), 365, 
 A. D. 1865; and Burr v. Wilcox, 95 Mat?eachusetts (13 Allen), 2G9, A. D. 
 1866. 
 
 (d) Affirming S. C, 23 Barbour, 610.
 
 Art. II.] Collateral L'ndertakings. 689 
 
 joined note.(e) It will appear tluTcfroiii that the decision, 
 as in Nelson v. B<>i/)it<>n, was put distinctly upon the 
 ground that the defendant liad no personal interest or 
 
 (e) After demonstrating very clearly, upon principle, that the question 
 under the statute can never arise, unless there is a new and sufficient con- 
 sideration, because, without such a consideration, a promise to pay the pre- 
 cedent debt of another will be void at common law; that the question under 
 the statute is always whether there was a debtor and a surety, not when the 
 debt was created, or what was the consideration of the collateral promise ; 
 that the validity of a verbal promise under the statute does not depend upon 
 the comparative merits of the different kinds of consideration upon which it 
 may be founded, all considerations being in that respect on an equal footing; 
 and therefore that if the release of a security to the debtor takes out of the 
 statute a stranger's promise to pay the debt, the same result must inevitablv 
 follow with respect to any promise, the subject of which is a third person's 
 antecedent debt; the learned Chief Justice proceeded to examine critically 
 the classification in Leonard v. Vredenburgh (ante, § 63), which he thought 
 was strictly correct, although it had been misapprehended. Regarding, he 
 said, the connecting remarks of Chief Justice Kent, it will appear that the 
 present case belongs to the second class, and not to the third; because although 
 both of them are promises to pay a third person's antecedent debt, the 
 second expressly includes cases where the undertaking is subsequent to the 
 creation of the debt, and founded upon a further or new consideration ; and 
 if this case be put within the third class, there will be no second class left. 
 The distinction between the second and the third class is not in the nature 
 of the consideration, but in respect to the persons between whom it moves; 
 in the former it moves to the debtor, and may consist of any thing of benefit 
 to him or harm to the creditor, in which the new promisor has no concern; 
 in the latter, however, it moves to the new promisor; "and that also," he 
 added, ''as in all other cases of contract, may consist of benefit to him, or 
 harm to the party with whom he is dealing." The language of Ravage, 
 C. J., in Farley v. Cleveland (ante, § 553), is more exact than that of Chief 
 Justice Kent, in requiring the consideration to move to the promisor; and 
 more comprehensive, because it includes cases where the consideration 
 moves from the original debtor, as for instance, where the latter places a fund 
 in the hands of the promisor, in consideration of his promise to pay the debt. 
 But the difference is not one of principle, whether the promise was made 
 to the debtor or to the creditor; because in the former case it moves 
 from the creditor through the debtor to the promisor. The learned Chief 
 Justice then proceeded to analyze the previous New York cases in detail, 
 arguing with great ingenuity, although, we think, not always successfully, 
 that in all of them where a verbal promise had been sustained the con- 
 sideration moved to the promisor, and was a matter in which he had a per-
 
 590 Collateral Undertakhstgs. [Ch. xvi. 
 
 concern in the property, the release of which formed the 
 consideration of the promise. On the other hand, Bacon, 
 J., speaking for the minority of the court, delivered an 
 opinion nearly as elaborate, in favor of the reversal of the 
 judgment ; sustaining with great ingenuity the proposition 
 advanced by him, that the cases in New York and Eng- 
 land establish the rule, that a promise is not within the 
 statute, "where the creditor, in consideration of the 
 promise, surrenders some pledge, or relinquishes some 
 lien actually held by him and capable of enforcement, 
 and by means of which the original debt was rendered 
 secure," irrespective of the question to whose benefit the 
 surrender enured. The principles established by this case 
 were reaffirmed by the same court in Becker v. Torrance^ 
 31 New York, 631, A. D. 1864 ; Pfeiffer v. Adler, 37 New 
 York, 164, A. D. 1867 ; and Brown v. Weher, 38 New 
 York, 187, A. D. 1868 ; all of which are cited elsewhere 
 more at length. 
 
 sonal interest or concern ; and in all those where it was held that a verbal 
 promise was not valid, the consideration moved exclusively to the debtor. 
 The cases cited and commented on by him, which are relevant to the pre- 
 sent inquiry, have been cited, with one exception, in the preceding pages, in 
 connection with other rules. Those where the verbal promise was said to 
 have been sustained, because the consideration was beneficial to the prom- 
 isor, are Skelton v. Brewster, 8 Johnson, 293; Gold v. Phillips, 10 John- 
 son, 412; Myers v. Morse, 15 Johnson, 425; Olmstead v. Greenly, 18 
 Johnson, 12 ; Farley v. Cleveland, 4 Cowen, 432 ; Chapin v. Merrill, 4 Wen- 
 dell, 657 ; Gardiner v. Hopkins, 5 Wendell, 23 ; Ellwood v. Monk, id. 235 ; 
 King V. Despard, id. 277 ; and Meech v. Smith, 7 Wendell, 315. The prin- 
 ciple was the same, the learned Chief Justice said, where a note or other 
 evidence of indebtedness of a third person, held by the promisor, was trans- 
 ferred by him to the promisee, with a guaranty of payment, as in the cases 
 which are cited in article i of chapter xviii. Slingerland v. Morse, 7 John- 
 son, 463 ; Mercein v. Andrus, 10 Wendell, 461 ; Simpson v. Patten, 4 
 Johnson, 422 ; and Jackson v. Rayner, 12 Johnson, 291, ware also cited and 
 commented on; we have given the substance of most of his remarks upon 
 those cases in the notes thereto, where they were previously cited; but 
 although some of the dicta point to a different conclusion, none of them, he 
 contended, decides any thing hostile to this principle. One case he excepted 
 from these remarks; namely. Fay v. Bell, Hill and Denio, 251; there the 
 defendant's verbal promise to pay the debt, in consideration of the surrender
 
 Art. II.] Collateral Undertakings. 591 
 
 § 598. The case of Nelson v. Boynton was ref(?rred to 
 with approbation in two Kentucky cases, Jones v. Walker , 
 13 B. Monroe, 356, A. D. 1852, and Lieher v. Levy, 3 
 Metcalfe, 292, A. D. 18G0, in each of wliich a verbal prom- 
 ise of the defendant to pay a debt due to the plaintilf by 
 a third person, was held to be void ; the consideration, in 
 the former case, being that the plaintiff would not issue an 
 attachment to collect it ; and in the latter, (where the prom- 
 ise was to pay fifty cents on the dollar,) that the plaintiff 
 would release a levy, under an attachment, upon goods of 
 the debtor sufficient in value to pay the debt, and discon- 
 tinue the attachment proceedings. 
 
 § 599. The same principles were also approved in CorJc- 
 ins V. Collins, 16 Michigan, 478, A. D. 1868. There the 
 action was brought on a verbal promise to pay for board 
 furnished and money loaned by the plaintiff to one Sykes ; 
 
 to the debtor of property on which the plaintiff had a Hen was sustained ; 
 but the case was erroneously decided. Yan Slyck v. Pulver, id. 47 ; Smith 
 V. Ives, 15 Wendell, 182; Packer v. Willson, id. 343; and Watson v. Ran- 
 dall, 20 Wendell, 201, are examples of cases where the consideration moved 
 to the debtor and the promise was therefore held to be within the statute. 
 Barker v. Bucklin, 2 Denio, 45, and Kingsley v. Balcome, 4 Barbour, 131, 
 contain definitions which bring the promise in question within the statute. 
 Nelson v. Boynton, 44 Massachusetts (3 Metcalf ), 396, and the series of 
 English cases cited in the foregoing article, were also examined in detail 
 and commented upon; and with respect to those where tlie verbal prom- 
 ise was sustained, the learned Chief Justice said : " In each of them the 
 creditor relinquished some lien or advantage incident to his debt; but in 
 each of them whatsoever he relinquished was acquired by the defendant, 
 either as a matter of personal interest and concern to himself, or to 
 other parties whom he represented; and on that consideration he promised 
 to pay. In none of them was any such doctrine asserted, as the plaintiff 
 contends for in this case. In all of them the engagement was deemed 
 original, either because the primary debt was gone, or because the consid- 
 eration moved to the promisor; and in some of them the decision was 
 put on both these grounds." And after examining and discussing Read v. 
 Nash, 1 Wilson, 305; Goodman v. Chase, 1 Barnewall and Alderson,207; 
 and Fish v. Hutchinson, 2 Wilson ; 94. the learned Chief Justice concluded 
 with the observations, including his classification, which have been copied 
 at length, ante. § 64.
 
 592 Collateral Undertakings. [Cli. xvi 
 
 and the consideration of tlie promise was tlie release of 
 certain trunks belonging to Sykes, upon which the plaint- 
 iff claimed, (and in the opinion it was assumed,) that he had 
 a lien for the payment of the debt. At the trial the judge 
 directed a verdict for the defendant ; and the judgment 
 thereon was affirmed by the Supreme Court, on the ground 
 that the property was released for the benelit of Sykes. 
 The rule is thus stated by Campbell, J., delivering the 
 opinion of the court : "When, by the release of property 
 from a lien, the party promising to pay the debt is enabled 
 to apply it to his own benefit, so that the release enures 
 to his own advantage ; it is quite easy to see that a promise 
 to pay the debt, in order to obtain the release, may be 
 properly regarded as made on his own behalf, and not on 
 behalf of the original debtor ; and any possible advantage 
 to the latter is merely incidental, and is not the thing 
 bargained for. That promise is therefore, in no proper 
 sense, a promise to answer for any thing but the promisor' s 
 own responsibility, and need not be in writing." "But 
 where the entire transaction, both promise and considera- 
 tion, is intended and operates exclusively for the advant- 
 age and on behalf of the debtor whose debt is guarantied, 
 there seems to be no plausible ground for holding that the 
 promise is any thing but collateral ; and if such a promise 
 can in any case be valid without a writing, it must be valid 
 in all. There is no tangible middle ground. Among 
 valuable considerations, there are no degrees of validity. 
 They are all good or bad ; but one valid one is as high in 
 rank as another." 
 
 § 600. It was held in the very recent case of Landis v. 
 Moyer, 69 Pennsylvania, 95, A. D. 1868, that the rule is 
 satisfied if the lien or charge upon the defendant' s prop- 
 erty was only inchoate, provided it could have been made 
 perfect ; and at the same time the court assigned a reason 
 for the decision, corresponding very closely with the Eng- 
 lish doctrine in this class of cases. This action was 
 brought to recover the value of a quantity of lumber, used 
 in constructing a house for the defendant. It appeared
 
 Art. II.] Collateral Undertakings. 693 
 
 at the trial tliat tli(^ defendant, his brotlier, and another 
 person, Imd severally entered into contmcts with one 
 "Wcrtz ; wliereby AVr-rtz was to erc^ct a hous<? for each of 
 them, he famishing all the materials. The ])laiiititf had 
 supplied lumber for all the houses, and had charged it to 
 Wertz, without designating for which house each parcel 
 of lumber had been supplied. Wertz became unable to 
 pay; and the evidence tended to show, tluit thweupon the 
 defendant and his brother agreed with the plaintiff upon 
 the value of the lumber, which had gone into each of the 
 three houses ; and each of them agiec^d to pay his share, 
 provided the third contractor would pay the residue of 
 the account ; and that the latter had sul)sequently done 
 80. The judge left it to the jury to determine whether 
 the lumber was furnished upon the credit of Wertz alone, 
 or on the credit of the defendant, or his building ; instruct- 
 ing them that the building, if the lumber was furnished on 
 its credit, would have been subject to a lien therefor (under 
 the mechanic' s lien law) ; and that although no lien had 
 been entered, the promise would be to pay the defendant' s 
 own debt, and in ease of his own property, and not the 
 debt of Wertz. The jury having found a verdict for the 
 plaintiff, a judgment thereon was affirmed. Sharswood, 
 J., delivering the opinion of the court, said, in answer to 
 the objection that the promise was within the statute of 
 fiuuds: "It was the debt of the defendant's own build- 
 ing, the payment of which could be legally enforced 
 against it ; though it may not have been personally his 
 debt, his property was answerable for it, and his engage- 
 ment to pay was in relief of his property." 
 
 § 601. Sometimes this principle will save a verbal prom- 
 ise to pay a debt du(^ by another, when the surrender of 
 the lien was only constructive. That seems to have been 
 the ground of a recent decision in the New York Common 
 Pleas, Benedict v. Dunning ^ 1 Daly, 241, A. D. 1802. 
 There one Schoonmaker had employed the plaintiffs to 
 make searches respecting the title to certain property, with 
 the view of borrowing a sum of money ui)on a mortgage 
 75
 
 694 Collateral Undertakings. [Ch. xvi. 
 
 on the property ; the plaintiffs also agreeing to nse their 
 influence to procure for him the said loan, which, it is to 
 be plainly inferred, they controlled as attorneys for the 
 proposed lender. The plaintiff's made the necessary 
 searches, but Schoonmaker was unable to fulfil the agree- 
 ment on his part for the loan. The defendant held a third 
 mortgage upon the same property, and a decree had been 
 made in an action to foreclose the second mortgage. The 
 defendant wishing to procure the same money which 
 Schoonmaker proposed to borrow, for the purpose of pay- 
 ing off" the two prior mortgages, it was thereupon verb- 
 ally agreed between him and the plaintiff's, that they would 
 cause that money to be loaned to him upon the property, 
 and would make a further search as to the foreclosure 
 proceedings, and cause the money to be kept for him, 
 until it was ascertained whether he would become the pur- 
 chaser upon the sale under the decree ; and on the other 
 hand, he agreed to take the loan, and pay them for 
 their services and expenses in making all the searches, 
 provided he became the purchaser upon the sale. The 
 searches were completed, and the defendant became the 
 purchaser ; but he refused to take the loan or to pay the 
 plaintiff's. A judgment in favor of the plaintiff's was 
 affirmed upon appeal. Brady, J., delivering the opinion 
 of the court, said that Schoonmaker was liable to tlie 
 plaintiff's, but the defendant assumed the responsibility, 
 in consideration of the transfer to him of the subject mat- 
 ter of the liability ; and that he was to receive the benefit 
 of the services rendered and expenses incurred for Schoon- 
 maker. The loan was the consideration of both prom- 
 ises. The defendant's promise, added the learned judge, 
 ' ' was a new promise, to the effect that if the plaintiffs 
 would transfer the loan to him, he would pay them the 
 same charge, that they would receive from Schoonmaker, 
 had the loan been made to him." The defendant also 
 agreed to pay the charges for the additional services 
 necessary to make the transfer in due form. ' ' The money 
 was ready," continued the learned judge, "and was kept 
 in abeyance, awaiting the convenience of the defendant
 
 Alt. II. ] Collateral Undertakings. 695 
 
 and subject to liis order. This was a further consid- 
 ciution for the promise." The learned judge therefore 
 thouglit tliat this case was within the principles laid down 
 m JMallory \. (jlUctt.{f) 
 
 % G()2. The question, wliether the cotemporaneous dis- 
 charge of th(^ lien must necessarily form the consideration 
 of i\\e promise, in order to bring the (;ase witliin the rule, 
 was considered, although under circumstances unfavorable 
 to its definite settlement, in Phuiimer v. Lyman, 40 Maine, 
 229, A. J). 1860. There tlie plaintitfs liad a iieii, und(^r tlie 
 State law, on a vessel which one Spear had built, for 
 materials furnished towards lier construction ; and the 
 defendants, who had made large advanc(^s to Spear, had 
 or claimed to have the legal title to the vessel, by transfer 
 from Spear. Shortly before the plaintiffs' lien would ex- 
 pire, one of the defendants said to one of the plaintiffs, 
 that i\\i}\ did not wish the vessel to be attached under the 
 lien; and if the plaintiffs would obtain Spear's order 
 uj)on them for the amount of this claim, they would ac 
 cept it. The plaintiffs tliereuj)on procured such an order 
 
 (/) If tliis decision can be sustained under the rule mentioned by the 
 court, it would seem that Schoonmaker must have been a consenting party 
 to the arrangement; and that the true ground is that the plaintifiV agree- 
 ment was in legal effect a promise, with Schoonmaker's consent, to hold the 
 searches and official certificates of title as the attorneys for the defendant, 
 surrendering to him their lien thereupon for the amount of their bill. Un- 
 less Schoonmaker participated in the arrangement, it is difficult to see what 
 connection there was between the defendant's cimlract and his liabilit}'. On 
 the contrary it woul i seem that this was an independent agreement, to pay 
 a certain sum for services to be rendered to the defendant himself, which 
 the plaintiffs were none tl;e less qualified to perform because they had in- 
 vestigated the same subject for another person. The iiniouiit to be paid by 
 the defendant was fixed by reference to the sum due from Schoonmaker; 
 doubtless on account of the improbability that the plainlifls could collect any 
 thing from the latter, whose property had been swept awny by the fore- 
 closure. Still, except upon the hypothesis that he was a party to the new 
 transaction, the plaintifls could have recovered against him, after fulfilment 
 of the defendant's promise; and on the other hand, he would not be liable 
 over to the defendant for whatever the latter might pay in fulfilment 
 thereof.
 
 696 Collateral Undertakings. [Ch. xvi. 
 
 and gave Spear a receipt in full ; but the defendants re- 
 fused to accept the order. There were two days then 
 remaining, before the lien would expire, and the plaintiffs 
 at once took out process to enforce it ; but before they 
 could serve the process, the vessel had left port. In an 
 action upon this promise, the evidence was reported to 
 the court for an opinion ; and after argument, it was 
 adjudged that the plaintiffs be nonsuited. The opinion, 
 delivered by Tenney, C. J., placed the decision upon the 
 ground of want of consideration, as well as because the 
 promise was within the statute ; there being, he said, no 
 proof that the discliarge of the lien was the consideration 
 tion of the defendant' s promise ; or that the plaintiffs prom- 
 ised to discharge it, or to give Spear a receipt. And he 
 added that the plaintiffs were not injured by the refusal to 
 accept the order ; as their rights and remedies were pre- 
 cisely the same as if the order had never been given. 
 
 § 603. It is believed that the general doctrine of the 
 foregoing cases may now be regarded as an established 
 rule of American jurisprudence. In some of the States 
 there are decisions, which it may be difficult to overrule, 
 in favor of the doctrine that the surrender of a lien or 
 other available security for the payment of a debt, will 
 take a promise out of the statute, without regard to the 
 person to whom it was surrendered ; but this proposition is 
 intrinsically so unsound, and the stream of authority is 
 now running so uninterruptedly the other way, that 
 doubtless, when the necessity arises, the courts of those 
 States will follow the example of the highest court of New 
 York, and by sweeping away precedents which cannot 
 be reconciled with the foregoing rule, render the American 
 decisions uniform on this point, {g) 
 
 (g) The case of Allen v. Thompson, 10 New Hampshire, 32, decided 
 A. D. 1838, is one of the precedents referred to. There the declaration 
 counted upon a promise of the defendant, made in consideration of the 
 delivery to one Bryant, of the account book of one Richardson, who had 
 delivered the same to the plaintiff as a pledge, to secure the payment of a 
 debt owing by Richardson ; the averment being that it was delivered to
 
 Art. II.] Collateral Undertakings. 597 
 
 ^ C()4, No caso appoars to liavo. yot arison, npccssarily 
 involving an answer to the qu<?stion, wliether a coti^mpo- 
 raneous surrender of tlie lien is indispensable to the 
 validity of the verbal promise. But although the Chief 
 
 Bryant "to collect the amount due on the book; " and the promise was that 
 the defondiint would pay the debt due to the plaintiflT, provided Bryant 
 should not collect enough for that purpose. At the trial thcplaintilT introduced 
 evidence tending to prove a verbal promise, as alleged in the declaration; 
 and the judge ruled as matter of law that it wa^s not within the statute, and 
 the plaintiff had a verdict. On a motion for a new trial the ruling was .sus- 
 tained ; the court remarking that it did not appear why the defendant wished 
 the book to be delivered to Bryant, whether to benefit Richardson, Bryant, 
 or himself, but that was unimportant. The plaintiff parted with a book 
 which he possessed, and from which he had a right to pay himself, and tii« 
 consideration of the promise was the surrender of the book,and not the debt due 
 by Richardson. This distinct consideration was one which passed between 
 the parties to the new contract, as the delivery of the book to Bryant was 
 in legal effect the same as a delivery to the defendant, and it was sufficient 
 to take the case out of the statute. In French v. Thompson, 6 Vermont, 54, 
 A. D. 1834, the court seem to have regarded the mere surrender of a security 
 as sufficient to take out of the statute a promise to pay the debt ; but in fact 
 the surrender was made to the defendant, although he received the property 
 surrendered in a representative capacity ; namely, as guardian for an infant, 
 whose estate was primarily liable. In South Carolina a verbal promise to 
 pay the tavern bill of a third person, in consideration of the surrender to 
 him of his trunk, upon which the landlord had a lien for his bill, was sustained 
 on the ground that where " a complete and enforceable lien on the property of 
 the debtor," is given up, in consideration of the promise, it is not within the 
 statute. Dunlap v. Thorno, 1 Richardson, 213, A. D. 1845. However there 
 was some question whether the plaintiff had not discharged the original 
 debtor; and the prevailing opinion refers to that feature of the case, as being 
 important, although it is not assigned as a separate reason for the decision. 
 The cases cited from the South Carolina reports were Jones v. Ballard, 2 Mills, 
 113; Adkinson v. Barfield, 1 McCord, 575; Rogers v. Collier, 2 Bailey, 581; 
 Barnstinc v. Eggart, 3 McCord, 1G2 ; Boyce v. Owens, 2 McCord, 208; 
 Corbett V. Cochran. 3 Hill, 41. To which might be added Siau ads. Pijott, 
 1 Nott & McCord, 124. And it was asserted that this was the rule of law, 
 nithough it was indefensible upon principle, in Durham v. Arledge, 1 Strob- 
 hart, 5, A. D. 184R, where, however, there was no occasion to ajiply the 
 rule, as the promise was void upon every theory, having been made in con- 
 sideration of forbearance to issue an execution. See also Hindman v. 
 Langford, 3 Strobhart, 207, A. D. 1848. Most of tho.^e cases arc cited in 
 previous pages of this volume. It is believed that tlie only case, during the
 
 698 Collateral Undeetakings. [Cli. xvi. 
 
 Justice in delivering liis opinion in Fitzgerald v, Dress- 
 ler,{ h ) treated tli6 question, as if it was a matter of course 
 that tlie surrender would form the consideration of the 
 promise, it is quite clear that he did not intend to make any 
 ruling, to the effect that this was an indispensable requisite. 
 On the contrary, he said several times, that the previous 
 liability of the defendant's property for the debt, was the 
 true reason why the statute did not apply. And the 
 expressions containing a similar implication, which are 
 found in the American cases, may perhaps be regarded as 
 dicta, rather than adjudications. The distinction is of 
 little practical importance in this class of cases ; but it 
 has an important bearing upon several questions, con- 
 nected with the eftect of the consideration upon the applica- 
 tion of the statute ; and especially upon the principal 
 question to be discussed in the next chapter. If, as 
 the English authorities apparently hold, and as correct 
 principles seem to demonstrate, the true reason why the 
 statute does not apply, is that the debt of the promisor' s 
 property is practically his own debt, it is evident that his 
 motive in assuming an absolute liability to pay it is of 
 no imj)ortance. 
 
 last twenty years, where the doctrine of Nelson v. Boynton, was not fol- 
 lowed, is Spooner v. Dunn, 7 Indiana, 81, decided A. D. 1855; where the 
 court appears to have been unconscious of that decision, or of the principle 
 which it estabhshes. There it was held by the Supreme Court, on appeal, 
 that the relinquishment of a levy made under an execution, upon property 
 sufficient in amount to satisfy it, would sustain the defendant's verbal prom- 
 ise to pay the debt, although the defendant personally derived no benefit 
 from the transaction. The decision was placed entirely upon the ground 
 that " where a specific lien or substantial benefit is surrendered, upon the 
 express promise of a third person to pay a debt, it is an original under- 
 taking, and not within the statute." But it is stated in the report that the 
 promise was in consideration that the plaintiff "would release his levy and 
 return the executions,^' and that he did so ; from which it may be inferred 
 that the debt was discharged, in consideration of the defendant's promise. 
 (A) Ante §590, 591.
 
 CHAPTER SEVENTEENTH. 
 
 DEFENCE OF THE REJECTION, AS UNSOUND, OF ALL 
 LEOAL PKOrOSITIONS DEPENDENT UPON THE CASES 
 CITED IN THE LAST TWO CHAPTERS, EXCEPT THOSE 
 EMBODIED IN THE SEVENTH AND EIGHTH RULES. 
 
 § 605. Having thus defined the rule which governs the 
 cases, where the debt, for which the promisor undertook 
 to answer, was secured by a lien upon property, existing 
 in favor of the promisee ; and ascertained, as far as tlie 
 present state of the authorities permits, the principle upon 
 which it depends ; we have now to defend the conclusions 
 wliich we have adopted, in treating these cases, and those 
 governed by tlie seventh rule, as two distinct and inde- 
 pendent classes; and in rejecting various other legal 
 propositions which have the sanction of the most respecta- 
 ble authorities. In so doing, we shall be compelled partly 
 to retrace our steps, and again to travel over some of the 
 ground, covered by the discussion contained in the two 
 foregoing chapters. 
 
 ARTICLE I. 
 
 Examination of the prevalent theories derived from Williams v. Leper, and kindred cases. 
 
 § 606. Tlie cases collected in the first article of the 
 sixteenth chapter, se(»ni to b(; geiuvniUy regarded as belong- 
 ing to one class ; although the connection of some of thnn 
 with the rest is not very apparent ; and with the exception 
 of the last two or three, the principles which controlled 
 the decision of those, where the promise was exc^ludcd 
 from the opci-ition of the statute, are very obscure. They 
 have formed the subject of a discussion, which has lasted 
 for many years ; and, so far from having resulted in any 
 settled conclusion, it is even now at its height. There ig
 
 600 COLLATEIJAL UnDEKTAKINGS. [Ch, XVII. 
 
 no prospect of it8 ever being brought to a satisfactory 
 termination, except by its abandonment ; probably because 
 all tlie remarks of the judges, and perhaps all the decis- 
 ions, are not capable of being fully reconciled with each 
 other, or with the true construction of the statute. It is 
 evident that the principle that the promise is not within 
 the statute, when the property of the promisor was already 
 liable for the debt assumed by him, affords but a very 
 imperfect explanation of many of the cases ; and the 
 subject of the controversy is to ascertain, what additional 
 principles, if any, are to be derived from them. We 
 append in a note, extracts from the works of some of the 
 leading English and American elementary writers, which 
 will show how great a stumblin-^ block, in that respect, 
 they have been found to be, by the commentators in both 
 countries, (a) 
 
 (a) Mr. Koberts in his Treatise on the Statute of Frauds, page 232, lays 
 down the rule, as derived from such of the cases as had been decided at the 
 time of the publication of his work, as follows: "It is to be observod, in 
 regard to these promises founded on the liability of another person, that 
 to constitute them such as are necessary by virtue of the statute of frauds, 
 to be committed in writing, the consider.ation should appear to have an 
 immediate respect to the liability of the party promised for. If it spring out of 
 any new transaction, or move to the party promising upon some fresh and sub- 
 stantive ground of a personal concern to himself, the statute of frauds does 
 not attach upon such promise, but the same maybe good, if the consideration 
 be sufficient, although existing in parol only." It will be noticed, that if the 
 word "and " had been used in the place of "or," in the second sentence, the 
 principle asserted would have been very nearly equivalent to the doctrine, 
 that the promise is not within the statute, when the leading object of the 
 promisor was to benefit himself, which has obtained an extensive recogni- 
 tion in the United States. Other English writers use nearly equivalent 
 expressions; and some fall into the error of supposing that the ground of 
 such of the decisions as sustained the verbal promise, where the considera- 
 tion was the surrender of a lien in favor of the promisee, turned upon the 
 nature of the consideration, instead of the relation of the promisor to the 
 property to which the lien attached. Thus in Burge on Suretyship, p. 26, 
 it is said: "The debt of another may have been the original cause of the 
 promise, yet if the person to whom it is given relinquish some right or 
 ■advantage which he possessed, and which might have enabled him to obtain 
 satisfaction of his debt, the promise by a third party to pay the debt, in
 
 Art. I.] Collateral Undertakings. GOl 
 
 § C07. Witli respect to the various legal theories, which 
 the courts and text writers in the United States liave de- 
 rived from these cases, through subsequent adjudications in 
 this countr}^ they seem at the present time to be embodied 
 in f(mr distinct and conilicting propositions, each of which 
 finds able and distinguished advocates. These are : 
 First. Tliat wlienever a verbal ])romise to ]>ay the debt of 
 a third person has been taken out of the statute, upon the 
 authority of the cases of this series, the true gi-ound of tlie 
 decision was that tlie leading object of the ])romisor was 
 to benefit himself, and the debtor's discharge resulted only 
 incidentally from the fulfilment of the promise. 8ecoiul1t/. 
 That wlienever such a promise was sustained, the decision 
 proceeded upon the ground that it Avas to be ful tilled, out 
 of a fund, proceeding either from the creditor or from the 
 debtor. Thirdly. That some of the decisions, sustaining 
 
 consideration of such relinquishment, is an original promise." And appar- 
 ently Mr. Theobald, in his Treatise on Principal and Surety, pi. 58, agree3 
 with this statement of the rule. In Mr. Fell's work on Guaranty and 
 Suretyship, p. 16, the principle of these oases is stated to the same effect, as 
 follows: " A party may make himself liable to the same demand to which 
 another person is already subject, without a note in writing, in many cases; 
 provided there is a new and adequate consideration arising between him 
 and the original creditor." Then after citing Williams v. Leper, Castling v. 
 Aubert, and Love s case, to show what is a new and adequate consideration, 
 it is added, on p. 18: "In these three cases the plaintiff, creditor, had pos- 
 session of the property of the debtor, and a lien upon it, which he was 
 induced to give up by the promise of the defendant." The other cases do 
 not appear to have been cited. And in Leigh's Nisi Prius, 1031, the result 
 of the cases is thus summed up : " Although the deci.<5ions on this subject can 
 scarcely be deemed conflicting, yet it is difficult to lay down any rule with 
 which all the authorities cat: be reconciled. The inference, however, from 
 the preceding decisions is, that though the debt of a third party be the sub- 
 ject matter of a promise, yet if the promise be founded on a new and dis- 
 tinct consideration co-extensive therewith, and moving, not to the third 
 party, but to the person who makes the promise ; or if the third party be 
 not liable to be sued on the debt, when the promi.<*c is made it is not within 
 the statute." Mr. Addison in his Treati."*e on Contracts, 104, is even more 
 inexact. He says : " If the plaintiff, for example, has a lien upon the goods 
 and chattels of his debtor in his possession, or if he holds securities for the 
 payment of his debt, and is induced either to give up his lien upon the goods 
 76
 
 602 Collateral Undertakings. [Ch. xvii. 
 
 the verbal promise, rested upon the first ground, and some 
 upon the second ; so that both of these propositions ex- 
 
 or to part with his securities, upon the faith of a promise, made by the de- 
 fendant, to pay the amount of the plaintiff's claim thereon ; the promise so 
 made is not within the mischief intended to be provided against by the stat- 
 ute of frauds, although the amount promised to be paid, as the consideration 
 or inducement, for the abandonment of the lien or the surrender of the secur- 
 ities, may be the subsisting debt of a third party, due to the plaintiff; and 
 the performance of the promise may have the effect of discharging that 
 debt." Although this proposition at one time received considerable coun- 
 tenance in the American courts, it cannot be sustained on any correct view 
 of the English cases ; but it has been retained in the subsequent editions of 
 Mr. Addison's book, and is to be found again in the sixth, published in 1869, 
 on page 60. But on the preceding page the editor, Mr. Cave, without citing 
 any authorities, lays down a general rule in these words: "Where the de- 
 fendant, in order to get rid of an incumbrance on his own property, or to 
 obtain some direct personal advantage to himself, promises to pay the debt 
 of another, the promise is not within the statute." In the third (English) 
 edition of Chitty on Contracts, p. 511, the cases which had been decided up 
 to that time are cited with the following remarks: " Although the debt of 
 another form the subject matter of the defendant's undertaking, still, if he 
 promised to pay the debt upon some new consideration raised by himself, 
 and the consideration be the creditor's resignation of a charge or lien on goods 
 which afforded him a remedy or fund to enforce payment, the case does not 
 fall within the statute." The word "raised " is evidently a printer's blunder 
 for " received ; " correcting this error, the sentence expresses with tolerable 
 accuracy the rule to be derived from the lien cases. But the blunder is con- 
 tinued in all the later editions, and in the eighth, published in 1868, on page 
 480, this remark is prefaced with : " It has also been said that," and after citing 
 Williams v. Leper, Bampton v. Paulin, Edwards v. Kellj^, Barrell v. Trussell, 
 Castling v. Aubert, Thomas v. Williams, and Houlditch v. Milne, the editor 
 condemns all those of the series, in which a verbal promise was sustained, in 
 the following sweeping terms: "But, as has already been observed, the real 
 question in such cases would now appear to be, not whether the promise 
 of the guarantor was given on a new consideration, but whether by accept- 
 ing his liability, the party to whom the promise was given has relinquished 
 his claim on the party originally liable. And accordingly it may be ques- 
 tioned, whether any case similar to those above cited, would now be held not 
 to be within the statute; unless it appeared that the promisee, by giving up 
 his lien or charge on the property of the party originally liable, had left 
 himself wholly without a remedy against him.'' And in this edition, Fitz- 
 gerald V. Dressier, Gull v. Lindsay, and other modern ca.^es are cited on page 
 476, in connection with a quotation from the end of liic note in 1 Williams's
 
 Art. I.] Collateral Undertakixgs. G03 
 
 press correct rules of law. Fourtltly. That in this series 
 there are two distinct classes of cases, practically if uot 
 
 Saunders, wliich erroneously omits (he important words, " or liis property." 
 Mr. John William Smith, in his Lectures on the Law of Contracts, pp. 46 
 and 47, ajjparently agrees with tiie modern editor of Chitty in the opinion 
 that the cases are nolongrer law, for he does not cite or refer to them, but 
 says: "It was at one time thought that a verbal promise, even to answer lor 
 the debts of another, for which that other remained liable, might be available, 
 if founded on an entirely new consideration, conferring a distinct benefit 
 upon the party making such promise. This idea is however confuted by 
 Serjeant Williams in an elaborate note to the case of Forth v. Stanton, which 
 I have already cited ; and the rule there laid down by him, and which ha.s 
 ever since been approved of, is, that the only test and criterion, by which to 
 determine whether the promise needs to be in writing, is the question 
 whether it is or is not a promise to answer for a debt, default or miscar- 
 riage of another, for which that other continues liable. If it be so, it nuist 
 be reduced to writing ; nor can the consideration in any case be of import- 
 ance, except in such cases as Goodman v. Cliase, in which the consideration 
 to the person giving the promise, is something which extinguishes the orig- 
 inal debtor's liability. You will see Serjeant Williams's criterion approved 
 of in Green v. Cresswell, 10 A. &: E., 453, and Tomlinson v. Gell, 6 A. & E., 
 564." However, the English editor of this work adds a note, in which lie 
 makes the very proper criticism on this passage, that the note to Williams's 
 Saunders requires an absence of liability on the part of the defendant's 
 property, as well as an absence of personal liability, except such as arises 
 from the promise, in order to bring the promise within the statute; and that 
 the cases where the guarantor has an interest in his promise, have given 
 rise to some conflict of opinion, which is solved by that observation. That 
 part of the original note to Forth v. Stanton, 1 Williams's Saunders, 211, 
 which bears upon this question, is as follows : " But where the promise is 
 founded upon some new consideration, sufficient in law to support it, and is 
 not merely for the debt, etc., of another, such an undertaking, though in 
 effect it be to answer for another person, is considered as an original prom- 
 ise, and not wiihin the statute ; as where A promises B to pay him a sum 
 of money, in case he will withdraw his record in an action of a.ssault and 
 battery," citing Read v. Nash (ante, § 130), Stephens v. Squire (ante, § 484), 
 and Williani.s v. Leper (ante, § 577). But in the additional notes of Mr. 
 Justice Patteson and Mr. Justice Williams, in tlic fifth and sixlli editions, 
 several of the leading cases on this subject are ci^ed and commented upon ; 
 and it is said that in Williams v. Leper the true ground of the decision was 
 that the defendant was the owner of the goods; that in Houlditcii v. ^filne 
 (ante, § 579), the circumstances showed that all the credit for the repairs 
 was given to the defendant, and the real owner of the carriages was not
 
 604 Collateral Undertakings. [Ch. xvii. 
 
 expressly recognized, and only two, wherein the statute 
 does not apply; the one being where the promise was 
 
 liable ; and that in Castling v. Aubert (ante, § 580), and Anstey v. Harden 
 (ante, § 118), there was a purchase of an interest. The note concludes aa 
 follows: "There is considerable difficulty in the subject, occasioned per- 
 haps by unguarded expressions in the reports of the different cases; but 
 the fair result seems to be, that the question whether each particular case 
 comes within the statute or not, depends, not on the consideration for the 
 promise, but on the fact of the original party remaining liable, coupled with 
 the absence of any liability on the part of the defendant or his property, 
 except such as arises from his expiess promise." This conclusion is now 
 generally recognized in England as containing the correct rule. (See Fitz- 
 gerald V, Dressier, ante, § 590). In the thirteenth English edition (A. D. 
 1869) of Selwyn's Nisi Prius, edited by Messrs Keane and Smith, volume 2, 
 page 773, the editors lay down with correctness the principle to be deduced 
 from the English lien cases; but it may be questioned whether they give 
 the correct reason therefor. The passage is as follows: '"There is, however, 
 a remarkable class of cases, in which a promise to answer for the debt of 
 another, having been coupled with the purchase by the guarantor of an in- 
 terest of some kind, or the surrender in his favor of a right, such as that of 
 distress, has been held not to be within the statute ; and in these cases it is 
 not essential that the original debt should be extinguished. The principle 
 on which these cases depend, appears to be that the main object of the trans- 
 action has been to effect something entirely distinct i'rom the payment of 
 the debt of the third person ; and that such payment, though a consequence, 
 is not yet the direct object of the transaction." But such is certainly the 
 direct object of the transaction and the only object of the promisee ; althotigh 
 the promisor may also have some other object in view. Then after citing 
 and commenting upon most of the cases collected in the foregoing article, 
 it is said (p. 776) that the decisions relative to the Hability of a del credere 
 factor rest upon the same principle, and the case of Couturier v. Hastie (cited 
 in chapter xviii), is given at length, with the following comment: "From the 
 reasoning in the above judgment, may be deduced the true limits to an opin- 
 ion, which appears at one time to have prevailed, that a contract, if founded 
 on a new consideration, is not within the statute. Now it is plain that a prom- 
 ise to pay the debt of another, founded on the antecedent debt alone, is nudum 
 pactum ; and therefore wherever such contract is to answer for an old debt, 
 there must be a new consideration. It may, perhaps, therefore be safely 
 laid down, that wherever the principal object of the transaction is to secure 
 the debt of another, as in tRe case of an advance to A on the guaranty of B 
 the case will be within the statute; and that the only cases in which tht 
 •nature of the consideration is material, are such as those in the class above 
 mentioned, in which the guaranty is only a secondary matter." In 3 Par-
 
 Art. T.] Collateral Undertakings. 605 
 
 to be fulfilled out of a fund ; the other wliere the debt was 
 a charge or lien upon the promisor' s property. 
 
 sons on Contracts, fifth edition, page 24, it is said : " It may indeed be 
 stated as a general rule, that wherever the main purpose and object of the 
 promisor is not to answer for another, but to subserve some purpose of his 
 own, his promise is not within the statute; although it maybe in form a 
 promise to pay the debt of anotlier, and although the performance of it 
 may incidentally have the eflect of extinguishing the liability of another. 
 There are several classes of cases, whicli may perhaps be more satisfactorily 
 explained upon this principle than upon any other. Thus if a creditor has 
 a lien on certain property of his debtor to the amount of his debt, and a 
 third person, who also has an interest in the same piopert}', promises the 
 creditor to pay the debt, in consideration of the creditor's relinquishing his 
 lien, this promise is not within the statute. The performance of the promise, 
 it is true, will have the effect of discharging the original debtor; but there 
 is no reason to suppose that this constituted in any degree the inducement 
 to the promise, or was at all in the contemplation of the promisor." Mr. 
 Story, in the fourth edition of his work on Contracts, § lOlo, h, says: " So 
 where the incidental effect of the promise is to pay the debt of another, yet 
 if the leading object of the special promisor be to subserve some purpose of 
 his own, it is not within the statute." The meaning is evidently that such 
 is the rule, where the incidental effect oi fulfilment of the promise is to pay 
 the debt of another ; for its discharge in consequence of the promise, would 
 bring the case within the fourth rule. (Ante, chapter ix.) Mr. Browne in 
 his Treatise on the Statute of Frauds, second edition, § 212, states the rule 
 as follows: " That whenever the transaction between the parties is such 
 that the primary and distinctive obligation assumed by the defendant is 
 different from that of a guarantor, although as incidental to, and in the 
 course of, the discharge of that obligation, the debt of another is satisfied, 
 the defendant's promise is not within the statute." The authors of the 
 American notes to Smith's Leading Cases, volume 1, page 483, of the sixth 
 edition, say : " Whenever the consideration for a promise to pay a debt, 
 for which another is answerable, moves to the promisor, and is sufficient to 
 satisfy the requisitions of the common law, it Avill not be within the statute, 
 merely because it is in terms for the antecedent or cotemporaneous debt or 
 default of another, or because a third person is answerable for the fulfilment 
 of the obligation assumed by the promisor." Several American cases are 
 then cited, and the note proceeds: "These cases show, and it would seem 
 sufficiently plain on principle, that when the consideration for a promise 
 moves to the promisor, or can justly be viewed as a benefit conferred upon, 
 or service rendered to him, at his instance, he cannot escape from the per- 
 formance of his obligation, on the ground that some one else i« liable for its 
 fulfilment, or that a debt which he has in fact made his own. is also the debt of
 
 606 Collateral Undertakings. [Cli. xvii. 
 
 § 608. The first of these propositions involves a denial 
 of the principle governing the entire class of cases consid- 
 ered in the fifteenth chapter. In view of the decisions 
 therein cited, where the existence of a fund proceeding 
 from the debtor, in contemplation of which the promise 
 was made, was held to be sufficient to jjrevent the applica 
 tion of the statute, on that ground alone ; although in 
 some of them there was no room for the supposition, that 
 the leading object of the promisor was to benefit himself ; 
 the cases which maintain this proposition must be regarded 
 as of local authority only, and not entitled to recognition, 
 as exponents of a principle generally recognized in Ameri- 
 can jurisprudence. 
 
 § 609. AYith respect to the second proposition, we remark 
 that it involves an assumption, which cannot be justified 
 upon a fair and reasonable construction of many of the 
 cases ; namely, that whenever there was no fund proceed- 
 ing from the debtor, there was constructively a fund pro- 
 ceeding from the creditor. In those cases where the cred- 
 itor surrendered a lien upon property, in which the promisor 
 had an interest, the advocates of this theory regard the lien 
 as the fund, and its surrender as the process by which the 
 fund was furnished. But this is a very forced inference, 
 and often diametrically opposed to the real facts. For in 
 all the cases where the creditor' s title was hostile to that 
 of the promisor, and the promise was in general terais to 
 pay the debt, it is entirely clear that in fact neither party 
 
 another person. For as under these circumstances, the promisor contracts 
 for himself, and receives an equivalent for what he agrees to give, the prom- 
 ise is not. in any just sense of the term, a promise to pay the debt of another, 
 although the extinction of another's debt may be one of its consequences." 
 And further on : " But whatever be the sacrifice made or loss incurred by the 
 creditor, it will not give validity to an oral promise by a third person to 
 pay the debt, unless it confers a benefit on the promisor, of sucli a nature 
 that the liability which he incurs can justly be called his, as distinguished 
 from tlie assumption of the antecedent or cotemporaneous obligation of 
 another. Even when the withdrawal or forbearance of a distress or execu- 
 tion, the dissolution of an attachment or the extinguishment of an incura-
 
 Art. I.] Collateral Uxdektakings. 607 
 
 voluntarily assumed a relation, by which one furnished and 
 the other received any tiling, to be specifically devoted to 
 that purpose. On the contrary the promisor's only motive 
 in assuming the dt^bt was to rid himself of that which iutrr- 
 fered with the enjoyment and power of disposition of his 
 own property ; and th«^ transaction was simply the compro- 
 mise of an antagonistic claim of title. 
 
 § 610. And while the principle which the English au- 
 thorities now regard as having controlled those cases ; 
 namely, that the property of the promisor was already 
 liable for the debt ; does not in any degree militate against 
 the idea, that the debtor furnished the fund, by his trans- 
 fer to the promisor, it is more than irrelevant to, for it is 
 actually inconsistent with the idea, that the surnmder of 
 the promisee's title was in effect the furnishing of a fund 
 by him, from which to pay the debt. That do(!trine 
 amounts only to this ; that a person may transfer, by an 
 oral promise, to his person and to all liis property, a lia- 
 bility which previously rested upon part of liis property 
 only. But if the lien of the promisee was a fund furnished 
 by him for the payment of the debt, it would seem to fol- 
 low that the pi'omisor was answerable only for its due 
 appropriation ; and if it should appear that the value of 
 the promisee's lien was in fact less than the debt, the ])rom- 
 isor would be liable only for the amount actually received. 
 And in fact this conclusion is distinctly stated, in connec- 
 tion with the idea that the promisee furnished a fund, in 
 
 brance, on the faith of a promise that the debt shall be paid, has resulted in 
 the loss of the only effectual means of obtaininpf payment from the debtor, 
 the statute will operate as a bar, unless it can be shown that the j)r()perty 
 thus released was the defendant's, or that he derived some benefit from the 
 transaction of which the law can take cognizance." "The numerous dicta 
 which may be found the other way, and to the point that an injury to the 
 promisee will be equally eflTectual with a benefit to the promisor, cannot 
 weif^h apainst the plain meaning of the act, and the numerous decisions, 
 establishiuf,' that where the defendant does not receive or profit by wiiat the 
 plaintiff relinquishes, the consideration, though ample at common law, will 
 not sustain the promise unless reduced to writing."
 
 608 Collateral Undektakings. [Cli. xvii. 
 
 some of the cases where such an inference was raised by 
 the judges who pat their opinions upon that ground. But 
 no court in England or the United States would tolerate a 
 d«»fence, that the property fell short of the plaintiff' s de- 
 mand, in a case where the promise was made to settle a 
 hostile claim. 
 
 § 611. We have therefore rejected the first and second 
 of the propositions just mentioned. But it must be under- 
 stood that we do not deny the correctness of the doctrine, 
 that the statute does not apply, where the creditor in fact 
 furnished a fund for the fullilment of the promise. It 
 would be sufficient in any such case, in order to save the 
 verbal promise, to show that it was not to be fulfilled out 
 of the means of the promisor. But we have not found it 
 necessary to place such cases within a distinct class, or to 
 frame a rule adapted to them. For if a tangible fund was 
 really furnished by the promisee, it will very rarely hap- 
 pen that any question can arise touching the application 
 of the statute, of sufficient gravity to require a solemn 
 adjudication ; and where any such question arises, some 
 one of the rules already stated will invariably be sufficient 
 to solve it. In all such cases the attempt to falsify the 
 facts, in order to accommodate a legal theory, is the only 
 real source of perplexity. 
 
 § 612. If these views are sound, it follows that the third 
 and fourth propositions are to be examined together ; as 
 the correctness of the third depends entirely upon the 
 question, whether it recognizes the true rule to be derived 
 from those cases, where there was no fund proceeding from 
 the debtor. To this question, the fourth proposition re- 
 turns a negative answer. We have adopted this conclu- 
 sion ; not without great hesitation at first ; but ultimately 
 from a very clear conviction of its correctness. We think 
 that a careful consideration of the subject will result in 
 demonstrating, that no rule for the exclusion of cases from 
 the statute, depending upon the leading object of the 
 promisor, can be sustained upon principle, or the weight
 
 Art. I.] Collateral Undertakings. 609 
 
 of well considered adjudications. If we do not groatly err, 
 the definition embodied in the favorite proposition on that 
 subject, is merely a vague and loose description of certain 
 classes of cases, possessing a common feature ; the existence 
 of which is a mere accident, having nothing to do with the 
 application of the statute. 
 
 § 613. The proposition which we have thus undertaken to 
 combat, is the successor of the doctrine constituting the 
 definition of the third class of cases, as stated in Leonard 
 V. Vreden'burgh,{h) and now, we think, properly classed 
 among the exploded theories. This doctrine, which holds 
 that the statute does not apply, "when the promise to pay 
 the debt of another arises out of some new and original 
 consideration of benefit or harm, moving between the 
 newly contracting parties," makes the validity of the 
 verbal promise depend, upon the existence of that which 
 merely satisfies the common law definition of a valuable 
 consideration, with the addition of the words "new and 
 original." As the consideration must necessarily be new, 
 whenever the promise is to pay the pre-existing debt of 
 another, the first of these words adds little or nothing 
 in the way of precision or amplification, to the common 
 law requirements of a consideration. The word "orig- 
 inal," although obscure in itself, is explained by reference 
 to a preceding portion of the same opinion. It was doubt- 
 less intended as the equivalent of the expression, "inde- 
 pendent of the debt," which had just previously been used 
 by the learned Chief Justice ; meaning that the considera- 
 tion must be something unconnected with the subsisting 
 indebtedness, and not merely something growing out of it, 
 as would be the case if the consideration consisted merely 
 of forbearance to the debtor. But provided it was, in that 
 sense "original," there seems to be no doubt that if it 
 was any thing done at the request of the promisor, which 
 involved either benefit to him or haiTn to the promisee, the 
 language of the rule was satisfied, (c) 
 
 {h) See ante, § 63. 
 
 (c) This conclusion is opposed to that which Comstock, C. J., reached, in 
 
 77
 
 610 COLLATEEAL UNDERTAKINGS. [Cll^ XVII. 
 
 § 614. It remains to be seen, whetlier the doctrine wMch. 
 has taken the place of Chief Justice Kent' s third propo- 
 sition is more defensible than its predecessor. This in- 
 quiry, which will be carefully prosecuted in the next 
 article, will close this long, and, we fear, tedious, although 
 necessary discussion. 
 
 ARTICLE II. 
 
 Discussion of the question whether the ahstract proposition can he supported, that a promise 
 to pay the deht of another is not within the statute, whenever the leading ohject of the prom- 
 isor was not to discharge the dehtor, hut to suhserve some interest of his own, distinct from 
 the payment of the deht j and the consideration moved to him. 
 
 § 615. If the proposition, which has succeeded to the 
 popularity formerly enjoyed by Chief Justice Kent's third 
 definition in Leonard v. VredenburgJi, was to the effect 
 that whenever the leading object of the transaction was 
 not to make the promisor answerable for the debt, default 
 or miscarriage of another, the promise is not within the 
 statute, although the undertaking of the promisor incident- 
 
 that portion of his opinion in Mallory v. G-illett, 21 New York, 412, where 
 he commented upon this doctrine, with a commendable efifort to reconcile it 
 with the principles now recognized. (See the abstract contained in the note 
 to § 597, ante.) But, be it said with great deference to so high an authority, 
 the concession which he was forced to malce, that harm to the promisee is 
 equally meritorious with benefit to the promisor, for the purpose of calling 
 the rule into operation, completely neutralizes the effect of his ingenious 
 argument. The qualification that it must always move to the promisor 
 amounts to nothing, until some example shall be produced of mere harm to 
 the promisee moving to the promisor, in any other sense than that it was 
 incurred at his request. The proposition of Chief Justice Kent has uniformly 
 been understood, as we construe it in the text, and it cannot be reconciled 
 with the modern rulmgs. In the language of Strong, J., in Maule v. Buck- 
 nell, (post, §§ 621, 622,) "that this proposition is inaccurate, is almost univer- 
 sally admitted, and it practically denies all effect to the statute. It cannot 
 be admitted for a moment, in the terms in which it was expressed." G-rover, 
 J., in his opinion delivered in Brown v. Weber, 38 New York, 187, repu- 
 diated the doctrine in language equally conclusive, if less emphatic. (See 
 § 312, ante.) It was also substantially condemned in Clapp v. Lawton, 31 
 Connecticut, 95; Eddy v. Roberts, 17 Illinois, 505; Kingsley v. Balcome, 4 
 Barbour (N. Y.), 131; Barker v. Bucklin, 2 Denio (id.), 45; Kelsey v. Hibbs, 
 13 Ohio. N. S., 340 ; and Durham v. Arledge, 1 Strobhart (South CaroUna), 5^
 
 Art. II.] Collateral Undektakixgs, 611 
 
 ally imposed such a liability upon him, its general correct- 
 ness could not be disputed. (a) In the existing state of 
 society, almost every executory agreement involves, to 
 some extent, a responsibility for the acts of others ; and 
 an analysis of the component parts of many liabilities, 
 constantly assumed in the course of ordinary business 
 transactions, to which no one ever imagined that the 
 statute of frauds has any application, would result in 
 proving that they consist, in a great degree, of responsibili- 
 ties of that character. Every contractor for the erection 
 of a building, the construction of a railroad, or the like ; 
 every common or private carrier; every insurer against 
 loss by fire, or the perils of navigation, assumes an engage- 
 ment, which principally consists of a promise to answei 
 for the defaults or miscaniages of others. But in cases 
 of this character, neither party was primarily seeking to 
 impose upon the promisor a responsibility for a third per- 
 son ; and his assumption thereof was an accidental, or, at 
 most, an incidental consequence, of a common design to 
 accomplish some other purpose. 
 
 § 616. But the mere statement of the proposition, that 
 the leading object of the promisor was to subserve his 
 own interest, implies, not only that his responsibility for 
 another was, or at least that it may have been, the leading 
 object of the promisee, but also that it was one object of 
 the promisor ; or, in other words, that both parties contem- 
 plated that the engagement of the promisor should be 
 superadded, as an additional security to the promisee, to 
 the liability of the third person, which was meanwhile to 
 continue in full force. If it be said that such cases 
 are without the statute, this is practically tantamount to 
 saying that no case is within the statute, if the considera- 
 tion of the contract moved to the promisor; for no man 
 enters into a contract, with the leading purpose of making 
 himself answerable for another's debt, or of discharging 
 
 (a) See extract from the 13th edition of Sehvyn's Nisi Priiis, in note to 
 § 606, ante, and remarks of Poland, C. J., in Fullam v. Adams, note to § 620.
 
 612 Collateral Undertakit^gs. [Ch. xvii. 
 
 the debtor ; his principal object being invariably to secure 
 the consideration. Consequently the most undisguised 
 contracts of guaranty must fall without the statute, provided 
 a distinct consideration was paid for the guaranty ; a doc- 
 trine which will not only include guaranties of the pay- 
 ment of precedent debts, but those where the guaranty 
 was made at the time when the principal contract was 
 entered into ; as, for instance, if A sells goods to B, and at 
 the same time C guaranties the payment of the price by B 
 in consideration of a commission paid to him by A. 
 
 § 617. We conceive that the extended recognition, which 
 this proposition has obtained, is due to the frequency of 
 cases where it practically coincides with the well settled 
 principle, that the statute does not apply, when the sub- 
 stance of the promise is an engagement to pay the prom- 
 isor' s own debt, or a debt resting upon his property. Thus 
 if the promisor held a fund, which he was bound in some 
 other form, or to some person other than the promisee, to 
 apply towards the payment of the third person' s debt, it 
 amounts to the same thing, whether we say that his prom- 
 ise to pay that debt was substantially a promise to pay his 
 own debt, or that his leading object was to relieve himseK 
 from a liability resting upon him. So when the promisee 
 surrendered a lien upon the promisor' s property in consid- 
 eration of his promise to pay the amount of the lien, 
 in general we may say indifferently that the debt was sub- 
 stantially his own, or that his leading object was to rid 
 his own property of an incumbrance. In these, and 
 other instances which might be named, the two propo- 
 sitions merely express the same idea in different words. 
 There are also some cases without the statute, where both 
 propositions are true in fact, although they relate to 
 different features of the transaction ; but the circumstances 
 are such that it is easy to overlook the true reason why the 
 statute does not apply. Thus where the promisor had 
 once been liable to pay the debt, and had been only techni- 
 cally discharged, a renewal of his engagement is a prom- 
 ise to pay his own debt ; and if it was founded upon a
 
 Art. II.] Collateral Undertakings. 613 
 
 new consideration beneficial to him, his leading object was 
 to acquii-e the consideration. But in such a case, it is not 
 true that either proposition may be indifferently assigned, 
 as a reason why the statute does not apply ; for if both are 
 sound, there are two distinct reasons for the same conclu- 
 sion. It is obvious, however, that if one is sound and the 
 other unsound, no immediate practical inconvenience will 
 ensue, if the unsound proposition be assigned as the 
 ground of the decision. Hence an error originating in 
 such a case would probably long pass unchallenged. 
 
 § 618. But we have now to deal with those cases, which 
 depend exclusively upon the proposition under examina- 
 tion ; and to consider the question whether it enunciates a 
 correct general rule, embracing all cases to which its terms 
 fairly apply, and taking them out of the statute, notwith- 
 standing that they would otherwise be within it. This is 
 l)recisely the eff'ect which some writers claim for the doc- 
 trine in question, and even for more indefinite and compre- 
 hensive statements of a doctrine of the same general 
 character. In this position they are supported by several 
 dicta in the reports, and some adjudications. As a lead- 
 ing author says, in the course of a defence of this propo- 
 sition, "the principle is large enough to embrace every 
 instance in which a guaranty is based upon, or given for 
 a valuable consideration, moving directly or indirectly to 
 the guarantor. "(5) It is manifest that if there is any 
 principle of such sweeping application, an element of 
 uncertainty will be present, in most cases where the statute 
 is supposed to be applicable to a promise to pay a third 
 person's pre-existing debt; for there are but few such 
 cases, where a consideration did not move directly or 
 indirectly to the promisor, and where his interest was not 
 subserved thereby. 
 
 § 619. Still this proposition has been repeated so often, 
 by jurists of such acknowledged reputation, as being 
 
 (fc) 1 Smith's Leading Cases, sixth American edition, page 492.
 
 614 Collateral Undertakings. [Ch. xvii. 
 
 unquestionably sound in law, that it requires some courage 
 to attack it ; and perhaps we would not have ventured to 
 do so single handed ; but the task has been undertaken, 
 and we think successfully accomplished, in two recent 
 adjudications, the reasoning in which is very strong to 
 show that it cannot be maintained. Indeed a grave ques- 
 tion may arise whether in one of them, the court has 
 not gone too far in the opposite direction, and by an 
 erroneous explanation of some of the cases, circumscribed 
 too much the field, within which the principle that the 
 promise is good without writing, where the promisor or 
 his property was previously liable for the debt, can 
 reasonably and safely operate. 
 
 § 620. In the first of these cases, Fullam v. Adams, 37 
 Vermont, 391, A. D. 1864, the Supreme Court of Vermont 
 distinctly overruled one of the propositions, by which 
 Chief Justice Comstock in Mallory v. Gillett, illustrated 
 his third class of cases, being those "where, although the 
 debt remains, the promise is founded on a new considera- 
 tion which moves to the promisor, "(c) The action was 
 brought by a lawyer, upon a verbal promise made by the 
 defendant, by way of retainer, on the occasion of the 
 defendant' s employment of the plaintifi" as his counsel in 
 an expected litigation, relative to his transactions with his 
 brother John, who had failed in business. The promise 
 of the defendant is stated in the report to have been, that 
 he "would pay the plaintiff" one half of what the said 
 John was owing the plaintiff", amounting to some $300 or 
 $400, and reasonable fees and charges for his services." 
 The plaintiff" had a verdict, and on an exception taken by 
 the defendant to the admission of the evidence, on the 
 ground that the contract was within the statute of frauds, 
 the judgment was reversed and a new trial granted. The 
 opinion, delivered by Poland, C. J., is very voluminous ; 
 it attacks the whole doctrine that a new and distinct con- 
 sideration, moving from the promisee to the promisor, will 
 
 (c) Ante, § 64.
 
 Art. II.] Collateral Undertakings. 61o 
 
 suffice to take out of the statute a promise to pay the debt 
 of another, whatever may be its nature ; and it asserts 
 that the only cases, where such a promise is not witliin the 
 statute, are those where payment of the debt would dis- 
 charge some duty or obligation resting upon the promisor ; 
 all others being mere guaranties, in whatever form they 
 may be disguised, or whatever specious reasoning may be 
 resorted to, for the purpose of giving the transaction a 
 different appearance, (c?) 
 
 (d) The learned Chief Justice began with an examination of the question, 
 whether there was a sufficient consideration for the defendant's promise ; 
 upon which point he concluded that the retainer was sufficient, it being 
 customary for members of the bar to charge and receive fees upon a retainer 
 merely. Next the true construction of the agreement was examined, and he 
 concluded that the promise was not, as the plaintiff contended, to pay a 
 certain sum of money, the amount of which was to be fixed by reference to 
 the debt due from John to the plaintiff, and payment of which would not 
 aflfect the liability of John to the plaintiff; but that it was a contract to 
 guaranty, or become responsible for one half of John's debt; so that payment 
 by John of all his debt to the plaintiff would discharge the defendant from 
 liability under the promise; and on the other hand, fulfilment of the promise 
 by the defendant would reduce John's debt to one half of its original amount. 
 The promise, he said, was therefore a promise to pay the debt of another, 
 and consequently directly within the terms of the statute. Nevertheless it 
 is well settled, that a state of facts may exist, which will make such a prom- 
 ise binding without a writing; but the difficulty is to ascertain from the 
 decisions, by what rule the presence of those facts is to be tested. In con- 
 sidering this question, the learned Chief Justice referred to the classifica- 
 tion of the cases by Chief Justice Kent in Leonard v. Vredenburgh and 
 to that made by Chief Justice Comstock in Mallory v. Gillott, remarking 
 that this was precisely one of the illustrations of the latter's third cla.<;s of 
 cases not within the statute. He observed that Mallory v. Gillett holds, 
 and the opinion therein clearly shows the rule to be well established, that 
 where a creditor surrenders to the debtor, a security which he holds for the 
 payment of a debt, upon the promise of a stranger to pay him, the promise 
 is within the statute ; but where the security is surrendered to the promisor, 
 the promise is not within the statute. But he .said that in both cases the 
 debtor continues to be liable, and the surrender of the security was equally 
 a detriment to the creditor, and so an ample consideration for the new prom- 
 ise. The distinction between the two depends, said the learned Chief Justice, 
 upon the same principle, which takes out of the statute promises made by a 
 purchaser of property to pay the price to a creditor of the vendor, and
 
 616 COLLATEEAL UnDEKTAKINGS. [Cll. XVII. 
 
 § 621. The next case, Maule v. Buclcnell, 50 Pennsyl- 
 vania, 39, A. D. 1865, contains an equally decisive 
 repudiation of the doctrine now under examination. The 
 substance of the first count of the declaration was, that the 
 plaintiff and three others were directors of the Eastern 
 Market Company, and had control of its affairs ; and that 
 the defendants, in consideration of the transfer to them, by 
 
 promises to pay a debt made to a creditor, by a person who has received 
 from the debtor a fund for that purpose. In both those classes of cases the 
 true reason why the promise is not within the statute, is that the promisor 
 holds a fund of the debtor for the purpose of paying the debt, so that it is 
 his duty to do so; and when he promises the creditor to pay it, he promises 
 in substance to pay his own debt, and not that of another; and although the 
 original debtor still remains liable, his real relation is rather that of a surety 
 for the person who has assumed the duty of payment, than of a principal 
 for whom the latter has become a sureiy. The opinion then proceeded to 
 amplify the proposition that the cases where a creditor holds a security for 
 the payment of the debt, which he surrenders to the promisor upon the 
 latter's undertaking to pay^the debt, stand substantially upon the same prin- 
 ciple as the others just mentioned. The substance of Williams v. Leper and 
 kindred cases is that the party making the promise is liable, because by the 
 arrangement he becomes the holder of a fund, which was appropriated to the 
 payment of the debt, and clothed with a duty or trust in respect thereto, 
 which the law will enforce in favor of the promisee. In these cases the 
 promise was founded upon a new consideration, moving between the newly 
 contracting parties^ and for the benefit of the promisor; but that fact does 
 not prove that all contracts founded upon such a consideration are without 
 the statute ; on the contrary, when the promise is a mere contract of 
 guaranty, it comes within the statute, although a distinct consideration 
 therefor be paid directly to the party making the promise. This the 
 learned Chief Justice illustrated by the principle upon which the cases relat- 
 ing to the contracts of a factor acting under a del credere commission were 
 decided, (see chapter xviii, article ii), which is, he contended, merely that 
 the factor undertakes for his own fidehty; and by references to other cases, 
 where a promise to pay the precedent debt of another, made upon a new 
 consideration moving directly from the promisee to the promisor, was held 
 to be within the statute. The result of this examination is said to be, that 
 whether the promise is within or without the statute, does not depend upon 
 whether the consideration moved wholly between the new parties ; but the 
 test is whether the leading object and purpose of the transaction were to 
 become responsible for the payment of another person's debt. And it is 
 almost impossible, in the learned Chief Justice's opinion, to imagine a
 
 Art. II.] Collateral Undertakings. 617 
 
 the plaintiff and his associates, of a certain amount of the 
 stock held by them in that company, and tlie resignation 
 by them of their offices as directors thereof, whereby the 
 defendants miglit themselves become directors, promised 
 to pay certain debts of the corporation, and among others 
 a debt due to the plaintiff which he claimed to recover. 
 The second count was framed with a view of recovering 
 
 case where a promise to pay the debt of another, for which he continues to 
 be liable, made upon a consideration moving wholly from the creditor, and 
 in which the debtor has no concern, can have any other leading purpose and 
 object than to make the promisor a surety or guarantor of the debt. Tlie argu- 
 ment that such a transaction should be treated as a purchase of the considera- 
 tion by the promisor, will not bear investigation; because, if it is sound, then 
 the promisor only pays for what he receives, and after he has fulfilled his prom- 
 ise the creditor may still proceed to collect the debt from the original debtor; 
 and payment by the original debtor will not protect the promisor, against an 
 action by the creditor for payment of the purchase price. For these reasons, 
 as well as because it is not comprehensible, why the parties to an actual sale 
 and purchase should effect their object by means of a contract to pay the debt 
 of another, he said that such a contract is made with the purpose and intent to 
 answer for the debt of another; thatwhat is paid or done, as a consideration, 
 is for that purpose merely; and to call it a purchase and sale, is a simple 
 perversion of those terms. The result is summed up thus: " If the real sub- 
 stanceofthe promise be to performsomeduty or obligation of the party making 
 the promise, it is not within the statute, though in form it is a promise to pay 
 another's debt, and the result of its performance may effect the payment of 
 the debt of another. And we believe it will be found that in all the cases 
 now regarded as sound, where it has been held that a parol promise to pay 
 the debt of another is binding, the promisor held in his hands funds, securities 
 or property of the debtor, devoted to the payment of the debt; and his 
 promise to pay attaches upon his obHgation or duty growing out of the 
 receipt of such fund." If, the learned Chief Justice proceeded, the promise 
 is founded upon the consideration of tlie property sold by the debtor to the 
 promisor, or placed by him in the promisor's hands to pay the debt; or if a 
 creditor, holding a security received from the debtor, surrenders it to the 
 promisor upon his promise to pay the debt ; in either case, if the promise is 
 not fulfilled, the debtor would have a remedy in some form against the prom- 
 isor. But if the exemption from the operation of the statute shall be carried 
 any further, every beneficial purpose of the statute is gone. Hence the 
 rule, as laid down by Ciiief Justice Comstock, that "A, for any compensation 
 agreed upon between him and B, may undertake that C shall pay his debt 
 to B," cannot, in the opinion of the court, be maintained. 
 78
 
 618 Collateral Undertakings. [Cli. xvii. 
 
 damages for the depreciation of the plaintiff' s remaining 
 stock, in consequence of the defendants' failure to pay 
 the debts due to other persons. At the trial the plaintiff 
 offered to prove a verbal promise, to the effect stated in the 
 declaration, and sundry other facts tending to show that 
 the affairs of the company were in good condition, at the 
 time of the transfer ; but it had failed in consequence of 
 the defendants' mismanagement and breach of their prom- 
 ise ; and that the object of the transaction was, at least in 
 part, to improve the value of the stock of the company, 
 remaining in the hands of the plaintiff, after the transfer 
 of a portion thereof to the defendants ; and, on the part of 
 the defendants, to obtain the control of the affairs of the 
 company, they being large creditors. But the plaintiff was 
 nonsuited, on the ground that the promise was within the 
 statute of frauds ; and a motion to set aside the nonsuit 
 having been denied, a writ of error was sued out of the 
 Supreme Court, where the judgment below was affirmed. 
 Three objections were made to the recovery, but the Su- 
 preme Court held that the one arising out of the statute 
 of frauds was insuperable, and declined to consider the 
 others. The opinion was delivered by Strong, J. The 
 abstract of the views of the learned judge, contained in 
 the note, is commended to the reader' s attention ; it will 
 be noticed that they generally coincide with the opinions 
 expressed in these pages, with respect to the other classes 
 of cases, governed by the principle that where the promise 
 is substantially to pay the promisor' s own debt, the case is 
 not within the statute. (0) 
 
 (e) The learned judge began by denying the proposition, that a promise to 
 pay the debt of anotlier can be taken out of the statute, because it rests upon a 
 new consideration, moving from the promisee to the promisor. " The object 
 of the statute," he said, " is protection against fraudulent practices, commonly 
 endeavored to be upheld by perjury ; and to these all suits upon verbal con- 
 tracts to answer for another's debt or default are equally exposed, no matter 
 whence the consideration of the contract proceeded, or to whom it passed." 
 The statute, he continued, makes no reference to the consideration ; it is 
 only the promise which is mentioned. Yet there is a class of cases, where 
 the consideration has been more regarded than the nature of the promise.
 
 Art. II.] Collateral Undertakings. 619 
 
 § 622. We will now take up those cases which present 
 the most marked contrast to Fullam v. Adams andllaule 
 V. Bicclmell, being those which foi-m the crucial test of the 
 soundness of the supposed legal ]:)rinciple, which the latter 
 condemn so decisively. By this we mean cases which 
 were taken out of the statute, exclusively by the operation 
 
 These do not depend upon the fact that the consideration moved from the 
 promisee to the promisor; but upon the fact that it was either a transfer of the 
 creditor's claim to the promisor, making the transaction a purchase; or that 
 it was a transfer to the promisor of a fund for tlie payment of the debt, or 
 property or securities charged with its payment, whether they came from 
 the debtor or the promisee. " But," said the learned judge, " except in such 
 cases, and others perhaps of a kindred nature, in which the contract shows 
 an intention of the parties, that the new promisor shall become the principal 
 debtor, and the old debtor become but secondarily liable ; the rule, it is 
 believed, may be safely stated, that, while the old debt remains, the new 
 must be regarded as not an original undertaking, and that it is therefore 
 within the statute. At least this may be stated as a principle generally 
 accurate." "Ami it will be found, after examination, that in nearly all the 
 decisions, in which it has been held that such a promise is not within the 
 statute, there was some liability of the promisor or his property, inde- 
 pendent of his express promise ; or that he had become the actual debtor, so 
 that as between him and the original debtor the superior liability was his. 
 In such cases the consideration for the new promise is regarded as material." 
 After examining the decisions in Pennsylvania, to show that they are in 
 harmony with these views, he added, that among all the authorities cited by 
 the plaintiff in error, there were none inconsistent therewith, except what 
 was said by Kent, C. J., in Leonard v. Vredenbu.'-gh, respecting the third 
 class of cases not within the statute, which is now almost universally admit- 
 ted to be inaccurate. Then, reverting to the facts of the case at bar, he 
 concluded as follows : " The company remained the primary debtor, and had 
 they paid, the defendants would have had nothing to pay, either to the plaint- 
 iff or to the original debtor. The promise of the defendants was therefore 
 in no sense a promise to pay their own debt, or a debt of their property. It 
 was not in relief of any property they owned, or upon which they held a 
 lien. Nor was the consideration for the promise of a nature to take the 
 case out of the statute. It was not a placing in the hands of the defendants, 
 by the debtor or the creditor, funds, securities, or property of the debtor, 
 pledged or devoted to the payment of tlie debts. The transfer of the small 
 number of shares of stock, and the resignation by the plaintiffs of their 
 directorship, were to enable the defendants to become directors, not to place 
 funds in their hands to pay the debts. The averment is, that it was their 
 own money they promised to pay in discharge of the debts, and it is because
 
 620 Collateral Undertakings. [Ch. xvn. 
 
 of that principle ; the circumstances being such, that with- 
 out its help, they must have been decided otherwise. 
 It may occasion some surprise, and it certainly affords a 
 very strong argument against the existence of any such 
 principle, as a rule of general application, that although it 
 has been asserted as law in scores of cases, extending 
 over certainly a quarter of a century, our researches have 
 enabled us to find but two, and those of quite recent date, 
 which answer this description. (/) And it is believed 
 that neither of these cases can be sustained by any logical 
 course of reasoning ; on the contrary that they are striking 
 illustrations of the inconsistent, not to say dangerous con- 
 sequences, of the rule by which they were governed. 
 
 § 623. The first of these decisions comes to us from a 
 source no less authoritative than the Supreme Court ot 
 the United States. In Emerson v. Slater, 22 Howard, 28, 
 decided A. D. 1859, it appeared at the trial that the plaint- 
 iff had entered into a written contract with a railroad 
 company, whose road was in process of construction, 
 providing for the building of certain bridges for the com- 
 pany, for a stipulated compensation, payable in specified 
 proportions and at specified periods therein mentioned; 
 under which the plaintiff had commenced the work ; but 
 the railroad company having failed and become insolvent, 
 
 they did not pay their own money that this action is brought." Compare this 
 case with Alger v. Scoville, 67 Massachusetts (1 Gray), 391, ante, § 376, and 
 post, § 630. The principal difference between the two cases, with respect to 
 the circumstances attending the consideration, is that in the latter it was 
 expressly shown that the transfer gave the defendant the entire control of 
 the corporation; but the distinction is beheved to be immaterial, and the 
 true ground upon which that case can be sustained, is that the promise was 
 not made to the creditor. Whether in Maule v. Bucknell the same principle 
 might not have saved the cause of action under the second count, was not 
 argued or considered. 
 
 (/) ^® ^^y °"'' °^ view those cases which affirm that the statute does not 
 apply, where a lien upon the debtor's property has been surrendered to him, 
 in consideration of the promise; it being now admitted that they proceeded 
 upon an erroneous principle, and were incorrectly decided, unless the promise 
 could be saved from the statute by some other rule.
 
 Art. II.] Collateral Undertakings. 621 
 
 he had stopped and refused to proceed furtlier. The defend- 
 ant was a large stockholder in the company, and holder 
 of its bonds ; and he had leased to the company a quantit}'- 
 of" railroad iron to be laid down on the road, under a con- 
 tract, whereby the company was to pay him, for the use 
 of the iron, certain sums monthly, until the full value 
 thereof, as fixed in the contract, with interest, should be 
 paid ; and then the defendant was to sell the iron to the 
 company. In order to secure these payments, the com- 
 pany had assigned to the defendant the proceeds of the 
 railroad, to an amount equal to the value of the iron, 
 which the superintendent was to retain in his hands. 
 
 § 624. Under these circumstances, the defendant entered 
 into a written agreement with the plaintiff, to the effect 
 that the latter would complete the work provided for in 
 his contract with the company, by a specified time ; for 
 which the defendant would pay him, part in cash and part 
 by his notes, certain fixed sums, at periods specified in 
 the contract ; that the payments should be applied upon 
 the company's indebtedness to the plaintiff ; and that the 
 contract between the parties should not affect the conti-act 
 between the plaintiff and the company, or any action 
 pending between them. In order to indemnify the def(^nd- 
 ant against his contract with the plaintiff, the company 
 also transferred to him certain property, which appeared 
 to include all its property, except its franchise. The 
 plaintiff did not complete the work, within the time 
 specified in the contract between him and the defend- 
 ant ; apd it had been held, when the cause was formerly 
 before the court, ((7) that time was of the essence of the 
 contract ; but upon this trial, he offered to prove a verbal 
 extension by the defendant of the stipulated time for per- 
 fonnance, to a day subsequent to that, when the work was 
 actually performed. This was excluded b}- the judge, on 
 the ground that as the written agreement was a special 
 
 (g) See Slater v. Emerson, 19 Howard 224, where the substance of the 
 contracts is given at greater length
 
 622 Collateral Undertakings. [Ch. xvii. 
 
 promise to answer for the debt, default, or miscarriage of 
 another, the substituted agreement, not being in writing, 
 was within the statute. The plaintiff thereupon asked to 
 recover upon the common counts ; but the judge ruled 
 that he was not entitled to do so, and the defendant had a 
 verdict, and judgment thereon. The writ of error was 
 brought to review these rulings upon exceptions, and after 
 argument the judgment was reversed. 
 
 § 625. Mr. Justice Clifford, delivering the opinion of the 
 court, referred to the question whether the statute permits 
 the subsequent verbal alteration of a written contract, in a 
 case falling within its terms, and said that although the 
 weight of authorities was, in his opinion, against the valid- 
 ity of such an alteration, it was unnecessary to decide the 
 question in the present case ; as the court were of opinion 
 tlia;^ the promise contained in the written agreement was 
 not within the statute ; and hence the common law rule 
 applied, by which a verbal waiver or enlargement of the 
 time of performance was valid. His Honor then laid down 
 the rule, governing this class, as follows : "Whenever the 
 main purpose and object of the promisor is not to answer 
 for another, but to subserve some pecuniary or business 
 purpose of his own, involving either a benefit to himself, 
 or damage to the other contracting party, his promise is 
 not within the statute, although it may be in form a prom- 
 ise to pay the debt of another, and although the perform- 
 ance of it may incidentally have the effect of extinguishing 
 that liability." Applying this principle, the learned 
 judge said that this agreement was an original one } on its 
 face it purported to be between parties for their own bene- 
 fit, and the contract between the plaintiff and the company 
 was apparently referred to, as descriptive of the subject 
 matter of the contract between the parties ; and doubtless 
 also because the company had indemnified the defendant. 
 But, he continued, when the attending circumstances are 
 considered, the presumption is much stronger that it was 
 made for the defendant' s benefit mainly, if not entirelj- 
 The defendant had leased railroad iron to the company,
 
 Art. II.] Collateral Undertakings. C23 
 
 for the use of the road ; and as security for the payment, 
 he had an assignment of the proceeds ; unless tlie bridges 
 were built, there would be no proceeds ; and as the de- 
 fendant had already an assignment of all the available 
 means of the company, to secure himself for this new lia- 
 bility, the company could not pay for the iron. The 
 learned judge added that damage also resulted to the 
 plaintifl', by his going on with the contract, after the com- 
 pany had failed to pay according to its terms, and by his 
 agreeing to receive payment in a different manner than that 
 provided for in the contract It was not an agreement to 
 pay a subsisting debt, but for work and materials there- 
 after to be furnished. For all these reasons the court con- 
 cluded that the defendant' s promise was original, and that 
 it was unnecessary to decide whether the effect of the in- 
 demnity, given by the company to the defendant, was to 
 take the contract out of the statute, {h) 
 
 § 626. Without stopping to inquire, whether the decis- 
 ion upon the writ of error might not have been sustained 
 on some other ground ; as that the verbal waiver was good 
 because the defendant and the company had accepted the 
 performance ; or that the indemnity, pre- supposing a 
 promise to the debtor, of which the plaintiff might avail 
 himself, or a fund furnished by the debtor, took the case 
 out of the statute ; we venture to express the opinion, with 
 all due submission to the distinguished tribunal in ques- 
 tion, that this judgment cannot be supported upon the 
 grounds assigned. The rule, which is propounded as con- 
 trolling this class of cases, professes to be taken from the 
 New York cases of Leonard v. Vredenb2irr/7i, and Farley 
 V. Cleveland, and the Massachusetts cases of Nelson v. 
 Boynton and Alger v. Scomlle; all of wliich are cited, 
 
 Qi) Some of the facts, as stated in this report, may leave the question some- 
 what doubtful whether the plaintiff could have recovered against the company. 
 If so. it is believed that they will be dispelled by a reference to the report 
 in 19 Howard 224, where the provisions of the contracts are given somewhat 
 diflferently, and additional facts are stated.
 
 634 Collateral Undertakings. [Cli. xvii. 
 
 and the rules which they lay down are given at length in 
 these pages. But it contains the error which caused the 
 abandonment of the rule laid down in the New York cases ; 
 and omits the redeeming feature, which enabled it long to 
 hold its own, and which the Massachusetts cases retain 
 and amplify as indispensable to its operation. (?') If this 
 decision is law it is difficult to see why, if the third person 
 is also debtor to the promisor, any thing which tends to 
 improve his credit or his ability to pay the promisor, will 
 not take a promise to pay his debt out of the statute, 
 whether the promise related to an antecedent debt, or one 
 then newly contracted, {j ) 
 
 % Q21. The next case which, although more startling in 
 its results, is more defensible in principle, because at least 
 the defendant acquired what the plaintiff gave, is Kutz- 
 Tneyer v. Ennis, 3 Dutcher (New Jersey), 371, A. D. 1859. 
 There the first count of the declaration stated that the 
 defendant had made a written contract with Riley and 
 Goodwin, to construct certain buildings for him at a stipu- 
 
 (i) The error lies in the supposition that harm to the promisee will affect 
 the question under the statute. It is believed that this proposition always 
 involves a fallacy ; it certainly does so in a case like this, otherwise a promise 
 based upon forbearance or the surrender of a security to the debtor, would 
 be amply within the principle. The redeeming feature, upon which the dis- 
 tinguished judge, whoso strenuously defended this rule in Mallory v. Grillett, 
 wholly based his defence of it, was that it required the consideration to move 
 to the promisor. This the Massachusetts cases amplify, by saying that the 
 benefit to the promisor must be one '^accruing immediately to himself;" but in 
 Emerson v. Slater the opinion entirely omits this vital qualification. And 
 evidently this was not done by accident, or because it was supposed to be 
 included in the phrase that the leading purpose of the promisor was to ben- 
 efit himself; for a careful examination of the case will show that no consider- 
 ation moved fr-om the promisee to the promisor either directly or i7idirecily. The 
 original debtor acquired all that the plaintiff gave ; the consideration there- 
 fore moved to him exclusively ; and the benefit which the defendant expected 
 to derive from the transaction, remote, indirect, and uncertain as it was, 
 would come from the debtor and not from the plaintiff. 
 
 {j) There is considerable similarity between the facts of this case and 
 those in Mallett v. Bateman, ante, § 212, where the Exchequer Chamber ruled 
 the law precisely the other way.
 
 Art. II.] Collateral Undertakings. 625 
 
 lated price ; tliat the plaintiff had worked on the build- 
 ings, at the request of the contractors, and upon a written 
 agreement with one of them ; that they having failed to 
 pay the plaintiff, he gave notice in writing to the defendant 
 under the lien law, that a certain amount was "due from 
 the contractors," and requiring the defendant to retain 
 that amount; and thereupon it was averred that he be- 
 came liable to pay the plaintiff under the lien law. The 
 second count was indebitatus assumpsit for work and 
 labor. The defendant had judgment in the court below, 
 upon demurrer to the first count ; the cause was then 
 tried upon a plea of the general issue to the second 
 count ; and the plaintiff having had a verdict and judg- 
 ment, the defendant brought error. It appeared from the 
 bill of exceptions, that the defendant made an express 
 verbal promise to pay for the work, and (either by offers 
 of evidence which were rejected or by express proof,) 
 that the work was done at the request of the contract- 
 ors, and under a written agreement with Eiley ; that 
 Riley and Goodwin had recovered judgment against the 
 defendant for the same work for w^hich this action was 
 brought, and that the defendant had paid the judgment ; 
 that the judgment in their favor was recovered after a 
 trial, upon which the plaintiff testified that ' ' the work 
 was done by the contractors for Kutzmeyer" (the defend- 
 ant) ; and that after the work had been completed, the 
 plaintiff had given the notice and taken the proceedings 
 under the lien law, as set forth in the first count of his 
 declaration. Nevertheless the Supreme Court afiirmed 
 the judgment, stating the principle under examination in 
 language essentially different from that contained in tlie 
 opinion in the former case, and holding, upon their method 
 of stating it, that it took the defendant's promise out of 
 the statute. The court added, (what under the circum- 
 stances would almost seem to be ironical,) that the defend- 
 ant might have retained the amount due to the plaintiff, 
 from the moneys paid to the contractors. The facts of this 
 case show very clearly that both parties understood, that 
 the leading object of the promise was to guaranty the debt 
 79
 
 626 Collateral Undertakings. [Ch. xvii. 
 
 of the contractors ; and, as tlie court stated the rule, that 
 circumstance would appear to be of no consequence. {Jc) 
 
 § 628. Not only do these two cases disagree fundament- 
 ally as to the terms of the rule, by which both profess to 
 be governed ; (and each states it in a form less defensi- 
 ble than that which we have given to it ;) but they are 
 also directly at war with numerous other decisions, in 
 cases where the plaintiff held a subcontract to do part of 
 a work, which the third person had contracted to do for 
 
 (k) The opinion, delivered by Green, C. J., after saying tliat as the work 
 was done upon the express promise of the defendant to pay for it, it was 
 immaterial whether Riley and Goodwin had recovered judgment for it 
 against the defendant, or had received the price, proceeded to consider the 
 effect of the lien notice, the plaintiff's evidence on the former trial, the 
 special count of the declaration, and the contract between the plaintiff and 
 Riley; all of which, it was said, showed clearly that the plaintiff understood 
 that he originally gave credit to the contractors, and not to the defend- 
 ant. "But," it was added, "the question is not to whom the credit was 
 originally given, but whether Kutzmeyer" (the defendant below) "did not 
 afterwards assume the liability." Then the learned Chief Justice proceeded 
 to consider the exception to the refusal of the judge at the trial, to charge 
 that, as the work was done under the contract between the plaintiff and 
 Riley, any promise by the defendant to pay for the same should have beeu 
 in wiiting; respecting which he said: "The court was right in refusing 
 to charge as requested, though the reason assigned for the decision may 
 not be valid. The real ground on which the decision stands is that the 
 promise is not within the statute of frauds. The rule is that where the 
 promise to pay the debt of another is founded upon a new consideration, and 
 this consideration passed between the parties to the promise, and gives to 
 the promisor a benefit which he did not enjoy before, and would not have 
 possessed but for the promise, then it will be regarded as an original promise, 
 and ihe-refore will be enforced, though not in writing. 1 Parsons on Con., 
 498. This is the precise position of the parties in this case. The evidence 
 tends to show, and, if the jury believed the plaintiff's witnesses, does show, 
 that though the woik was originally undertaken by Ennis at the instance of 
 the contractors, yet he refused to proceed and the work was stopped, until 
 Kutzuieyer promised payment. The work was not done for a third party, 
 but for Kutzmeyer himself. He was interested in the completion of the 
 work. He received the benefit of it, and he had in it his power to indem- 
 nify himself for the advance to Ennis, by withholding the money from the 
 contractors."
 
 Art. II.] Collateral Undertakings. 627 
 
 the defendant ; and tlie plaintiff refused to go on with his 
 work, until the defendant promised to pay him. In such 
 cases it has been repeatedly hold that the promise was 
 without the statute, only when it appears that the plaintiff 
 had discharged the third person ; although the per- 
 formance of the work may have enured to the benefit of 
 the defendant. (Z) Those decisions are therefore direct 
 authorities against the ruling in Emerson v. Slater and 
 Kutzmeyer v, Ennis, and against the whole doctrine that 
 a benefit to the promisor will take the promise out of the 
 statute, in whatever form it may be stated. 
 
 § 629. The next class of cases where the general propo- 
 sition under examination is asserted to be law, consists of 
 those where it was assigned, as a reason for taking out 
 of the statute the promise upon which the question arose ; 
 but either the circumstances did not require the invocation 
 of its aid, because the case properly depended upon some 
 rule having no relation to it ; or else the case came within 
 one of the specific classes governed by well defined rules, 
 forming corollaries of the principle, that where the promise 
 is substantially to pay the debt of promisor it is not within 
 
 (0 See chapter ix, article iii, and the following cases: Puckett v. Bates, 
 4 Alabama, 390 ; Ellison v. Jackson, etc., Company, 12 Calirorniii, 542 ; Noyes 
 V. Humphreys, 11 Grattan (Virginin). 636; Warnick v. Gro;-holz, 3 Grant's 
 Cases (Pennsylvania), 234; Andre v. Bodman, 13 Maryland, 241 ; Bresler v. 
 Pendell. 12 Michigan, 224; Sinclair v. Richardson, 12 Vermont, 33; King v. 
 Despard, 5 Wendell (New York), 277. But see Devlin v. Woodgate, 34 
 Barbour (New York), 252 contra. It is said in 1 Smith's Leading Cases, 6th 
 American edition, 489, that the reason why the principle under examination 
 will not suffice to save a verbal promise, in this class of cases, is " because 
 the benefit, though real, is not, under these circumstances, sufficiently certain 
 to constitute a hgal considei-ation." In a recent case presenting, upon one 
 hypothesis, the question how far this principle will control the application of 
 the third ruje; and, upon another, a question very analogous to tiiat which 
 which .irose in the cases just cited, the court was driven to a very fine spun 
 line of argument, to escape the alternative, of holding the defendant to be 
 liable, on the ground that the leading object of the promisor was to benefit 
 himself, or of overruling altogether the principle. See Clay v. Walton, 9 
 California, 328; post, § 641.
 
 628 Collateral Undertakings. [Ch. xvii. 
 
 the statute. As we have already said, whenever this prop- 
 osition means notliing more than that principle, it is open 
 to no objection as a rule of law. 
 
 § 630. Among the cases of this description, Alger v. 
 Scoville, 67 Massachusetts (1 G-ray), 391, A. D. 1854, is the 
 most conspicuous, (w) There, as we have already said, it 
 was held that a promise to indemnify the plaintiff, against 
 his accommodation indorsements of outstanding notes of a 
 corporation, made in consideration of the transfer of the 
 plaintiff' s stock in the corporation, and a note against it, 
 held by the plaintiff, was not within the statute, because 
 it was not made to the creditor. But the court also added, 
 that if the promise could be regarded as being to answer 
 for the default of the company, it was not within the statute, 
 because "when the leading and obvious object of the 
 promisor was to induce the promisee to forego some lien, 
 interest, benefit, or advantage held by him, and to transfer 
 that interest, or confer that or some equivalent benefit on 
 the promisor,although the effect may be to discharge another 
 person from an obligation, still it is a new, independent and 
 original contract between the parties, and is not within the 
 statute of frauds required to be in writing." It was 
 further said that the substance of the transaction was that 
 the plaintiff placed in the defendant's hands the funds, 
 out of which the notes would, in due course of business, 
 be paid. But the case is now universally regarded as an 
 authority upon the first point decided, which is a well 
 settled principle of law, as we have already seen.(?z-) 
 
 § 631. The same general observation will apply to Small 
 V. Schaefer, 24 Maryland, 143 ;(o) Mason v. Hall, 30 Ala- 
 bama, 599 ;(^) Spawn v. Baltzell, 1 Florida, 301 \{q) Jepher- 
 son V. Hunt, 84 Massachusetts (2 Allen), 417,(r) and 
 numerous other cases, where this proposition was assigned 
 
 (?n) Cited also ante, § 376. 
 
 (n) Chapter xi. The case is so treated in Furbish v Groodnow, 98 Massa- 
 chusetts, 206. 
 
 (o) Ante, § 413. {q) Ante, § 494. 
 
 (p) Ante, § 416, (r) Ante, § 136.
 
 Art. II.] Collateral Undertakings. 629 
 
 quite unnecessarily as one of the grounds of the decision, 
 the statute being clearly inapplicable under some other 
 well settled principle. 
 
 § 632. Cases of the other kind, namely, where this 
 proposition was assigned, in general tenns, as the ground 
 for taking the promise out of the statute, but in reality 
 the facts called for the application of some specific princi- 
 ple, derived from the general rule that a promise to pay 
 the promisor' s own debt is not within the statute, are even 
 of less authority to support this proposition, as a rule of 
 universal application ; because our argument is that it 
 is true in all such instances and no other. Many such 
 cases have been cited in previous pages, under the spe- 
 cific principles to which they respectively belongs Among 
 them Reed v. Holcomb^ 31 Connecticut, 360, decided 
 A. D. 1863,(5) is quite noteworthy, as showing the tendency 
 of this doctrine to swallow up all other principles, by 
 which the application of the statute is regulated, and to 
 introduce vagueness and confusion into this branch of the 
 law. There, as we have seen, the court was required to 
 pass upon the question, whether a promise to indemnify 
 the plaintiff for indorsing a third person's note at the 
 request and for the benefit of the defendant, which the 
 defendant himself subsequently indorsed, was within the 
 statute. But it was held that the statute did not apply, 
 for a reason embodying the proposition now under dis- 
 cussion, in one of its protean forms. 
 
 § 633. Another case, illustrating the same tendency, 
 which has not yet been cited, is Lemmon v. Box, 20 Texas, 
 329, A. D. 1857. There the question was whether a plea 
 of set-off could be sustained ; the allegation being that the 
 plaintiff requested the defendant to procure a note from 
 C. and E. Carpenter for a specified sum, and an order upon 
 him to accept the note as cash ; and promised the defend- 
 ant that if he would do so, he would pay the amount ; and 
 
 (5) Ante, § 467.
 
 630 COLLATEKAL UNDERTAKINGS. [Ch. XVII, 
 
 that after tlie order and note had been obtained, he repeated 
 his promise. The court held that the amount of the note 
 and order could be properly offset against the plaintiff' s 
 demand, on the ground that the plaintiff's leading object 
 was to subserve some purpose of his own ; and although 
 the transactions or dealings between the plaintiff and the 
 Carpenters were not stated, ' ' the manifest inference ' ' was 
 that he owed the Carpenters money; and "apparently" 
 he thought this the most convenient way in which he could 
 pay his debt; and that, "for aught that appears," there 
 was no original indebtedness on the part of the Carpenters 
 to the defendant ; but ' ' he may have purchased their claim 
 against the plaintiff. " So a judgment for the plaintiff was 
 reversed, because the plea of set-off was ruled out. Upon 
 the facts aissumed by the court to exist, the promise was 
 to pay the promisor's pre-existing debt to a transferee 
 thereof. 
 
 § 634. It is somewhat remarkable, that the cases of 
 this description, where we should find the greatest dif- 
 ficulty in showing, that although this general proposition 
 was stated as the ground of the decision, the result was 
 really controlled by the application of one of the specific 
 propositions to which we have referred, have arisen in 
 Pennsylvania and Vermont, where the general proposition 
 has since been so emphatically repudiated ; and the 
 same court which decided the doubtful case, has by a 
 subsequent construction of it, avoided the doubts which 
 might otherwise arise, whether it could be accommodated 
 to our theory. 
 
 § 635. In Arnold v. Stedman, 45 Pennsylvania, 186, 
 decided A. D. 1863, the defendant had agreed to sell certain 
 real estate to one Barrett, for a sum payable in instalments ; 
 and the contract contained a clause by which Barrett 
 agreed to surrender possession of the property, upon the 
 first instalment remaining unpaid. Barrett took pos- 
 session, and before the first instalment became payable, 
 the plaintiff, under a contract with him, built a barn on
 
 Art. II.] Collateral Undertakings. 631 
 
 the premises. The first instalment not having been paid, 
 the defendant commenced an action of ejectment against 
 Barrett; pending which the plaintiff filed a mechanic's 
 lien against the property, for the amount remaining unpaid 
 upon his contract with Barrett ; and subsequently the 
 defendant, in consideration that the plaintiff would stay 
 his proceedings, promised to pay him his debt, when the 
 property should come back to the defendant, in conse- 
 quence of the ejectment suit. At a still later date the 
 defendant recovered the possession of the property. A 
 judgment for the plaintiff was affirmed by the Supreme 
 Court. It was held that the promise was not within the 
 statute on the ground that it was a new and original con- 
 tract, founded upon a new and fresh consideration between 
 the parties to this suit ; and that the defendant's object was 
 not to answer for the debt of Barrett, but to subserve a 
 purpose of his owm. But the subsequent case of Maule 
 V. BucTinelly 50 Pennyslvania, 39, explains this case as 
 having proceeded upon the ground that the promisor's 
 property was liable for the debt, independently of his 
 promise to pay it. 
 
 § 636. In Lampson v. Hobart, 28 Vermont, 697, A. D. 
 1856, and also in Cross v. Richardson^ 30 Vermont, 641, 
 A. D. 1858, it would have been difiicult to say that any 
 specific rule, as distinguished from the general proposition, 
 controlled the result, had not the court itself subsequently 
 surmounted the difficulty. It is unnecessary to recapitu- 
 late these cases in detail ; for in Fiillam v. Adams, 37 
 Vermont, 391, they were authoritatively explained, as 
 having proceeded upon the ground that the promisee sur- 
 rendered to the promisor a security or lien u])on ])roperty ; 
 notwithstanding that in each of them the ))roa(l proposi- 
 tion under discussion was assigned, in one of its varied 
 forms, as a reason for the decision. And it is not easy to see 
 what security the plaintiff in the first cause had o])tained.(^) 
 
 (i) Bat it was also intimated that Lampson v. Hobart was erroneously 
 decided ; and with this conclusion we agree. It is in direct conflict with 
 Waldo V. Simonson, 18 Michigan, 345, A. D. 18G9, published while this 
 volume was passing through the press.
 
 632 Collateral Undertakings. [Ch. xvii. 
 
 § 637. The case of Templetons v. Bascom, 33 Vermont, 
 132, A. D. lSQO,{u) although quite recent, has provoked 
 considerable discussion, which is put at rest by the sub- 
 sequent authoritative explanation of it. There it appeared 
 that the plaintiffs were creditors of the father of the de- 
 fendant who had died intestate, leaving a considerable 
 estate ; that the defendant was his only child and enti- 
 tled to all the estate after payment of the debts ; that 
 immediately after the death of his father, the defendant 
 entered into possession of the estate ; and afterwards, in 
 consideration that the plaintiffs would not present their 
 claim to the commissioners upon the estate, appointed by 
 the probate court, or take the necessary legal steps to have 
 it chargeable upon the estate, the defendant repeatedly 
 promised to pay them the amount. The first promise 
 was made shortly after the death of the father; subse- 
 quently the defendant was appointed administrator, and 
 the promise was repeated several times after he was so 
 appointed. It further appeared, that the delay in present- 
 ing the claim had caused the plaintiffs to lose their 
 remedy against the estate, as the commissioners had 
 reported, and the report had been confirmed. Here was, 
 at first sight, as far as the application of this clause of the 
 statute was involved, the ordinary case of a consideration 
 resting in forbearance merely ; which had incidentally, and 
 not as a part of the original agreement, caused the loss of 
 the debt. But the Supreme Court affirmed a judgment of 
 the County Court in favor of the plaintiffs. 
 
 § 638. Kellogg, J., delivering the opinion of the court, 
 said that on the neglect of the defendant to take adminis- 
 tration, the plaintiff's, as creditors, might have done so ; and 
 the expense of such administration, and of proceedings 
 before the commissioners to prove the debt, would have 
 lessened the amount of the estate, which the defendant 
 had a direct interest in preventing. He added : '■'■In mew 
 of the interest wMcli the defendant had in that estate, 
 
 («) Cited also, and commented upon in note to § 15, ante.
 
 Art. 11.] Collateral Undertakings. 633 
 
 such forbearance, or the agreement for it on tlie part of the 
 plaintiffs, at the request of the defendant, ought to be 
 regarded as a sufficient consideration for the defendant' s 
 promise to pay the debt." "Tlie consideration of the 
 promise of the defendant was the waiving by the plaintiffs 
 of their remedy against the estate of the defendant's 
 father — a remedy to which they had an undoubtf^d 
 right, — for the benefit of the defendant, and at his request. 
 His promise to pay the debt to the plaintiffs was founded, 
 not on the consideration of the original debt, but on a new 
 consideration distinct from it, moving from the plaintiffs 
 directly to himself, the entire benefit of tohich icas antici- 
 pated or received by him. It is therefore to be regarded, 
 not as collateral to the original debt, but as an original 
 and independent undertaking." In Fullam v, Adams ^ 
 37 Vermont, 391, the Chief Justice, after saying that in 
 this case all the property was in the defendant's hands ; 
 added that "the plaintiffs not only relinquished his" 
 (their) "right in favor of the defendant to the funds in 
 his hands, to which he" (they) "had the right to look 
 for payment, but his ' ' (their) ' ' omission to proceed against 
 them, operated as a discharge of the debt itself." 
 
 § 639. The list of cases of this character is by no means 
 exhausted ; but we believe that we have cited those where 
 the general proposition under examination was laid down, 
 under circumstances raising the strongest argument in its 
 favor. 
 
 § 640. To glance briefly at another description of cases. 
 There are some where, although the consideration moved 
 to the promisor, and the leading object of the transaction 
 was to subserve some purpose of his own, it was held that 
 the promise was within the statute, because the object to 
 be accomplished by the promisor did not appear to be 
 sufficiently beneficial to him, to satisfy the supposed rule. 
 And it has been suggested, that in all the cases where the 
 third person had undertaken the fulfilment of a contract 
 with the defendant, contemplating an improvement of the 
 80
 
 634 Collateral Undertakings. [Ch. xvii. 
 
 defendant's property, and had sublet a portion of it to 
 the plaintiff, who refused to proceed with the work, 
 till the defendant agreed to pay him ; the true reason 
 why the defendant's promise is within the statute unless 
 the original contractor has been discharged, is that the 
 benefit to the defendant is not sufSciently certain. (?)) 
 With great deference to the distinguished jurists who 
 have advanced this idea, it appears to be merely an attempt 
 to neutralize the mischievous consequences of the vague- 
 ness of this proposition, by the introduction of another 
 proposition equally vague, tending in the contrary direc- 
 tion. The cases to which we refer, strikingly illustrate 
 our position, that the doctrine that a promise is without 
 the statute, when the leading object is to subserve some 
 purpose of the promisor, cannot be sustained in its broad 
 acceptation ; and the attempt to limit it in this manner, 
 will, it is believed, only increase the confusion. 
 
 § 641. Thus in Clay v. Walton, 9 California, 328, A. D. 
 1858, the question was whether the defendant was liable 
 upon a verbal promise, to become responsible for brick 
 sold to one Williams, to enable him to complete a contract 
 with the defendant for the erection of the defendant's 
 house. The plaintiffs had judgment, and an order grant- 
 ing a new trial was affirmed on appeal. On the part of 
 the plaintiffs, several points were taken, and among others, 
 the argument was pressed upon the court, that the leading 
 object of the promisor was to subserve his own interests ; 
 but the court held that the plaintiff was not entitled to 
 recover. Field, J. , upon this point, said : ' ' The correctness 
 of the general rule is unquestionable, but it is difficult to 
 see its application to the present case. There is no evi- 
 dence that the building could not have been erected, and 
 the requisite brick obtained by the contractor, if the 
 defendant had made no promise ; or that brick equally 
 good could not have been obtained elsewhere ; or that it 
 was of any particular benefit to the defendant, that the 
 
 iv) See note to § 628, ante.
 
 Art. II.] Collateral Undertakings. 635 
 
 contract with Williams should have been carried out at 
 all ; and even had circumstances of this nature appeared 
 in the case, the question would still have arisen, as to 
 what was the leading object and purpose of the promise. 
 The interest which a promisor has in the performance of 
 a contract by another, or the benefit which he may derive 
 thereby, cannot determine his liability. That liability 
 arises from the character of the promise, and the interest 
 in the principal contract, or the benefit to be gained by its 
 performance, become matters of consideration, only as 
 they may serve to determine that character." 
 
 § 642. The decision in the recent case of Pfeiffer v. 
 Adler, 37 New York, 164, A. D. 1867, also proceeded on 
 the ground of the lack of sufficient benefit to the promisor 
 to sustain the promise. There the action was upon a ver- 
 bal promise of the defendant, a widow, to pay a debt due 
 from her deceased husband to tlie plaintiffs ; and the con- 
 sideration is stated in the report to have been, that the 
 plaintiffs "promised to sell goods on credit to her, to en- 
 able her to carry on business, and to assist her in settling 
 with other creditors of her husband ; and these promises 
 they fulfilled." It is not stated whether he left a will or 
 assets, and apparently there was no evidence on the latter 
 point. The cause was tried before a referee, who dismissed 
 the complaint. The judgment entered upon his report was 
 affirmed by the Supreme Court, and the plaintiff appealed 
 to the Court of Appeals ; where the judgment was again 
 affirmed. 
 
 § 643. Porter, J., delivering the prevailing opinion, said: 
 "It does not appear that the husband left any property, or 
 that the widow had any interest to subserve by assuming 
 the payment of his debts. She was under no obligation to 
 the plaintiffs, unless one was created by her unwritten prom- 
 ise to pay what she did not owe. The original demand 
 was not extinguished by the arrangement, and there was 
 no such new consideration as would suffice to take the 
 case out of the statute of frauds. The settlements which
 
 636 Collateral Undertakings. [Ch. xvii. 
 
 the plaintiffs were to aid her in negotiating were of the debts 
 of another, for which she was not liable, and in which she 
 had no personal concern. She was evidently in good 
 credit, for the appellants were willing to trust her for the 
 amount of her husband' s debt, and for all she was willing 
 to purchase. A verbal promise to sell goods to a respon- 
 sible party, for their full value, and on the usual terms, 
 forms no consideration for an independent engagement to 
 pay the antecedent debt of a third person. (?c) There is 
 nothing in the facts found by the referee, to withdraw the 
 agreement from the operation of the statute of frauds." 
 
 § 644. So in Osborne v. The Farmers Loan and Trust 
 Company, 16 Wisconsin, 35, A. D. 1862. There the de- 
 fendant had received from a railroad company a deed of 
 surrender of its road, equipment and franchises, in trust to 
 pay off certain debts and incumbrances ; and the complaint 
 alleged that afterwards the defendant undertook to pay a 
 debt of the company due to the plaintiff, (not provided for 
 in the deed,) in consideration that the plaintiff would pro- 
 cure the passage of a resolution by the directors of the com- 
 pany " recommending and instructing the defendant" to 
 make such payment ; which he had procured to be done at 
 much labor and expense. At the trial the plaintiff having 
 proved the terms of the deed of surrender, and that the de- 
 fendant had since received from the revenues of the road, an 
 amount equal to the debt of the company to the plaintiff ; 
 offered to prove the promise by oral testimony, which was 
 excluded on the ground that it was within the statute. The 
 defendant having had a verdict, the judgment thereon was 
 affirmed on appeal. The argument of the plaintiff' s coun- 
 sel was to the effect that the plaintiff insisted that the 
 defendant was liable to pay the debt ; and that his pro- 
 curing the resolution to be passed avoided a law suit ; 
 that the resolution recognized the legality of the defend- 
 ant' s possession of the road ; and that it might, by way 
 
 {lu) This proposition of the learned judge seems to conflict with the under- 
 Btanding of the court and counsel, in Wheeler v. Collier, Croke Elizabeth, 406.
 
 Art. II.] Collateral Undertakings. 637 
 
 of estoppel, legalize other payments of tlie same charac- 
 ter theretofore made by the defendant. But the court 
 said: "The respondent was not benefited by the passage 
 of the resolution by the directors, as we can see. It 
 is claimed that it might be benelicial to the respondent 
 because it would be a recognition by the directors of its 
 right to the possession of the road. But the respondent 
 had already acquired this possession by the deed of sur- 
 render. The suggestion that the resolution could possibly 
 benefit the respondent in any manner must be disre- 
 garded." (^) 
 
 § 645. The case of Reynolds v. Carpenter, 3 Chandler 
 (Wisconsin), 31, A. D. 1850, doubtless proceeded upon a 
 similar ground, although the consideration did not move 
 from the plaintiff but from the debtor. The action was to 
 recover upon a verbal promise of the defendant to pay the 
 board bills of various persons ; and it appeared that the 
 defendant was engaged in the construction of a canal, and 
 in consideration that the debtors would go to work for the 
 defendant, he undertook w^ith the plaintiff to pay the bills in 
 question. The plaintiff having recovered in the court below, 
 the judgment was reversed on appeal ; the court merely say- 
 ing that there could be no doubt that the case was within 
 the statute of frauds, without discussing the question. 
 
 § 646. It will be noticed that these cases were precisely 
 of that class, where the general principle that the statute 
 does not apply to a promise to pay the promisor s debt, 
 would not operate. The first three effectually dispose of 
 the theory, that harm to the promisee will take the promise 
 out of the statute. But it is difficult to state any ground 
 upon which a court can undertake to gauge the amount of 
 
 (.r) See aUo Brown v. Barnes, 6 Alabama, G94, A. D. 1844, where it was 
 held tliat a promise by a person who had the custody of the esta'e and 
 management of the affair? of a debtor, that he would pay the debt, in n n- 
 sideration that the |i! liii flf would state the items of his account, swear 
 to their correctness before the mayor of Philadelphia, and procure his offi- 
 cial certificate thereof, was within the statute, because the consideration was 
 not beneficial to the defcudaut.
 
 638 COLLATEEAL UNDERTAKINGS. [Ch. XVII. 
 
 benefit, which an adult promisor of sound mind will receive 
 from the consideration of a contract entered into by him, 
 when it moves directly from the other party to him, and at 
 his request. He is upon every principle the sole and final 
 judge of that benefit. We therefore regard these cases as 
 practically demonstrating the unsoundness of the sup- 
 posed rule, which requires such violations of approved 
 legal principles to reconcile it with the statute. 
 
 § 647. To sum up the results of this investigation. The 
 advocates of the supposed rule do not agree upon its 
 terms ; all of them define it in very vague and elastic lan- 
 guage ; most of them in terms, which would include nearly 
 every promise to pay another' s precedent debt upon a new 
 consideration, and introduce confusion into all the prin- 
 ciples by which the application of the statute is regulated. 
 Its best and most defensible definition makes it very 
 nearly tantamount to the familiar and compact rule, sanc- 
 tioned by all the English as well as the American cases ; 
 the eff'ect of which is controlled in this country by well 
 settled and defined principles ; that a promise is not within 
 the statute, where the promisor or his property was liable 
 to pay the debt. Whenever it means any thing more than 
 this, the courts, whatever they may say, in practice refuse 
 to follow it ; the few cases where they have allowed it to 
 work out its legitimate consequences, being indefensible 
 upon principle, and upon the authority of other numerous 
 decisions. Hence we conclude, that the cases which so 
 emphatically condemn it, contain a correct exposition of 
 the law ; that whenever it asserts a sound rule, it is a mere 
 paraphrase of a better defined principle ; and that because 
 it never answers any useful purpose ; sometimes asserts a 
 dangerous fallacy ; and constantly leads to uncertainty and 
 confusion ; it should no longer be permitted to encumber 
 and disfigure our system of jurisprudence. (2/) 
 
 (y) Before taking leave of this entire class of cases, it is perhaps proper to 
 state why we have not treated, as the enunciation of a distinct principle, the 
 sugj^eslion, contained in several text books and authorities, that some of the 
 early decisions of the Williams and Leper series are to be explained upoa
 
 CHAPTER EIGHTEENTH. 
 
 CASES WHERE A GUARANTY OF THE DEBT OF A THIRD 
 PERSON IS NOT WITHIN THE STATUTE. 
 
 § 648. The cases embraced within this chapter are all 
 that remain to be examined, in order to complete the dis- 
 cussion of that clause which relates to special promises to 
 answer for the debt, default, or miscarriages of another 
 person. Although it would seem, at first sight, that they 
 were of all others, those most obviously included within 
 the terms of the clause, inasmuch as they are, not prom- 
 ises that the promisor will pay a debt for which another 
 is also liable, but promises that the debtor himself shall pay 
 it; yet there are no other cases, with respect to the exclu- 
 sion of which from the operation of the statute, the courts 
 in this country are now so perfectly of accord. They are 
 very sharply defined, being limited to two kinds of cases ; 
 namely, those where the debt guai*antied was transferred 
 to the promisee by the promisor, at the time of making 
 the guaranty, upon a consideration moving wholly between 
 the parties ; and those where it was thereafter to be con- 
 tracted through the promisor as the factor of the promisee. 
 
 the theory, that the consideration of the promise was a purcliase. But it is 
 not possible to suppose that this remark was intended to mean that a prom- 
 ise which would be within the statute, if it was founded upon a money 
 consideration, would be taken out of the statute, by tlie fact that the con- 
 sideration was a purchase of property or of an interest in property. Evi- 
 dently the idea intended to be conveyed, was that if a purchaser of property 
 promises, as the consideration of the sale, to pay the debt of another, for 
 which the property is holden, the statute does not apply. This is con.se- 
 quently nothing more than a statement of certain circumstances under which 
 the eighth rule becomes applicable; and the cases where they occur, differ 
 from the others only in the fact that the promisor acquired an interest in tlie 
 property simultaneously with making the promise. This feature was noticed 
 in the 574th section.
 
 640 Collateral Undertakings. [Ch. xviii 
 
 § 649. Although, for reasons presently to be stated, we 
 regard the cases where the promisor was the factor of the 
 promisee, as capable of a satisfactory explanation, upon 
 the ground that the terms of this clause are not fully 
 satisfied ; nevertheless the adjudications seem to concede 
 that they fall within the letter of the statute, and sustain 
 them, when they were verbal, upon some ground tending 
 to show that its intent does not reach them. Assuming 
 this to be the true ground, both of these descriptions of 
 undertakings are, in substance as well as in form, mere 
 guaranties ; and they are the only contracts of that kind, 
 which are valid without writing, (a) They also possess 
 this salient feature in common, that the guarantee acquires 
 his title to the debt guarantied by some act of the guaran- 
 tor ; and all the reasons assigned for taking either descrip- 
 tion out of the statute (although with respect to factors' 
 undertakings they vary considerably, and are not always 
 quite consistent with each other) relate in some form to 
 that common feature. Here, then, is to be found a con- 
 necting link between the two, proving them to be mere 
 varieties of one class ; and although in the present con- 
 dition of the authorities, we have not felt ourselves justified 
 in classing the two together, they may both be governed 
 by one general rule, the last of this series, namely : 
 
 RULE NINTH. 
 
 A gnaranty is not witldn. the statute, if it was made upon a consideration moving wholly 
 between the parties to it, and related to the payment of a debt, or the performance of a duty, 
 by the third person to the promisee, the right to enforce which then first passed, or by the 
 terms of the contract was thereafter to pass to him, from or through the guarantor. 
 
 AETICLE I. 
 
 Where the debt or contract guarantied was transferred from the guarantor to the guarantee at 
 the time of making the contract of guaranty, upon a consideration moving wholly between 
 the parties. 
 
 § 650. The reason usually assigned by the courts of this 
 country, for excluding this description of contract from the 
 
 (a) In chapter seventh, article third, a species of promise is treated of, 
 which bears considerable resemblance to a guaranty; but it is taken out of 
 the statute expressly upon the ground that it is in reality a direct contract.
 
 Art. I.] Collateral Undp:rtakin-gs. G41 
 
 operation of the statute, is tliat the guarniity is merely a 
 substitute for tlie promise of the guarantor to pay what- 
 ever the other party is to receive, in exchange for the con- 
 sideration furnished by him. It is therefore said to be a 
 method of paying the guarantor's own debt, adopted for 
 his convenience, and accepted in place of his own dircet 
 obligation. This is very satisfactory, when the considera- 
 tion of the transaction was connected with a precedent 
 debt of the guarantor ; or when, for any other reason, the 
 surrounding circumstances plainly show, that the third 
 person's obligation and the accompanying guaranty were 
 in fact accepted, in lieu of so much money to be paid by 
 the guarantor. But it is open to considerable criticism, 
 when the parties had no other object in view, than a 
 purchase and sale, especially when the security was sold 
 for money and at a considerable discount. And this is the 
 precise state of facts upon which the question frequently 
 arises. 
 
 § 651. The exclusion of this species of contract from the 
 provisions of the statute, has also been occasionally made 
 to depend upon the elastic proposition, examined at length 
 in the last chapter ; namely, that where the leading object 
 of the promisor was to subserve his own interest, the 
 statute does not apply. But as far as that proposition 
 is identical with the one just mentioned, it is of course 
 open to the same objections ; and if it can be treated 
 as having, in this description of cases, any other signifi- 
 cation, the distinction depends upon the fact, that the 
 object of the guarantor was to acquire the consideration ; 
 and in that aspect tlie distinguishing feature, that the debt 
 or contract guarantied passed from him to the other party, 
 becomes immaterial. So that if this be the true explana- 
 tion of the rule, it would sustain a guaranty of a debt 
 originally contracted by the third pei-son to the guarantee; 
 which is contmry to all sound principle, and to the author- 
 ities cited in the,sixteentli chaptiM*. We must therefore 
 look for some other reason for excluding this kind of guar- 
 anty from the statute. 
 81
 
 642 COLLATEEAL UnDEETAKINGS. [Cll. XVIII 
 
 § 652. It has been said that if the security transferred to 
 the promisee was not negotiable, so that he acquired 
 merely a right to receive the proceeds, the case is not 
 within the statute, because the debtor owed nothing to the 
 promisee ; but this reason will not apply where a negoti- 
 able security has been transferred, or where the rule of the 
 common law has been so modified by statute, that the 
 assignee is entitled to enforce the demand by an action in 
 his own name against the debtor. The American cases 
 include within the rule both descriptions of securities, and 
 properly so ; for the character of the security, in respect 
 to its negotiability, is merely accidental ; and the prohibition 
 or permission to maintain an action in the name of the real 
 party in interest, upon an instrument which is not nego- 
 tiable, is a mere rule of procedure. Neither circumstance 
 affords any substantial reason, for a distinction in the ap- 
 plication of the principle. 
 
 § 653. It is very evident that this class of promises is not 
 within the intent of the statute ; for although the commen- 
 tators differ sometimes in the details of the reasons assigned 
 by them, why the legislature included promises to answer 
 for the debt of another within this section ; they all agree 
 in the general proposition, that the motive for the perpe- 
 tration of fraud and subornation of perjury, in such cases, 
 was to be found in the creditor' s temptation to throw upon 
 a person of substance, the burden of a bad debt. But if a 
 debt due to the defendant himself is sold to the plaintiff, 
 for a consideration passing from the latter to the defend- 
 ant, it is clear that the motive operates in a contrary direc- 
 tion. And in the absence of any express evidence upon 
 the point, the presumption that the purchaser required 
 from the seller a guaranty of payment, although not strong 
 enough to raise a legal inference to that effect, is neverthe- 
 less a natural inference from the known usage in such 
 cases ; unless the relative value of the consideration, or 
 some other attending circumstance, shows that the pur- 
 chaser took the security at his own risk. Indeed this
 
 Art. I.] Collateral Undertakings. 643 
 
 species of guaranty is only a step beyond that which the 
 law actually implies upon such a transfer, (a) 
 
 § 654. Perhaps therefore a more satisfactory reason, why 
 a verbal contract of tliis kind is valid, may be found in the 
 fact that it is a mere extension of the terms of the warranty, 
 which the law implies upon the sale of every chose in 
 action or chattel ; and not a contract created ab origine, 
 for the purpose specified in the statute. This reason is 
 comprehensive enough to include all variations in the 
 details of the different cases ; and it is believed that it rests 
 upon a solid foundation of principle, and finds a close 
 analogy in the reason which has most commanded appro- 
 bation, for excluding from the statute a factor' s del credere 
 contract ; as well as in the reasons which have controlled 
 the decision of other kinds of cases arising under this 
 clause, {b) 
 
 § 655. But the only English decision upon the subject 
 was placed upon the ground that the transfer of an instru- 
 ment, which is not negotiable, does not enable the trans- 
 feree to enforce the payment of any debt or the fulfilment 
 of any duty against the party bound thereby. In Ilar- 
 graves v. Parsons, 13 Meeson and Welsby, 661, A. D. 
 1844, already cited under another rule,(c) the defendant 
 
 (a) Without entering at any length into the question, which has been the 
 subject of considerable discussion, what is the extent of the in)pli(.'d contract, 
 arising upon the transfer for a valuable consideration of a cliose in action, 
 by a person who neither becomes a party to it, nor enters into any express 
 warranty with respect thereto ; it would seem to be very clear that it amounts 
 at least to " an implied undertaking that he held it by a right and title, which 
 would enable the purchaser to enforce it against the parties thereto." Per 
 Comstock, J., Delaware Bank v. Jarvis, 20 New York, 229. In some of the 
 States of the Union local usage, and in others statutor}' enactments, have 
 established a rule of law that a guaranty of collection is implied upon the 
 transfer for a valuable consideration of any instrument for the payment of 
 money. 
 
 (b) See Macrory v. Scott, 5 Exchequer, 907, and 20 Law Journal, N. S., 
 Exch. 90, ante, §§ 491, 492; and other cases cited in chapter fourteenth, 
 article second. 
 
 (c) S. C, 14 Law Journal, N. S., Exch., 250. See § 366.
 
 644 Collateral Undertakings. [Ch. xviii. 
 
 and one Parker had made written contracts for the sale 
 by Parker to the defendant of the "put or call" of certain 
 French railway shares, at a certain premium, at any time 
 before the 18th of February, 1844 ; before which time the 
 defendant sold the option to the plaintiff, with a guaranty 
 in writing, which the court construed as a guaranty for 
 the fulfilment of the contract by Parker, The shares hav- 
 ing risen in value, the plaintiff "called" them from the 
 defendant on the 16th of February, at Liverpool ; the de- 
 fendant immediately notified Parker of the "call;" and 
 it was then verbally agreed between the three, that they 
 should be delivered at Paris on the 2d of March ; before 
 which time Parker failed. In an action on the guaranty, 
 the plaintiff had a verdict ; and the defendant, pursuant 
 to leave reserved, moved for a rule to enter a nonsuit, 
 upon the ground, among others, that the verbal promise 
 was within the statute. The rule was refused, Parke, B., 
 saying that the statute only applies where the debt or 
 duty was due to the promisee ; that Parker had not con- 
 tracted with the plaintiff ; and his nonperformance of his 
 contract with the defendant, was no default towards the 
 plaintiff ; consequently the defendant' s undertaking was 
 not a promise to answer for any default or miscarriage 
 of Parker, in any debt or duty towards the plaintiff; but 
 an original promise that a certain thing should be done 
 by a third person. 
 
 § 656. Of the cases in the United States, specimens pre- 
 senting almost every possible variety in the facts and in 
 the principles upon which the decisions turn, may be 
 found in the State of New York ; where this doctrine is 
 interwoven with a long and very remarkable legal contro- 
 versy. In Smith v. Ives, 15 Wendell, 182, A. D. 1836, 
 and again in Packer v. Willson, id. 343, in the same year, 
 the Supreme Court of that State held that a written guar- 
 anty of payment indorsed upon an overdue promissory 
 note held by the plaintiff, the consideration of which was 
 forbearance to the maker, was within the statute, and was 
 void when it did not express the consideration. But in
 
 Art. I.] Collateral Undertakings. Qiii 
 
 HoiLfjn V. Gray, 19 Wendell, 202, A. D. 1838, the same 
 court held that a similai- guaranty indorsed upon a thiid 
 person' s promissory note, simultaneously with the niak 
 ing of the note, the note and guaranty having both been 
 given as the consideration of property sold by the payee 
 to the maker, was in legal effect a promissory note ; and 
 the guarantor was a joint and several pi'omisor, with th«; 
 person whose name was subscribed on the face of it. The 
 latter decision was the lirst of a long series of cases in that 
 State, involving the question whether the statute applies 
 to a written guaranty indorsed upon or subjoined to the 
 note of a third person ; which was sometimes presented in 
 the indirect form, whether the action could be maintained 
 against the guarantor as the maker or indorser of the note ; 
 and sometimes directly, whether such a guaranty, not ex- 
 pressing the consideration, was void under the statute of 
 frauds. Following out the idea advanced in Hough v. 
 Gray, that such a guaranty was in legal effect a promis- 
 sory note, the courts of New York ultimately found them- 
 selves involved in a labyrinth of contradictions and falla- 
 cies ; from which they were only extricated after the lapse 
 of upwards of twenty years. An outline of this singular 
 controversy, down to the time when it was settled by the 
 recognition of the now prevalent doctrine on this subject, 
 will be found in the foot note, {d ) 
 
 (c?) The case of Hough v. Gray was followed by that of Luqueer v. Prosser, 
 1 Hill, 25G, A. D. 1841, in the Supreme Court; reported in the Court of 
 Errors under the title of Prosser v. Luqueer, 4 Hill, 420, A. D. 1842. The 
 action was against Prosser, Edson, and Arnold, upon a note payable to one 
 Parsons or bearer, made by Edson and Arnold, and a guaranty of payment 
 and waiver of notice of nonpayment indorsed thereon, made simultaneously 
 with the note, and signed by Prosser. The note and guaranty had been 
 delivered on the same day to Parsons, as security for the payment of the price 
 of articles, sold by him to the makers, and he had subsequently transferred 
 it to the plaintiffs. A verdict having been rendered in favor of the plaintiffs, 
 the defendant Prosser moved in the Supreme Court for a new trial, which 
 was denied, the court holding that he was liable with the other defendants 
 as a joint and several maker of the note. The judgment thereon was 
 affirmed by the Court of Errors, the opinion having been delivered by 
 Walworth, Chancellor; it held ihut the defendant was liable as an indorser,
 
 646 Collateral Undertakings. [Ch. xviii. 
 
 § 657. After several conflicting cases upon the legal 
 effect of such a guaranty, and the application of the stat- 
 ute of frauds thereto, the question came before the Couri 
 of Appeals in the year 1849, in Brown v. Curtiss, 2 New 
 York (2 Comstock), 225, on a writ of error to the Supreme 
 Court, to review the decision reported in Curtiss v. 
 Broion, 2 Barbour, 51, A. D. 1847. The evidence at the 
 trial in the court below, showed that the defendant trans- 
 ferred to the plaintiff the note of a third person, payable 
 to the defendant or bearer, and which had not matured, in 
 exchange for the defendant' s own note held by the plaint- 
 
 the waiver contained in his agreement dispensing with a demand and notice; 
 but the learned chancellor also expressed the opinion that the defendant wag 
 liable as a maker, (a striking illustration of the confusion which surrounded 
 this subject). But in Miller v. Gaston, 2 Hill, 188, A. D. 1842, the Supremo 
 Court, Bronson, J., deUvering the opinion, while conceding that the preced- 
 ing cases established that a guarantor may be treated in all respects as a 
 maker of a note, where he was privy to the consideration, and the guaranty 
 and the note were made simultaneously, took a distinction between those 
 cases and one where the guaranty was made after the note had taken effect. 
 It was held that in the latter case he could not be treated as a maker or 
 indorser, and sued jointly with the other parties by a subsequent holder, 
 under the statute permitting the joinder in one action, of all the parties liable 
 upon the same instrument. It was intimated however- that he might be 
 treated as the maker of a new note, and in that capacity sued separately by 
 any subsequent holder in his own name. As the guaranty satisfied the 
 statute, the only question directly involved in the case was the right to 
 maintain the action against all the parties; and in the next case, Manrow v. 
 Durham, 3 Hill, 584, A. D. 1842, Nelson, C. J., delivering the prevailing 
 opinion in the Supreme Court, stated that they had entertained no doubt in 
 Miller v. Gaston, that the plaintiff, as a subsequent holder, might have main- 
 tained the action against the subsequent guarantor alone, as upon a new 
 note. The substance of the case of Manrow v. Durham will be presently 
 stated, in the order of its decision in the appellate court ; the judgment upon 
 the writ of error having been delayed till seven years after the judgment in 
 the Supreme Court. In the next succeeding case, Johnson v. Gilbert, 4 
 Hill, 178, A. D. 1843, Bronson, J., delivered the opinion of the Supreme 
 Court, holding that the statute of frauds did not apply to a guaranty written 
 on the back of another's overdue chattel note, given by the maker to the 
 defendant, and transferred by the defendant to the plaintiff, simultaneously 
 with the execution of the guaranty, in consideration of a precedent debt 
 due from the defendant to the plaintiff. He said that it was not an under-
 
 Art. I.] Collateral Undertakings. 647 
 
 iff, and at the same time lie indorsed and signed a guar- 
 anty thereon, expressing no consideration. Tlie plaintiff 
 having had a verdict, notwithstanding the objecti(jn that the 
 guaranty M-as within the statute, the Supreme Court denied 
 a motion made by the defendant for a new trial, substan- 
 tially on the ground that under the previous authorities the 
 defendant must be regarded as a maker of the note, although 
 the opinion expressed a decided dissatisfaction with them. 
 This decision was affirmed by the Court of Appeals, but 
 upon a different ground ; the opinion having been delivered 
 by Bronson, J., then a member of the court of last resort, 
 
 taking by the defendant to pay the third person's debt; but that "it was an 
 agreement to pay his own debt in a particular way." And in Hunt v. 
 Brown, 5 Hill, 145, A. D. 1843, where, in consideration of the discharge of 
 a precedent debt due by the maker of a note to the payee, the defendant 
 indorsed upon the note his guaranty of collection, which expressed no con- 
 sideration, (the note and the guaranty having had a simultaneous inception;) 
 Bronson, J., delivering the opinion of the court, held that the guaranty was 
 void under the statute of frauds, because, being a guaranty of collection, and 
 not of payment, the defendant could not be treated as a maker of the note; 
 as the learned judge said that he might have been, within the previous 
 authorities, if he had guarantied the payment of it. In Leggett v. Ray- 
 mond, 6 Hill, 639, A. D. 1844, the court held that a blank guaranty of pay- 
 ment, expressing no consideration, indorsed by the defendant upon a note, 
 payable to him or bearer, after its date and before its maturity, (neither the 
 consideration nor the person to whom it was given appearing in evidence,) 
 might be treated as a blank negotiable indorsement; and the plaintifiF might 
 recover on proof of demand at maturity and notice of nonpayment. 
 Bronson, J., who delivered the opinion, expressed his extreme dissatisfaction 
 with his decision, but he held himself bound by the decision of the Court 
 of Errors in Prosser v. Luqueer, where, he said, that court treated Prosser as 
 an indorser. But in Hall v. Farmer, 5 Denio, 484, A. D. 1848, Beardsley, 
 C. J., delivering the opinion of the Supreme Court, said that " the judicial 
 knot, as it cannot be untied, must be cut; " and accordingly it was held that 
 the defendants' blank guaranty of payment, expressing no consideration, 
 indorsed upon a note payable on demand, simultaneously with the making 
 of the note, the actual consideration having been a precedent debt due to the 
 plaintiff, from the makers of the note, was a guaranty, and not a promissory 
 note; and that it was void under the statute. However in Curtiss v. Brown, 
 2 Barbour, 51, A. D. 1847, where the defendant, the payee of a negotiable 
 note, indorsed upon the note, before its maturity, a guaranty, expressing no 
 consideration, and delivered it to the plaintifT, in discharge of a previous
 
 648 Collateral Undertakings. [Cli. xviii. 
 
 who, while a justice of the Supreme Court, had combated 
 with great ability and spirit, the doctrine upon which the 
 decision below proceeded. 
 
 § 658. His opinion commenced with a vigorous attack 
 upon all the cases which hold that, under any circum- 
 stances, a guarantor of a promissory note can be treated 
 either as a maker or indorser of the note ; insisting that 
 the contract is one of guaranty, and nothing else. ''Those 
 cases," he said, "have never had any ground of principle 
 to stand on, and I trust they will never again be cited as 
 
 debt owing by him, the present Supreme Court of New York, had pre- 
 viously held, though with great reluctance, that the statute did not apply, 
 because the defendant was a maktr of the note. But although the Court 
 of Appeals affirmed the decision in this case (see Brown v. Curtiss, 2 Com- 
 stock, 225, of which the substance is given in the text), the two prevailing 
 opinions repudiated the ground upon which the Supreme Court placed its 
 decision; and the case marks the first step towards tlie attainment of the 
 reason upon which the application of the statute to this class of cases wag 
 ultimately placed. It was however immediately followed by the failure of 
 the court to agree upon any principle upon which to determine the writ of 
 error from the decision of the Supreme Court in Manrow v. Durham, 3 Hill, 
 584, already mentioned. The case in the Court of Appeals is reported under 
 the title of Durham v. Manrow, in 2 New York, (2 Comstock), 533. There 
 the plaintiff (Manrow) had sued Durham and Moulthrop in the Common 
 Pleas upon a joint guaranty, expressing no consideration, indorsed upon a 
 third person's note made payable to Durham or bearer. It appeared at the 
 trial that before the maturity of the note Durham purchased a horse from 
 the plaintiff, and gave the note and the guaranty in part payment therefor, 
 Moulthrop having executed the guaranty, at the request of, and as surety 
 for Durham. The plaintiff was nonsuited in the Common Pleas, and upon 
 error the judgment upon the nonsuit was reversed, in the Supreme Court, 
 by a majority vote, the prevailing opinion holding that the guaranty was in 
 legal effect a promissory note. The defendants brought error to the Court 
 of Appeals; where Strong. J., delivered an opinion in favor of the aflBrmanoe 
 of the judgment with respect to Durham, upon substantially the same 
 grounds as those taken by him in his opinion in Brown v. Curtiss cited in 
 the text, holding that although in this case the consideration was the purchase 
 of property, the principle was the same as in the other case ; the guaranty 
 being, in both cases, merely a method of paying the guarantor's debt. With 
 respect to Moulthrop, he said that the two agreed that the maker of the note 
 should pay the debt due primarily from one of themselves to the plaintiff.
 
 Art. I.J Collateral Undertakings. 649 
 
 authority in this State." He then said that if lh<' statute 
 of frauds was applicable to the agreement before the court, 
 it could not stand, as it was a guaranty expr(»ssing no con- 
 sideration ; and it could not be held to be a promissory 
 note, without confounding all legal distinctions in relation 
 to the nature of contracts. But he held that the statute 
 does not apply to such a case, because "although in form 
 this is a promise to answer for the debt or default of another, 
 in substance it is an engagement to pay the guarantor' s 
 own debt in a particular way." "It would be good with- 
 out any writing." He was followed b}' Strong, J., who 
 
 The promise of Moulthrop was not especially for the purpose of paying the 
 maker's debt, but that of his co-guarantor; the method being incidental. It 
 was absolute and unconditional, that the purchase money for the horse should 
 be paid for in a particular way; and his responsibility for the maker's debt 
 was also incidental. Both were bound as principals, and there was no 
 reason for separating them in their liability. The statute, he thought, has 
 no application to a joint engagement of two, to pay the original debt of one 
 of them, through a third person. With him three judges concurred. Jewett, 
 C. J., agreed tliat the guarantor of a promissor}' note could not be treated as 
 a maker, whether he came in when the note was made or afterwards ; but 
 be argued, in a long and elaborate opinion, that this guaranty was within 
 the statute of frauds, because it was literally an engagement that the maker 
 should pay the note, not that the defendants would pay the money. He 
 distinguished the case from Brown v. Curliss, on the ground that there the 
 defendant was originally indebted to the plaintiff for borrowed money, which 
 indebtedness the plaintiff agreed to discharge, only upon receiving a note 
 with the defendant's guaranty; and as the guaranty which the defendant 
 gave, was void bv tlie statute of frauds, the action could have been sustained 
 upon the original indebtedness, under the money counts in the declaration. 
 He added, that in any view of this ca.se Moulthrop was a mere surety, and a 
 joint action would not lie against him and Durham. In the result of this 
 opinion two judges concurred; one of them however putting his decision on 
 the ground, that as Moulthrop was not a party to the consideration, the joint 
 action could not be sustained. But a judgment of the New York Court of 
 Appeals is not regarded as settling any principle, unless five judges concur, 
 and the absence of Bronson, J., prevented such a concurrence. The same 
 remark applies to the disposition made by the court at tiie .lame term, of 
 Hall V. Farmer, 2 New York (2 Comstock), 553, on error from 5 Denio, 484. 
 This was the case where the Supreme Court, disregarding its previous 
 decisions, and " cutting the judicial knot," had held that the guaranty was 
 within the statute as already mentioned. In the Court of Appeals, three of 
 82
 
 650 COLLATEKAL UNDERTAKINGS. [Ch. XVIII. 
 
 held that the instrument was presumptively a guaranty, 
 but that it might be shown by the attending circumstances 
 to be an original promise ; and that would depend upon the 
 object which the guarantor designed to accomplish. If 
 this object was to pay his own debt, the promise was orig- 
 inal, notwithstanding its form. He concluded : "This is a 
 plain and palpable case of a promise of a guarantor to pay 
 his own debt, through the note of another ; and, what is a 
 material fact to denote the main design of the transaction, 
 the whole credit was given to the guarantor. It is there- 
 fore clearly an original undertaking, and neither within the 
 letter of the statute, nor the mischief which it was designed 
 to prevent." In the result of these opinions, but not in the 
 arguments by which it was sustained, four of the remain- 
 ing judges concurred, and the judgment below was 
 aflSrmed, with two dissenting votes. 
 
 § 659. But this decision had apparently but little effect 
 upon the settlement of this vexed question. At the De- 
 
 the four judges who had voted for affirmance in Durham v. Manrow, voted 
 now for reversal; and the fourth united with the three, who had voted for 
 reversal in the preceding case, in voting now for affirmance; placing his 
 decision upon the ground, that as the note was payable on demand, and no 
 credit given, there was no consideration for tlie guaranty. Thus the daylight 
 which had been made to glimmer through all this fog, by the decision in 
 Brown v. Curtiss, was again shut out; and the conflict of opinion continued 
 to prevail in the Supreme Court, then reorganized under the constitution of 
 1846, so as practically to form several distinct tribunals. In Burt v. 
 Horner, 5 Barbour, 501, decided in the year 1849, (but before Brown v. 
 Curtiss,) one branch of that tribunal, held that a guaranty of collection, 
 indorsed upon a third person's promissory note, was not within the statute 
 of frauds ; and that like other such guaranties, it would be discharged by 
 want of diligence on the part of the guarantee in proceeding against the 
 principal debtor. The consideration of the defendants' guaranty was the 
 sale of goods to them by the plaintiflf, upon an agreement to accept in pay- 
 ment thereof the note in question, with their guaranty of collection ; the 
 same being then in the defendants' hands, and yet to mature. In Tyler «. 
 Stevens, 11 Barbour, 485, A. D. 1851, another branch of the same court 
 held that the statute did not apply to the defendant's guaranty of payment 
 of a third person's note, which was transferred by him to the plaintiflf, before
 
 Art. I.J Collateral Undertakings. 651 
 
 cember term of the Court of Apjieals in the same year 
 (1849), two cases, involving the application of the statute 
 to this species of guaranty, were disposed of witliout any 
 definite decision of the points of law arising tlierein, in 
 consequence of the inability of a constitutional majority 
 of the judges to agree upon any principle ; although one 
 of the cases had been argued three times. These were 
 Durham v. Jfanroio, 2 New York (2 Comstock), 533, and 
 Hall V. Farmer^ id. 553, abstracts of which will be found 
 in the note to the last section. In one of the opinions de- 
 livered in the former case, Brownv. Curtiss was explained 
 upon a theory which practically denied to it all efficacy as 
 a precedent upon the principal question involved. The 
 case was greatly complicated by the presentation of an- 
 other question, discussed in a previous chapter, arising 
 out of the fact that the defendants had jointly executed 
 the guaranty in question, although one of them was a 
 mere surety for the other. In consequence of these con 
 flicting opinions the deadlock remained unaltered. 
 
 its mauirity, in consideration of a smaller sum of'mone}'^ paid by the phiintift' 
 to the defendant. The contrary decision was made by another branch in 
 Spicer v. Norton, 13 Barbour, 542, A. D. 1852, which is said to have been 
 affirmed in the Court of Appeals; but the decision upon the affirmance is 
 not to be found in the reports. The guaranty in question, whicli was in effect 
 a guaranty of collection, was indorsed upon a third person's previously sub- 
 sisting note, transferred to the plaintiff by the defendant, as part of the 
 purchase price of a fourth person's note; and no consideration having been 
 expressed therein, the Supreme Court held that it was void under the 
 statute. The prevailing opinion, delivered by Parker, J., attacked the whole 
 doctrine of the opinions delivered in Brown v. Curtiss. Upon substantially 
 the same facts, except that the question arose upon a guaranty of payment, 
 the same court also ruled that the guaranty was within the statute, in Wood 
 V. Wheelock, 25 Barbour, G25, A. D. 1856. The sam.e opinion was again 
 expressed in Sweet v. Bradley, 24 Barbour, 549, A. D. 1857, where the 
 question arose upon a verbal promise made by the defendant, the holder of 
 a note, upon its transfer to the plaintiff in consideration partly of money, 
 and partly of a precedent debt of the defendant, to the effect that the note 
 should be paid at maturity, and that the makers and indorsers were solvent. 
 The court said that the guaranty of payment was within the statute, but the 
 plaintiff was allowed to recover upon the warranty of solvency.
 
 652 Collateral Undertakings. [Cli. xviii. 
 
 § 660. But the rule in one description of these cases, was 
 soon afterwards settled by the decision of the Court of Ap- 
 peals in Breiosfer v. Silence, 8 New York (4 Selden), 207, 
 A. J). 1853. This was also an action upon a guaranty ex- 
 pressing no consideration, subjoined to a promissory note, 
 and made simultaneously with the note, for the accomoda- 
 tion of the maker ; the consideration, both of the note and 
 of the guaranty, being a sale of property to the maker by 
 the payee, who had transferred the note with the guaranty 
 to the plaintiff. The defendant had judgment in the Su- 
 preme Court, upon a special verdict setting forth the facts ; 
 and that judgment was affirmed on appeal by the Court 
 of Appeals ; where it was held, with only one dissenting 
 vote, that the guaranty was within the statute, on the 
 ground that it was a distinct contract from the note ; and 
 that the cases which hold that such a guaranty is a prom- 
 issory note, or that the guaranty and the note are one in- 
 strument, cannot be sustained. It was also said that the 
 principle of the opinions delivered in Brown v. Curtiss, 
 was correct ; and that if in this case the sale had been 
 made to the defendant, as it was in Brown v. Curtiss, he 
 would have been liable ; but the remark was evidently 
 obiter. 
 
 § 661. And the main question, which had continued to 
 be debated in the Supreme Court with as much diversity 
 of opinion as before, was at length settled, and this con- 
 troversy brought to a close, by the unanimous decision of 
 the Court of Appeals in Gar dell v. McNiel, 21 IS'ew York, 
 336, A. D. 1860. There the plaintiff's testator had sold a 
 horse to the defendant, and had received from him, in 
 part payment therefor, the chattel note of one Cornell; 
 which the defendant verbally warranted to be "good 
 and collectable ; ' ' and that the plaintiff' s testator would 
 get the chattel when the note became due. It was one 
 of the terms of the bargain for the sale of the horse that 
 this note was to be received, with the defendant' s guaranty, 
 in part payment therefor. A judgment for the plaintiff 
 for the value of the chattel was affirmed upon appeal.
 
 Art. I.] Collateral Undertakings. 653 
 
 Comstock, C. J., delivering the opinion of the court, said : 
 *'It is claimed that the guaranty is void by the statute of 
 frauds. In mere form it was certainly a collateral under- 
 taking, because it was a promise that another person should 
 perfonn his obligation. But looking at the substance of 
 the transaction, we see that the defendant paid, in this man- 
 ner, a part of the price of a horse sold to himself. In a 
 sense merely foraial, he agreed to answer for the debt of 
 Cornell. In reality he undertook to pay his own vendor 
 60 much of the price of the chattel, unless a third person 
 should make the payment for liim, and thereby discharge 
 him." 
 
 § 662. Tliis decision was followed by the Supreme Court, 
 upon facts not materially different, in Fowler v. Clear- 
 loater, 35 Barbour, 143, A. D. 1861, and Daiiber v. Black- 
 ney, 38 Barbour, 432, A. D. 1862. 
 
 § 663. It may therefore be considered as settled in New 
 York, upon the authority of these cases, that where the 
 holder of a third person' s promissory note or other con- 
 tract, negotiable or non-negotiable, which had a valid 
 inception as between the maker and the holder, transfers 
 the same to another person, upon a consideration moving 
 to him, his verbal guaranty thereof, made simultaneously 
 with the transfer and as a part of the transaction, is not 
 within the statute of frauds ; and that it makes no differ- 
 ence whether the guaranty is absolute, or subject to any 
 condition or qualification. And similarly that if the guar- 
 anty is in writing, but is insufficient as a note or memoran- 
 dum within the statute, that will not prevent the promisee 
 from recovering, upon proof of the actual consideration. 
 But if the guaranty was made upon a consideration mov- 
 ing to the third person, so that the guarantor came in 
 merely as a surety for him, the guaranty is within the 
 statute. Whether the joint guaranty of the person bene- 
 fited by the consideration, ^^ith another as his surety, (no 
 copartnership or other community of interest existing be- 
 tween them,) would be held to be within or without the
 
 654 Collateral Undertakin^gs. [Ch. xviii. 
 
 statute as to the biirety, is left in doubt ; the decision in 
 Manrow v. Durham having settled nothing upon that 
 point, and the surety' s liability depending upon the prin- 
 ciples discussed at length in a preceding chapter, with 
 respect to another question, {e) 
 
 § 664. In other States, the same principles have been 
 established, without a struggle similar to that which at- 
 tended their adoption in New York ; and it is believed that 
 all the American courts, as far as they have spoken, are 
 now entirely harmonious upon this subject. The authori- 
 ties, some of them anterior in date to the New York decis- 
 ions, will be found collected in the note. They include 
 cases where the instrument guarantied was negotiable and 
 not negotiable ; where the guaranty was founded upon a 
 new consideration, then moving to the guarantor ; and 
 where the consideration was a precedent debt of the guar- 
 antor. In some of them the new consideration was money 
 paid for the purchase of the instrument guarantied ; in 
 others it was goods sold ; in others an exchange of the 
 promisee' s own obligation, for that of the third person, with 
 the accompanying guaranty. (/") 
 
 (fl") See chapter eighth, article first. 
 
 {f^ Hackleman v. Miller, 4 Blackford (Indiana), 322, A.D. 1837, cited also 
 ante, § 35a; Adcock v. Fleming, 2 Devereux and Battle (North Carolina), 
 225 (1837) ; Jones v. Palmer, 1 Douglass (Michigan), 379 (1844); Hopkins v. 
 Richardson, 9 G-rattan (Virginia), 485 (1852); Hall u. Rodgers, 7 Humphreys 
 (Tennessee), 536 (1847); Ashford v. Robinson, 8 Iredell (North Carolina), 
 114(1847); Beatyv. Grim, 18 Indiana, 131 (1862); Rowland v. Rorke, 4 
 Jones (North Carolina), 337 (1857) ; Thomas v. Dodge, 8 Michigan, 51 (1860) ; 
 Huntington v. Wellington, 12 Michigan, 10 (1863); Malone v. Keener, 44 
 Pennsylvania State Reports, 107 (1862) ; Thurston v. James, 6 Rhode 
 Island, 103 (1859); Smith v. Finch, 2 Scammon (Illinois), 321 (1840); Dyer 
 V. Gibson, 16 Wisconsin, 557 (1863). The question frequently arises in this 
 class of cases, whether the guarantee is entitled, in an action upon the 
 guaranty, to recover any thing beyond the amount actually advanced to the 
 guarantor, when the instrument transferred was for the payment of money, 
 and the consideration of the guaranty was a sum, less in amount than that 
 payable by the terms of the instrument, forming the subject of the guaranty. 
 It has been held in some of the United States that under those circum-
 
 Art. II.] Collateral Undertakings. 655 
 
 ARTICLE II. 
 
 Wliere the debt guarantied was thereafter to be contracted throngh the agency of the promisor, 
 acting as the factor of the promisee, under a del credere commission. 
 
 § 665. A del credere commission has been defined, as a 
 commission " under wliicli the agent, in consideration of 
 an additional premium, engages to insure to his principal, 
 not only the solvency of the debtor, but the punctual dis- 
 
 stances the guaranty is usurious; and such, we believe, was generally under- 
 stood to be the rule in England, independently of the series of recent 
 statutes; which, after gradually emasculating the laws against usury, finally 
 swept thera away altogether. And it would seem that in most cases the 
 damages can be reduced to the amount of the actual advance and interest, 
 only for the purpose of taking the contract out of the statute of usury. In 
 several of the United States, the contract may be saved in that manner. 
 The doctrine is well settled in New York that the consideration may be 
 inquired into; and that the guarantee can recover from the guarantor the 
 amount of his advance and interest, but no more. The rule is the same, 
 whether the liability of the guarantor was assumed by indorsing a promissory 
 note or bill of exchange, signing it as surety, or guarantying its payment or 
 collection, either upon its face or by a separate contract. Braman v. Hess, 
 13 Johnson, 52; Munn v. Commission Company, 15 id., 44; Cram v. 
 Hendricks, 7 Wendell, 569; Mazuzan v. Mead, 21 id., 285; Ingalls v. Lee, 
 9 Barbour, 647 ; Cobb v. Titus, 13 id., 45, affirmed 10 New York (6 Selden), 
 198; Burton v. Baker, 31 Barbour, 241. So where a mortgage was assigned, 
 with a covenant for the payment of the mortgage debt, Jones v. Stienbergh, 
 1 Barbour's Chancery, 250 ; or a covenant cf the assignor, with another as his 
 surety, to pay any deficiency upon foreclosure, Goldsmith v. Brown, 35 
 Barbour, 484; or a covenant of the assignor, with a separate bond executed 
 by himself and a surety, for the full amount of the debt, Rapelye v. Ander- 
 son, 4 Hill, 472. A like rule seems to prevail in Connecticut, Belden v. 
 Lamb, 17 Connecticut, 441; in Maine, French v. Grindle, 15 Maine, 163; 
 Lane v. Steward, 20 id., 98; in Missouri, Miildrow v. Agnew, 11 Missouri. 
 G16; and in South Carolina, Brock v. Thompson, 1 Bailey, 322. But the 
 authorities agree, tliat the contract can be thus saved from the objection that 
 it was usurious, only when the instrument transferred had a valid inception, 
 in the hands of the transferor. And where the guaranty related to an instru- 
 ment then in the hands of the guarantee, the latter is entitled to recover his 
 full damage?, notwithstanding the consideration may have been comparatively 
 trifling in amount. Cooper v. Page, 24 Maine, 73; Oakley v. Boorman. 21 
 Wendell, 588 ; and so where, for any other reason, no question arises under 
 the usury statutes. Day v. Elmore, 4 Wisconsin, 190.
 
 656 Collateral Undertakings. [Cli. xviii. 
 
 cliarge of the debt."(^0 ^^ was said in Grove v. Dubois, 
 1 Term Reports, 112, approved in Blze v. DicTcason, id., 
 285, A. D. 1786, that the engagement which a factor, act- 
 ing under such a commission, assumes to his principal, is 
 absolute ; and that he is liable in the first instance, the 
 vendee being liable to the principal only collaterally, and 
 as his surety ; and a similar doctrine is supposed to be 
 found in some other cases decided about the same time. (5) 
 But afterwards the court of King' s Bench held distinctly 
 in Morris v. Cleashy, 4 Maule and Selwyn, 566, A. D. 
 1816 ; and again in Horriby v. Lacy, 6 Maule and Selwyn, 
 166, A. D. 1817, that such a factor is merely the guarantor 
 of the payment of the price, when it shall become due ; or 
 in other words that he is not liable to his principal in the 
 first instance, but only in case of the purchaser' s default. 
 And although there is still some confusion on the subject, 
 it is believed that this ruling is now accepted, by the best 
 authorities in both countries, as containing a correct exposi- 
 tion of the nature and extent of the factor' s liability, (c) 
 
 (a) Dunlap's Paley on Agency, page 41. But this definition would be 
 more exact, if the words "for a valuable consideration" were substituted for 
 " in consideration of an additional premium." In practice, the factor gen- 
 erally charges a specific commission for the guaranty, in addition to the 
 ordinary commission on the sales. But this is not essential to constitute this 
 species of contract ; a factor may do no other than a del credere business, 
 for which he charges only one rate. Nor is it essential that the considera- 
 tion of the contract should be a rate or commission on the sale. 
 
 (6) Houghton v. Matthews, 3 Bosanquet and Puller, 485, p. 489, A. D. 
 1803 ; McKenzie v. Scott, 6 Brown's Parliamentary Cases, 280, A. D. 1796. 
 
 (c) "The most important in a practical view to be here taken notice of, is 
 the contract of guaranty by a factor, arising from the receipt ot what is 
 commonly called a del credere commission, (the nature whereof has been 
 already stated,) by which he in effect becomes liable, in the case of a sale of 
 goods, to pay to his principal the amount of the purchase money, if the buyer 
 fails to pay it, when it becomes due. It has been sometimes suggested that 
 this contract makes the factor the primary debtor to his principal on the sale. 
 But this doctrine is unmaintainable, both upon principle and authority. 
 [2 Kent's Commentaries, pp. G24, 625, 4th edition ; Thompson v. Perkins, 
 3 Mason, 282 ; Gall v. Comber, 7 Taunton, 558 ; Peele v. Northcote, 7 Taun- 
 ton, 478; Morris v. Cleasby, 4 Maule and Selwyn, 5GG, 574; Paley on 
 Agency by Lloyd, 41, note d; id., Ill, note; Leverick v. Meigs, 1 Cowen,
 
 Art. II.] Collateral Undertakings. 657 
 
 § 666. A leading author, writing soon after the decision 
 in Morris v. Cleashy, says, referring to that case: "I 
 think it clear that the del credere contract, so explained, 
 is within the statute of frauds, and must be in writing. "(^) 
 But the rule is now settled the other way. Various rea- 
 
 645.] The true engagement of the factor in such cases, is merely to pay the 
 debt, if it is not punctually discharged by the buyer. In legal effect he 
 warrants or guaranties the debt; and tlms he stands more in the character of 
 a surety for the debt than as a debtor. Hence it is well established that he is 
 not liable to pay the debt until there has been a default by the buyer. 
 [Morris v. Cleasby, 4 Maule and Selwyn, 574.] " Story on Agency, 5lh edi- 
 tion, § 215. But in Leverick v. Meigs, 1 Cowen (New York), G45, Wood- 
 worth, J., said: "The only difference between a factor acting under a del 
 credere commission, or without one, is as to the sales made. In the former 
 case he is absolutely liable, and may correctly be said to become the debtor 
 of his principal ; but it is not strictly correct to say he is placed in the same 
 situation as if he had become the purchaser himself; for, as we have seen, the 
 principal, notwithstanding this liability, may exercise a control, not allowable 
 between creditor and debtor. When the principal appears, the right of the 
 factor to receive payment ceases. This shows that the effect of the com- 
 mission is not to extinguish the relation between principal and factor, but 
 applies solely to a guaranty that the purchaser shall pay. It is not a con- 
 tingent liability, I admit, so as to require legal measures to be exhausted 
 against the purchaser, before the factor is bound, but an engagement to pay 
 on the day the purchase money becomes due. Although the factor is 
 absolutely liable, he is not bound to pay until the money becomes due from 
 the purchaser. It may therefore be more correctly laid down, that the factor 
 under a commission becomes a debtor to his principal, with the limitations I 
 have stated." The question which the learned judge was considering was 
 whether a del credere factor was liable to guaranty the solvency of the 
 drawer of a bill by which he had made a remittance to his principal, after 
 the receipt of the money. He added : '' It is only on this ground " (that the 
 factor is the real purchaser) " that he can be bound to guaranty the remit- 
 tance. This arises from the general principle, that the debtor is bound to 
 make payment to his creditor, and consequently if he remits in bills which 
 turn out of no avail, it is no payment. It does not di.scharge a precedent 
 debt, unless it be so expressly agreed between the parties. The commission 
 del credere does not make the agent cease to be a factor. He may be con- 
 sidered as a factor who has sold for cash. Beyond the engagement that the 
 purchaser shall pay at the time agreed on, he is bound by no other law than 
 a factor without a del credere commission." For other expositions of the 
 nature of this liability, see the note to the next section, and the comments 
 of the judges contained in various cases cited in the text of this article. 
 (d) Theobald on Principal and Surety, § 81. 
 83
 
 658 COLLATEKAL UNDERTAKINGS. [Ch. XVIII. 
 
 sons have been given for this result ; many of which are far 
 from being satisfactory. Thus it has been said, that the 
 agent' s contract is merely that he will exercise an increased 
 diligence, beyond that which the law imposes upon him 
 as a duty ; but as no amount of diligence, not even the 
 entire solvency of ihe purchaser, will exonerate him, if the 
 debt is not in fact paid, it is evident that his contract is 
 not in any sense for his own act, but exclusively for the 
 act of the purchaser. The doctrine that no promise is 
 within the statute, when the leading object of the promisor 
 was to benefit himself, has also been pressed into the ser- 
 vice; but, as the factor's only object is to pocket his 
 reward, this doctrine, if it explains the ruling in this class 
 of cases, goes to the extent of upholding every verbal 
 promise to answer for the debt of another, if a distinct 
 reward was paid to the promisor therefor ; a theory which 
 we have commented upon at length in the preceding 
 chapter. It has also been said that the factor is in legal 
 effect the purchaser of the goods, for which he pays by an 
 engagement that the persons to whom he shall resell the 
 same, shall pay to his vendor ; a doctrine entirely incon- 
 sistent with the relative rights and duties of the prin- 
 cipal and factor before the sale, and of the principal, 
 factor, and purchaser afterwards. An analogy has also 
 been drawn between the surrender of the goods by the 
 owner to the factor upon his promise, and a similar sur- 
 render by the promisee who has a previous lien upon 
 goods, in which the promisor has an interest. But this 
 proves too much ; for there are few cases, where, upon the 
 same theory, a verbal promise to pay the debt of another 
 could not be sustained because the promisee relinquished 
 the consideration ; and besides the authorities do not sustain 
 a verbal promise, that another shall pay, based upon such 
 a surrender. Other reasons have been assigned, amount- 
 ing to but little more than to state in a different form, the 
 proposition that the promise is not within the statute, {e) 
 
 (e) Many of these theories will be found in the extracts given from 
 opinions in the cases cited in the text. Others are contained in the elementary 
 Looks, from two of which we append extracts. In the sixth American
 
 Art. II. J Collateral Undertakings. 659 
 
 § 667. But substantially the same reason suggested in 
 the foregoing article, for sustaining a verbal guaranty of 
 the payment of a debt transferred to the guarant(M? by the 
 guarantor, will, it is believed, afford a satisfactory ground 
 for taking also this class of engagements out of the statute ; 
 and it may be deduced from the opinions of the judges in 
 some of the best considered cases. The del credere com- 
 mission creates merely an increased liability, beyond that 
 which the factor assumes by virtue of his employment ; 
 and it is a liability of the same general character, not a 
 contract ab origine, to do that which the statute requires 
 to be manifested by a writing. A general factor impliedly 
 
 edition of Smith's Leading Cases, volume I, page 489, the annotator (Judge 
 Hare) says that the true explanation of the cases, which hold that the statute 
 does not apply to sales on a del credere commission, may perhaps he found 
 in the doctrine that any promise to pay the debt of another upon a consid- 
 eration, no matter how disproportionate, moving to the promisor, is not 
 within the statute ; but the point cannot be considered as decided. However 
 he afterwards adds (p. 494) : " One of the reasons given for this conclusion is, 
 that as agents are liable for good faith and due diligence in the transaction 
 of the business confided to their care, astipulation by which this liability is 
 defined or even extended, cannot be regarded as a promise for the default 
 of another, in the exclusive sense contemplated by the statute. But it 
 would also appear, that a guaranty or insurance of a debt, for a percentage 
 or commission, would . be valid aside from this ground ; on the general prin- 
 ciple that a party who promises to pay the debt of another for value received, 
 makes the debt his own, and cannot rely on the statute as a defence to an 
 action, brought to compel the fulfilment of the engagement into which he 
 has entered." In 1 American Leading Cases, fourth edition, p. 667, it is 
 said: "The contract created by a del credere commission, is an independ- 
 ent contract between the principal and agent, separate from the sale, and 
 not aSecting the relations between the principal and the buyer, or those 
 between the agent and the buyer. It is an absolute engagement by the 
 factor, private between himself and the principal, and distinct from the sale 
 which he makes, that the debts to which it refers shall be paid at the time 
 they are due; or in other words, that they shall be cash in the principal's 
 account, at the time they are due. Being an original and absolute engage- 
 ment, it is not within the statute of frauds, and need not be in writing; and 
 being an independent contract between the principal and agent, and in its 
 legal effect a direct responsibility for the money due upon the sales, there 
 need be no previous proceedings or recourse by the principal against the 
 buyer, before he can charge the factor."
 
 660 Collateral Undertakings. [Ch. xtitt. 
 
 undertakes, among other things, to seek out a responsible 
 purchaser, and to collect and remit the proceeds, when the 
 period of credit, limited by his instructions, shall have 
 expired ; and he is answerable for any loss, in conse- 
 quence of his default in any of these particulars. Such a 
 default, in one sense, will render him liable for the debt or 
 default of another ; but no one would pretend that his 
 undertaking would thereby be drawn within the statute 
 of frauds. And the del credere factor assumes precisely 
 the same liability ; to which he superadds an agreement to 
 guaranty the payment of the purchase price. This is 
 merely an increase, in the same general direction, of his 
 common law liability ; as if a private carrier for hire, who 
 is responsible by virtue of his employment for ordinary 
 diligence only, should expressly assume some of the res- 
 ponsibilities of a common carrier, from which he would 
 otherwise be exempt ; as for instance, loss in consequence 
 of defective roadways, or defective vehicles, etc., upon 
 some line of travel. And while the factor' s guaranty, if 
 it stood alone, might be within the statute, neither the 
 whole contract, nor this particular stipulation will be so 
 affected, where the latter is merely an amplification of an 
 undertaking to which the statute has no application. 
 
 § 668. It may however be doubted whether the statute 
 would apply, irrespective of these suggestions ; for it is by 
 no means clear that the transaction would satisfy the lan- 
 guage of this clause. It does not appear to be a promise to 
 answer for the debt or default of any 'particular person ; 
 for there was no debt in existence at the time the contract 
 is made ; not in the sense of Lord Mansfield' s proposition 
 in Mawhrey v. Cunningham, which he subsequently 
 abandoned, (/) but in the sense that there is no debtor, or 
 person proposing to become a debtor, to whom the term 
 " another person " can apply. Indeed no reason is per- 
 ceived why a distinct class should not be added to those 
 already recognized, where the promise is without the stat- 
 
 (/) Ante, §§ 144, 145.
 
 Art. II.] COLLATEEAL UNDERTAKINGS. 661 
 
 ute because those words are not satisfied ; comprising not 
 only del credere contracts, but all promises where the per- 
 son, for whose debt or default the promisor undertakes to 
 answer, is not designated at the time of the contract. If 
 A undertakes to procure competent mechanics to build a 
 house for B, and that it shall be completed by thorn in a 
 certain time, and according to certain specifications, (it 
 being perfectly understood that A is not to do any of the 
 work himself,) in one sense A undertakes for their default 
 or miscarriages ; but probably no one would doubt that the 
 contract was not within this clause of the statute. That the 
 reason is because the persons from whom A undertakes 
 are not then in esse, for the purpose of the contract, will be 
 apparent from the fact that if they had been designated at 
 tlie time, and the undertaking was that they should per- 
 form, probably no one would doubt that it was within the 
 statute. So in the case of a factor' s contract with his prin- 
 cipal. If the buyer was named, doubtless the statute 
 would apply to a del credere contract ; and so if an ordinary 
 factor, having already made a sale for his principal, should 
 guaranty the payment of the price by the purchaser, for a 
 new consideration passing between him and his principal. 
 
 § 669. But as the authorities do not place the rule upon 
 this ground, it is better, in order to preserve as much uni- 
 formity as possible, in this complicated branch of the law, 
 to adhere to the other reason, which appears to be suflB- 
 cient. The doctrine that the statute does not apply to a 
 del credere contract originated in the United States; 
 although the English courts, as far as they have spoken, 
 have also adopted it. The earliest case is Swan v. 
 NesmitJi, 24 Massachusetts (7 Pickering), 220, decided 
 A. D 1828. There the action was against the fiictors in 
 favor of their principals, to recover upon a verbal del 
 credere agreement ; and at the trial it was held that it was 
 not within the statute, and the plaintiffs had a verdict, A 
 motion for a new trial was denied, Parker, C. J., deliver- 
 ing the opinion of the court. He said that the legal effect 
 of the contract was to make the defendants liable at all
 
 662 COLLATEKAL UNDERTAKINGS. [Cll. XVIII. 
 
 events for the proceeds of tlie sale, so that, according to 
 some authorities, they may be charged on indebitatus as- 
 sumpsit for goods sold and delivered ; and although this 
 was denied by others, the form of the action was not mate- 
 rial, as they cannot be sued till after the sale, and the 
 expiration of the term of credit. He added, that some of 
 the principles laid down in the earlier cases, touching the 
 liability of factors under such a commission, had been 
 questioned ; "but it seems nowhere to be required that a 
 guaranty of this nature should be in writing, for the lia- 
 bility is admitted to be original ; and although the vendor 
 may in such case forbid payment to the agent, if he is in- 
 solvent, and maintain an action for himself, which in other 
 cases is held to be the distinctive mark of a collateral 
 undertaking, yet in this particular contract such a privi- 
 lege to the vendor is held not to alter the nature of his 
 claim upon the factor." 
 
 § 670. The same opinion was expressed in the United 
 States Circuit Court for the district of Vermont, in Brad- 
 ley V. Ricliardson, 23 Vermont, 720, A. D. 1851, although 
 no question under the statute was directly involved in the 
 decision. The plaintiffs moved for an injunction, upon a 
 bill filed to stay the collection of certain judgments against 
 a corporation ; alleging that they were creditors and stock- 
 holders of the corporation, and interested in certain 
 property, upon which the judgments were liens. One of 
 the objections to the judgments, on which they relied, was 
 that in the account between the defendants and the cor- 
 poration, the latter had not been credited with the amount 
 of certain sales of goods upon an unexpired credit ; which 
 the defendants had effected, as the factors of the corpora- 
 tion, under a del credere commission. Upon that question 
 Prentiss, J., denying the motion for an injunction, said 
 that it was once a question whether a factor who sold 
 goods on credit, did not become immediately liable to the 
 principal ; yet the question was now settled that his un- 
 dertaking was merely to answer for the solvency of the 
 buyers, or rather to guaranty to the principal the pay-
 
 Art. II.] Collateral Undertakings. 663 
 
 ment of the debts due to liim from tlie buyers ; and that 
 he was liable only, if the buyers failed to pay the purchase 
 money when it became payable. He added : "Some con- 
 fusion has arisen upon this subject, from the decisions on 
 the question whether the undertaking of a factor is a 
 contract within the statute of frauds, and so must be in 
 writing. The better opinion is that it need not be in writ- 
 ing ; that though a guaranty, it is not a collateral engage- 
 ment, but an original and absolute one, that the prices 
 for which the goods are sold or the debts created by the 
 sales of the goods, shall be paid to the principal, when the 
 credit given on the sales shall have expired." 
 
 § 671. The question had previously received a thorough 
 examination in the State of New York, in two cases which 
 were ultimately decided in the court of last resort. In 
 WoW V. Ko2?pel, 5 HUl, 458, A. D. 1843, the plaintiff had 
 sued in the New York Common Pleas, to recover the price 
 of certain goods sold by the defendants, as factors under 
 a del credere commission. The agreement was verbal, 
 and the defence was that it was void by the statute of 
 frauds. The plaintiff having recovered judgment in the 
 Common Pleas, the defendants brought error to the Su- 
 preme Court, where the judgment was affirmed. Cowen, 
 J., delivering the opinion of the court, said that the only 
 authority in favor of holding the promise to be within the 
 statute, grows out of the nature of the contract, as held by 
 the King's Bench in Morris v. Cleasbj/, 4 Maule and 
 Selwyn, 566, which defines the liability differently from 
 what the previous cases had done, asserting that the factor 
 is a guarantor of the debts created ; that is to say that they 
 are due to the merchant, and the factor's engagement is 
 secondary and collateral, depending upon the debtor's 
 default. Thereupon some of the English text writers as- 
 sert that the contract is within the statute ; but others assert 
 the contrary opinion, founding it upon the former cases, 
 holding that the factor was the primary debtor, whi(;]i are 
 overruled by that decision. He added that in Stoa7i v. 
 JVesmith, the Supreme Court of Massachusetts, whether
 
 664 COLLATEEAL UNDERTAKINGS. [Ch, XVIII. 
 
 Or not tliey were aware of the decision in Morris v. 
 Cleashy^ were aware of the rule laid down in that case, 
 and considered the obligation as a guaranty ; but notwith- 
 standing they held that it was not within the statute. 
 
 § 672. "But," he continued, "a guaranty, though by 
 parol, is not always within the statute. Perhaps, after all, 
 it may not be strictly correct to call the contract of the 
 factor a guaranty, in the ordinary sense of that word. 
 The implied promise of the factor is merely that he will 
 sell to persons in good credit at the time ; and in order to 
 charge him, negligence must be shown. He takes an addi- 
 tional commission, however, and adds to his obligation 
 that he will make no sales unless to persons absolutely 
 solvent ; in legal effect, that he will be liable for the loss 
 which his conduct may bring upon the plaintiff without 
 the onus of proving negligence. The merchant holds the 
 goods, and will not part with them to the factor without 
 this extraordinary stipulation, and a commission is paid 
 to him for entering into it. What is this, after all, but 
 another form of selling the goods % Its consequences are 
 the same in substance. Instead of paying cash, the factor 
 prefers to contract a debt or duty which obliges him to see 
 the money paid. This debt or duty is his own, and arises 
 from an adequate consideration. It is contingent, depend- 
 ing on the event of his failing to secure it through another, 
 some future vendee, to whom the merchant is first to resort. 
 Upon nonpayment by the vendee the debt falls absolutely 
 on the factor." And, he added, whatever may be the form 
 of the principal' s action against the factor, it is brought to 
 recover the factor' s own debt. 
 
 § 673. Referring then to several cases, in which it had 
 been held that a promise, though in form to pay the debt of 
 another, is not within the statute ; as where the promisor as- 
 signs a third person' s promissory note and guaranties its 
 collection ; or where the promise is made to the debtor him- 
 self ; or where the consideration of the promise is the sur- 
 render of a lien. fund, or security; he concluded: "The
 
 Art. II.] Collateral Undertakings. 665 
 
 merchant gives up liis goods to be sold and pays a premium. 
 Is not this in truth as much and more than many of those 
 cases require which go on the r(^linquishment of a security ? 
 Suppose a factor agrees by parol to sell for cash, but gives 
 a credit. His promise is virtually that he will pay the 
 amount of the debt he thus makes. Yet who would say 
 his promise is within the statute ? The amount of the 
 argument for the defendant would seem to be, that an 
 agent for making sales, or indeed a collecting agent, can- 
 not, by parol, undertake for extraordinary diligence, be- 
 cause he may thus have the debt of another thrown upon 
 him. But the answer is, that all such contracts have an 
 immediate respect to his own duty or obligation. The 
 debt of another comes incidentally as a measure of 
 damages." 
 
 § 674. A wi-it of error upon this judgment was brought 
 by the defendants, and the decision of the Court of Errors 
 thereon (A. D. 1845,) is reported in Wolff v. Koppel, 2 
 Denio, 368. Porter, Senator, delivered the prevailing 
 opinion of the court, contending that the question should 
 be regarded as settled by the current of decisions which 
 prevailed before Morris v. Cleashy ; the rule in which he 
 cliaracterized as a recent innovation, which had never been 
 adopted in this country ; and he thought that the Ameri- 
 can courts ought not to follow the English courts in their 
 departure from the former rule. These contracts, he said, 
 have existed in this country as long as commerce has 
 flourished, and the understanding of the mercantile com- 
 munity has been general and uniform that the factor's 
 agreement "was original and absolute to pay the price of 
 the sale, deducting the commission, at the time the credit 
 expired," although he doubtless expected to receive the 
 fund from the purchaser. Hand, Senator, dissented and 
 delivered an opinion arguing very ably, upon principle 
 as well as upon authority, that the factor's undertak- 
 ing is collateral merely. But a decided majority of the 
 court concurred with Senator Porter, and so the judgment 
 of the Supreme Court was affirmed. 
 84
 
 666 COLLATEEAL UnDEETAKINGS. [Ch. XVIII. 
 
 § 675. The question came before the New York Court 
 of Appeals in the year 1856, in Sherwood v. Stone, 14 New 
 York (4 Kernan), 267, the facts being substantially the 
 same as in Wolff v, Koppel, and the decision in that case 
 was followed by the unanimous vote of the court. John- 
 son, J., delivered a short opinion favoring the affirmance 
 of the judgment, upon the principle of stare decisis. Mitch- 
 ell, J., said that at the time when the State constitution 
 adopted the common law, the rule upon this subject was 
 settled by the two cases in the first of Term Reports, and 
 the subsequent English decisions cannot alter the law. 
 He thought that the contrary results were produced by 
 the different views of the contract taken in the two coun- 
 tries ; in England it is understood to be a contract to pay, 
 if the money cannot be collected of the purchaser ; but in 
 the United States it is understood to be a contract to pay 
 at the expiration of the term of credit, whether the pur- 
 chaser be solvent or not ; that is, an original undertaking, 
 without any reference to the debt or liability of another. 
 The principal' s right to sue the purchaser is a quality 
 added by the law, and not the contract of the parties ; and 
 the factor has also a right to sue. The factor' s guaranty 
 also diflfers from a promise to pay the debt of another in 
 another particular, that the principal transfers to him a 
 right to sue for the debt in his own name, accounting only 
 for the net balance of the account ; which shows that to 
 some extent the purchaser's debt is made the property of 
 the factor, and he becomes to that extent the purchaser of 
 it, and so far substitutes his own liability for that of the 
 purchaser. The effect of this is generally to make the 
 factor practically the owner of the debt, and this is invari- 
 ably so if he remains solvent, and on just terms with his 
 principal. 
 
 § 676. But the apprehension, expressed in all these cases, 
 that the ruling respecting the application of the statute 
 would conflict with that of the English courts, has appar- 
 ently proved unfounded ; and the latter have been able to 
 reconcile the decision in Morris v. Cleashy, with a ruling
 
 Art. II.] Collateral Undertakings. 667 
 
 that the contract of the factor is not within the statute. 
 At least such would appear to be the case, from the decis- 
 ion of the Court of Exchequer in Couturier v. Hastie, 8 
 Exchequer, 40, A. D. 1852. {g) There a cargo of corn had 
 been shipped by the plaintiffs at Salonica for London, and 
 sold by the defendants as their factors on a del credere 
 commission ; but in fact at the time of the sale the corn 
 had become so damaged, that it had been condemned at 
 an intermediate port and sold there ; and on this intelli- 
 gence reaching England the purchaser repudiated the sale, 
 and subsequently became bankrupt : whereupon the 
 plaintiffs brought this action against the factors. Several 
 points were made for the defence, and among others, that 
 the defendants' del credere contract was within the statute 
 of frauds, the only written, evidence of it being a letter 
 which did not comply with the requirements of the statute. 
 At the trial the judge ruled tliat the defendants' under- 
 taking was not within the statute ; but that the contract 
 imported that the corn was in existence as such, and 
 capable of delivery, and upon the latter ground the de- 
 fendants had a verdict. This was set aside and a verdict 
 ordered to be entered for the plaintiffs, after argument 
 in term. 
 
 § 677. Parke, B., assigned the following reasons for 
 holding that the defendants were liable on the del credere 
 contract. "Doubtless if they had, for a percentage, 
 guarantied the debt owing, or performance of the contract 
 by the vendee, being totally unconnected with the sale, 
 they would not be liable without a note in writing signed 
 by them : but being the agents to negotiate the sale, the 
 commission is paid in respect of that employment; a 
 higher reward is paid in consideration of their taking 
 greater care in sales to their customers, and precluding 
 all question whether the loss arose from negligence or 
 not ; and also for assuming a greater share of responsi- 
 bility than ordinary agents, namely, responsibility for the 
 
 {(j) S. C. 22 Law Journal, N. S., Exchequer, 97.
 
 668 COLLATEKAL UNDERTAKINGS. [Ch. XVIII. 
 
 solvency and performance of their contracts by their 
 vendees. This is the main object of the reward being 
 given to them ; and though it may terminate in a liability 
 to pay the debt of another, that is not the immediate 
 object for w^hich the consideration is given ; and the case 
 resembles in this respect those of Williams v. Leper and 
 Castling v. Aubert. We entirely adopt the reasoning of 
 an American judge (Mr. Justice Cowen) in a very able 
 judgment on this very point in Wolff v. Koppel, 5 Hill, 
 468."(^) 
 
 § 678. In the subsequent case of WickTiam v. Wickham^ 
 2 Kay and Johnson, 478, decided A. D. 1855, Vice 
 Chancellor Page Wood regarded the decision of the 
 Exchequer in Couturier v. Hastie, upon the effect of the 
 statute of frauds, as not only satisfactory in its reason- 
 ing but binding as authority ; notwithstanding that the 
 decision had then been reversed on the other point in the 
 Exchequer Chamber. In the case tiien before him, 
 the Vice Chancellor came to the conclusion, upon a care- 
 ful examination of the facts, that the contract was a 
 primary engagement on the part of the factors, to make 
 good the payments at the end of every year for the 
 goods supplied by the principals ; but he distinctly 
 said that if the contract was for a del credere agency, he 
 concurred with what was urged by the plaintiffs' counsel, 
 that Couturier v. Hastie established that it would not 
 operate as a guaranty, and would not be a promise to 
 
 (li) The judgment rendered for the plaintiffs upcn the decision was reversed 
 on error in the Exchequer Chamber, Hastie v. Couturier, 9 Exchequer, 102, 
 A. D. 1853 (S. C, 17 Jurist, 1127; 22 Law Journal, N. S., Exch., 299), and 
 the latter decision was affirmed in the House of Lords, Couturier v. Hastie, 
 5 House of Lords Cases, 673, A. D. 1856 (S. C, 2 Jurist, N. S., 1241 ; 25 
 Law Journal, N. S., Exch., 253) ; but in each of the appellate courts the 
 decision was put upon the ground, that the terms of the contract between 
 the defendants and the purchaser imported, that at the time it was entered 
 into, the corn was existing, in a state to be bought, sold, and delivered; and 
 the opinion expressed by the Court of Exchequer, respecting the validity 
 of the defendants' contract with the plaintifis, under the statute of frauds, 
 was not brought in question.
 
 Art. II.] Collateral Undertakings. 669 
 
 answer for the debt of another, within the fourth section 
 of the statute of frauds. He added: "When I look at 
 the whole of that case, and consider the reasons given by 
 the judges in delivering their judgments, though given 
 very cautiously and guardedly, I cannot but conclude that 
 they considered that an agent, entering into a contract in 
 the nature of a del credere agency, entered in effect into a 
 new substantial agreement with the persons whose agency 
 he undertook ; that the agreement so entered into by him 
 was not a simple guaranty, but a distinct and positive 
 undertaking on his part, on which he would become 
 primarily liable ; otherwise I cannot see how the learned 
 judges could arrive at the conclusion that the undertaking 
 was not within the statute of frauds. Certainly the opin- 
 ion of the American judge, which one of the learned 
 judges referred to with approbation, in delivering his judg- 
 ment in Couturier v. Hastie^ goes to the full extent which 
 I have described. "(i) 
 
 § 679. The opinion of Lord Wensleydale in Couturier v. 
 Hastie is particularly worthy of attention, because he 
 assigned as a reason for his conclusion, that the princi- 
 pal object of the plaintiffs in giving the reward, which 
 formed the consideration of the promise, was not to create 
 a liability on the part of the defendants to answer for the 
 debt of another. We have already expressed our opinion 
 in support of the proposition, that where the leading object 
 of the transaction was not to create such a liability, the 
 statute does not apply ; and have pointed out the differ- 
 ence between that principle and the doctrine which we 
 have condemned in the preceding chapter. (/) It was 
 then remarked, that the essential point of difference 
 between the two was that the latter suffered both parties 
 to have such a common object ; and the promisee to 
 
 (t) Couturier v. Hastie is also cited in the eighth edition of Chitty on 
 Contracts, p. 196 (A. D. 1868), as settling the law that a factor's engagement 
 under a del credere agency need not be in writing. 
 
 (;•) Ante, §§ 615, 616.
 
 670 Collateral Undeetakhstgs. [Ch. xviii. 
 
 have it for Ms leading object. It will be noticed that 
 this distinguished judge applied precisely this test to the 
 case then before him, where the effect of a guaranty of a 
 debt thereafter to be created was in question ; thereby 
 sanctioning our conclusion, that it is only when totli 'par- 
 ties contemplate something different from the assump- 
 tion of liability for a third person' s debt, default, or mis- 
 carriage, that the contract will not be within the statute. 
 That his Lordship did not intend to lay down any general 
 rule like the proposition, the fallacy of which we have 
 labored to demonstrate, Is apparent from his pointed con- 
 demnation of one of its inevitable consequences, which 
 furnishes the aptest illustration of its mischievous tend- 
 ency ; namely, the exclusion from the operation of the 
 statute of a simple guaranty of another's debt, founded 
 upon a distinct pecuniary consideration, paid by the 
 creditor to the guarantor.
 
 PART THIRD. 
 
 OF AGREEMENTS MADE UPON CONSIDERATION 
 OF MARRIAGE.
 
 CHAPTER NINETEENTH. 
 
 CASES WITHIN THE TIIIKD CLAUSE OF THE FOURTH SEC- 
 TION OF THE STATUTE. 
 
 ARTICLE I. 
 Object, effeot, and true interpretation of this clanM. 
 
 § 680. The third clause of the fourth section, which pro- 
 vides that no action shall be brought "to charge any 
 
 PERSON UPON ANY AGREEMENT MADE UPON CONSIDERATION 
 
 OF MARRIAGE," unless it shall be manifested by a writing, 
 was probably inserted as one of the amendments, which, 
 as we have seen, were added to the original draft of the 
 bill, during its passage through the two houses of Parlia- 
 ment, (a) This is indicated, not only by the structural 
 peculiarities of the section, which render the words "to 
 charge any person" tautological ; but also by the fact that 
 the agreements to which the second, fourth and fifth clauses 
 relate, are described therein according to their form or sub- 
 ject matter; whereas the third adopts the consideration 
 as the distinguishing feature of those embraced within it. 
 Perhaps also it would not be incorrect to say, that the dan- 
 ger of fraud and perjury in the attempt to establish agree- 
 ments of this character, was not the principal reason why 
 the legislature required them to be committed to writing. 
 We may rather attribute this provision to an apprehen- 
 sion of the evils to result, from permitting every promise 
 relating to property, which may have passed, during 
 courtship, between the future husband and wife, and 
 every expression of intended bounty, which may have 
 fallen from the friends of either, to be made the founda- 
 tion of an action after marriage, even where no fraud was 
 
 (o) See note to § 3, ante. 
 85
 
 674 Antenuptial Agreements. [Ch. xix. 
 
 designed, and no perjury committed. These constitute 
 tlie agreements which the statute was intended to embrace ; 
 and except for its provisions, they are, like other exec- 
 utory agreements, as valid and as capable of enforcement, 
 when they were merely verbal, as when they were in 
 in writing. (&) 
 
 § 681. With respect to promises looking to a provision 
 for the future husband or wife, made prior to or during 
 the engagement, by the relatives or other friends of either, 
 the policy of the statutory requirement of a writing rests 
 upon very clear and satisfactory grounds. Nothing is 
 easier than a mutual misunderstanding in a transaction 
 of this kind ; where declarations vaguely made, as mere 
 expressions of an idea entertained, but not matured into a 
 resolution, are very apt to be regarded by the person to 
 whom they are addressed, as positive promises. Experi- 
 ence has proved that it is often difficult to ascertain, even 
 when the evidence consists of correspondence, or other 
 informal writings, whether such expressions ever assumed 
 the form of a definite and unconditional undertaking. It 
 is therefore only reasonable, that the law should require 
 the most satisfactory evidence, of which the nature of the 
 case admits, that a binding promise of that character was 
 actually intended to be made ; before compelling the prom- 
 isor to give effect, to what is almost invariably a mere act 
 of bounty on his part. 
 
 § 682. But there is much greater room for doubt, whether 
 it was wise and just to require promises relating to prop- 
 erty, passing between the future husband and wife, to be 
 manifested by a writing. It is true that, to some extent, 
 
 (h) Sir Ralph Bovy's case, 1 Ventris, 193, 24 Car. ii; Lavender v. Black- 
 stone, 2 Levinz, 14G, 27 Car. ii ; Sir John Otway's case, cited in Gell v. Ver- 
 meiiiin, Freeman's Chancery Reports, 199. And in the United States, 
 Flowers v. Kent, Biayton (Vernicnt), 238, A. D. 1817, before the Vermonl 
 statute; Dunn v. Tliarp, 4 Iredell's Equity (North Carolinn), 7; Montgomery 
 V. Henderson, ?> Jones's Equity (North Carolina), 1 13 ; Gaclcenbach v. Brouse, 
 4 Watts and Sergeant (Pennsylvania), 546.
 
 Ai-t. I.] Antenuptial Agreements. C75 
 
 the same reasons are applicable to this species of promise, 
 by which the policy of the statute with respect to promises 
 by relatives can be successfully defended. And doubtless 
 the existence of a right, on the part of either of the mar- 
 ried couple, to call upon a court of equity to enforce a 
 promise made by the other, under circumstances so unfa- 
 vorable to free and deliberate action as those attending a 
 courtship, would have some tendency to destroy the peace 
 of families, and would occasionally lead to injustice. But, 
 on the other hand, the nature of the matrimonial rights 
 over property, which the common law creates, are such, 
 that in practice the person who has any occasion to exact 
 or receive any promise in relation thereto, is almost inva- 
 riably the one of whom the law should be peculiarly 
 tender, by reason of her inexperience, her comparative 
 helplessness, and her proneness to excessive confidence. 
 And the books contain abundant evidence, that in this 
 class of cases, the statute has generally had the effect to 
 enable those sources of weakness to be successfully prac- 
 ticed upon ; and thus to promote fraud and injustice. 
 But this objection has now been removed, in most of the 
 United States, by acts which place a wife's rights, with 
 respect to property, at least upon a level with those of 
 the husband. 
 
 § 683. The clause under examination applies only to 
 " any agreement made upon consideration of marriage ;" 
 and it is therefore not applicable to representations^ with 
 respect to which the courts have continued, since the enact- 
 ment of the statute, to administer the law as before, not- 
 withstanding that such representations may have been 
 merely oral. It is quite evident that the enforcement of a 
 representation, made for the purpose of inducing the com- 
 pletion of a marriage, will frequently have the same prac- 
 tical effect as the enforcement of an agreement in considera- 
 tion of the marriage. Hence the exclusion of representa- 
 tions from the operation of this clause of the statute, is 
 apparently open to the same objections which were inter- 
 posed so vigorously, although unsuccessfully, to their
 
 G76 Antenuptial Agreements. [Ch. xix. 
 
 exclusion from the operation of the second clause of the 
 same section, (c) But, in this class of cases, those objections 
 seem to have been overlooked, until quite recently; although 
 Lord Eldon, (who was conspicuously hostile to the estab- 
 lished doctrine in the cases under the second clause), in 
 giving judgment in Ex parte Carr, 3 Vesey and Beames, 
 108, A. D. 1814, said that the rule laid down in Pasley v. 
 Freeman, 3 Term Reports, 51, (<^) "has some authority" 
 in the rule established in this class of cases. The doctrine 
 that the statute does not apply to representations, seems 
 therefore to have been settled without opposition. 
 
 § 684. Accordingly we find several cases, where a person 
 who has made an oral representation, knowing it to be 
 false, upon the faith of which a marriage has taken place, 
 has been compelled to make it good by the decree of a 
 court of equity ; and some where redress has been granted 
 at law. Indeed it appears to be well settled, that the prin- 
 ciple goes to the length of permitting the husband or the 
 wife to maintain an action for that purpose, although the 
 plaintiff was a party to the intended deception, whenever 
 it is necessary to do so, in order to prevent injury to the 
 innocent party, or to the issue of the marriage. 
 
 § 685. Thus, in Neville y. Wilkinson, 1 Brown's Chan- 
 cery Reports, 543, A. D. 1782, it appeared that Mr. Neville, 
 one of the plaintiffs, being about to marry the daughter 
 of the plaintiff Robinson, induced the defendant, who was 
 his agent, to make out a schedule of his debts to show to 
 Mr. Robinson, concealing the fact that he owed the defend- 
 ant and another person a very large sum ; and to represent 
 to Mr. Robinson that the schedule contained all his debts. 
 Thereupon the marriage took place ; Mr. Robinson having 
 previously made provision, by a deposit in the names of 
 the trustees under the marriage settlement, for the payment 
 of all the debts named in the schedule. And upon a bill filed 
 
 (c) Chapter iv, article ii. 
 
 (d) Ante, § 102.
 
 Art. I.] Antenuptial Agreements. 677 
 
 by Neville, Robinson, and the person who was joined with 
 Robinson as a trustee in the marriage settlement. Lord 
 Thurlow granted an injunction to restrain the defendant 
 from proceeding to recover his debt against Mr. Neville, (e) 
 
 § 686. But this case, and the others of the same general 
 character, seem to depend upon the existence of a fraud- 
 ulent intent on the part of the person making the repre- 
 sentation ; and therefore present no difficulties in the way 
 of reconciling the principles of equity with the provisions 
 of the statute. The perplexity arises where no such ele- 
 ment was present. The rule appears to be now settled, at 
 least in England, that the right to relief does not neces- 
 sarily depend, even upon knowledge of the falsity of the 
 representation, much less upon a fraudulent intent. And 
 as some of the cases have practically almost effaced the 
 distinction between a representation and a contract, for the 
 purpose of administering equitable relief; questions of 
 great difficulty have arisen, where a relative or friend of a 
 person contemplating matrimony, has made an oral state- 
 ment of an intention to make a provision for the engaged 
 couple ; and the marriage has been consummated, in reli- 
 ance upon that statement. The examination of these 
 questions will be deferred to the next chapter, where it 
 can be more conveniently examined, in connection with 
 other questions growing out of the equitable doctrine of 
 performance. (/ ) 
 
 § 687. It will be noticed that the consideration men- 
 tioned in the statute is marriage ; but from the necessity 
 of the case, the promise which is the subject of an action 
 
 (f) See also Redman v. Redman, 1 Vernon, 3-48, A. D. 1G85; Gale v. 
 Lindo, id., 475 (1G87) ; Lamlee v. Hanman, 2 "Vernon, 466 (1704); Tiirton 
 V. Benson, 2 Vernon, 764 (1718); Roberts v. Roberts, 3 Peere William?, 66 
 (1730); Montefiori r. Montefiori, 1 W. Blackstone, 363 (1762); Thompson 
 V. Harrison, 1 Cox's Chancery, 344 (1787); Scott v. Scott, id., 366; Palmer 
 V. Ncavc, 11 Vesey, 165 (1805). 
 
 (/) See chapter xx, article iii.
 
 678 Antenuptial Agkeements. [Ch. xix. 
 
 must always have preceded the actual marriage. Gener- 
 ally there were in fact mutual promises between the par- 
 ties ; a promise of marriage on the part of the plaintiff, (or 
 the person from whom he derives his cause of action,) hav- 
 ing accompanied the promise which he seeks to enforce. 
 This happens, not only when the promise, which is the 
 subject of the action, passed between the future husband 
 and wife, but also when it consisted of the agreement of a 
 third person to provide a marriage portion ; inasmuch as 
 the interest, which the person engaging to give the por- 
 tion feels in the accomplishment of the marriage, consti- 
 tutes almost invariably his motive for making such an 
 agreement. 
 
 For these reasons the true meaning of the stat- 
 utory expression has been sometimes misunderstood, 
 thereby opening the door to errors of considerable magni- 
 tude. It has been said that a promise to marry forms the 
 consideration of what is technically called an antenuptial 
 agreement, and consequently that such an agreement is 
 made in contemplation of marriage, not in consideration 
 of marriage, (p') But while it is undoubtedly true that 
 every antenuptial agreement, so called, is made in con- 
 templation of marriage, the only legitimate conclusion, 
 to which that circumstance leads, is that no such contract 
 is within the statute, unless it was also made in consider- 
 ation of marriage. And it is believed that a careful ex- 
 amination of the subject will show, that where an agreement 
 to do some act, at the time of, or after the marriage, (as to 
 provide a portion,) was made, in consequence of a promise 
 by the other party to marry, the real consideration was 
 the marriage, and not the promise ; although the latter 
 may have been the inducement to the agreement. 
 
 § 689. This will be apparent, if we take a case where 
 there was no corresponding promise to marry. There the 
 
 (gr) Per Benning, J., in Durham v. Taylor, 29 Georgia, 166, cited in note 
 to § 720 post ; and see Riley v. Riley, 25 Connecticut, 154, and comments 
 thereon, post §§ 714-716.
 
 Art. I.] Antenuptial Agreements. 679 
 
 promise to provide a portion is a mere proposal, which 
 takes effect as a contract, only when a consideration, that 
 is the marriage, has been furnished by the other party. (^) 
 It is precisely like a contract between A and B, to the 
 effect that A will pay B a specified sum for building a 
 certain house. Here the actual building of the house is 
 the consideration of A's promise to pay. And it is none 
 the less the true consideration, that B may have under- 
 taken, on his part, to build the house for the money ; or 
 that, in either case, it is also a condition precedent to B's 
 right to maintain an action. Indeed the contrary hy- 
 pothesis would lead to the conclusion, that if property had 
 been placed in the hands of one of the parties, in part per- 
 formance of an antenujDtial agreement, and the match 
 should afterwards be broken off by death, or even by the 
 refusal of either party to complete it, the property could 
 not be recovered back. 
 
 § 690. With some inconsiderable exceptions, the con- 
 struction of this clause has been in strict accordance with 
 the foregoing principles. In some of the cases to be cited 
 in the following pages, contracts, made in contemplation 
 of marriage, were excluded from the operation of the stat- 
 ute, because they were made upon some consideration 
 other than marriage, or in addition thereto. And on the 
 other hand, we shall cite several cases, where similar con- 
 tracts have been held to be within the statute, because 
 they were not founded upon any such distinct considera- 
 tion, although it is to be inferred that they were accom- 
 panied with promises to marry. This is evidently the 
 result which the statute aimed to accomplish ; and it is 
 difficult to suggest any form of words, which will express 
 
 (h) It has been held that a promise to provide a marriage portion needs no 
 other acceptance, than the consummation of the marriagi- in pursuance cf its 
 terras. Parker v. Serjeant, Cases tempore Finch, 14G; Moore v. Hart, in 
 note to § 691; Greene v. Cramer, 2 Connor and Lawson, 54; S. C, sub 
 nom. Saunders v. Cramer, 3 Drury and Warren, 87 ; Luders v. Anstey 
 4 Vesey, 501 ; De Beil v. Thomson and Hammersley v. De Biel, cited post 
 §§ 744-747.
 
 680 Antenuptial Agreements. [Ch. xix. 
 
 the idea thus intended to be conveyed, so clearly and at 
 the same time so tersely, as those which were actually 
 used. 
 
 § 691. It would seem to follow, from this analysis of the 
 legal effect of this species of agreement, that if the promise 
 rested only upon the consideration of the future marriage, 
 the person making it may withdraw it at any time before 
 the actual celebration of the marriage, whether it was in 
 writing, or merely verbal, and whether it was or was not 
 accompanied with a promise to marry. And although we 
 are not aware that the point has ever been expressly deci- 
 ded, it has been assumed in several cases that such a with- 
 drawal will protect him against a suit in equity for specific 
 performance, (z). But agreements of this kind are of such 
 a peculiar and exceptional character, that in some cases 
 equity will interfere to compel a specific performance, after 
 
 (t) It was apparently taken for granted, in the case of De Beil v. Thomson, 
 and Hammersley v. De Biel, post, §§ 744-747, that the father might have 
 withdrawn his proposal at any time before the actual marriage; but, under 
 the construction which the court put upon the memorandum, it may be 
 doubted whether he could have done so, after the Baron and his brother had 
 executed the settlement of 500Z. per annum. In Moore v. Hart, 1 Vernon, 
 201, A. D. 1G83. the defendant had written to one Mr. Reeve, a relation of 
 the plaintiff, at whose house his daughter was visiting, a letter promising a 
 portion, on the occasion of her marriage with the plaintiff, and more after 
 his death; and the plaintiff married the daughter, in reliance upon that 
 letter. But upon a bill filed for the portion, the defendant in his answer said 
 that Mr. Reeve had answered the letter, to the effect that he was notsatisBed 
 with the amount which the defendant proposed to leave at his death, and 
 would have nothing further to do with tiie match ; whereupon the defend- 
 ant had rencAved a treaty with another gentleman, which had been broken 
 off; and while that treaty was pending, the plaintiff and his daughter inter- 
 married at Mr. Reeve's house, without his consent. It was proved, how- 
 ever, that Mr. Reeve did not communicate to the plaintiff the contents of 
 his last letter; and that after the defendant had received it, he came to town 
 purposely about the match, and said to others, with many imprecations, 
 that he would make his promise good. And the Lord Keeper (North) 
 thereupon made a decree for the plaintiff; though for the defendant it was 
 urged, that this promise in writing, being discharged by a subsequent letter 
 in writing, could not now be renewed by parol disclosures,
 
 Art. I.] Antenuptial Agreements. 681 
 
 the marriage has taken place ; although before that event 
 the promisor had expressly withdrawn his promise, and 
 no pecuniary injury would have ensued to the promisee if 
 he had refused to complete the marriage. This jurisdic- 
 tion rests, not upon the idea that a general right to with- 
 draw is inconsistent with the legal effect of the transaction, 
 but upon the familiar ground, that the party has been 
 induced, by his reliance upon the promise, to place him- 
 self in such a position that he cannot be restored to his 
 former condition. The peculiarity of the application of 
 the principle, under these circumstances, is that the court 
 regards the wound which his affections will sustain, by 
 breaking off the match, as sufficient to entitle him to insist 
 upon the performance of the agreement. 
 
 § 692. Thus, in WancJiford v. Fotherly, Freeman's 
 Chancery, 201, A. D. 1694, the plaintiff filed a bill for a 
 portion of 3,000?., to be paid upon his marriage with the 
 defendant' s daughter. It appeared that a letter, offering 
 that portion, was written by a friend of the plaintiff, with 
 the defendant' s assent, and that he afterwards agreed to it. 
 Accordingly there was a treaty with the defendant for 
 such a settlement; "but the treaty depending long, the 
 young couple married." "And," the report proceeds, 
 "although it appeared that Mr. Fotherly, before they went 
 to church, did declare that he would give them nothing, 
 and the statute of frauds and perjuries was insisted upon, 
 yet decreed for the plaintiff, although his wife is since dead, 
 and he married to another. And the Lord Keeper" (Lord 
 Somers) " said, for his countermand when they were ready 
 to go to church, he looked upon it as nothing, after the 
 young people' s affections were engaged." This decree was 
 afterwards afSrmed, upon appeal to the House of Lords, (y) 
 
 (j) The case is also reported iicder the title of Wankford v. Fotherley, in 
 2 Vernon, 322, and as Wankford v. Fotherby, in 1 Equity Cases Abridged, 
 22. But neitlier of these reports mentions the countermand. Tlie bill was 
 filed by the husband, as administrator of his deceased wife. The very short 
 case of Douglas; v. Vincent, 2 Vernon, 202, A. D. 1G90, has been supposed 
 to conflict somewhat with the principle of Wanchford v. Fotherley. The 
 86
 
 682 Antenuptial Agreements. [Ch. xix. 
 
 § 693. It must be acknowledged that this principle re- 
 quires considerable delicacy in its application, in order to 
 avoid abuses. But it finds a very close analogy in a simi- 
 lar doctrine, w^liich seems to be vi^ell settled, in cases where 
 a forfeiture of an estate results from the marriage of the 
 beneficiary, without the consent of some other person. It 
 is held, that where such a consent has once been given, 
 and the affections of the young people have been permitted 
 to become enlisted, the consent cannot be withdrawn, unless 
 for some cause which the court shall adjudge to be reason- 
 able. In the language of Lord Northington, "it would 
 otherwise be a most cruel thing to suffer young persons to 
 contract and entertain affection, and then ad libitum with- 
 draw the consent. "(^O 
 
 report of the case is as follows: "The bill being for l.OOOZ., as promised by 
 Sir Matthias Vincent with his niece, by a letter under his hand, but in the 
 same letter he dissuaded her from marrying the plaintiff", yet was afterwards 
 present at the marriage, and gave her in marriage. In this case the court 
 would not decree the payment of the 1,000?., but left the plaintiff" to bring 
 his action to recover it, as he could at law." It is possible that the last five 
 words were intended to mean, that there was no impediment to his recov- 
 ering the 1,000/. at law; for which reason, it was not proper for him to 
 come into equity. See Chichester v. Cobb, 14 Law Times, N. S., 433. It 
 would seem that, in Douglas v. Vincent, the wife must have died, otherwise 
 she should have been a party. In Madox v. Nowlan, Beatty, 632, decided 
 in the Irish Court of Chancery, in 1824, Lord Manners referred to the case 
 of "Wanchford v. Fotherl}', which had been pressed upon him by counsel, 
 but without expressing any approbation or disapprobation of the principle 
 upon which it proceeded ; for he came to the conclusion that the defendant's 
 promise, which had been withdrawn on the morning of the plaintiff" 's mar- 
 riage, was conditional by its terms, and that the condition had not been 
 performed. Lord Cottenham cited the case approvingly in his judgment in 
 Hammersley v. De Biel, post §§ 744-747. 
 
 (k) Merry v. Ryves, 1 Eden, 1. See also Lord Strange v. Smith, Ambler, 
 263 ; Campbell v. Lord Netterville, cited in 2 Vesey, Senior, 534 ; Per Lord 
 Eldon, in Clark v. Parker, 19 Vesey, 12, 13; Per Sir William Grant, in 
 D'Aguilar v. Drinkwater, 2 Vesey and Beames, 225.
 
 Art. II.] Antenuptial Agreements. 683 
 
 ARTICLE II. 
 
 Hatnre and extent of the marriage consideration | what persons are !entitled to avail them- 
 
 selves of it. 
 
 § 694. Our proposed examination of the questions pre- 
 sented, in the cases which have arisen under this provis- 
 ion of the statute, may be usefully prefaced by a few- 
 remarks upon the nature and extent of the consideration, 
 forming the test of its application ; and a glance at the 
 rules which determine what persons are entitled to rely 
 upon the marriage, as a consideration furnished in their 
 behalf. Such persons are said to be within the scope of 
 the consideration. 
 
 § 695. The authorities agree in regarding a marriage as 
 fulfilling all the requisites of a valuable consideration ; 
 and consequently that the parties thereto, and all other 
 persons who come within its scope, are entitled to the 
 most ample protection which a court of law or equity wiU 
 give to purchasers for value, (a) Accordingly it has been 
 
 (a) Lord Coke remarks that " there is no consideration so much respected 
 in the law as the consideration of marriage, in respect of alliance and pos- 
 terity." Coke upon Littleton, 9 i. ; Thomas's edition, volume 1, page 501. 
 Lord Romilly says that "the consideration of marriage is the highest known 
 to the law." Ford v. Stuart, 15 Beavan, 499. Lord St. Leonards also 
 speaks of marriage as " the most valuable of all considerations." Greene v. 
 Cramer, 2 Connor and Lawson, 60; S. C, sub nom. Saunders v. Cramer, 3 
 Drury and Warren, 87. Sir John Stuart says that "it is the policy of the 
 law to give paramount force to the consideration of marriage." Fraser v. 
 Thompson, 1 Giffard, 62. And see to the same effect, Pcachey on Marriage 
 Settlements, 50, 57 ; Addison on Contracts, 6th edition, 740 ; Per Collier, C. J., 
 Andrews v. Jones, 10 Alabama, 421; De Barante v. Gott, 6 Barbour (N. Y.), 
 492 ; Marshall v. Morris, 16 Georgia, 368; Per Archer, J., Buchanan v. Deshon, 
 1 Harris & Gill (Maryland), 292 ; Crane v. Gough, 4 Maryland, 316 ; Magniac v. 
 Thompson, 7 Peters (U. S.), 348 ; Brown v. Carter, 5 Vesey. 862, 879. A nd see 
 Barrow v. Barrow, 2 Dickens, 504. In Sterry v. Arden, 1 Johnson's Chancery, 
 271, Chancellor Kent, referring to a voluntary conveyance to the female plaint- 
 iff, upon the faith of which the plaintiffs had intermarried, said : " Tiie marriage 
 was a valuable consideration, which fixed the interest in the grantee against 
 all the world; she is regarded from that time as a purchaser, and as much
 
 684 Antenuptial Ageeements. [Ch. xix. 
 
 held that if a person has been induced to marry the grantee 
 in a voluntary deed, in consequence of the credit which such 
 grantee may have gained by means of the deed, it ceases to 
 be voluntary, and becomes good against a subsequent pur- 
 chaser for value. (5) This rule is strikingly illustrated by 
 an English equity case, where a father gave a voluntary 
 bond to trustees, conditioned for the payment, after his 
 death, of a sum of money for the benefit of his six child- 
 ren, in certain specified proportions. Afterwards two of 
 the sons named in the bond, assigned, in contemplation of 
 marriage, their respective portions of the sum payable by 
 the condition thereof, to other trustees, for the benefit 
 of their intended wives respectively ; and on the faith of 
 those assignments, the marriages were contracted. Many 
 years afterwards, the father died insolvent ; and upon a 
 settlement of his estate, the trustees to whom the bond 
 was given, were admitted as specialty creditors to the 
 amount payable, by the condition of the bond, to the two 
 sons who had married, (c) So, under the statute of the 
 27th Elizabeth, a grantee in consideration of marriage may 
 impeach, as a purchaser for value, a prior voluntary grant 
 of the same property. (<i) 
 
 § 696. The effect of a postnuptial settlement as against 
 the creditors of the settlor will be the subject of examina- 
 tion in the next succeeding article. But it is an estab- 
 
 so, as if she had then paid an adequate pecuniary consideration." And in 
 Diigan V. Gitlings, 3 Gill (Maryland), 157, Martin, J., speaking of the verbal 
 gift of real property by a father to his daughter, in contemplation of the 
 hitter's marriage said : " The consummation of the marriage, in a case like 
 tliis, is to be considered as equivalent to the payment of the purchase money 
 in a pecuniary contract; in both cases the consideration is discharged." 
 
 (6) Sugden on Vendors, 14th edition, 720, and cases cited; Whelan t». 
 Whelan, 3 Cowen (N. Y.), 537 ; Per Lord Eilenborough, C. J., in Doe v. 
 Manning, 9 East, 69; Sterry v. Arden, 1 Johnson's Chancery (N. Y.), 261; 
 S. C. on appeal, sub nom. Verplanck v. Sterry, 12 Johnson, 536. 
 
 (c) Payne v. Mortimer, 28 Law Journal, N. S., Chancery, 437; and on 
 appeal, id. 716, A. D. 1859; S. C. 1 Gififard, 118; 5 Jurist, K S., 307; and 
 on appeal, 4 De Gex and Jones, 447, and 5 Jurist, N. S., 749. 
 
 {d) Jordan v. Money, 5 House of Lords Cases, 185, cited post, §§ 752-754.
 
 Art. II.] Antenuptial Agreements. 685 
 
 lished principle that an antenuptial settlement is valid 
 against them, if the marriage took place on the faith of 
 it ; all persons within tlie scope of the consideration, being 
 then regarded as purchasers for value. This principle has 
 been often applied in cases where a settlement has been 
 made by a debtor upon his intended wife. (6^) Of course 
 actual fraud, in which the grantee or beneliciary partici- 
 pated, will avoid the whole transaction ; and the degree of 
 good faith, which must have existed on the part of the 
 wife, in order to prevent the settlement from being re- 
 garded as fraudulent, has been the subject of much dis- 
 cussion. It has been intimated that she would not be 
 protected, if the settlement was very extravagant, either in 
 its terms or with respect to the quantity of the property 
 embraced within it.(/') But the most recent English cases 
 
 (e) Magniac v. Thompson, 7 Peters (U. S.), 348; Nairn v. Prowse, C 
 Vesey, 752, 759; Campion v. Cotton, 17 Vesey, 264; Wood v. Jackson, 8 
 Wendell (N. Y.), 9. This principle appears to have been overlooked in 
 Page V. Kendrick, 10 Michigan, 300. 
 
 (/) In Hardey v. Green, 12 Beavan, 182, A. D. 1849, (S. C, 13 Jurist, 
 777; 18 Law Journal, N. S., Chancery, 480,) it appeared that J. B. Irwin 
 and Elizabeth Bevan, a few hours before their marriage, executed articles to 
 the effect, that by a settlement to be made after marriage, Elizabeth's prop- 
 erty should be conveyed upon certain trusts for her benefit, and that the set- 
 tlement should contain a covenant that all property, to which the said J. B. 
 Irwin or the said Elizabeth might thereafter become entitled, should be set- 
 tled upon the same trusts:. Neither party had any property at that time, 
 although Elizabeth had some expectations; and the husband was largely 
 indebtetl. In less than six months after tlie marriage, the husband took the 
 benefit of the insolvent act ; his scliedule showing debts exceeding 4000Z. 
 and no assets. His " estate and effects, present and future," were thereupon 
 vested in an official assignee. About two years afterwards, iiis brother died 
 in India intestate; leaving J. B. Irwin heir to certain estates, which were 
 soon afterwards conveyed by him upon the trusts of the settlement. The 
 official as.signee having claimed the property, a bill was filed against him, 
 by Mrs. Irwin and the trustee under the settlemen;, to establish the settlement 
 and to compel him to convey. Lord Langdale, Master of the Roll*, granted 
 a decree. He denied the force of the defendant's argument that this cove- 
 nant was so extravagant and contrary to public policy, that it was neces- 
 sarily fraudulent; and he remarked that there was no allegation or evidence 
 that the wife, who married on the faith of it, participated in any fraud. She
 
 686 Antenuptial Agreements. [Ch. xix. 
 
 appear to have established the rule that the settlement will 
 be supported, unless the marriage was merely a color for 
 effecting a contrivance to defraud the husband' s creditors, 
 in which the wife participated. Her knowledge at the time 
 when it was made, that he was in embarrassed circumstan- 
 ces, will not suffice to defeat it. {g) 
 
 § 697. With respect to the persons who are entitled to 
 be treated as purchasers for value in this class of cases, 
 it is well settled that the husband or wife, as the case may 
 be, (or both when the settlement was made by a third per- 
 son), and the issue of the marriage, are within the scope 
 of the consideration. But collateral relatives, to whom 
 the estate is contingently limited by the marriage settle- 
 ment, are in general regarded as volunteers. However, 
 the latter proposition is subject to some exceptions, most 
 of which are rather apparent than real ; being in truth 
 corollaries from the principal proposition. As, for in- 
 stance, where a limitation to collateral relatives, is inter- 
 posed between limitations to different classes of the issue 
 of the marriage ; for then the ultimate remainder to the 
 issue of the marriage, can be supported only by regarding 
 the intermediate estate, as having been created for a valu- 
 able consideration. There are also some instances, where 
 collateral relatives have been protected, under circum- 
 stances which render it difficult strictly to reconcile the 
 ruling with the doctrine that they are regarded as volun- 
 teers ; and it has even been said that covenants in favor 
 
 had a right to insist upon these terms; and it could not be held that a per- 
 son cannot enter into a binding contract because he is insolvent. And in Ex 
 parte McBurnie, 1 De Gex, Macnaghten and Gordon, 441, A. D. 1852, (S. 
 C, 16 Jurist, 807 ; 21 Law Journal, N. S., Bankruptcy, 15,) the same gen- 
 eral principle was recognized, although both the Lords Justices (Knight 
 Bruce and Lord Cranworth) intimated that they would have ruled otherwise 
 if it had appeared that the settlement was extravagant, and grossly out of 
 proportion to the station and circumstances of the husband. 
 
 ig) Colombine v. Penhall, 1 Smale and Giffard, 228, A. D. 1853 ; Fraser 
 V. Thompson, 1 Giffard, 49, and 5 Jurist, N. S., 669, A. D. 1859; Bulmer v. 
 Hunter, Law Reports, 8 Equity, 46, A. D. 1869.
 
 Art. II.] Antenuptial Agreements. 687 
 
 of strangers may be supported, as coming witliin the scope 
 of the consideration. The subject is not entirely free 
 from perpk-xity, and the authorities are not always 
 in harmony with each other ; but its extended discussion 
 would be out of place here. We may remark, however, 
 that the more recent cases manifest a decided tendency to 
 adhere to the doctrine, that where the marriage was the 
 only consideration, it does not extend to collateral rela- 
 tives, except in special cases. (A) 
 
 (h) See Sugden on Vendors, 14th edition, 716 to 718; Sugden's Law of 
 Property, etc., 153 to 158; and Peacliey on Marriage Settlements, 56 to 62; 
 where the English authorities are collected. The case of Smith v. Cherrill, 
 Law Reports, 4 Equity, 390, and 36 Law Journal, N. S., Chancery, 738, 
 A. D. 1807, (S. C, 15 Weekly Reporter, 919, and 10 Law Times, N. S., 517.) 
 has been decided since those works were issued. It was a suit in eqin'ty 
 by a creditor, to compel the trustees appointed by the marriage settlement 
 of the debtor (a lady), to pay the plaintiff's debt. The settlement jirovided 
 that the income of the trust property should be paid to the .settlor for life; 
 and after her death, that the trustees should stand posse.«st'd of the property 
 for the benefit of the issue of the marriage, or, in default of issue, of the 
 mother, sister, and two nieces of the settlor. One of the said nieces was 
 described in the instrument as the adopted daughter of the settlor, and it was 
 provided that she should share equally with the children of the marriage. 
 Upon a contingency, (which happened), the husband was to have an annuity 
 of 200?., and the settlor reserved the right to leave him a legacy. The lady 
 died, leaving no issue, and the personalty was exhausted by the husband's 
 annuity and the legacy to him. Vice Chancellor Malins charged the dfbt 
 upon the realty, expressing regret that he could do nothing for the " adopted 
 child," but holding that she and the other collaterals must be treated ns vol- 
 unteers. The most recent case is Wollaston v. Tribe, Law Report.*, 9 Equity, 
 14, decided by Lord Romilly, Master of the Rolls, in November, 1809. This 
 was a bill to set as;de certain trusts in a marriage settlement, and for a recon- 
 veyance of the settled property. In 1858, the plaintifl', being forty one years 
 of age, married Robert Wollaston; a settlement of her property liaving been 
 previously made, first on the plaintiff for life, without power of anticipation ; 
 then on Robert Wollaston for life; then on the children of the marriage and 
 of any future marriage of the plaintiff; and, if she had no children, tlu-n on 
 her nephews and nieces. The husband died without issue in 1805, and the 
 plaintiff, not having remarried, filed her bill in 1868, setting forth various 
 circumstances, tending to show that siie did not understand the effect of the 
 settlement, in the event of her surviving her husband and having no issue. 
 Lord Romilly granted a decree, saying "that the only part of the settlement,
 
 688 Antenuptial Agreements. [Ch. xix. 
 
 § 698. It wilJ be seen, from this brief summary, tliat 
 there is no necessity of resorting to any other considera- 
 tion than the marriage itself, to sustain any agreement 
 made in contemplation of marriage, or to determine the 
 description of promises which the statute designates. In 
 truth the high value placed by the courts upon the mar- 
 riage consideration, has led to great reluctance in enforc- 
 ing a statutory provision which avoids all verbal contracts 
 founded upon it ; and this reluctance is the source of 
 nearly all the perplexity which has arisen in the cases 
 under this part of the statute of frauds. And the 
 course of adjudication, under the second and third 
 clauses of the fourth section presents this noteworthy 
 contrast ; that in cases under the second clause, there has 
 been a constant struggle to find something in the consider- 
 ation, to withdraw the promise from the express words 
 of the statute ; whereas in cases under the third clause, 
 the struggle has been to find something outside of the 
 consideration to accomplish the same object. 
 
 AKTICLE III. 
 
 What contracts are within this provision, and vice TMsai 
 
 (1) General principles regulating the application of the statute to agree- 
 ments made in contemplation of marriage. 
 
 § 699. The distinction, which we have mentioned, be- 
 tween contracts made in consideration of marriage, and 
 contracts made in consideration of promises of marriage, 
 is nowhere more clearly manifested, than in the ruling that 
 
 which is now subsisting, is purely voluntary and not within the considera- 
 tion of marriage." See also Story's Equity Jurisprudence, 8th edition, 
 §§ 986, 987 ; Merritt v. Scott, G Georgia, 563 ; Lafitte v. Lawton, 25 Georgia, 
 305 ; Gorin v. Gordon, 38 Mississipi, 205 ; Bleeker v. Bingham, 3 Paige 
 (K Y.), 246 ; King v. Whitely, 10 Paige, 465 ; Eaton v. Tillinghast, 4 Ehode 
 Island, 276. In Loxley v. Heath, 1 De Gex, Fisher and Jones, 489, Lord 
 Campbell explained Hammersley v. De Biel (post § 744 et seq.,) as holding, 
 upon one of the points presented, that an antenuptial contract could not be 
 varied, after marriage, to the prejudice of the children of the marriage. It 
 would seem that this doctrine goes to the extent of protecting such children, 
 t>efore their births.
 
 Art. III.] Antenuptial Agreements. 689 
 
 the statute of frauds docs not prevent an action at law 
 from being maintained, to recover damages f(ir the breacli 
 of a verbal promise to marry tlic ])laintift". This was one of 
 the earliest questions which arose under the aet ; and it 
 was contended, with considerable plausibility, that, where 
 there were mutual promises to marry, inasmuch as each 
 of them formed the consideration of the other, both were 
 agreements "in consideration of marriage." Inde»'d, this 
 doctrine received at lirst the sanction of the courts. In 
 PhU.pot v. Wallet, Freeman, 541, and 3 Levinz, 05, A. I). 
 1082, the Court of Common Pleas, after two arguments, (a) 
 gave judgment for the defendant, in an action upon a prom- 
 ise to marry, which was found by a special verdi(;t to have 
 been made, without writing, after June 24, 1077. Wynd- 
 ham, J., thought that the verbal promise was good, "be- 
 cause this promise is for the marriage itself, and not made 
 in consideration of marriage for some collateral matter. 
 But," the report proceeds, "the other three judges were 
 against him, that it was within the words, the meaning and 
 mischief of the statute, and as much a catching promise 
 as any other that the act intended to prevent." 
 
 § 700. Notwithstanding the weight of authority which 
 this case was entitled to command, it seems to have been 
 afterwards silently disregarded, at least in the King's 
 Bench ; for in one of many reports of Harrison v. Caye^ 
 decided in that court A. D. 1098, ((^) where the question 
 was whether a woman is liable to an action for a breach 
 of promise of marriage, it is stated that uj)on the trial, 
 Chief Bart)n Ward ruled that the action could \w main 
 tained without writing ; and counsel said, during the argu 
 ment, that Chief Justice Holt had frequently ruled that the 
 statute intended only agreem<>nts to ])ay man-iage poitioiis, 
 which the latter, (who was then on the bench,) did not deny. 
 
 (a) The first argument is reported in Sl:inner, 24. 
 
 {b) 1 Lord Raymond, 38G. Tlie otiier reports of the same case do not 
 mention this point. Lord Ilolt, 456 ; Cartliew, 407; 1 Salkcld, 24 ; 5 Mod- 
 ern, 4] 1 ; 12 Modern, 214. 
 87
 
 690 Antenuptial Agreements. [Cli. xix. 
 
 And Pliilpot V. Wallet is regarded as liaving been defini- 
 tively overruled, in the court wliere it was decided, by 
 CorJc V. BaJcer, 1 Strange, 34, A. D. 1716. There the 
 plaintiff brought an action in assumpsit in the Common 
 Pleas, setting forth in her declaration the usual allega- 
 tions, showing a breach of a promise to marry her ; and 
 upon non assumpsit pleaded, she had a verdict. Where- 
 upon the defendant moved, in arrest of judgment, "that 
 this parol promise is not good in law." The motion was 
 denied ; the report giving no statement of the reasoning 
 of the court, but only that, ' ' after argument, it was held 
 that this is not within the statute of frauds and perjuries, 
 which relates only to contracts in consideration of mar- 
 riage," and thatP7^^7jp(9^ v. Wallet has been "contradicted 
 by later resolutions." 
 
 § 701. Although the declaration in this case did not show 
 that the promise was verbal, the doctrine that an action 
 will lie for breach of a verbal promise of marriage (unless, 
 by its terms, it is not to be performed within the year), has 
 been since generally acquiesced in, and is now definitively 
 settled, (c) And the express exceptions of such promises 
 from the operation of this provision, which are to be found 
 in many of the American re-enactments of the fourth sec- 
 tion, are merely indications of superfluous caution, {d ) 
 
 § 702. But the ruling attributed to Chief Justice Holt, 
 in Harrison v. Cage, that this clause of the statute is 
 confined to agreements to pay marriage portions, is not 
 
 (c) Bacon's Abridgment, title "Agreement," ch. 3; per Bland, Chancellor, 
 in Ogden v. Ogden, 1 Bland (Maryland), 287; Clark v. Pendleton, 20 Con- 
 necticut, 495 ; per Lord Hardwicke, Chancellor, in Atkins v. Farr, 2 Cases in 
 Equity Abridged, 248 ; Derby v. Phelps, 2 New Hampshire, 515. 
 
 (d) The same ruling has been made under, the provisions of article 2308 
 of the Civil Code of Louisiana (ante, page 46), in Morgan v. Yarborough, 
 5 Louisiana Annual Reports, 316, A. D. 1850, where Slidell, J., in pronounc- 
 ing judgment, said that verbal promises of marriage were sufficient by the 
 Roman law. He added, that the same rule now prevails in France, although, 
 in some parts of that country, there was formerly a statute requiring them 
 to be in writins:.
 
 Art. III.] Antenuptial Agreements. 091 
 
 strictly correct. (c) It embraces all agrecMiients between 
 the future husband and wife, or between either of tliem 
 and any other person, the consideration of wliicli was the 
 completion of the contemplated marring*^ ; whereby any 
 riglits will b(3 acquired, or any liabilities eicated, after the 
 marriage, except such as legally How fiom the matrimo- 
 nial relation. 
 
 § 703. Thus in a New York chancery case, In the matter 
 of^VilloKfjJihy, 11 Paige, 257, A. T). 1844, a petition was 
 presented by the wife of a lunatic, to amend an order of 
 reference directing an inquiry as to the sum proper to be 
 allowed to the wi^fe as the committee of the lunatic's person, 
 for his and her support, so as to include an allowance for 
 the petitioner's daughter by a former husband; on the 
 ground that by a verbal antenuptial agreement, the lunatic 
 liad agreiKl that the daught(U", who was twenty one years 
 of age, should reside in his family and be suppoi'ted by 
 him. The application was denied by the Chancellor, 
 partly upon the ground that the evidence was not suffi- 
 cient to establish the antenuptial agreement ; but also 
 because " the statute is imperative that every agreement, 
 promise, or undertaking, made upon consideration of mar- 
 riage, except mutual promises to marry, shall be void, if 
 not in writing, and subsciibed by the party to be charged 
 therewith." He added : "No claim for the support of the 
 step-daughter can therefore be founded u]ion the supposed 
 agreement stated in the petition ; and the lunatic is not 
 bound to support her in any way." He therefore consid- 
 ered the application as addi-essed to the discretion of the 
 court ; which, he concluded, ought not to be exercised so as 
 to grant the prayer of the; petition, having n^gard to the 
 amount of the property, the claims of other persons, the 
 
 (e) In Jor^en v. Money, 5 House of Lords Case?, 185, counsel, arguendo, 
 referred to Holt's supposed ruling; whereupon, Lord Chancellor Cranworth 
 Answered (p. 207): "That cannot be true. It cannot be to pay marriage 
 portions: it may be to enter into marriage settlements.
 
 692 Antenuptial Agreements. [Ch. xix. 
 
 supposed wishes of the lunatic, if he had been in his right 
 mind, and all the other circumstances of the case.(/') 
 
 § 704. But it is evident that the statute will not avoid an 
 oral agreement, merely because a contemplated marriage 
 constituted the inducement to its execution, provided 
 its obligatory character did not depend upon the subse- 
 quent completion of the marriage. Thus in Jorden v. 
 Money, 5 House of Lords Cases, 185, A. D. 1854, (,^) the 
 plaintiflf founded his title to relief, partly upon an alleged 
 verbal agreement between the plaintiff's father and the 
 female defendant, made in contemplation of the expected 
 marriage of the plaintiff to a young lady not a party to 
 the agreement ; and with a view to aid in the provision to 
 be made for the young couple. The terms of the agree- 
 ment were, substantially, that the defendant would never 
 enforce a bond and warrant of attorney, which she held 
 against the plaintiff; but would and did abandon the debt; 
 and in consideration thereof, the plaintiff's father would 
 desist from his expressed intention to settle upon the 
 plaintiff, as a marriage portion, certain real property, of 
 which he had formerly made a gift to the defendant ; so 
 that the latter should continue in the possession and en- 
 
 (/) In Hair v. Hair, 10 Richardson's Equity (South Carolina), 163, 
 A. D. 1858, the plaintiff filed a bill against her husband for alimony, alleging, 
 as one ground for relief, that as a precedent condition to the marriage, he 
 had promised that he would never remove the plaintiff from the State, or 
 the vicinity of her relatives and friends, without her consent; that in violation 
 of that agreement, he had attempted to compel her to remove with him to 
 Louisiana ; and on her refusing to do so, he had abandoned her, and removed 
 thither with his slaves, etc. The court below held, that although this agree- 
 ment was not in itself a basis for relief, it might be resorted to as an aggra- 
 vation of the defendant's conduct in other particulars, and granted a decree 
 for alimony. But this was reversed by the Court of Appeals. No refer- 
 ence was made in the appellate court, to the effect of the statute of frauds 
 upon the promise, which was adjudged to be void, as an attempt to interpo- 
 late into the marriage contract a "condition in abridgment of the husband's 
 lawful authority over her person, or his claim to her obedience. 
 
 (7) S. C, 23 Law Journal, N. S., Chancery, 865; it is cited again upon the 
 other point, post §§ 752-754.
 
 Art. III.] Antenuptial Agreements. 093 
 
 joyment of the property, without nioh^station. Lord 
 Cranworth, speaking of this agreement, said : "And I may 
 say in passing, that it a])])ears to me tliat tlie allusion 
 which was made in the course of the ai'gument to the stat- 
 ute of frauds in such a case is wholly ina])plicabh' ; it 
 would not apply at all. The contract sought to be enforced 
 against Mrs. Jorden, would \w a contract not to su(^ upon 
 a certain bond, that is not within the statutes of frauds. 
 If there was a valid consideration for that contract, unques- 
 tionably she was bound to perform it." Lord St. Leonards 
 expressly, and Lord Brougham impliedly, assent<'d to this 
 ruling upon the law of the case ; but it was lield by two 
 of their lordships against the oj)inion of the third, that the 
 evidence was not sufficient to prove the making of the 
 agreement. 
 
 § 705. One of the questions presented in the very com- 
 plicated case of Andrews v. Jones, 10 Alabama, 400, 
 A. D. 1846, was disposed of upon substantially the same 
 principle. There it apjwared that before th»' marriage of 
 the defendant Walker, to the daughter and only child 
 of Mrs. Jones, another defendant, the daughter's share 
 of the personal property of her deceased father had been 
 lost by injudicious, and apparently unauthorized invest- 
 ments, made by her mother, who was her guardian ; and 
 that the latter had no part of the property in her posses- 
 sion, except six slaves, which she continued to retain, 
 although the daughter had reached her majority. The 
 mother had kept no account of the daughter's expensi^s, 
 and it was said that if the losses and expenses should be 
 allowed to her, she would owe her daughter little or 
 nothing. It was thereupon agreed between Mrs. Jones, 
 her daughter, and the defendant Walker, "previous to 
 the marriage of the two latter, and in consideration there- 
 of," that the daughter and her intended liusband would 
 never call the mother to an account; "that the six: slaves 
 should be conveyed to her ; and that she should hold them 
 and the estate of her daughter in absolute right." After 
 the marriage, the defendant Walker made a bill of sale of
 
 694 Antenuptial Agreements. [Ch. xix. 
 
 the slaves to Mrs. Jones, who had continued to retain the 
 possession. About five years afterwards, the complain- 
 ants recovered a judgment against Walker ; and an execu- 
 tion having been returned unsatisfied, they filed this bill 
 to reach the slaves and other estate of his wife, insisting 
 that they were entitled to an accounting from Mrs. Jones. 
 The court below made a decree dismissing the bill, which 
 was affirmed upon error. Collier, C. J., delivering the 
 opinion of the Supreme Court, said that the statute of 
 frauds could not impair the effect of the transaction be- 
 tween Mrs. Jones, her daughter, and Walker ; because, if it 
 was a contract, it was executed at the time when it was 
 made ; except perhaps as to the six slaves, and as to them 
 it was subsequently executed. And he also said that in- 
 asmuch as the mother-in-law was not in actual possession 
 of any of her daughter's property, except the slaves, it 
 was immaterial whether the legal proposition insisted on 
 by the plaintiffs, that the possession of a guardian is in 
 law the possession of the ward, even after the latter has 
 attained majority, was sound or otherwise ; because the 
 daughter and her intended husband relinquished the entii'e 
 estate to Mrs. Jones. This disclaimer of title and interest, 
 if it did not operate as a release, prevented her possession 
 of any part of the estate from being transferred by con- 
 struction of law to the daughter, or after the marriage to 
 Walker. Consequently the wife' s equitable interest had 
 never been reduced to possession by the husband ; and in 
 this case her equity was superior to that of the plaintiffs. 
 
 § 706. It seems also that the mere fact that an agreement 
 was to be fulfilled, upon the happening of the marriage of 
 one of the parties, wUl not bring it within the statute, if it 
 was founded upon a distinct consideration unconnected 
 therewith. Although made in contemplation of marriage, 
 such an agreement is not one made upon consideration of 
 marriage. Thus in Peter v. Compton, Skinner, 353, and 
 Lord Holt, 326, A. D. 1693, (^) the question was whether 
 
 (/O S. C, Comberbach. 463.
 
 Art. III.] Antenuptial Agreements. 696 
 
 an action would lie upon a verbal undertakinf?, which is 
 stated to have been "an agreement in which the defendant 
 promised, for one guinea, to give the ])hiiiitiff so many at 
 th«> day of his marriage ;'' and it was held that it was not 
 within the Statute. However the brief reports of the case 
 indicate that the only ])oint taken and discussed, was 
 whether the promise was witliin the lifth (clause of tins 
 section, "for," the reports say, "the marriage did not 
 happen within a year." 
 
 § 707. For obvious reasons, most of the litigation which 
 has arisen upon agreements made in consideration of mar- 
 riage, has been of an equitable character ; and hence the 
 application of the statute to such agieements has been 
 settled almost exclusively by the determination of courts 
 of equity. It will be most convenient to consider many of 
 the cases, in connection with the principles reguhiting the 
 administration of relief in that great branch of equity 
 jurisprudence, the specific performance of contracts ; the 
 questions arising under the statute having been generally 
 presented, either by a suit brought for the specific per- 
 formance of some verbal agreement, which was apparently 
 within its terms ; or by an answ«^r interposed to a bill for 
 equitable relief, wherein the defendant insisted upon the 
 right to such a performance, as a defence to the plaintiflf' s 
 claim. The next chapter will be exclusively devoted to 
 that subject, and the reader will find there many cases 
 illustrating the description of agreements, which the lan- 
 guage of the statute embraces. The cases which follow, 
 although most of them involve questions of that desci'ip- 
 tion, chiefiy turned upon the form and charactei- of the 
 agreement ; the principal point at issue being whether 
 these were such, as to render the statute applicable in the 
 first instance. 
 
 (2) Cases where the agrecmcnl v>as /oumled upon Home distinct consideration, 
 in addition to that of marriage, 
 
 § 708. Questions of considerable nicety sometimes arise, 
 when a party founds his title to equitable relief, upon an
 
 Antenuptial Agreements. [Cli. xtx. 
 
 antenuptial agreement, the consideration of wliicli was 
 not only the future marriage, but also some distinct act 
 in addition thereto, which has been performed by him, 
 or by the person from whom he derives his right of 
 action. It is quite clear that if the additional consider- 
 ation was of such a character, that its performance would 
 entitle the party to the relief which he seeks, if the mar- 
 riage consideration had not been made a part of the 
 contract, the statute will interpose no obstacle to his ob- 
 taining a decree. In such a case, the right to relief results 
 from the fact, that the statute does not make agreements 
 in consideration of marriage illegal, but only prevents 
 their enforcement ; (/) hence the party is at liberty, for the 
 purpose of taldng the case out of the statute, to pass over 
 that part of the consideration which consisted of the mar- 
 riage, and rely upon the performance of the additional 
 consideration. But it often happens that the distinct con- 
 sideration was so intimately connected with, and depend- 
 ant upon the marriage consideration, that the two are 
 incapable of any separation which will enable the former 
 to stand without the aid of the latter. The principle which 
 governs such cases is quite obscure, and has never been 
 clearly defined in the books. Indeed we doubt whether the 
 cases admit of any distinction between the two considera- 
 tions ; for those which appear to have been well decided 
 rested upon a distinct act of performance of the entire 
 agreement, which applied quite as pointedly to the mar- 
 riage consideration, as to the supposed additional consid- 
 eration ; and it is well settled that such performance will 
 take the case out of the statute, without reference to the 
 question whether there were two separate considerations. 
 
 § 709. The doctrine, that a distinct act of performance 
 will take an antenuptial agreement out of the statute, was 
 recognized, but without specifying the characteristic feat- 
 
 (f) The principle is the same if there was no distinct consideration for the 
 antenuptial agreement, but such a consideration was furnished after the mar- 
 riage. Sugden on Vendors, 14th edition, p. 718.
 
 Art. III.] Antenuptial Agreements. 697 
 
 iires of the act wliicli will suffice for that puiiJOHe, in a 
 dictum of Lord Macclesfield, given in one of the reports 
 of Lady Montacute v. 3faxwcU, the leadinu; case under 
 this provision of tlie statutt; ;(,/) but it was more clearly 
 expounded in another case of almost equal celebrity, but 
 of comparatively ret'ent date, llamniersley v. Dc Bitl^ 
 12 Clark and Finnelly, 4.5, A. D. 184.5.(/t) A summary of 
 each of these cases will be given in the following chapti'r ; 
 where, however, Ilammersley v. De Bicl is cited, rather in 
 connection with certain observations of tlu? judge's, which 
 were not strictly necessary to the decision, than so as fully 
 to show the grounds of the judgment upon the merits. 
 Indeed it must be acknowledged that the latter under- 
 taking would be one of some difficulty ; inasmuch as the 
 English courts and elementary writers have not yet ceased 
 to dispute, touching w^hat was really decided in that now 
 noted case. But it is generally conceded, that the judg- 
 ment established one proposition directly in point upon 
 the present subject of inquiry ; namely, that the execution 
 of the instrument by the plaintiff' s father and uncle, by 
 which a jointure of 500Z. per annum was secured to the 
 intended wife upon the family estate in Mecklenburg, was 
 a distinct act of performance of the proposals contained 
 in the memorandum, in addition to the marriage ; wliicli 
 entitled the plaintiff to insist upon performance of so 
 much of the proposals, as the t^^stator had not jierfoniied 
 during his life time. This ap^iears to be the result of the 
 opinions delivered, conceding that the proposals contained 
 in the memorandum constituted a contract within the 
 meaning of this clause of the statute ; and without regard 
 to the q\iestion, whether there was a sufficient signature to 
 the memorandum, either directly or through the medium 
 of the testator's subsequent letter, to satisfy the require- 
 ments of the subsequent poriion of the fourth section. 
 And it will be noticed, not only that this settlement was 
 of no effect, without the subsequent completion of the 
 
 (y) Precedents in Chancery, 526. Tlie remark referred to is copied in the 
 note to § 722, post. 
 
 Qi) See post, §§ 744-747. 
 88
 
 698 Antenuptial Ageeements. [Cli. xix. 
 
 marriage ; but tliat tlie annuity was not to commence till 
 after the termination of the marriage, and only in case 
 the intended wife survived her husband, a contingency 
 which did not in fact occur. 
 
 § 710. In Satterthwaite v. Emley, 3 Green's Chancery 
 (New Jersey), 489, A. D. 1845, Chancellor Haines expressed 
 the opinion that a distinct act of performance by the wife, 
 after the marriage, on the faith of the antenuptial verbal 
 promise, would enable her to sustain, as a purchaser, the 
 husband' s performance of the same agreement in her favor, 
 even against his creditors ; provided she could establish 
 the antenuptial promise by sufficient evidence. The bill 
 was filed by the trustee of the wife against the husband 
 and his judgment creditors. It alleged that the husband 
 and wife made an antenuptial agreement, to convey the 
 wife' s real and personal property, upon certain trusts for 
 her benefit ; that after the marriage, they conveyed the 
 real estate to the husband' s son by a former marriage, who 
 immediately reconveyed it to his father ; this being a tem- 
 porary arrangement, pending the selection of a trustee, 
 made in consequence of the husband' s representations to 
 his wife, that he would otherwise derive no benefit from 
 her property in case of her death ; and that afterwards 
 they united in a deed of trust to the complainant, in con- 
 formity with the antenuptial agreement and reciting the 
 same ; but that meanwhile the lien of the judgment at- 
 tached, &c. The Chancellor decreed that the trust deed 
 should stand, as against the husband and all claiming 
 under him, but not against the creditors ; dismissing the 
 bill as to the latter, on the ground that the evidence, (which 
 consisted of the recitals in the deed and the husband's 
 postnuptial declarations), were not sufficient to establish 
 the antenuptial agreement as against them. But he said 
 that if the evidence had been sufficient, he would have 
 inclined to give validity to the settlement, because "such 
 settlement could not be considered voluntary, but upon 
 a good and valuable consideration, to wit, the marriage, 
 and the conveyance of all the wife's estate.'
 
 Art. iii.l Antenuptial Agkeements. 699 
 
 § 711. And in Dygcrt v. Remerschnider^ 32 New York, 
 629, A. D. 1865, the New York Court of Appeals marked 
 out very clearly and satisfactorily, the distinction between 
 a verbal agreement in consideration of marriage only, and 
 one where there was an additional consideration, ])erform- 
 ance of which would of itself entitle the party to relief, 
 and which was connect<'d with the marriage only because 
 its performance depended upon the accomplishment of 
 the latter. This was an action brought against George 
 Remerschnider and his wife Catharine, by a judgment 
 creditor of George, to set aside a conveyance of real estate, 
 made by him to his wife, through an intermediate grantee. 
 It appeared that in 1854, George and Catharine intermar- 
 ried ; having previously made an oral agreement, by tlie 
 terms of which the parties were to intermarry, and Catha- 
 rine was to pay the debts which George then owed, and' 
 he was to convey to her the premises in question. Tlie 
 amount of his debts was about equal to the value of the 
 property ; and after the marriage, she paid them in full ; 
 first applying thereto certain moneys which she owned at 
 the time of her marriage, and after\j'ards, from time to 
 time, other moneys, which she earned by working at her 
 trade, with the assent of her husband. (/^) The latter fre- 
 quently promised to convey the property to her ; but neg- 
 lected to do so till 1861, after the commencement of the 
 action, in which the plaintiff recovered his judgment. 
 The debt to the plaintift' was contracted in 1860 ; and, as it 
 is to be inferred from a statement in one of the opinions, 
 after Catharine had paid all her husband' s debts, existing 
 at the time of the marriage. TIk^ com])laint was dismissed 
 at special term ; and the plaintiff appealed to the g<Mieral 
 term, where the judgment was reversed, and a new trial 
 ordered. The defendants then appealed to the Court of 
 
 (J) According to the married woman's acts, then in force in New York, 
 the moneys which she owneil at the time of her marriage, were Catharine's 
 separate property; but her earnings after marriage belonged to iier liusband. 
 It was also provided tiiat all contracts made between persons in contempla- 
 tion of marriage, should remain in force, after the marriage had taken place.
 
 700 Antenuptial Agreements. [Cli. xix. 
 
 Appeals, where the last mentioned order was reversed, and 
 the original judgment affirmed. The decision of the Court 
 of Appeals, as far as this question was involved, was put 
 upon the ground, that there was a consideration for the 
 contract, entirely independent of the marriage, perform- 
 ance of which, hy the wife, was sufficient of itself to en- 
 title her to relief ; so that the husband had really done 
 only what he might have been compelled to do, by a court 
 of equity, upon her application, (m) 
 
 (m) Three opinions in favor of a reversal were delivered in the Court of 
 Appeals. Davis, J., said that the real question was whether Catharine, after 
 paying her husband's debts, had any rights which a court of equity would 
 recognize. That she had none, based solely upon the consideration of mar- 
 riage, because the statute of frauds avoids an oral agreement founded upon 
 that consideration ; so that the conveyance could not be sustained, against 
 the plaintiff, as the consummation of an agreement based upon an executed 
 promise of marriage. But the agreement had another consideration, suffi- 
 cient to uphold it, after its execution without any fraudulent intent, namely, 
 Catharine's promise to pay her husband's debts, and her actual payment of 
 them. The force of this contract was preserved, notAvithstanding the mar- 
 riage, by the married woman's acts. She performed it, partly with means, 
 to which she had exclusive title, and partly with means, which were in sub- 
 stance the gift of her husband to her, namely her own earnings. He had 
 a right to give these to her, as against a creditor whose debt was contracted 
 long afterwards. And he would have had no right to deny that she had 
 fully performed her agreement, on the ground that he had given her the 
 money with which she did so. She was therefore entitled to a conveyance 
 before the plaintiff's debt was contracted; and he had done only what he 
 was bound to do, by making the conveyance to her. Her equity was prior 
 to the plaintiff's; and it ripened into a title, before the plaintiff acquired a 
 lien. Wright, J., said that even if the conveyance was voluntary, the plaint- 
 iff, although an existing creditor of the grantor, was not entitled, (under the 
 provisions of the New York statute against fraudulent conveyances), to set it 
 aside, unless it was fraudulent in fact; and there wasno finding to the effect 
 that it was made with a fraudulent intent, or any proof of such an intent. 
 But he thought that it was not voluntary. "It did not rest solely, or even 
 principally, upon the consideration of marriage." It was an agreement for 
 the purchase of the real estate; the character of which was not altered by 
 adding, to a money consideration, that of marriage. The learned judge then 
 followed substantially the argument of Judge Davis, respecting the mode of 
 performance by the wife, the effect of the appropriation of her earnings 
 thereto, and her rights against her husband after performance. Potter. J.,
 
 Art. III.] Antenuptial Agreements. 701 
 
 § 712. But other cases do not pcmiit the dividing line 
 between the two considerations, to be drawn so clearly and 
 and satisfactorily. Such was Crane v. Goiir/li, 4 Mary- 
 land, 1316, A. 1). 1853 ; wlicrein tlic^ Court of Appeals 
 reversed the Chancellor's decision, reported in 3 Maryland 
 Chancery Decisions, 119. This was a bill lih'd by tlie 
 administrator of Mary Crane against the executors of 
 George Crane, setting forth that the plaintiff's intestate 
 and. the defendants' testator intermarried ; that the hus- 
 band survived the wife ; that at the time of the marriage, 
 Mrs. Crane was the owner and possessor of certain notes 
 and bonds ; that her husband did not during his life time 
 reduce them to possession ; that they were payable to Mis. 
 Crane by her antenuptial name, and had never been in 
 dorsed or assigned by her ; and that they were in the pos- 
 session of the defendants, {n) The plaintiff thereupon 
 pmyed a decree, that they be delivered up to him for dis- 
 tribution, etc. The defendants interposed as a defence, an 
 antenuptial contract between Mrs. Crane and her hus- 
 band ; whereby, in consideration of the marriage, then 
 about to take place between them, she gave him the notes 
 and bonds, to become his property when the marriage 
 should take place. The evidence tended to prove a de- 
 livery of the bonds to Col. Crane, and an agreement by 
 him to allow to his intended wife the interest thereon, as 
 pin money ; and the appellate court thought that tlie de- 
 livery, as well as the agreement, was antenuptial. But 
 there was no proof of any postnuptial performance of the 
 
 concurred, upon both points, in an opinion of considerable length. He also 
 said that it was not necessary to resort to the married woman's act, in order 
 to sustain the contract after marriage, as equity would have enforced it if that 
 statute was not in existence, Catharine having not only fully performed it, 
 but also taken possession of the property under it. It was therefore equita- 
 bly her property, for several years before she procured the legal title ; and 
 equity would make the conveyance relate back to the time when it should 
 have been given. 
 
 {n) By a Maryland statute, if a husband fails to reduce to possession 
 his wife's choses in action, during their joint lives, or after her death, (if he 
 shall survive her,) they devolve upon her representatives at his death.
 
 702 Antenuptial Ageeements. [Ch. xix. 
 
 husband's agreement to allow liis wife the interest. The 
 Chancellor granted a decree ; but the Court of Appeals 
 reversed it and dismissed the bill. The latter decision 
 was very distinctly i)ut upon the ground that the contract 
 was executed by Mrs. Crane, before the marriage, by 
 placing the bonds in the hands of her future husband. 
 This, the court thought, would have entitled her to main- 
 tain a bill against her husband for the payment of the 
 interest ; and a fortiori, would entitle the defendants to 
 sustain their possession of the subject matter of the con- 
 tract, after it had been executed, (o) 
 
 § 713. In this case it seems to be impossible to separate 
 the two considerations ; but the decision may probably 
 
 (o) The following extract from the opinion of Le Grand, C. J., states the 
 substance of the decision, as far as it involved the question now under ex- 
 amination: '"The declarations of Mrs. Crane, prior to her marriage, went to 
 the extent of showing thai she had given up her notes and bonds to Col. 
 Crane ; and those made to Dr. Jones, shortly after the marriage, in the 
 presence of her husband, amount to an acknowledgment of its fulfilment. 
 Now although marriage is not per se a part performance, sufficient to take a 
 case out of the statute, it is nevertheless a sufficient consideration for the 
 contract, and one which courts regard with especial favor, as of most meri- 
 torious character. The declarations of Mrs. Crane, prior to the marriage, 
 indicate with sufficient clearness its terms ; and those immediately after its 
 solemnization, are, in our judgment, equivalent to an acknowledgment of its 
 execution on her part; and w;e are therefore warranted in the conclusion, 
 that the possession of Col. Crane was obtained under the contract, and not 
 in virtue of his rights as husband. If the bonds, etc., were in possession of 
 Col. Crane jure mariti, she need not have said any thing on the subject; the 
 law passed the title and right of possession. But in these conversations, she 
 speaks of her having given the bonds, etc., and must be considered as refer- 
 ring to what was done under the agreement, and it is evident she was so 
 understood by those to whom she addressed herself. Had she proceeded 
 against Col. Crane, and had he acknowledge lii^ received the securities 
 under the contract now relied upon by the defendants, a court of equity would 
 have decreed in favor of the wife. (Jn the whole we think the evidence 
 sufficient to show such an execution of the contract, as to withdraw the 
 case from the operation of the statute of frauds." The decision in this case 
 was also partly put upon the ground, that the statute did not apply to a de- 
 fe7ice, founded upon a parol agreement, which could not have been enforced 
 by action.
 
 Art. III.] Antenuptial Agreements. 703 
 
 be upheld, (apart from the ground tliat the husband's 
 executors were acting merely on the defensive,) because 
 there was a distinct act of performance of the agreement, 
 in addition to the marriage ; the notes and bonds having 
 been delivered over by the intended wife. But the case 
 next to be cited appears to be open to considerable criti- 
 cism, with respect to the effect given by the court to the 
 act of performance ; as well as the att^'uipt to distinguish 
 between the marriage consideration, and that which was 
 resorted to to uphold the transaction. 
 
 § 714. Tills was Riley v. Riley ^ 26 Connecticut, 154, 
 A. D. 1856, where an appeal was taken from the decision 
 of the commissioners upon the estate of a deceased person, 
 allowing a claim against the estate ; and after a trial in the 
 appellate court, the questions of law were reserved for the 
 opinion of the Supreme Court of Errors. The claimant 
 was the widow of the deceased ; and the testimony showed 
 that, about seven years before the marriage, she loaned to 
 the deceased three hundred and twenty dollars, taking 
 therefor his notes payable upon demand, no marriage being 
 then contemplated between them ; but shortly before their 
 marriage, and in contemplation thereof, she " spoke to the 
 deceased about the payment of the notes : he replied that 
 it would be inconvenient for him to pay them then ; that 
 they would be good against his estate. She told him that 
 she did not want to be left in the hands of his relatives, 
 and he replied that she should not be." It was further 
 proved that he told her, both before and after the marriage, 
 "to keep the notes, and they would be good against his 
 estate ;" that she kept them during the coverture ; and 
 that he repeatedly said to her relatives that he owed her 
 the money, and if he did not pay the notes in his life 
 time, they would be paid out of his estate. The notes 
 were read in evidence, but the remainder of the evi- 
 dence was oral, and the administrator objected to its 
 reception. After argument, the Supreme Court deter- 
 mined that the oral evidence was admissible, and the
 
 704 Antenuptial Agreements. [Cli. xix. 
 
 court below was accordingly advised to render Judgment 
 for the appellee. (^:>) 
 
 (p) The opinion was delivered by Ellsworth, J., who first stated that if 
 the widow's claim could be upheld, upon either legal or equitable principles, 
 the appeal could not be sustained under the statute regulating the proceed- 
 ings ; that the parties, being aware that the notes would be extinguished by 
 the marriage, undertook to guard against that result by the promise of the 
 deceased, that if the claimant would forbear to insist up^n payment before 
 marriage, the notes should not be extinguished; but should remain good and 
 collectible out of his estate, and survive to the petitioner like any other 
 of her choses in action which he should forbear to collect during the cover- 
 ture; and that they should continue to be her separate estate. This interpre- 
 tation of the language, said the learned judge, is not free from all question ; 
 but it appears to be only just and reasonable, when it is considered that the 
 parties intended that the notes should remain in force after the marriage, 
 which could be done only by a new promise, founded upon foibearance. It 
 appears, he continued, that Riley undertook that these notes should not fall into 
 his estate, but should remain and survive to the petitioner, like any other choses 
 in action which he should forbear to collect during the coverture; and that 
 they should continue to be her separate estate. If this is the true construction, 
 it could be enforced at law, for it was a promise to be performed after the cov- 
 erture had ceased. The learned judge then proceeded: "As to the objection 
 derived from the statute of frauds and perjuries, we think there is no ground 
 for it. The antenuptial promise was made in consideration of forbearance, 
 and not in consideration of marriage, though it was made in contemplation 
 of marriage; which is not inconsistent with the claim of the appellant's 
 counsel, that, a promise in consideration of marriage must be in writing. 
 Marriage was not the meritorious cause of Riley's promise ; the marriage 
 obligation was already perfect; and the promise in question was made upon 
 the assumption that it was so, and for the exact purpose of saving the notes 
 from the effect of the marriage, when the marriage contract should be exe- 
 cuted. No advancement or benefit was to accrue to either party in the event 
 of the marriage, any more than if it did not take place ; and hence it is not 
 possible to consider marriage as the consideration of the promise. It was 
 the debt ; the forbearance of it ; and this forbearance having been extended 
 upon the request of Riley, and continued until his death, there is no reason 
 why his estate should not be liable." The learned judge said that this was 
 all which it was necessary to decide, in order to dispose of' the case; but he 
 proceeded to consider some other points. He thought that the claim might 
 also be sustained on the ground, that in equity the transaction was in efiect 
 the same, as if the husband had promised that the note of a stranger, owned 
 by her at the time of the marriage, should be kept as her separate property, 
 and survive to her ; and in that aspect of it, these notes were her separate 
 estate, which he held as her trustee ; or the transaction might be regarded 
 as a postnuptial gift, to which no one but creditors could object.
 
 Art. III.] Antenuptial Agkeements. 705 
 
 § 715. The court appears to have assumed, in this case, 
 that because Riley had already promised to marry the peti- 
 tioner, the agreement could not have been made in consider- 
 ation of marriage ; which is equivalent to saying that an 
 antenuptial contract is one made in consideration of a prom- 
 ise of marriage ; a projDosition of which we have endeavored 
 to show the fallacy, in the foregoing pages. And upon the 
 point that there was any thing distinct from tlie marriage, 
 either as a consideration or as an act of performance, the 
 case is unsatisfactory, and, we think, of dangerous ten- 
 dency. It is quite clear that tli(? ugieement for forbearance 
 was, in legal effect, only a promise, on the part of the 
 woman, to leave her antematrimonial rights in abeyance, 
 awaiting the accomplishment of the marriage ; and that she 
 never parted with her right to enforce the notes, as a con 
 sideration for the promise on the part of the husband ; 
 theu- extinguishment having resulted, not fi-om the forbear- 
 ance, but from the subsequent marriage. There was, there- 
 fore, no legal consideration for her promise to forbear, or 
 for her actual forbearance ; and nothing beyond the mar- 
 riage furnished by either party, except a voluntary for- 
 bearance on one side, and a void promise on the other. 
 Upon the hypothesis, which the court adopted, it would 
 seem clear, that if the match had been broken off by the 
 petitioner, she could not have collected the notes ; for if 
 the agreement bound her, a plea of the agreement and 
 semper paratus would have afforded a perfect defence to 
 an action in her favor. 
 
 § 716. Again, in order to entitle a party to a decree for 
 the performa^ice of an agreem(3nt within the statute, he 
 must have done some specific act, in pursuance of the 
 contract. Mere acquiescence in the previously existing 
 condition of the subject matter of the alleged agreement 
 will not suffice ; because it does not necessarily imply 
 that any new agreement had been made. (5') This princi- 
 
 (5) Thus where a tenant alleges that he made a verbal contract with his 
 landlord for a new term, or for the purchase of the property, his merely 
 remaining in possession is not an act of performance on his part; nor is the 
 89
 
 706 Antenuptial Agreements. [Ch. xix. 
 
 pie was completely disregarded by the ruling adopted 
 in Riley v. Riley ^ and its soundness is manifested by the 
 consequences to which that ruling will lead. For if a 
 verbal request on one side, and a verbal assent on the 
 other, followed by no visible act, is to set the statute aside, 
 it is quite clear that but little will be left of the provision 
 that agreements in consideration of marriage must be in 
 writing. Thus a woman's forbearance, at the request of 
 her intended husband, to put her property in the hands of 
 trustees, would sustain his verbal promise that she should 
 enjoy and dispose of it after marriage, as a feme sole. The 
 list of such cases might be almost indelinitely extended, (r) 
 
 § 717. The case of FincTi v. Fincli, 10 Ohio, New Series, 
 501, A. D. 1860, is a direct ruling against the doctrine of 
 Riley v. Riley. There, the widow of Ira Finch, deceased, 
 filed a petition for admeasurement of dower against his 
 devisees ; to which they interposed an answer, setting 
 forth three defences, the second being a verbal agree- 
 ment between the petitioner and the deceased, in con- 
 templation of their marriage, to the effect that she should 
 retain and absolutely control the property which she 
 owned, consisting of personal property and a dower 
 estate in the lands of a former husband, and that upon 
 her decease her property should all go to her children by 
 her former husband ; and on the other hand, that if she 
 survived him, she would relinquish all title and interest 
 to his estate, real and personal, to his legatees and de- 
 visees, and would make no claim thereon. It was further 
 alleged that the agreement had been executed, by the reten- 
 tion, enjoyment, and disposition of her property by the 
 petitioner, during the marriage. A motion having been 
 made in the court below, to strike this answer from the 
 
 landlord's acquioscence in his continued possession an act of performance on 
 the part of the latter. Sugden on Vendors, 14th edition, chapter iv, sec. vii, 
 p. 152; 1 Story's Equity Jurisprudence, 8th edition, §§ 762, 763; Browne 
 on Frauds, § 477; and numerous cases cited by each author. 
 
 (r) Several of the cases cited in the next chapter are directly in point 
 against this ruling, particularly Caton v. Caton, post §§ 756-758.
 
 Art. III.] Antenuptial Agreements. 707 
 
 files, on the ground tlint the agreements therein set forth 
 were within the statute; of frauds, the case was reserved 
 for the decision of the Supreme Court, where it was deter- 
 mined that the answer was insufficient in all its branches. 
 Upon tlie question wliethor the second defence was suffi- 
 cient, Brinkerhoff, C. J., said: "The antenuptial agree- 
 ment, set forth in the second defence alleged in the answer, 
 was clearly an agreement ' upon consideration of mar- 
 riage.' It is true, marriage was not the sole consideration 
 for the agreement, on the part of the intended wife, that 
 she would not demand dower, in case she survived her 
 intended husband ; his agreement not to exercise the 
 rights, in respect to her property, which the marriage 
 would confer, constituted an additional consideration for 
 the agreement on her part ; but tlie agreement was entire ; 
 the intended marriage entered into and formed part of the 
 entire consideration on both sides ; and without it the 
 agreement never would have been made."(5) 
 
 § 718. It is difficult, and perhaps impossible, to lay 
 down any rule, which will furnish a correct test for every 
 case of this description. But it would seem clear upon 
 principle, that when a party insists upon the right to 
 take a case out of the statute, on thfe ground that there 
 was a distinct consideration for the verbal promise, in 
 addition to the marriage, the additional consideration 
 must have been of such a character, that it gave the other 
 party to the contract, or some person within the scope of 
 the consideration, some legally enforceable right, which 
 he would not otherwise have enjoyed. If it answers this 
 description, the principle is the same, whether the right 
 was to be enjoyed before the marriage, during its exist- 
 ence, or only after its termination ; or even, in the latter 
 event, only in case the person for whose benefit it was 
 created, should survive till the marriage was terminated. (^) 
 
 (s) The question whether there had been such a performance of tlie ante- 
 nuptial agreement, as would take it out of the statute also arose in this case; 
 which is cited ajjain, in that connection in the following chapter. 
 
 (/) See Houghton v. Houghton, 14 Indiana, 505, and another citation of 
 Finch V. Finch, post ^§ 737, 738.
 
 CHAPTER TWENTIETH. 
 
 PECULIAE EFFECT, UPON" THE AGREEMENTS WHICH FALL 
 WITHIN THIS PROVISIOlSr, OF THE EQUITABLE DOCTRINES, 
 WHEREBY RELIEF IS GRANTED TO A PARTY, WHO HAS 
 PERFORMED HIS PART OF A VERBAL AGREEMENT. 
 
 § 719. In a subsequent part of this work, we shall bestow 
 considerable attention upon the effect, at law and in equity, 
 of partial or complete performance of verbal agreements, 
 falling within the terms of the statute of frauds. In gen- 
 eral, the relief granted by the courts, in such cases, is 
 regulated by the same principles, under whatever clause 
 the question is presented ; but in cases arising upon agree- 
 ments made in consideration of marriage, the application 
 of some of these principles becomes exceptional, and leads 
 to results, directly contrary to those which are attained, in 
 cases arising under the other clauses. For while the 
 statute describes the other verbal promises which it 
 embraces, according to their form or subject matter ; 
 whereby room is left for equity to lay hold of the perform- 
 ance by the party seeking relief, upon the faith of the 
 promise, as a circumstance taking the case without the 
 supposed intent of the legislature ; this clause is so framed 
 that the statute is set in motion, by the very fact, upon 
 which the equity jurisdiction rests. And unless the stat- 
 ute applies to every such case, it applies to none ; for, 
 with respect to questions arising upon the sufficiency of 
 the performance, all the cases are equally meritorious. 
 The consideration is of a character so peculiar, (being, as 
 we have already seen, the highest known to the law, and 
 from its nature rendering a restoration to the status quo 
 impossible), that it always satisfies the conditions affixed 
 to the equitable right to relief. Hence arise sundry per- 
 plexing questions, peculiar to this species of contract.
 
 Art. I.] Antenuptial Agreements. 709 
 
 ARTICLE I. 
 
 Whether marriage itself is snoh a performance, as to call into operation the equitable mle. 
 
 § 720. There is some authority for the proposition, that 
 when a marriage has been contracted upon the faith of a 
 verbal promise, equity will not suffer the statute to be 
 interposed to defeat an action by the promisee for specific 
 performance, (a) But, as we have already remarked, the 
 language of the statute is such, that this proposition is 
 equivalent to denying that courts of equity are subject to 
 its provisions. And the scattered dicta to be found in the 
 books, in support of such a doctrine, cannot prevail in 
 opposition to the express language of the act, and the 
 steady current of decisions, which has long run in the con- 
 trary du-ection. 
 
 § 721. The ruling of Lord Chancellor Macclesfield, in 
 the earliest case of all, has never been successfully ques- 
 tioned upon principle, or overruled by authority. We 
 
 (a) Mr. Justice Story,in Jenkins v. Eldridge, 3 Story, 181, speaking of the 
 principle tliat equity would^not relieve in such cases, where there was no 
 actual fraud, said : '• I douht the whole foundation of the doctrine, as not 
 distinguishable from other cases, which courts of equity are accustomed to 
 extract from the grasp of the statute of frauds." But the remark was entirely 
 obiter. There is no expression of such an opinion, in the earlier editions 
 of his Equity Jurisprudence, but we find in the eighth edition (§ 987, a), a 
 comment, added by Judge Redfiold, upon Warden v. Jones, cited post §731, 
 substantially to the same effect. And a similar opinion was expressed, but 
 also obiter, by Chancellor Dargan, in Hatcher v. Robertson, 4 Strobhart's 
 Equity (South Carolina), 182, A. D. 1850, and by Chancellor Wardlaw, in 
 Hair v. Hair, 10 Richardson's Equity (South Carolina), 1G5, A. D. 1858. To 
 the same effect were the remarks of Benning, J., in Durham v. Taylor, 29 
 Georgia, 166, A. D. 1859; where he argued that, if a marriage is necessary, 
 in order to bring a case within the statute, antenuptial agreements must be 
 excluded from it; because the consideration of such an agreement is a prom- 
 ise to marry; that the marriage is the performance of the promise, which 
 formed the consideration, and not the consideration itself; and that such 
 performance, upon every principle of equity, entitles the other party to 
 relief, in consequence of the impossibility of restoring him to the status quo. 
 Tiiis doctrine is commented upon, ante, §§ 687-689.
 
 710 Antenuptial Agreements. [Cli. xx 
 
 refer to Lady Montacute v. Maxwell. 1 Peere Williams, 
 618, decided in the year 1720. There the plaintiff brought ■ 
 a bill against her husband, setting forth that before the 
 marriage, he promised that she should enjoy all her estate 
 to her separate use ; that he had agreed to execute writ 
 ings accordingly, and had instructed counsel to draw 
 them ; but when they were about to be married, the writ- 
 ings not being perfected, he " desired this might not delay 
 the match, in regard to his friends being there, it might 
 shame him ; but engaged that upon his honor she should 
 have the same advantage of the agreement, as if it were 
 in WTiting, drawn in form by counsel, and executed;" 
 whereupon the marriage took place ; and afterwards, 
 being reminded of his promise, he wrote a letter to her, 
 expressing that he was always willing that she should 
 enjoy her own fortune as if she was sole, and that it 
 should be at her command. To this the defendant pleaded 
 the statute, and averred that he never signed any promise 
 or agreement before marriage, that she should enjoy her 
 estate separately. 
 
 § 722. After argument the Lord Chancellor allowed 
 the plea. He said: "In cases of fraud, equity should 
 relieve, even against the words of the statute ; as if one 
 agreement in writing should be p'roposed and drawn, and 
 another fraudulently and secretly brought in, and executed 
 in lieu of the former ; in this or such like cases of fraud, 
 equity would relieve ; but where there is no fraud, only 
 relying upon the honor, word, or promise of the defend- 
 ant, the statute making these promises void, equity will not 
 interfere ; nor were the instructions given to counsel for 
 preparing the writings material, since after they were 
 drawn and engrossed, the parties might refuse to execute 
 them ; and as to the letter it consists only of general ex- 
 pressions, as 'that the estate should be at the plaintiff's 
 command, or at her service.' Indeed, " continued his Lord- 
 ship, "had it recited or mentioned the former agreement, 
 and promised the performance thereof, it had been ma- 
 terial : but as this case is circumstanced, allow the plea ;
 
 Art. I.] Antenuptial Agreements. 711 
 
 also tliis plea was in bar of a discovery as to all matters, 
 wliicli, if discovered and admitted, might be barred by 
 the statute, so far may the statute be pleaded in l)ar of 
 such discovery." (&) 
 
 (b) The plaintiff afterwards amended her bill, further charging that the 
 defendant, in order to induce her to marry him, without a settlement, and to 
 secure the performance of his promise to execute it afterwards, promised 
 to take the sacrament on it, and did take the sacrament accordingly ; and 
 that he wrote a letter after tlie marriage, wherein he promised to make such 
 settlement, and that he was ready to sign the writings according to her de- 
 sire. The defendant answered, that he tool^ the sacrament, only in compli- 
 ance with the custom of his (the Roman) church, to take the sacrament on 
 marriage ; and as to the letter, he did not remember the particulars ; but it 
 he had written any thing concerning his readiness to sign any writings, it 
 related to some proposals he had made of settHng 1,500/. on her, which he 
 soon afterwards did. He then again pleaded the statute. The Lord Chancel- 
 lor thought the case very much altered by the new circumstances ; that at first 
 it stood purely upon the parol promise, upon which there was no color to 
 relieve the plaintiff; but that such a parol promise, was a sufiBcient consider- 
 ation to support a postnuptial settlement, or to establish a postnuptial 
 promise in writing; and upon a consideration of the facts, he thought 
 that there was great evidence of a promise in writing after marriage ; 
 wherefore the plea was ordered to stand for an answer. 1 Strange, 236. 
 The case is also briefly reported in 1 Equity Cases Abridged, 19, and 
 Precedents in Chancery, 526; but it is impossible to determine with cer- 
 tainty whether either report relates to the case made by the original, or 
 by the amended bill. In the former it is intimated, that the defendant pri- 
 vately countermanded the instructions for drawing the settlement, and that 
 the plaintiff was drawn in to many him, " by persuasions and assurances of 
 such settlement." The latter represents Lord Macclesfield's judgment to 
 have been : " Where the parties come to an agreement, but the same is never 
 reduced into writing, nor any proposal made for that purpose, so that they rely 
 wholly upon their parol agreement, that unless this be executed in imrt, neither 
 party can compel the other to a specific performance, for that the statute 
 of frauds is directly in their way ; but if there were any agreement for re- 
 ducing the same into writing, and that is prevented by the fraud and prac- 
 tice of the other party, that this court will in such case give relief; as where 
 instructions are given, and preparations made for the drawing of a marriage 
 settlement, and before the completing of it, the woman is drawn by the 
 assurances and promises of the man to perform it, and after to marry him." 
 Mr. Roberts, it appears to us, strangely misquotes and misunderstands the 
 last sentence of this remark, Roberta on Frauds, 198; followed in Erowne 
 on Frauds, § 444.
 
 712 Antenuptial Agreements. [Cli. xx. 
 
 § 723. The doctrine that where the aggrieved party has 
 relied upon the promise only, the court can afford no 
 relief, has been re-asserted and sanctioned by numerous 
 subsequent decisions in England and in the United States. 
 It rests, by common consent, upon the express language of 
 the statute, and the impossibility of otherwise giving any 
 practical effect to the clause in question. As Lord Cotten- 
 ham remarked in Lassence v. Tierney^ 1 Macnaghten and 
 Gordon, 671, 572: "A parol contract, followed only by 
 marriage, is not to be carried into effect, marriage being 
 no part performance of the contract. If it were, there 
 would be an end of the statute, which says that a contract 
 in consideration of marriage shall not be binding unless it 
 be in writing ; but if marriage be part performance, every 
 parol contract followed by marriage would be binding, "(c) 
 
 § 724. And although soon after the passage of the stat- 
 ute it was suggested by Lord North, in two cases arising 
 under another clause of this section, that a distinction was 
 admissible, between a case where the party relied merely 
 upon a promise to do a certain act, and one where it was 
 agreed that a writing should be executed, binding him to 
 do the act,((^) this idea is now abandoned ; and it is con- 
 ceded that in the absence of any trick or fraud, no such 
 distinction can be sustained, under whatever part of the 
 statute the question arises, (e) Where it was agreed that 
 
 (c) See also Atherley on Marriage Settlements, 90; Reeve's Domestic 
 Relations, 3d edition, 215; Per Sir John Romilly in Warden v. Jones, 23 
 Beavan, 492 ; Per Lord Thurlow, in Redding v. Wilkeg, 3 Brown's Chan- 
 cery, 400; Per Brinkerhoff, C. J., in Finch v. Finch, 10 Ohio, New Series, 
 506; Per Lord Thurlow in Dundas v. Dutens, 1 Vesey, 199. 
 
 {d) Hollis V. Whiteing, 1 Vernon, 151, A. D. 1682 ; Leak v. Morrice, 2 
 Cases in Chancery, 135, in the same year. 
 
 (e) Beames's Pleas in Equity, 181, 182 ; Per Lord Thurlow, in Whitchurch 
 V. Bevis, 2 Brown's Chancery, 564, 565 ; Warden v. Jones, 2 De Gex and 
 Jones, 76, cited more fully post, § 731; Wood v. Midgley, 5 De Gex, Mac- 
 naghten and Gordon, 41 ; Spurgeon v. Collier, 1 Eden, 55, post, § 730; 
 Hackney v. Hackney, 8 Humphreys (Tennessee), 452, cited in the next sec- 
 tion; Lassence v. Tierney, 1 Macnaghten and Gordon, 551, post, § 748.
 
 Ai't. I.] Antenuptial Agreements. 71 ;s 
 
 a writing should be executed, but its execution was pre- 
 vented by an accident ; and the pai-ty, knowing that it had 
 not been executed, nevertlieless married, an action cannot 
 be sustained to enforce the parol agreement. (/) As for 
 instance where a parent or other relative promised to give 
 a portion with an intend(^d wife, and directed that the 
 necessary "WTitings should be prepared ; but before they 
 were executed, he died, and the marriage subsequently 
 took place. In such a case, the party is without remedy, 
 even though the agreement contemplated a settlement by 
 him, which he executed after the death of the other party, 
 but before the marriage, {g) 
 
 % 725. There is an American case, which is almost a 
 counterpart of that which came before Lord Macclesfield ; 
 we refer to Hackney v. Hackney^ 8 Humphreys (Tennes- 
 see), 452, A. D. 1847. There a wife filed a bill against her 
 husband, for the specific performance of an antenuptial 
 promise to settle upon her certain slaves, of which she 
 was the owner at the time of her marriage ; charging that 
 he had no intention of performing the agreement when he 
 made it, and intended a fraud upon her. It appeared that 
 the complainant had urged the defendant, before the mar- 
 riage took place, to execute a settlement of her property 
 upon her ; but he had refused to do so, on the ground "that 
 such a course was in violation of all his preconceived opin- 
 ions, concerning the anticipated relation of husband and 
 
 (/) Spiirgeon v. Collier, 1 Eden, 55, post, § 730 ; Warden v. Jones, 2 De 
 Gex and Jones, 76, post, § 731. In Wanchford v. Fotherly, Freeman's 
 Cliancery, 201, A! D. 1694, it is said that Lord Somcrs cited the case of 
 "Masquill, etc., where writings were prepared and agreed, but being blotted, 
 were ordered to be writ fair, and were so ; but before they were sealed the 
 party died ; and this court charged the executor with the portion agreed to 
 be paid." But this is probably an incorrect statement of the case of Cookes 
 V. Mascall, post, § 727. 
 
 {g) Bawdes v. Amhurst, Precedents in Chancery, 402, A. D. 1715; Lady 
 Thynne v. Lord Glengall, 2 House of Lords Cases, 131 ; S. C, 12 Jurist, 805, 
 A. D. 1848. But the case might be different, if the future husband had exe- 
 cuted the se^,tlement before the death of the other party. Hammersley v. 
 De Biel, post, §§ 744-747. 
 90
 
 714 Antenuptial Agkeements. [Oh. xx. 
 
 wife ; tliat it was calculated to impair the independence of 
 the husband, and to subject them both to the strictures 
 and animadversions of others." But he also repeatedly- 
 promised her, that she should control her property, un- 
 affected by his marital rights ; and that after the marriage 
 was consummated, he would execute such a settlement. 
 The Supreme Court affirmed a decree of the chancellor, 
 dismissing the bill. Turley, J., delivering the opinion, 
 said that he was satisfied that the defendant never had 
 intention.to fulfil the promise, and had practiced a "gross 
 and inexcusable fraud " upon the complainant ; but it was 
 not a fi-aud which took the case out of the statute. He 
 refused to make any settlement before marriage, and she 
 had relied upon Ms promise to make it after marriage. She 
 therefore knew that there was no valid antenuptial con- 
 tract, and though the court would gladly relieve her from 
 the consequence of her "ridiculous and imprudent confi- 
 dence," it was impossible to do so without impairing the 
 statute. 
 
 § 726. The distinction suggested in Montacute v. Max- 
 well, that the court will relieve, notwithstanding the 
 statute, whenever there has been any actual fraud, had 
 already been taken in several previous cases ; and with 
 respect to that question, there is nothing peculiar to this 
 class of agreements, except that perhaps the courts are 
 inclined to extend the doctrine somewhat further, where 
 the fraud has resulted in the party' s being drawn into a 
 marriage, than in other cases. 
 
 § 727. The case of CooTces v. Mascall, 2 Yernon, 200, 
 A. D. 1690, is supposed to have proceeded on this 
 ground. (A) After the terms of a treaty of marriage be- 
 tween Cookes and Mascall's daughter, had been agreed 
 upon, to the effect that Cookes' s father and Mascall would 
 
 (/i) Atherly on Marriage Settlements, 87 ; Peachey on Marriage Settle- 
 ments, 83 ; Browne on the Statute of Frauds, § 443. Mr. Roberts seems to 
 be unable to account for the decision. Roberts on Frauds, 194. The case 
 is also reported, more raeagerly, in 1 Equity Cases Abridged, 22.
 
 Art. I ] Antenuptial Agreements. 71 o 
 
 each make a settlement of certain property, the two 
 fathers and one Baker, an attorney, had a meeting in 
 order to complete the agreement. Baker, liaving dis- 
 coursed with the two fathers, proceeded to di-aw the 
 agreement for the settlement ; but before it was ready, 
 they disagreed ; and jVIascall swore tliat he refused to 
 proceed any further, assigning his reasons for the refusal. 
 "But," the report adds, " Cookes put up what Baker had 
 wrote into liis pocket, and so they parted, and had no 
 further meeting or treaty ; but old Cookes swore, that 
 after the articles were drawn, they were read over and 
 agreed to ; and that Mascall promised to meet at another 
 time to execute." After this, young Cookes was permit- 
 ted to go to Mascair s house, and two months afterwards 
 married the daughter, Mascall being privy to the mar- 
 riage, setting them forward in the morning, and entertain- 
 ing them upon their return. The action was brought by 
 the younger Cookes and his wife, against the two fathers ; 
 and, the report says, the elder Cookes having offered 
 in his answer to perform the agreement on his part, the 
 court "thought fit to decree" that Mascall should per- 
 form, according to the writing drawn by Baker, (i) 
 
 § 728. So in Mallett v. Halfpenny^ 1 Equity Cases 
 Abridged, 20, A. D. 1699, (y) the defendant had given to 
 
 (i) Bui in 2 Vernon, 34, there is a report of the hearing, upon a bill filed 
 two years earlier, which was apparently brought by the husband alone 
 against his father-in-law only. There it is said, that the plaintiff relied upon 
 a letter written to him by the defendant; and that his counsel contended that 
 the agreement prefiared by Baker, was the game in effect as the letter, but 
 drawn more formally; on the other hand, the defendant's counsel insisted 
 that they were essentially different, and that the evidence showed that the 
 parties never came to any definite agreement upon the contents of the letter. 
 The report says, that the "court inclined to dismiss the bill; but at the 
 instance of the plaintiff's counsel, gave him a twelvemonth's time to try it 
 at law, whether there was an agreement so fixt." In the notes to the second 
 edition of Vernon, it is said that these are two reports of the same case ; but 
 whether this is true or not, it is probable that tlie letter influenced the final 
 decision of the controversy. 
 
 {j) S. C. differently reported, 2 Vernon, 373 ; but in Bawdes v. Amhurst 
 Precedents in Chancery, 402, Lord Cowper stated the case, as in the text, 
 from his own memory.
 
 716 Antenuptial Agheements. [Cli. xx. 
 
 the plaintiff a writing, promising a portion with his 
 daughter, and afterwards, designing to elude the force 
 thereof, he "ordered his daughter to put on a good humor 
 and get the plaintiff to deliver up that writing, and then 
 to marry him," which she did; and "the plaintiff was 
 relieved by the Master of the Rolls on the point of fraud, 
 which was proved. "(/J:) 
 
 ARTICLE II. 
 
 Whether a verbal antenuptial promise will support a postnuptial settlement in accordance 
 therewith, or a postnuptial written agreement to make such a settlement! 
 
 § 729. It seems to be now generally conceded, in England 
 and in the United States, as a consequence of the rule that 
 marriage alone is not such, a performance, as will entitle 
 the complainant to a specific execution of a verbal agree- 
 ment, made in consideration thereof, that such an agree- 
 ment will not suffice to protect a postnuptial conveyance 
 of property against the attacks of creditors ; and a fortiori 
 that a recital in the conveyance of the existence of such a 
 verbal agreement is immaterial. There are some authori- 
 ties in the English reports to the contrary ; but they must 
 be regarded as having been overruled in that country by 
 more recent well considered cases, (a) In Batter shee v 
 
 {k) These cases are referred to, and the general principle Avhich they 
 establish is recognized, in 1 Story's Equity Jurisprudence, 8th ed., § 768; 
 Atherly on Marriage Settlements, 86-88; Peachey on Marriage Settlements, 
 81, 82. Also in Browne on the Statute of Frauds, §§ 441-445 a, where 
 several analogous ..ases are cited, arising upon agreements for the purchase 
 of land. 
 
 (a) Lord Chancellor Macclesfield, according to the report in 1 Strange, 237, 
 of Montacute v. Maxwell, said that it had been " frequently determined" that 
 an antenuptial verbal promise would support a settlement after marriage. 
 According to the report in 2 Cox's Chancery, 235, of- Dundas v. Dutens. 
 decided in 1790, Lord Thurlow's judgment proceeded upon that very ground. 
 He is represented as having said that "he could not conceive that a settle- 
 ment made after marriage, in pursuance of an agreement before marriage, 
 though only parol, could ever be reckoned a fraudulent settlement," and 
 that " he was therefore clearly of opinion that the settlement" (in the case at 
 bar) " was in itself valid." Accordingly he dismissed with costs a bill ir favor
 
 Art. II.] A"NTENUPTIAL AGREEMENTS. 717 
 
 Farrincjton, 1 Swanston, 106, A. D. 1818, (&) Sir Thomas 
 Plumer, Master of the Rolls, expressed liis dissatisfaction 
 with those early authorities. The only point decided 
 by him was, that future creditors could not impeach a 
 voluntary settlement; but, in pronouncing judgment, he 
 said "that against all persons claiming under the settlor, 
 the recital is conclusive ; but it would be difficult to main- 
 tain that a recital, in a postnuptial settlement, of ante- 
 nuptial articles, of the existence of which there is no dis- 
 tinct proof, would be binding on creditors. Such a doc- . 
 trine would give to every trader a power of excluding his 
 creditors, by a recital in a deed to which they are not 
 parties." 
 
 § 730. The same opinion had been previously expressed 
 by Lord Northington, with respect to conveyances of real 
 estate, (although apparently without the knowledge of the 
 Master of the Rolls), in Spurgeon^. Collier, 1 Eden, 55, (c) 
 A. D. 1758. There an absolute conveyance of an estate had 
 been made to the defendant Collier, who executed to the 
 grantor a defeasance of even date, on the payment of cer- 
 tain moneys ; the grantor subsequently conveyed the prop- 
 erty to his son ; but Collier prevailed upon the latter to 
 give up to him the defeasance. The grantor and his son 
 having died, the heirs of the son brought this bill to redeem. 
 The defendants Alston and wife insisted that the estate 
 
 of creditors, to set aside a postnuptial settlement, reciting that it was made 
 in pursuance of an antenuptial parol agreement. In 1 Vesey, 19G, the same 
 case is reported quite differently ; but there it is also stated that he expressed 
 an opinion to the same effect, although the decision is represented to have 
 been chiefly placed upon another ground. But in Shaw v. Jakeman, 4 
 East, 201, A. D. 1803, before Mr. Cox's volume was published. Lord Ellen- 
 borough stated that the point liad been decided in Dundas r. Dutens. On 
 the other hand, in Randall v. Morgan, 12 Vesey, 67, A. D. 1805, Sir Wil- 
 liam Grant, Master of the Rolls, classed this remark of Lord Thurlow, with 
 other obiter dicta (see page 74) ; but he found it unnecessary to express any 
 opinion upon the point, as he thought that, in the case before him, a verbal 
 promise before marriage had not been sufficiently proved. 
 
 {h) S. C, Wilson's Chancery, 88. 
 
 (c) This volume was not published until 1818.
 
 718 Antenuptial Agreements. [Cli. xx. 
 
 had been settled several years previously by Collier, upon 
 their marriage ; and consequently that they were pur- 
 chasers for value ; and Alston said in his answer that he 
 had no notice of the defeasance, till two years after the mar- 
 riage. Tlie proof was that Collier had conveyed the prop- 
 erty to them about a month after they were married, by 
 deed reciting the marriage as the consideration ; and they 
 endeavored to show a parol agreement before marriage to 
 settle it, and that the marriage had taken place before 
 actual settlement, because the writings could not be finished 
 in season. Lord IS'orthington decreed a redemption against 
 all the defendants, saying that the parol agreement was 
 not proved ; but that, if it had been proved, the case would 
 not be altered ; that it was admitted that since the statute, 
 although the promise was made, Alston could have no 
 remedy ; that the settlement was therefore voluntary, 
 because it could not be compelled. And he added : "But, 
 if such a parol agreement were to be allowed to give effect to 
 a subsequent settlement, it would be the most dangerous 
 breach of the statute, and a violent blow to credit ; for any 
 man, on the marriage of a relation, might make such prom- 
 ise, of which an execution never could be compelled against 
 the promisor; and the moment his circumstances failed, 
 he would execute a settlement pursuant to his promise, 
 and defraud all his creditors." Although the plaintiff in 
 this case did not seek relief as a creditor, the decision is 
 justly regarded as settling the rule, that all postnuptial 
 conveyances of real estate, in consideration only of an ante 
 nuptial agreement, are voluntary. 
 
 § 731. And whatever doubt may have remained, whether 
 the same ruling would apply to conveyances and transfers 
 of personalty, has apparently been dispelled by Lord 
 Cran worth's judgment, in Warden v. Jones, 2 De Gex and 
 Jones, 76, A. D. 1857, {d), affirming the decree of the Mas- 
 ter of the Rolls, (Sir John Romilly), as leported in 23 
 Beavan, 487. (e) There it appeared that on the 16tli day 
 
 (d) S. C, 27 Law Journal, N. S., Chancery, 190; and 4 Jurist, N. S., 269. 
 
 (e) Also in 26 Law Journal, N. S., Chancery, 427; and 3 Jurist, N. S., 456.
 
 Art. II.] Antenuptial Agreements. 719 
 
 of June, 1855, the defendant Barnett, being considerably 
 indebted to the plaintiff and others, married a Miss Jones, 
 who was the registered proprietor of certain railway shares; 
 that on the 6th of July, 1855, a deed of settlement was 
 made, (not reciting any antenuptial agreement), whereby 
 the shares were to be sold, and 5001. of the proceeds set- 
 tled upon Mrs. Barnett and her issue ; and that the same 
 day the shares were sold, and the 5001. invested upon the 
 trusts of the settlement ; Barnett having applied to his own 
 use the residue of the proceeds, after discharging an incuin- 
 brance upon the shares. This bill was filed to set aside 
 the settlement, as fraudulent against creditors, and to reach 
 the 5001. The defences interposed by the wife were, first, 
 that the case was taken out of the statute of frauds by a 
 parol antenuptial promise to settle the property ; sec- 
 ondly, that she had been drawn in to be married without 
 a settlement, by her husband' s fraudulent conduct ; with 
 other defences, which are not material here. The evi- 
 dence tended to show that before the marriage, Barnett 
 had made several promises to her and to her father, that 
 all her property should be settled upon her ; that the 
 father' s consent to the marriage was given only upon con- 
 dition that it should be so settled ; that Barnett induced 
 her to marry him, without the knowledge of her father or 
 her famil}^, upon a promise to make a settlement ; that a 
 few days before they were married, they went to the office 
 of a solicitor, to have a settlement prepared, but he could 
 not get it ready in time for the wedding ; and that Barnett 
 said that the marriage would make no difference, and the 
 settlement would be equally good if made afterwards. 
 
 § 732. The Master of the Rolls made a decree for the 
 plaintiff ;(/) and an appeal from this decree was dismissed 
 
 ■ (/) After saying that but for the express words of the statute, equity 
 would sustain the settlement, on the ground that the marriage was a per- 
 formance of the verbal agreement, his Honor examined several of the cases in 
 detail; concluding that Dundas v. Dutens was overruled by later decisions, 
 and expressing the opinion that the cases where a representation was held 
 to be binding, (a question fully examined in article iii of this chapter), pro-
 
 720 Antenuptial Agreements. [Cli. xx. 
 
 by the Chancellor. His Lordship said that the argument 
 that the settlement conld not be fraudulent, because there 
 was a moral obligation to perform it, was conclusively 
 answered by Lord Northington' s remarks in Spurgeon v. 
 Collier ; and that there was no proof that what was said 
 to the wife, respecting the validity of a postnuptial settle- 
 ment, was said fraudulently. He added that where there 
 had been part performance by something more than a mar- 
 riage, as in Hammer sley v. De Biel,{g) equity would 
 relieve, but not otherwise ; apparently ignoring a distinc- 
 tion taken by Sir John Romilly in the court below, that 
 in the cases where that question arose, the promise was 
 not made between husband and wife. Next he referred 
 to the fact, that here there was no recital in the settlement 
 of an antenuptial agreement ; but he said that if the dis- 
 tinction taken thereupon, by Lord Thurlow, in Dundas v. 
 Dutens, is correct, the whole policy of the statute is de- 
 feated. ' ' It cannot be enough, ' ' said his Lordship, ' ' merely 
 to say in writing, that there was a previous parol agree" 
 
 ceeded on the ground, not only that there was some distinct act of perform- 
 ance in addition to the marriage, but also that the transaction was between 
 a third person and the husband; and, for the latter reason, they were not 
 applicable where it was between husband and wife. And he summed up his 
 conclusions upon this part of the case as follows: "I therefore hold, that 
 where a man enters into a parol a£?reement with his intended wife, and noth- 
 ing follows but the marriage, the marriage cannot be treated as part per- 
 formance of the parol contract ; and that the carrying into effect the parol 
 contract after the marriage, by a deed, amounts to no more than a voluntary 
 settlement." Then, after saying that the fraud charged upon the husband 
 consisted merely in misstating the law, as to which the wife, having em- 
 ployed a solicitor, "must be held to have known the contrary, or, if not, to 
 have trusted entirely to her husband's honor," as in Montacute v. Maxwell; 
 he referred to the argument, which had been pressed upon him, that if a suit 
 had been instituted by the wife against the husband, and he had not pleaded 
 the statute of frauds, a decree would have been made. He declined to con- 
 sider what would have been the effect of such a decree upon creditors, as 
 the question did not arise, saying that the husband was no doubt bound by 
 the arrangement ; but whether the creditors were boi:nd, was an entirely 
 different question : and. after disposing of the other objections, and express- 
 ing his regret at his inability to relieve the wife, he granted a decree. 
 ig) Post, §§ 744-747.
 
 Art. II.] Antenuptial Agreements. 721 
 
 ment. It must be proved tliat there was such an agree- 
 ment ; and to let in such proof, is precisely what the statute 
 meant to forbid." These remarks, his lordsliip continued, 
 were made lest it might be thought that this case was 
 decided, merely on the ground that it was distinguishable 
 from Dwidas v. Dutens. "I incline to think," he pro- 
 ceeded, "that even if this settlement had contained a 
 statement, that it was made in pursuance of a previous ante- 
 nuptial parol agreement, I should still have considered it, 
 as I now consider it, void against creditors. "(^) 
 
 § 733. The same general doctrine, that a verbal ante- 
 nuptial contract will not sustain a postnuptial settlement, 
 as against creditors, was again asserted to be law by Sir 
 John Romilly, in Goldicutt v. Townsend, 28 Beavan, 445, 
 A. D. 1860, which is, we believe, the latest English case 
 upon the point. Tliere his Honor held that a bond for 
 6,000Z., given after the marriage, by the husband's father, 
 for the benefit of his son, in pursuance of a promise to that 
 effect, made before the marriage, could not be allowed as a 
 claim against his estate, after his decease, to the prejudice 
 of creditors for value ; although it would be good against 
 the surplus, after paying such creditors. But the case is 
 not a very important authority upon this question, as the 
 view, which the court took of the other questions, would 
 have led to the same result, even if the law upon this point 
 had been adjudged otherwise. 
 
 § 734. The American authorities uphold with entire una- 
 nimity, the general doctrine of these cases ; although in 
 most of the United States, the English rule, as to the right 
 of a creditor to attack a voluntary conveyance, has been 
 restricted by legislative modifications of the statute of the 
 13th Elizabeth, or a different construction of its provisions. 
 
 (h) Although the reasoning in this case, upon the points mentioned in the 
 text, appears to be unanswerable ; it is not so clear that the defence, that the 
 wife had an equity to a settlement, independent of the antenuptial parol 
 agreement, was property overruled. 
 91
 
 723 Antenuptial Agreements. [Ch. xx. 
 
 In Reade v. Livingston, 3 Johnson' s Clianceiy (New York), 
 481, A. D. 1818, Chancellor Kent, after a full and able dis- 
 cussion of the question upon principle and authority, held 
 that a settlement after marriage, in pursuance of an ante- 
 nuptial verbal agreement, is not valid against an antecedent 
 creditor of the grantor. In that case there was no recital 
 in the conveyance of the previous agreement, and the evi- 
 dence that it was ever made was very loose and unsatis- 
 factory ; but the Chancellor expressed a decided opinion 
 that if the facts had been otherwise, the decision must 
 have been the same. The doctrine, asserted by him, that a 
 voluntary conveyance is necessarily void as against exist- 
 ing creditors, is no longer law in New York ;(/) but the 
 principle that a conveyance of that character cannot be 
 supported, as against creditors who are entitled to impeach 
 it, by proof of an antenuptial verbal agreement, even 
 though such an agreement may be recited in the convey- 
 ance, has been recognized by numerous American authori- 
 ties, and may now be considered as settled in our juris- 
 prudence, (y) 
 
 § 735. It would seem to follow, from the course of rea- 
 soning and authority upon the question just discussed, 
 that a postnuptial settlement, made in pursuance of an 
 antenuptial verbal agreement, and without any additional 
 consideration, is also voluntary, as between the parties 
 and their privies. It has been said, however, that a set- 
 
 (i) Jackson v. Post, 15 Wendell, 588 ; Babcock v. Eckler, 24 New York, 
 623 ; Dygert v. Remerschnider, 32 New York, 629, ante § 711. 
 
 (y) Andrews v. Jones, 10 Alabama, 400 ; Izard v. Izard, Bailey's Equity 
 (South Carolina), 228; Borst v. Corey, 16 Barbour (New York), 136; Wood 
 V. Savage, 2 Douglass (Michigan), 316; Satterthwaite v. Emley, 3 Green's 
 Chancery (New Jersey), 489 ; Smith v. Greer, 3 Humphreys (Tennessee), 
 118 ; Saunders v. Ferrill, 1 Iredell (North Carolina), 97 ; Bayard v. Hoffman, 4 
 Johnson's Chancery (New York), 450 ; Blow v. Maynard, 2 Leigh (Virginia), 
 29; Jones v. Henry, 3 Littell (Kentucky), 427; Albert v. Winn, 5 Maryland, 
 66; Kinnard v. Daniel, 13 B. Monroe (Kentucky), 496; Dygert v. Remer- 
 schnider, 32 New York, 629 ; Davidson v. Graves, Riley's Chancery (South 
 Carolina), 219.
 
 Art. II.] Antenuptial Agreements. 723 
 
 tiement, made for the benefit of the wife or children of the 
 settlor, may be sustained as founded upon a valuable con- 
 sideration, on the ground that it is the duty of every man 
 thus to provide for his family. (/i) But this doctrine has 
 since been overruled ; and it would seem, upon principle, 
 that such a settlement can derive no additional force from 
 the fact that it was made in pursuance of an antenuptial 
 verbal agreement. There are, however, some dicta to the 
 
 (k) Lord St. Leonards says upon this question : "A settlement after mar- 
 riage upon a wife or children, without any previous agreement, is upon good 
 although not valuable consideration. It is a performance of a moral obliga- 
 tion. The mere agreement by parol, before marriage, to make such, a set- 
 tlement, does not place the case higher. The settlement is still only a 
 performance of a moral obligation, for the parol pro.Tnise is rendered unavail- 
 able by the statute of frauds. In each case the consideration is a good one, 
 but it is a duty of imperfect obligation on the party to make the settlement. 
 The past consideration of marriage vs^ill not support the settlement, and the 
 previous parol promise is not binding ; therefore the settlement is merely 
 voluntary." Sugden on Powers, eighth edition, p. G49. Lord St. Leonards, 
 while chancellor of Ireland, decided that a written promise by a father to 
 his son-in-law, to secure an annuity to the daughter of the promisor and 
 wife of the promisee, would be specifically enforced, upon a bill filed by the 
 husband and wife ; on the ground that although the consideration was not 
 valuable, it was meritorious, and that equity would interfere in cases where 
 the consideration was of that character. Ellis v. Nimmo, Lloyd and Goold, 
 temp. Sugden, 333, A. D. 1835; where the former authorities are cited and 
 discussed at length. But is said that his successor affirmed the decree upon 
 other grounds. And Lord Chancellor Cottenham, although in deciding Dil- 
 lon V. Coppin, 4 Mylne and Craig, G49, A. D. 1837, where the point arose, 
 he made no express mention of Ellis v. Nimmo, explicitly disapproved of the 
 latter in Jefierys v. Jefiferys, Craig and Phillips, 138, A. D. 1841, and refused 
 to make a decree under similar circumstances. Vice Chancellor Shadwell 
 also disapproved of the doctrine of Ellis v. Nimmo, in Holloway v. Heading- 
 ton, 8 Simons, 324, A. D. 1837. And in Moore v. Crofton, 3 Jones and 
 LaTouche, 438, A. D. 184G, Lord St. Leonards said, that although he thought 
 Ellis V. Nimmo was decided upon sound principles of equity, he was aware 
 that the opinion of the profession was otherwise; and he added (page 443) : 
 " I consider that decision to be overruled by the current of opinion and au- 
 thority, and I have no desire to support it again^!t the general opinion." 
 These observations are quoted substSntially to the same effect, although his 
 Lordship's concession is not made quite so graceful, in S. C, 9 Irish Equity 
 Reports, 347, 348.
 
 724 Antenuptial Agreements. [Ch. xx. 
 
 contrary, and it has even been said that a recital in the 
 conveyance of such an agreement is conclusive evidence 
 of its existence, as against the settlor and those claiming 
 under him.(Z) In what manner, or for what purpose, the 
 recital is thus conclusive, the cases do not very clearly 
 point out. Perhaps it may be regarded as the written 
 memorandum, which the statute requires ; the sufficiency 
 of which will be the subject of discussion hereafter. 
 
 § 736. We suppose that the case of ArgeTibrigM v. 
 Campbell, 3 Hening and Munford (Virginia), 144, A. D. 
 1808, must have proceeded upon the ground that the set- 
 tlor was concluded by such a recital, if indeed the decision 
 can be supported. There the plaintiffs founded their title 
 to relief upon a verbal promise, made by a father to his 
 daughter' s intended husband, to the effect that if he mar- 
 ried the daughter, he would leave her his land by his will. 
 The case is exceedingly voluminous, and the testimony 
 was very conflicting ; but the facts upon which the major- 
 ity of the court proceeded, in determining this question, 
 appear to have been briefly as follows. The father had 
 made his will, before the engagement, whereby he had de- 
 vised his land to this daughter (Rebecca), subject to the 
 payment of 50^. to another daughter (Hannah). After the 
 engagement was formed, he expressed his satisfaction with 
 the intended marriage to the daughter' s suitor, and prom- 
 ised the latter, that if it took place, "he should have the 
 plantation he then lived on, provided he complied with the 
 terms of the will ; and then repeated the contents thereof." 
 The marriage took place ; and afterwards, the father mani- 
 festing a design to alter his will, he was, after considerable 
 solicitation, persuaded to sign an instrument in writing, in 
 the form of a penal bond ; the condition of which recited 
 the marriage ; that he had agreed to give the land to his 
 son-in-law, and his heirs forever, after his own decease ; 
 
 (7) Battersbee v. Farrington, 1 Swaiston, 106, ante §729; Satterthwaite 
 V. Emley, 3 Green's Chancery (New Jersey), 489 ; Blow v. Maynard, 2 Leigh 
 (Virginia), 29.
 
 Art.. II.] Antenuptial Agreements. 725 
 
 and the better to comply with that promise, had made his 
 will, in which he had bequeathed the land to his son-in- 
 law, and his heirs ; and had promised that it should be his 
 last will, as far as it related to said lands ; whereupon it 
 was provided that the obligation should be void, in case 
 the father should not alter that will, with respect to the 
 land in question, or convey the land to any person before 
 his decease, (w) Afterwards the defendant Argenbright, with 
 full notice of the facts, purchased the land from the father. 
 A bill was thereupon filed by the son-in-law and his wife, 
 against Argenbright and the wife' s father ; and the latter 
 having died, pending the action, a decree was made in the 
 court below, which was modified .by the Court of Appeals, 
 so as to requii'e the defendant Argenbright to convey the 
 land to the wife, and account for the rents and profits 
 since the father' s death ; and to requii-e the husband to pay 
 Hannah 50^., with interest from the same time ; and in that 
 form it was affirmed by a majority vote. The prevailing 
 opinions substantially concurred, in holding that the pre- 
 vious verbal promise was a sufficient consideration, to up- 
 hold the writing as an agreement ; that the latter was 
 intended to conform to the antenuptial promise, the 
 variance between the two resulting from ignorance of the 
 law or of the contents of the will, by the draftsman ; and 
 that it might be corrected by the \vill, to which it referred, 
 as "forming the standard by both parties." 
 
 § 737. But a voluntary postnuptial settlement, like 
 every other executed agreement, is valid between the par- 
 ties and those claiming under them as volunteers. This 
 principle was applied in a remarkable manner, in the case 
 of HougMon v. IlougJiton, 14 Indiana, 605, A. D. 1860. 
 There an action was brought by a widow, against the 
 
 (m) Owing to the manner in which the instrument was executed, there 
 was much doubt whether it was in legal effect a bond; one of the judges 
 composing the majority said that the question was immaterial, and the com- 
 plainant* were entitled to relief, whether it should be treated as a bond or 
 an agreement; the other judge apparently, though not explicitly, concurred 
 with him on this question. •
 
 72^ Antenuptial Ageeements. [Ch. xx. 
 
 administrator of lier husband, to recover a sum of money 
 allowed to the widow, by the statute of descents, etc., before 
 any distribution. The defence was that the plaintiff and 
 the intestate made a verbal antenuptial agreement, to the 
 effect that the intestate would pay her, during coverture, 
 one third of the net profits of his land to her separate use, 
 and claim no right to the control of her property, during 
 coverture or afterwards ; but it should all go to her chil- 
 dren by a former marriage, if not otherwise disposed of 
 by her ; and she relinquished all claim to any portion of 
 his property, after his death, and agreed that it should all 
 go to his cbildren by a former marriage, if not otherwise 
 disposed of by him. The husband performed as much of 
 this agreement as he was to perform during the coverture ; 
 but the court below held that it was invalid, and rendered 
 judgment for the plaintiff ; which was reversed on appeal. 
 The reason assigned by the appellate court for its decision, 
 was that inasmuch as the property, to which the plaintiff 
 relinquished her right, was in the husband' s possession, 
 and after his death in his administrator's possession, no 
 act was required to be done by her, in further execution 
 of the agreement on her part ; so that it was fully executed 
 by both parties. Several cases were then cited, where 
 verbal postnuptial agreements have been sustained, and 
 the opinion proceeded: "The foregoing cases show that 
 the contract might have been valid, even if it had been 
 made during coverture. It was affirmed and executed 
 during that relation." 
 
 § 738. This case appears to be directly contradicted by 
 Mnch V. Mnch, 10 Ohio, New Series, 501, A. D. 1860, 
 which has been already cited in connection with another 
 point made by the defendants in support of their answer, (n) 
 There the defendants also insisted that the agreement was 
 taken out of the statute, because it had been partly per- 
 formed. The acts of performance relied upon after the 
 marriage, were the actual use and enjoyment by the wife 
 
 (n) See ante, § 717, where the facts are fully stated.
 
 Art. II.] Antenuptial Agreements. 727 
 
 of her property with the husband's assent, and particu- 
 larly that she was permitted by him to give her personal 
 property and the rents of her lands to her cliildren by a 
 former marriage. Upon this point, BrinkerhofF, C. J., 
 said, that at the time of the marriage, the agreement was 
 binding upon neither party ; and that when the marriage 
 was completed, tiie husband became the owner of her per- 
 sonal property, and of the proceeds of her real estate. 
 Consequently any gifts which he may have permitted her 
 to make were his gifts ; that the parties could not occupy 
 antagonistic relations with respect to the subject of the 
 agreement, because no legal obligations rested upon him ; 
 and what he permitted her to do was a matter of mere 
 grace and favor. "Had he seen proper," continued the 
 learned Chief Justice, "to make these gifts to her children 
 without her consent and against her remonstrances, would 
 they 'have constituted a part performance? This, we sup- 
 pose, would not be claimed ; and yet in legal effect, they 
 would have been the same as they were when made by 
 her with his consent. In either case they were his gifts." 
 The court also repudiated the distinction, taken in Crane v. 
 Gough^{o) between an action and a defence, founded upon 
 an agreement within the statute. 
 
 § 739. There is a very close similarity between this ques- 
 tion, as it was presented in these two cases, and that arising 
 in some of the cases, where the allegation was tliat there 
 was a distinct consideration for the agreement, in addition 
 to the marriage \{p) and it is even more difficult in this de- 
 scription of cases, than in the other, to determine what is 
 the true rule. In each the difficulty springs out of the 
 equivocal character of the acts of performance relied upon. 
 But here the question relates to the effect of such acts 
 upon a verbal agreement plainly within the terms of the 
 statute ; and the doubt grows out of the fact that the con- 
 duct of married persons towards each other, in matters 
 
 (o) Ante, § 712. 
 
 (p) See chapter xix, article iU,
 
 728 Antenuptial Agreements. [Ch. xx. 
 
 of property, is not to be tested by the rules, which 
 determine the effect of similar acts, between persons who 
 occupy no such relations to each other. The facts proved 
 in Houghton v. Houghton and in Finch v. Finch would be 
 sufficient to establish the agreement and its subsequent 
 performance, if they had transpired between strangers ; 
 but passing between husband and wife, they are quite con- 
 sistent with the theory, that the husband merely adopted a 
 particular method of supplying the wife with money for 
 her personal use. Still it is but reasonable to conclude, 
 that a long continued and uniform course of conduct, on 
 the part of the husband, either by acquiescence or by 
 affirmative action, inconsistent with his marital rights, is 
 an act of performance of some agreement on his part. 
 But the extent and character of the agreement, which such 
 acts indicate, and their effect upon the question whether it 
 was antenuptial or postnuptial, must perhaps be left to 
 depend upon the circumstances of each particular case. 
 
 § 740. But it is evident that if the acts of performance, 
 upon whioh the party relies, are of such a character, as to 
 indicate clearly that their continuance was dependent 
 entirely upon the pleasure of the person performing them, 
 they cannot be made available as evidence of any definite 
 and binding agreement. The most familiar and obvious 
 illustration of this proposition, is where one party relies 
 upon a will made by the other. There are some nice dis- 
 tinctions in the cases, as to the effect of a contract to be per- 
 formed by making or not making a will, or not altering a 
 will already made ; but it is sufficient for our present pur- 
 pose to say, that while a contract to leave a particular sum 
 of money, or certain specified property, by will, may be 
 specifically enforced \{q) it is well settled that the execution 
 
 {q) Hammersley v. De Biel, 12 Clark & Finnelly, 45, post § 744 ; Loffus v. 
 Maw, 3 Griffard, 592. A contract to " recognize " a son in a will, " in common 
 with the rest of my family," is too vague to be enforced. Kay v. Crook, 3 
 Smalc & Giffard, 407 ; 3 Jurist, N. S., 104. So where a testator had already 
 made a will, bequeathing 12,500Z. to his daughter ; and in her marriage pro-
 
 Art. II.] Antenuptial Agreements. 729 
 
 of a will cannot be relied upon as evidence that such a con- 
 tract was made between the parties, or as an act of perform- 
 ance wliicli will take a verbal antenuptial agreement to that 
 effect out of the statute. This was one of the points deter- 
 mined in Caton v. Caton^ Law Reports, 1 Chanceiy 
 Appeals, 137, a summary of which will be given in the fol- 
 lowing article, (r) 
 
 § 741. A similar rule was laid down, in Potts v. Merrit^ 
 14 B. Monroe (Kentucky), 406, A. D. 1854. This was 
 a bill brought by a wife against her husband, and a per 
 son to whom he had either sold or given certain slaves, 
 the property of the wife before marriage. The com- 
 plainant founded her title to relief upon a verbal antenup- 
 tial agreement between her and her husband, by which she 
 was to retain the title to her slaves, and have the control 
 and power of disposition of them, notwithstanding the mar- 
 riage. It appeared that after the marriage, the husband 
 executed an instrument in writing, "purporting to be a 
 conditional ratification, or rather adoption of a will, which 
 had been previously signed and acknowledged by the com- 
 plainant," bequeathing the slaves to her brother ; but that 
 
 posals he stated that he would give her 2,000Z. as a portion, and in addition, 
 that "she is and shall be noticed in my will, but to what further amount I 
 cannot precisely say," it was held that there was no binding contract beyond 
 the 2,000Z. Moorhouse v. Coivin, 18 Beavan, 341; 21 Law Journal, N. S,, 
 Chancery, 177 ; S. C. on Appeal, 21 Law Journal, N. S., Chancery, 782. 
 But a marriage contract to give, by will or otherwise, to a niece, "so much 
 in money or in valuable efifects," as the party should, by his will, give or 
 bequeath to his next of kin, or any other person, will be specifically enforced, 
 although it is in the form of a bond with a penalty. Logan v. Wienholt, 
 1 Clark and Finnelly, 611. And a contract to leave a daughter "her share 
 of whatever property I may die possessed of," will entitle her to a decree for 
 an equal share of the testator's personal property, after deducting the widow's 
 one third, and debts and expenses. Laver v. Fielder, 32 Beavan, 1 ; 32 Law 
 Journal, N. S., Ch., 365; 9 Jurist, N. S., 190; 11 Weekly Reporter, 245; 7 
 Law Times, N. S., 602. See also Barkworth v. Young, 26 Law Journal, N. S., 
 Chancery, 153; 4 Drewry, 1 ; and Loxley v. Heath, 27 Beavan, 523 ; S. C. 
 on appeal, 1 De Gex, Fisher and Jones, 489. 
 (r) See §§ 756-758. 
 92
 
 730 Antenuptial Agreements. [Ch. xx. 
 
 afterwards lie had transferred them to the defendant Merrit 
 for a merely nominal consideration, and had executed an 
 express revocation of the former instrument. The Court 
 of Appeals, affirming a decree of the Circuit Court, held 
 that the antenuptial verbal agreement was not saved from 
 the operation of the statute, by the subsequent instrument 
 executed by the husband; even if the latter could be 
 regarded as an admission that the bequest was made in 
 pursuance of the agreement ; and that the instrument was 
 in fact merely a will, revocable at the pleasure of the 
 husband. 
 
 AETICLE III. 
 
 Whether, in the ahsence of fraud, eqiiity takes any distinction, for the purpose of enforcing 
 specific performance, hetween an antenuptial verbal agreement, and an antenuptial verbal 
 representation of an intention. 
 
 § 742. We should leave this discussion in a very imper 
 feet and unsatisfactory state, if we were to close it without 
 bestowing some attention upon a question, which seems to 
 have attained all its prominence in the English equity 
 courts, within the last twenty five years ; and yet has 
 already become, to use the language of an eminent judge, 
 "one of the most difficult and important, and the most 
 perplexed by authority, of any of the heads of equity, {a) 
 We approach it with much hesitation, not only in conse- 
 quence of its perplexing character, and the conflict of 
 opinion between the greatest equity lawyers, to which it 
 has given rise ; but also because the cases where it has 
 been discussed, are so voluminous, and the distinctions 
 between them are so nice, as to render the task of conden- 
 sation within reasonable limits, without running into 
 obscurity, exceedingly delicate and arduous. 
 
 § 743. The doctrine to be examined appears to proceed 
 from the conflict, which has already been mentioned, be- 
 
 (a) Sir John Stuart in Williams v. Williams, 37 Law Journal, N. S., Chan- 
 cery, 854, post §§ 759, 760.
 
 Art. III.] Antenuptial Agkeements. 731 
 
 tween the express terms of this provision of the statrate of 
 frauds, and the familiar equitable rulfes, whereby relief is 
 granted, under certain circumstances, to a person who has 
 performed a verbal agreement within the statute. The courts 
 have been reluctantly compelled to hold, that although a 
 marriage, contracted upon the faith of a verbal promise, 
 amply fulfils every condition upon which depends the 
 interference of equity in other cases, yet the positive lan- 
 guage of this provision requires them to deny any relief, 
 wherever it applies ; notwithstanding the circumstances 
 of extreme hardship, which generally j^resent themselves 
 when the question arises. But it is quite clear, both upon 
 principle and authority, that the statute is confined to 
 agreements^ and that it has no application to rejyresenta- 
 tions.ip) And thereupon this question arises: whether, 
 when one party in addition to promising, or in place of 
 promising to do some act for the benefit of another, in 
 consideration of the latter' s marriage, represents that it is 
 his intention to do the act, in case the marriage shall be 
 contracted, the latter, having contracted the marriage 
 upon the faith thereof, is entitled to maintain an equitable 
 action, for the purpose of enforcing the fulfilment of the 
 representation. 
 
 § 744. The perplexities, which now surround this sub- 
 ject, may be traced to the remarks of certain judges, 
 rather than to the efiect of the determination, in the lead- 
 ing case of Hammer sley v. De Biel, decided by the House 
 of Lords in the year 1845, and reported in 12 Clark and 
 Finnelly, 45 ; also known as De Bell v. Thomson, under 
 which title the decision of the Master of the Rolls is 
 reported in 3 Beavan, 469, A. D. 1841. This was an action 
 brought by an infant against the executors of John Poulett 
 Thomson, his grandfather, to obtain payment out of the 
 assets of 10,000Z., to which he insisted he was entitled, under 
 the' provisions of a njemorandum entered into between his 
 father, (the Baron de Biel,) and two of the sons of Mr. 
 
 (6) See ante, §§ 683-686.
 
 732 Antenuptial Agreements. [Ch. xx. 
 
 Thomson, acting in the latter' s name, in his behalf, and 
 by his authority, in contemplation of the marriage of the 
 Baron with Mr. Thomson' s daughter. Several points were 
 taken in the cause, but it is believed that the following 
 is a statement of all that is material upon this ques- 
 tion. The memorandum, (which was not subscribed by 
 any one,) besides mentioning certain provisions which Mr. 
 Thomson proposed to make immediately for his daughter 
 and the issue of the marriage, recited that the Baron de 
 Biel was to obtain the means of settling on her a jointure 
 of 500Z. per annum during her life, in case she should sur- 
 vive him, secured upon his estate in Mecklenburg ; and 
 that Mr. Thomson "intends to leave a further sum of 
 10,000^. in his will to Miss Thomson, to be settled on her 
 and her children, the disposition of which, supposing she 
 has no children, will be prescribed by the will of her 
 father." Baron de Biel accordingly secured to JMiss 
 Thomson a yearly jointure of 6001. out of his estate, his 
 brother joining in the instrument, as required by the local 
 law ; and shortly afterwards the marriage took place, 
 without any further settlement being made ; but after the 
 marriage, a settlement was prepared and executed, whereby 
 Mr. Thomson made the provisions mentioned in the mem- 
 morandum, except the one relating to the 10,000^., which 
 he was to leave by his will ; and that provision was not 
 mentioned in the settlement. The Baroness died during 
 the year following the marriage, leaving the plaintiff her 
 only child ; and about eleven years afterwards, Mr. Thom- 
 son died ; and his will made no provision for the 10,000?. 
 
 § 745. Three defences were interposed by the executors ; 
 one of which was that the memorandum was a mere propo- 
 sition, not an agreement, and another that it was void by the 
 statute of frauds, because it was not signed. Upon the lat- 
 ter point the Master of the Rolls (Lord Langdale,) said that 
 inasmuch as it appeared that after the marriage Mr. Thom- 
 son wrote a letter to Baron de Biel, referring to the memo- 
 randum, as stating the terms of the engagement made by 
 him before the marriage, this letter was either a sufficient
 
 Art. III.] Antenuptial Agreements. 733 
 
 note of tlie agreement signed by the party to be charged, 
 or a sufficient recognition of the use of his name in the 
 memorandum; "and, so thinking," continued his Lord- 
 ship, "it does not appear to me to be necessary to deter- 
 mine whether the use of the name in the memorandum, 
 be, of itself, a sufficient signature of Mr. Thomson by his 
 agents ; or whether the provision of the jointure by Baron 
 de Beil takes the case out of the statute ; or whether, inde- 
 pendently of the statute, this court, for the prevention of 
 fraud, would compel the defendants to realize the expec- 
 tations on the faith of which the marriage was contracted." 
 His Lordship then said that by the execution of the settle- 
 ment and the solemnization of the marriage by the Baron 
 de Beil, the proposals and intentions, which were previ- 
 ously subject to revision, became an agreement which Mr. 
 Thomson was bound to perform ; and he accordingly made 
 a decree for the payment of the 10,000/^. and interest. 
 
 § 746. An appeal having been taken from this decision 
 to the Lord Chancellor, (Lord Cottenham,) it was affirmed, 
 and the appeal dismissed. Lord Cottenham' s opinion is 
 given in a note to 12 Clark and Finnelly, 61. Upon the 
 question whether there was any binding agreement between 
 the plaintiff's father and Mr. Thomson, he said tliat if it 
 was necessary to find a contract, such as usually accom- 
 panies transactions of importance, "there may not be 
 found in the memorandum, or in the other evidence in the 
 cause, proof of any such contract;" but that no formal 
 contract was required. "A representation," he contin- 
 ued, "made by one party for the purpose of influencing 
 the conduct of the other party, and acted on by him, will, 
 in general, be sufficient to entitle him to the assistance of 
 this court for the purpose of realizing such representation." 
 And after citing several authorities, his Lordship conclud- 
 ed this branch of the case, by saying that he was of opinion 
 "that the expressions used in tlie proposed arrangement, 
 acted on as they were, became obligatory on the party on 
 whose behalf the proposition was made." Upon the ques- 
 tion whether the defence could be sustained under tha
 
 734 Antenuptial Ageeements. [Ch. xx. 
 
 statute of frauds, he thought that the writing of Mr. Thom- 
 son' s name several times in the body of the memorandum 
 was a sufficient signing : but that independently of this, the 
 letter was sufficient for the reason given by the Master of 
 the Rolls. And his Lordship also added : ' ' This case does 
 not rest solely upon that ground ; for though it has been 
 decided that a marriage is not per se a part performance 
 of a parol agreement, so as to take the case out of the 
 statute, there was, in the dealing between these parties, an 
 important act by the intended husband in execution of the 
 proposed arrangement. He was informed by it that the 
 arrangement proposed would be sufficient for him to act 
 upon, and that he should forward, as early as possible, a 
 joint engagement for himself and his brother, settling 5001. 
 a year on the intended wife, which was done." 
 
 § 747. An appeal from Lord Cottenham' s decree was 
 taken to the House of Lords, where it was affirmed ; but 
 the question under the statute of frauds did not arise, the 
 counsel for the appellant having withdrawn the point, in 
 consequence of his " seeing a strong inclination of opinion 
 against him." The speeches delivered in the House of 
 Lords consequently turned chiefly upon the question, 
 whether the memorandum was binding upon Mr. Thom- 
 son, upon principles independent of the statute ; and of 
 these, the determination of the court, respecting the nature 
 of the liability which it created, is alone important here. 
 The then Chancellor, (Lord Lyndhurst,) after arguing that 
 the provision in question was not to be optional with Mr. 
 Thomson, stated the rule to be "thart: if a party holds out 
 inducements to another, to celebrate a marriage, and holds 
 them out deliberately and plainly, and the other party 
 consents, and celebrates the marriage in consequence of 
 them; if he had good reason to expect that it was intended 
 that he should have the benefit of the proposal which was 
 so held out, a court of equity will take care that he is not 
 disappointed, and will give effect to the proposal." Lord 
 Brougham reviewed the evidence at some length, and con- 
 cluded that the memorandum was in truth an agreement,
 
 Art. III.] ■ Antenuptial Agreements. 735 
 
 and one of a very formal nature ; but he said that he agreed 
 with and adopted all the arguments of the judges below. 
 Lord Campbell expressed his concurrence with the opin- 
 ions of Lord Lyndliurst and Lord Brougham ; but ai'ter 
 saying that the objection arising under the statute of frauds 
 was clearly untenable, in consequence of the letter of Mr. 
 Tliomson, he added that he fully agreed with Lord Cotten- 
 ham in his doctrine, (quoting the latter' s language,) as to 
 the effect in equity of a representation made to iniluence 
 another party, and acted on by him ; and that unless that 
 was the rule the most monstrous frauds would be com- 
 mitted. "Some fraudulent father," said his Lordship, 
 "might hold out to the suitor of his daughter, that he 
 meant to make a settlement upon his daughter and her 
 issue. The marriage .would take place in the belief that 
 that settlement would be made ; and then, after the mar- 
 riage, he might say, ' This was only an intimation of my 
 intention at the time ; I have changed my mind, and I 
 will not give her a shilling.' That would be most unjust ; 
 and to prevent such frauds, this doctrine has been laid 
 down, and I think has been most properly laid down, and 
 ought to be acted upon." But his Lordship also said that 
 here was more than a representation, for the memorandum 
 was a formal instrument ; that the Baron de Biel had done 
 all that which they expected him to do, that is, to settle 
 the 5001. a year upon his wife, if she survived him ; and 
 that a very useful and necessary rule would be infringed 
 upon, unless the House should "hold in this case that the 
 contract was binding, "(c) 
 
 (c) It will be noticed that the Master of the Rolls rested his judgment in 
 this cause, entirely upon the idea that there was a contract between the 
 Baron and his father-in-law; and that if the memorandum was in any 
 respect deficient in satisfying the requirements of the statute of frauds, all 
 such deficiencies were supplied by the subsequent letter. Regarding it as 
 a contract, it would seem clear that the marriage alone would have sufficed 
 to entitle the plaintiff to relief, had there been no mention in the memoran- 
 dum of the jointure ; and the effect of the settlement of the 500/. per 
 annum was (not to control the application of the statute, but) merely to fulfil 
 a condition precedent, in addition to the marriage, created by the peculiar
 
 736 Antenuptial Agreements. [Ch. xx. 
 
 § 748. But if the principles laid down in Ham- nersley v. 
 De Biel tend to weaken the authority of the cases, holding 
 that marriage alone will not entitle a party to the specific 
 performance of a promise, the result is not attained with- 
 out repeated disclaimers of such an effect, by the judges 
 who determined it, and by other eminent equity judges. 
 In Lassence v. Tierney, 1 Macnaghten and Gordon, 551, 
 A. D. 1849, (^) Lord Cottenham again disavowed any 
 intention to infringe upon the rule previously established. 
 This case presented, with other questions, one arising out 
 of an antenuptial parol agreement between husband and 
 wife, to the effect that the husband should invest 3,000Z., 
 part of the wife' s property, in the purchase of a govern- 
 ment annuity for his life, and for his own benefit ; that she 
 
 provisions of the instrument. Had the two appellate courts simply con- 
 curred in the views of Lord Langdale upon this question, the case would 
 have been an authority under the statute of frauds, only with respect to the 
 sufficiency of the writing; but Lord Cottenham distinctly intimated that 
 here was no contract; and he based his judgment upon the effect in equity of 
 a representation, treating a representation of an intention to do an act, as 
 having the same effect in equity as a representation of an existing fact, 
 designed to influence the conduct of another, and upon the faith of which 
 the latter has acted. If such was indeed the chai'Kcter of the transaction, 
 and if his Lordship correctly stated the equitable rule applicable to such a 
 representation, it appears to be quite unimportant whether there was or was 
 not any writing ; for, as we have already often remarked, the statute speaks 
 only of an agreement, not of a representation. And the statute of frauds 
 being out of the way, the same consequence must follow from Lord Cotten- 
 ham's ruling upon the effect of a representation, which follows from that of 
 the Master of the Rolls, upon the effect of a contract; namely, that unless the 
 representation was by its terms conditional upon the performance of some 
 act, in addition to the marriage, the completion of the marriage would, of 
 itself, entitle the person to whom it was made, to call upon the court to 
 decree a specific performance. The same observations apply to the reasoning 
 of Lord Lyndhurst; to Lord Brougham's general approval of Lord Cotten- 
 ham's ruling ; and, particularly, to that part of Lord Campbell's argument, 
 which treats the memorandum as a representation. Indeed, it would appear 
 from the latter's illustration that he fully accepted the consequences of his 
 reasoning; although Lord Cottenham and Lord Lyndhurst took great pains 
 to disclaim them. 
 
 id) S. C, 2 Hall and Twells, 115; 14 Jurist, 182.
 
 Art. III.] Antenuptial Ageeements. 737 
 
 should be entitled to hold and enjoy all the residue of her 
 property to her separate use ; and that, if necessary, a 
 proper settlement should be executed by tliem respect- 
 ively. The wife had filed a bill setting forth this agree- 
 ment, and that it had been executed by investing the 
 3,000Z., and praying that her rights might be declared ; and 
 afterwards an indenture had been made between her hus- 
 band, herself, and a trustee, purporting to be a settlement 
 in accordance with the terms of that agreement ; but it had 
 never been acknowledged by the wife as required by the 
 statute of 3d and 4th William IV. The wife having died, 
 the husband filed this, bill of revivor and supplement against 
 her heir at law, praying that the antenuptial verbal agree- 
 ment might be enforced, and for that purpose, that the 
 defective acknowledgment of the deed of settlement might 
 be supplied ; and that her will in his favor, executed in 
 pursuance of a power given to her in the settlement, might 
 be established, as a valid execution of the power. 
 
 § 749. The Vice Chancellor dismissed the bill, and upon 
 appeal his decision was afiirmed by the Chancellor. His 
 Lordship thought that the evidence of the agreement was 
 not sufficient to charge the heir; but upon the merits no 
 case had been made against him. The alleged contract 
 was entirely for the benefit of the wife ; nothing had been 
 given up by the husband; he was to take the 3,000^. 
 which he did take, and contracted that the wife should 
 enjoy the rest of her property. After some further com- 
 ments upon the facts, his Lordship proceeded to say that 
 if the wife had been living nothing could have been asserted 
 against her, because "there is nothing against her but a 
 parol contract before marriage, and nothing but marriage 
 following, which will not support the contract ; and such 
 a contract cannot be carried into effect under the statute of 
 frauds." And he added that he took care in Hammer sley 
 V. De Biel to guard, against any conclusion to the contrary, 
 by saying that it was distinguishable, because in that case, 
 the husband having contracted, before marriage, to dc 
 something, and having done it, there was part performance 
 93
 
 738 Antenuptial Agreements. [Ch. xx. 
 
 of the contract, relating to property to which he was enti- 
 tled ; and the question turned upon whether the persons 
 who assumed to contract for the wife' s father, were author- 
 ized so to do. His Lordship also mentioned two other 
 reasons for dismissing the bill in the case before him ; and 
 he said that either of the three was sufficient to dispose of 
 it, as between the devisee and the heir. 
 
 § 760. Another eminent equity judge expressed the same 
 opinion, in Surcome v. Pinniger, 22 Law Journal, JSTew 
 Series, Chancery, 419, A. D. 1853. (e) There the question 
 was, whether Mr. Chartres, the son-in-law of Mr. Aylwyn, 
 an intestate, or the administrator of Mr. Aylwyn, was 
 entitled to certain moneys which had been paid into court, 
 as the price of certain leasehold property, which a corpo- 
 ration had taken under an act of Parliament. The mate- 
 rial facts were, that after Mr. Chartres had proposed 
 marriage to the daughter of Mr. Aylwyn, the latter informed 
 him that it was his intention to give the property in ques- 
 tion, of which he held the leasehold title, to them on their 
 marriage ; and, after their marriage, he gave up possession 
 to Mr. Chartres, delivered to him the lease and other docu- 
 ments, and directed the tenants to pay their rents to him ; 
 and Mr. Chartres went to reside in the house, expended a 
 considerable sum of money in repairs, and received the 
 rents for such parts of it as he did not occupy. The Vice 
 Chancellor directed the money to be paid to Mr. Chartres ; 
 and this order was affirmed by the Lords Justices. Lord 
 Justice Knight Bruce, after reciting the facts, merely added 
 that it had been often decided, that under such circum- 
 stances, a parol agreement will be taken out of the statute 
 of frauds ; but Lord Justice Turner referred to Hammers- 
 ley V. De Biel and Lassence v. Tierney, saying that there 
 was no conflict between them, and here there had been part 
 performance of the parol agreement, by delivery of posses- 
 sion to Mr. Chartres, and a considerable expenditure by 
 him upon the property : it was not therefore a case where 
 
 (e) S. C, 3 De Gex, Macnaghten and Gordon, 571 ; and 17 Jurist, 196,
 
 Art. III.] Antenuptial Agreements. 739 
 
 the parol contract had been merely followed up by mar- 
 riage ; and this was the ground upon which the two cases 
 mentioned were distinguishable from each other. 
 
 § 751. But, in Maunselly. WJiite, 4 House of Lords Cases, 
 1039, A. D. 1854, (/) their Lordships, apparently pressed by 
 the conclusions, which, notwithstanding the disclaimers 
 already mentioned, counsel drew from some of the reason- 
 ing in Hammer sley v. De Biel, distinctly asserted that, in 
 that case, the decision proceeded upon the ground that the 
 memorandum was a contract. Here it was held, affirming 
 the decree of Sir Edward Sugden, as Chancellor of Ireland, 
 that a letter to an intended husband, written by his uncle, 
 in answer to an application of the guardians of the intended 
 wife for a settlement ; in which the micle stated that he had 
 made his will, leaving to the nephew certain estates therein 
 mentioned ; was not, under all the circumstances, a repre- 
 sentation, or an agreement, which entitled the nephew, after 
 the uncle' s death, to maintain a suit in equity, to have the 
 estates conveyed to the uses of the marriage. It appeared 
 that the guardians did not consider the letter as satisfac- 
 tory ; and that in answer to a communication from them 
 to that effect, the uncle had written again to the nephew, 
 in such terms as to imply quite clearly, that although he 
 had no expectation of altering his will, yet he intended to 
 reserve the power of disposition of the property ; and the 
 marriage took place after the receipt of the second letter. 
 The decision might well have been placed upon the mean- 
 ing of the letters only ; but the doctrine of Hammer sley v. 
 De Biel was discussed at considerable length in the two 
 speeches delivered, with the result just mentioned. It is 
 however quite difficult to reconcile what fell from Lord 
 St. Leonards, in this case, with some of his remarks in the 
 case immediately succeeding \i.{g) 
 
 (/) S. C, in the court below, 7 Irish Equity Reports, 413 ; and 1 Jones 
 and La Touche, 539, A. D. 1844. 
 
 {(j) Lord Cranworth, who had succeeded Lord Cottenham as chancellor 
 after discussing the facts, for the purpose of showing th^ the uncle never 
 intended to fetter himself absolutely, and that the other parties had no right
 
 740 Antenuptial Agreements. [Ch. xx. 
 
 § 752. This was Jorden v. Money ^ 5 House of Lords 
 Cases, 185, A. D. 1854. (7i) The bill was filed by WiUiam 
 
 to assume otherwise, said: "In Hammersley v. De Biel, it was successfully 
 insisted tliat there was a contract to leave a sum of money ; " but here the 
 counsel for the appellant had treated the rule of law affecting representations, 
 as being distinct from the rule of law which affects contracts, although he 
 said that a representation acted upon was binding as a contract. But his 
 Lordship said that, if the party had made no contract, there was nothing that 
 he was bound to fulfil. If the representation was of an existing fact, equity 
 will bind him, treating it as a contract, when it was made with a A'iew to 
 induce others to act upon it, and they had done so. " There is,'' said his lord- 
 ship, " no middle term, no tertium quid, between a representation so made, to 
 be effective for such a purpose, and being effective for it, and a cori tract; they 
 are identical. That which leads to the representation being made and acted 
 on determines its nature, gives it the character of a contract, or leaves it a 
 mere representation." And his Lordship added that he did not regard the 
 word " representation " as very happily employed in the speech of Lord'Cot- 
 tenham. delivered in Hammersley v. De Biel ; that the only distinction 
 which he understood was that some words, which do not amount to a con- 
 tract in one transaction, may possibly be held to do so in another; and that 
 in Hammersley v. De Biel the circumstances gave the words the character of 
 a contract. Lord St. Leonards, whose judgment was then under review, 
 spoke substantially to the same effect. He said that "a representation, 
 which is made as an inducement for another to act upon it, and is followed 
 by his acting upon it, will, especially in such a case as marriage, be deemed 
 to be a contract;" and that in Hammersley v. De Biel there was not 
 merely a representation of what was probable to occur; but on one part 
 a proposal, accompanied with a condition required of the other party; 
 and that the proposal was accepted, the condition complied with, and 
 there were therefore all the requisites of a binding contract. "If," con- 
 tinued his Lordship, "a man makes a proposal in that manner, and it is 
 accepted, and is followed by a marriage, though the affair may have begun 
 by being a proposal, it has ended by becoming a contract that was binding 
 on all the parties concerned." But in this case, his Lordship said that there 
 was a simple representation by the uncle ; and no doubt it was a true state- 
 ment of what he had done and what he intended. Doubtless also the par- 
 ties acted upon it, but not as an engagement, which could not be revoked ; 
 only as a " statement made by a relation, whose affection, if it remained what 
 it then was, would give the nephew the property, in accordance with that 
 statement." His Lordship then said that upon the theory of the appellant, 
 the uncle biecame a mere tenant for life, without the powers of a tenant for 
 life over his own estate; and that all the circumstances showed that he never 
 
 (h) S. C, 23 Law Journal, N. S., Chancery, 865.
 
 Art. III.] Antenuptial Agreements. 741 
 
 Money against Mr. and Mrs. Jorden and other parties, 
 praying that a debt of 1,200^., secured by a bond and a 
 warrant of attorney given by the plaintiff to Charles Mar- 
 nell, upon which a judgment had been entered up, might 
 be declared to have been abandoned, and satisfaction 
 entered up, etc. The material facts upon which this ques- 
 tion arose were as follows. (?') Mrs. Jorden, who married 
 quite late in life, was a" sister of Charles Marnell, and she and 
 her brothers were from youth on very intimate terms with 
 the plaintiflf's father, George Money, from whom they had 
 received many substantial benefits. This intimacy after- 
 ward extended itself to the plaintiflf, who was much Miss 
 Marnell' s junior, and whom she treated with great affection. 
 In 1841, the plaintiff, then a very young man, became in- 
 debted to Charles Marnell in this sum of 1,200Z., under cir- 
 cumstances quite discreditable to the latter ; and in 1843, 
 Charles MarneU died, having by his will left all his prop- 
 erty to Mrs. Jorden, then Louisa Marnell. She was ac- 
 quainted with all the circumstances under which the bond 
 and warrant of attorney were given, and had frequently ex- 
 pressed her strong disapprobation of her brother s conduct 
 in that matter ; and after the latter' s death, she often de- 
 clared to the plaintiff and others, that she had abandoned 
 and never intended to enforce the debt against the plaintiff. 
 This statement was repeated by her in various forms, and 
 always in very emphatic language. 
 
 § 753. In 1844, the plaintiff became engaged to be mar- 
 ried to Miss Poore ; and he informed her and her mother, 
 Lady Poore, of the circumstances under which he con- 
 tracted the debt of 1,200Z., and of Miss Marnell' s declara- 
 tions with respect thereto. It was considered necessary by 
 both families, with a view to the solemnization of the mar- 
 intended to place himself in that position, nor did the parties understand that 
 he had done so. Lord St. Leonards had previously criticised the decision in 
 Hammersley v. De Biel, much to the same effect, in his treatise on the Law 
 of Property, etc., pages 53 to 56. 
 
 (i) Another question which arose in this cause has been stated, ante, § 704.
 
 742 Antenuptial Agkeements. [Ch. xx. 
 
 riage, and the execution of a proper settlement thereon, 
 that the plaintiff should be secured against any future 
 demand for the payment of the 1,200?.; and, with that 
 view, various conversations took place between Miss Mar- 
 nell and the father and mother of the plaintiff. In these 
 conversations, the intended marriage was referred to, and 
 she reiterated her assurances, in various forms, that she 
 would never use the papers against the plaintiff, and he 
 should never be called upon to pay any thing upon the 
 debt. In answer to applications to surrender the bond and 
 warrant of attorney, she said that she must be trusted ; 
 that she wanted to keep the papers to use them against one 
 Hooper, (who was also liable for the 1,200Z., but probably 
 not jointly) ; that she had made her will, leaving every thing 
 to the plaintiff ; and when she died, he might burn them. 
 Upon the faith of these statements, communicated to Lady 
 Poore, the latter settled upon the plaintiff the first life 
 interest in her daughter' s property, and the marriage took 
 place in August 1845. Two or three years afterwards Miss 
 Marnell married Mr. Jorden ; and in 1849 the plaintiff 
 was called upon to pay the debt ; whereupon this bill was 
 filed.(y) 
 
 § 754. The Master of the Rolls, (Sir John Romilly, ) granted 
 a perpetual injunction. (^) From this decree the defend- 
 ants appealed; and the Lords Justices being divided in 
 
 (/) There was a preliminary motion in the cause, from the report of which 
 some additional facts may be collected. 20 Law Journal, N. S., Chancery, 
 174; 13 Beavan, 229. 
 
 (k) Money v. Jorden, 21 Law Journal, N. S., Chancery, 531 ; 15 Beavan, 372, 
 A. D. 1852. Sir John Romilly placed his decision in the Rolls Court, upon the 
 ground that Miss Marnell's declarations that she would never enforce the bond, 
 were made. for the purpose of being communicated to the plaintiff, and to 
 Lady Poore, and the other friends of Miss Poore, previously to the marriage; 
 that they were so communicated; and that the marriage took place and the 
 settlement was made upon the faith thereof This, he thought, was sufficient 
 to entitle the plaintiff to relief, upon the principles whereby persons are 
 required in equity to make good their representations; and he therefore 
 forobore from expressing any opinion as to the other points in the case.
 
 Art. III.] Antenuptial Agkeements. 743 
 
 opinion, (Sir J. L. Knight Bruce for affirmance, and Lord 
 Cranworth for reversal), the decree was affirmed, (l) An 
 appeal was again taken by the defendants to tlie House of 
 Lords, wliere Lord Cranworth, who had been made chan- 
 cellor since the decision in the court below, united with 
 Lord Brougham, in reversing the decision, against the 
 opinion of Lord St. Leonards. The speech of Lord Cran- 
 worth, upon the question now under examination, was to 
 the effect, that in order to raise an equity upon the ground 
 of representations, there must have been misrepresenta- 
 tions of existing facts, and not mere representations of 
 intentions ; and that regarding the plaintiff's right to 
 relief, as founded upon the fact that he had contracted his 
 marriage upon the faith of Miss Marneir s representations, 
 they were merely representations of intentions, and could 
 not be treated as creating a contract, for want of such a 
 writing as the statute of frauds requires. (m) In this con- 
 
 (l) Money v. Jorden, 2 De Gex, Macnaghten and Gordon, 318; and 21 
 Law Journal, N. S., Chancery, 893, A. D. 1852. 
 
 (m) The following is that portion of Lord Cranworth's argument, in which 
 he discussed the question arising under the statute of frauds. "I think that 
 that doctrine " (that a person is bound to make good a representation, made 
 to influence another's conduct, and upon which the latter has acted,) " does 
 not apply to a case where the representation is not a representation of a fact, 
 but a statement of something which the party intends or does not intend to 
 do. In the former case it is a contract, in the latter it is not. What is 
 here contended for, is this; that Mrs. Jorden, then Miss Marnell, over and 
 over again represented that she abandoned the debt. Clothe that in any 
 words you please, it means no more than this, that she would never enforce 
 the debt; she does not mean in saying that she had abandoned it, to say 
 that she had executed a release of the debt, so as to preclude her legal right 
 to sue. All that she could mean was that she positively promised that she 
 never would enforce it. My opinion is that if all the evidence had come up 
 to the mark, which, for reasons I shall presently state, I do not think it did ; 
 that if, upon the very eve of the marriage, she had said, ' William Money, I 
 never will enforce the bond against you,' that wo'ild not bring it within 
 tliese cases. It might be, if all statutable requisites, so far as there are 
 statutable requisite.s, had been complied with, that it would have been a very 
 good contract, whereby she might have bound herself not to enforce the 
 payment. That, however, is not the way in which it is put here; in short, 
 it could not have been, because it must have been a contract reduced into
 
 744 Antenuptial Agkeements. [Ch. xx. 
 
 elusion, Lord Brougham substantially concurred, notwith- 
 standing his former approval of the whole of Lord Cotten- 
 ham' s reasoning in Hammer sley v. De Biel. But upon 
 this branch of the case. Lord St. Leonards argued at 
 length, upon principle and authority, that Mrs. Jorden 
 was bound by her representations of her intentions, upon 
 the faith of which the marriage was contracted. He said : 
 "I think it is utterly immaterial whether it is a misrepre- 
 sentation of a fact, as it actually existed, or a misrep- 
 resentation of an intention to do or to abstain from doing 
 an act, which would lead to the damage of the party, 
 whom you thereby induced to deal in marriage, or in pur- 
 chase, or in any thing of that sort, upon the faith of that 
 representation." And he concluded his argument by say- 
 ing : "Having promised that she would not enforce it, she 
 is in my opinion bound by that promise. The statute of 
 frauds does not extend to this case." 
 
 § 755. Apparently the decision of the House of Lords in 
 this case has not been regarded by the profession in Eng- 
 land, as entirely conclusive upon the effect of a represen- 
 tation of an intention ; for we continue to find the reasoning 
 of the majority in Hammer sley v. De Biel repeated in 
 the arguments of counsel, the judgments of the courts, 
 
 writing and signed; but that is not the way in which this case is put; it is 
 put entirely upon the ground of representation. Now, my lords, I think that 
 the not adhering to this statement, call it contract or call it representation, 
 is no more a fraud than it would be not adhering to her engagement, if she 
 had said: 'Mr. William Money, you may marry; do not be in fear, you 
 will not be in want; I promise to settle 10,000?. Consols upon you.' If she 
 does not perform that promise, she is guilty of a breach of a contract, in 
 respect of which she may be sued, if it is put into a valid form, but not 
 otherwise ; so if she had said, as she did, to William Money, ' I mean to 
 give you every thing I am worth in the world, I promise to do so,' her 
 not doing so is no fraud, in the sense in which these cases speak of fraud ; 
 it is no misrepresentation of a fact, which the party is afterwards held bound 
 to make good as true. It seems to me that the distinction is founded 
 upon perfectly good sense; and that in truth in the case of what is some- 
 thinsr future, there is no reason for the application of the rule, because the 
 parties have only to say, ' Enter into a contract,' and then all difficulty is 
 removed."
 
 Art. III.] Antenuptial Agreements. 745 
 
 and the elementary treatises. Indeed it has been intim- 
 ated tliat in Jorden v. Money ^ the weight of autliority was 
 with the distinguished judges who were overruled, not- 
 withstanding their superior number, and at least equal 
 reputation, {n) But the ruling in that case was followed by 
 
 (n) Mr. Peachey in his Treatise on Marriage Settlements, page 74, remarks 
 of this case : " It however detracts somewhat from the intrinsic value of this, 
 the decision of the Supreme Court of Appeal of the three kingdoms, that 
 it is disapproved of by three equity judges of eminence. Lord St 
 Leonards, the Lord Justice Knight Bruce, and Sir John Romilly." 
 And in delivering his opinion in Pulsford v. Richards,- 17 Beavan, 94, A. D. 
 1853, Sir John Romilly reiterated his conviction of the correctness of hia 
 conclusions in Jorden v. Money. But in the subsequent case of Goldicutt v. 
 Townsend, 28 Beavan, 445, A. D. 1860 (§ 733, ante), after saying that he 
 should follow the decision of the House of Lords in Jorden v. Money, if the 
 case before him had called for the application of the principle there estab- 
 lished, he referred to Hammersley v. De Biel as follows: "All which that 
 and similar cases establish is this; that if, in consideration of a promise made 
 by the father of one of the parties to the marriage contract, the other party 
 to it does an act previously to the marriage, which is binding on him, the 
 court holds that to be a good consideration, and that the promise may be 
 enforced." See also his observations in Boldr. Hutchinson, 20 Beavan, 250, 
 A. D. 1855, (S. C, 1 Jurist, N. S., 365; 24 Law Journal, N. S., Chancery, 
 285,) affirmed by the chancellor on another ground, 5 De Gex, Macnaghten and 
 Gordon, 558 ; 2 Jurist, N. S., 97; and 25 Law Journal, Chancery, N. S., 598. 
 But in Prole v. Soady, 2 Giflard, 1, A.D. 1859, (S. C.,29 Law Journal, N.S., 
 Chancery, 721, 5 Jurist, N. S., 1382,) Vice Chancellor Sir John Stuart de- 
 clared unequivocally his approval of the reasoning of Lord Cottenham in 
 Hammersley v. De Biel, upon the effect of a representation of an intention. 
 It was a bill by the children of a marriage, whose mother had died, against 
 the devisees and personal representatives of their maternal grandfather, to 
 enforce a representation, respecting the settlement of certain property upon 
 the plaintiff's mother, alleged to have been made by the grandfather to the 
 plaintiff's father, on the faith of which the marriage was contracted. As we 
 understand the Vice Chancellor, he concluded, upon the evidence, that the 
 representation was to the effect that the property had actually been settled; 
 but he said several times in his opinion, that the representation of an intention 
 to settle would have entitled the plaintiffs to relief. Referring to Hammer- 
 sley V. De Biel, he remarked that in that case the representation was merely 
 the expression of an intention to leave the sum of lO.OOOZ. by a revocable in- 
 strument; but inasmuch as the expression was an inducement to the con- 
 tract, the executors were compelled to fulfil that which was expressed as a 
 mere intention. He added : " This doctrine, which gives all the force of a 
 94
 
 746 Antenuptial Ageeements. [Cli. xx. 
 
 Lord Cranwortli, and apparently also by the House of 
 Lords, in the next case when the question was presented. 
 
 § 756. This was Caton v. Caton, first heard before Vice 
 Chancellor Sir John Stuart, A. D. 1865 ; whose judgment 
 in favor of the plaintiff is reported in 34 Law Journal, New 
 
 binding contract, to the mere expression of an intention to do something 
 by an instrument revocable in its nature, is too firmly estabhshed to be 
 shaken." Again in Loflfus v. Maw, 3 Giffard, 592, A. D. 1862 (S. C, 6 Law 
 Times, N. S., 346; 32 Law Journal, N. S., Chancery, 49; 8 Jurist, N. S., 
 607; 10 Weekly Reporter, 513,) where the plaintiff was induced to reside 
 with her uncle, the defendant's testator, as his housekeeper, upon his verbal 
 representation that he would leave her certain property by his will; and he 
 prepared and executed a will accordingly, but subsequently revoked it ; Vice 
 Chancellor Stuart, on pronouncing a decree for the plaintiff, said that although 
 the decision in Jorden v. Money was no doubt binding, it could not be con- 
 sidered as a reversal of Hammersley v. De Biel ; and the proposition attributed 
 to Lord Cranworth, that a statement or representation of what a person intends 
 to do is not sufficient, seems to be irreconcilable with the. decision in the latter 
 case, and with the law as laid down by all judges of the highest authority. 
 He also alluded to the fact that Hammersley v. De Biel is not referred to in 
 the remarks of any of the law lords in Jorden v. Money. In Walford v. 
 Gray, 11 Jurist, N. S., 106, A. D. 1865, (S. C, 11 Law Times, N. S., 620; 
 13 Weekly Reporter, 335 ;) the same Vice Chancellor again followed Ham- 
 mersley V. De Biel, but under circumstances where no question arose as to 
 the effect of a verbal representation. There, upon a treaty of marriage, the 
 father of the intended wife assured the intended husband, that he and his 
 wife "do not propose to exercise," certain powers of appointment reserved 
 to them by their own marriage settlement, in default of the exercise of which, 
 the intended wife and her issue would be entitled, upon the decease of both 
 her parents, to one third of the property settled. The wife having died, 
 leaving the plaintiff the only issue of the marriage, the Vice Chancellor held 
 that this was a "representation " which entitled the plaintiff, after the death 
 of his grandfather and grandmother, to maintain an action to recover the 
 one third of the settled property, which had been otherwise disposed of by 
 their appointment. But here there was a letter from the grandfather's 
 solicitor, which sufficiently proved the assurance ; and principally on that 
 ground, treating the transaction throughout as an "agreement," the Chan- 
 cellor (Lord Westbury) affirmed the Vice Chancellor's decree, 11 Jurist, 
 •N. S., 473; 13 Weekly Reporter, 761; 12 Law Times, N. S., 437. The 
 judgments of the same Vice Chancellor in Caton v. Caton and Williams v. 
 Williams are mentioned in the following pages.
 
 Art. III.] Antenuptial Agreements. 747 
 
 Series, Chancery, 564. (o) On appeal this decree was reversed 
 by the Lord Chancellor, Law Reports, 1 Chancery Appeals, 
 137, and 35 Law Journal, New Series, Chancery, 292, A. D. 
 1806. (j9) And the latter decree was aflBrmed ujjon an ap- 
 peal to the House of Lords, Law Reports, 2 House of 
 Lord,s, 127, A. D. 1867. {q) There it appeared that in the 
 year 1852, the Reverend R. B. Caton, a clergyman nearly 
 eighty years of age, and the plaintiff, a widow of sixty, 
 entered into a treaty of marriage ; and it was arranged 
 between them that a settlement should be made upon the 
 intended marriage, according to a paper written out but 
 not signed by Mr. Caton. (r) The substance of this paper 
 was that the plaintiff's fortune should be settled upon 
 herself; but Mr. Caton should have the income of it 
 during his life, except 80Z. per annum for pin money ; that 
 after Mr. Caton' s death, she should have a certain house 
 belonging to him for her life, and all his furniture, plate, 
 etc., absolutely. The draft of a settlement was prepared, 
 according to the paper ; but some alterations were sug- 
 gested by Mr. Caton for the purpose of avoiding the 
 expense of executing it, which were assented to by the 
 plaintiff; and' a new draft was prepared. Mr. Caton then 
 represented to her that the engrossment of the settlement 
 would occasion great expense, which he proposed to save 
 
 (o) Also 13 Weekly Reporter, 801; 12 Law Times, N. S., 532; and, (as 
 part of the report of the case before the Chancellor), in 12 Jurist, N. S., 171, 
 and Law Reports, 1 Chancery Appeals, 137. 
 
 {p) Also 12 Jurist, N. S., 171; 14 Weekly Reporter, 2G7; and 14 Law 
 Times, N. S., 34. 
 
 {q) Also 36 Law Journal, New Series, Chancery, 86; and 16 Weekly 
 Reporter, 1. 
 
 (/•) Many of the reports of the case in the courts below state that this 
 memorandum was signed by Mr. Caton, either with his full name or his 
 initials ; and some say that it was also signed by Mrs. Caton. But all these 
 statements are manifestly erroneous. The report in Law Report's, 2 House 
 of Lords, 127, expressly says that it was not signed by either ; and the deci- 
 sion of the Lords proceeded principally upon the ground, that although Mr. 
 Caton's name and initials, written by him, appeared several limes in the body 
 of the memorandum, they were nowhere used in such a manner as to authen- 
 ticate or gover-a the whole instrument.
 
 748 Antenuptial Agkeements. [Ch. xx. 
 
 altogetlier, and, as she alleged, he promised, if she would 
 forego its execution, "that he would most strictly and 
 faithfully carry out the terms of the marriage contract 
 agreed upon, and would leave to her by his will the whole 
 of her then and after acquired property," etc., according to 
 the provisions of the proposed settlement. She consented, 
 and the marriage accordingly took place in 1853. Before 
 the ceremony, Mr. Caton produced a wUl, which appeared 
 to be in conformity with his promises ; and he executed it 
 in the vestry, immediately after the ceremony had been 
 performed. After the marriage, he took possession of his 
 wife' s property ; and allowed her the 80Z. per annum. In 
 January, 1864, he died, and it was then found that in May, 
 1863, he had executed another will, without the plaintiff's 
 knowledge, revoking all prior wills, and making such dis- 
 position of his estate, that she had only the income for her 
 life, of a portion of the personal property belonging to her 
 at the time of her marriage ; and the remainder, together 
 with the principal of that part, to the income of which she 
 was entitled by the will, was left to the defendants, his 
 sons by a former marriage, who were also made his gen- 
 eral devisees and legatees. Mrs. Caton thereupon filed 
 this bill to enforce the agreement ; and the defendants 
 having denied the agreement, and pleaded the statute of 
 frauds, the cause came on for hearing before Vice Chan- 
 cellor Stuart, who made a decree in her favor, {s) 
 
 § 757. The defendants appealed from the Vice Chancel- 
 lor' s decree to the Chancellor, (Lord Cranworth), who re- 
 
 (s) His Honor said that the memorandum was not the agreement which 
 the plaintiff asked to have performed, but the reUef sought was substan- 
 tially the same as the specific performance of that agreement; the only dif- 
 erence between the two being the machinery and mode by which the 
 plaintiff's fortune was to be secured to her. And upon the question, relating 
 to the application of the statute of frauds, he thought that the decisions, 
 holding that part performance of a verbal contract for the sale of land would 
 take it out of the statute, were applicable to this case. That here there was 
 evidence in writing ; a will was executed; this was more than part perform- 
 ance, it was performance ; and all that was necessary was that the will 
 should remain unaltered.
 
 Art. III.] Antenuptial Agreements. 749 
 
 versed it. In delivering his judgment, he said that (courts 
 of equity were as much bound by the statute of frauds as 
 courts of law, "unless there be equitable grounds for tak- 
 ing a case out of the operation of the statute ;' ' that this 
 was not denied by the plaintiff ; but her counsel insisted 
 that there were equitable grounds for relief, notwitlistand- 
 ing the statute ; and this was the ground upon which the 
 Vice Chancellor proceeded. "That marriage itself," con- 
 tinued his Lordship, "is no part performance within the 
 rule of equity, is certain. Marriage is necessary in order 
 to bring a case within the statute ; and to hold that it also 
 takes a case without the statute, would be a palpable 
 absurdity. ' ' And his Lordship thought that the additional 
 ground upon wMch the Vice Chancellor rested his judg- 
 ment ; namely, that a will had been prepared previously to 
 the marriage, and executed afterwards, in conformity with 
 the verbal agreement, did not bring the case within the 
 equitable rule respecting part performance. For that rule 
 requires that one of the parties should have been induced 
 or allowed by the other, to alter his position, upon the faith 
 of the contract ; so that it would be a fraud in the other 
 party to set up its legal invalidity. But here the prepara- 
 tion and execution of the will caused no alteration in the 
 plaintiff' s position ; and no consequence can be attributed 
 to acts of part performance by the party sought to be 
 charged. The circumstances relied upon might afford 
 strong evidence of the existence of the parol contract 
 insisted on, if that was a matter into which the court was 
 at liberty to inquire ; but it could not have the effect to 
 give legal validity to a contract otherwise invalid. And 
 the nature of the alleged agreement was such, as hardly 
 to admit of part performance, even by the party to be 
 charged ; for, as a will is always revocable, a contract 
 to make a bequest, even when a will has been prepared 
 and executed accordingly, is a contract of a negative 
 nature, a contract not to vary it. And his Lordship 
 thought that there could be no part performance of a con- 
 tract of that character.
 
 750 Antenuptial Agreements. [Ch. xx. 
 
 § 758. Upon the argument of the appeal from this decree 
 to the House of Lords, the plaintiff' s counsel abandoned 
 the point that there had been such part performance of the 
 verbal agreement, as would take it out of the statute ; and 
 they insisted that, although the execution of a settlement 
 had been abandoned by consent, the original agreement 
 had never been abandoned, and they had a right to rely 
 upon that. This agreement, it was argued, was evidenced 
 by the memorandum, which was sufficiently signed to sat- 
 isfy the statute. And the outline of the argument in the 
 Law Reports indicates that they also suggested that she 
 was entitled to relief, in consequence of having married in 
 reliance upon the defendant' s representation ; within the 
 reasoning of Lord Cottenham, in Hammer sley v. De Biel. 
 But, apparently, this point was not much pressed ; and the 
 court disregarded it altogether. In the speeches delivered 
 by the law lords, the discussion was confined to the other 
 points ; and, with the exception of a general approval of 
 the judgment of the Chancellor by Lord Chelmsford, (his 
 successor), and by Lord Westbury, and a remark of Lord 
 Cranworth, to the effect that nothing had occurred to change 
 the opinion expressed by him in the court below, they 
 contain no reference to the question now under exam- 
 ination. 
 
 § 759. But Vice Chancellor Sir John Stuart, in the latest 
 case of this series, Williams v. Williams, 37 Law Journal, 
 ISTew Series, Chancery 854, A. D. 1868, (^) again went back 
 to Lord Cottenham' s doctrine respecting a representation. 
 This was an appeal from the decision of the judge of a 
 county court, made upon the accounting of the executors 
 of the will of one Evan Williams. Richard Williams, one 
 of the executors, and a son of the testator, claimed to retain 
 150Z., part of a sum of 200?., as the balance of his marriage 
 portion. It appeared that the testator previously to and 
 in consideration of the marriage of Richard, had verbally 
 promised him the portion of 200Z., and had also verbally 
 
 (<) S. C, 18 Law Times, N. S., 785.
 
 Art. III.] Antenuptial Agreements. 761 
 
 communicated that promise to the father of the intended 
 wife; who "thereupon and in consideration thereof, and 
 before the marriage, verbally promised to and agreed with 
 the testator ' ' to give his daughter a like marriage portion 
 of 2001.] that the father-in-law of Richard had since the 
 marriage paid the 2001., and the testator had also paid 
 501.', but had died, leaving the remainder unpaid. The 
 judge of the county court decided that the executor was 
 entitled to retain the 1501., basing his decision on the exist- 
 ence of an agreement between the testator and the father- 
 in-law, and the part performance of that agreement by 
 each party thereto. 
 
 § 760. This decision was affirmed by the Vice Chancel- 
 lor. He said that the true doctrine in this class of cases 
 was laid down by Lord Cottenham and by the House 
 of Lords through Lord Brougham and Lord Campbell, 
 in Hammer sley v. De Biel, to the effect that "a rep- 
 resentation made by one party for the purpose of influenc- 
 ing the conduct of the other, and acted on by him, will in 
 general be sufficient to entitle him to the assistance of this 
 court for the purpose of realizing such representation." 
 That in Jorden v. Money this principle was not adhered 
 to, and in Gaton v. Caton it was violated : the last men- 
 tioned decision having been, his Honor thought, made "in 
 consequence of the extraordinary and peculiar circum- 
 stances of the case itself, and in obedience to the view 
 entertained by Lord Cranworth with respect to it." That 
 view, his Honor thought, was in opposition to the princi- 
 ples established in Hammer sley v. Be Biel ; but that case 
 has since been followed by other cases in this court. (2^) 
 He must therefore consider the authority of it as estab- 
 lished on impregnable grounds. Then, after saying that 
 the evidence must be very clear, and commenting upon a 
 case formerly decided by him upon grounds inapplicable 
 
 (w) These cases are not cited, and wo are at a loss to know whether his 
 Honor referred to his own decisions, cited in the note to § 755, or to some 
 other cases which have escaped our notice.
 
 752 Antenuptial Agkeements. [Ch. xx. 
 
 to this case, he said that here the representation was made 
 to the husband, and the evidence was clear. He then pro- 
 ceeded : "Now then, there is certainty as to the nature of 
 the representation, certainty as to the amount, and a mar- 
 riage contract on the faith of the representation. After 
 that the marriage portion is paid by the father-in-law, and 
 it is sworn to have been paid in performance of the repre- 
 sentation. The case is therefore within the principle laid 
 down in Hammer sley v. De Biel. ' ' The opinion concluded 
 as follows: "I have not entered into the considerations 
 arising out of the fact of the contract in this case being a 
 verbal one, because, in my opinion, the part performance 
 of this contract takes it out of the statute of frauds. That 
 was settled by the decision of the House of Lords in Caton 
 V. Caton,'''' (sic), "although the part performance in that case 
 was the act of the testator, by which he did by a revocable 
 instrument, what he had promised to do by an instrument 
 wholly irrevocable. Different minds take different views •, 
 but I adhere to the clear definitions of the law upon the 
 subject given by Lord Cottenham, Lord Brougham and 
 Lord Campbell." 
 
 § 761. The decision in this case may possibly be upheld 
 upon principles which were not adverted to by the Vice 
 Chancellor ; but with respect to the question now under 
 discussion, we think that his adherence to the dicta in 
 Hammer sley v. De Biel, after the repeated condemnation 
 by the appellate courts of the doctrine which they uphold, 
 will not command the approval of the profession. The 
 course of Sir John Romilly, in frankly abandoning the 
 views expressed by him in Money v. Jorden, after the 
 Chancellor and the House of Lords had reversed his judg- 
 ment, is much more in accordance with that deference due 
 from an inferior tribunal, however eminent, to the rulings 
 of its oflacial superior, without which there can be no cer- 
 tainty in the administration of justice. We therefore con- 
 clude that the correct doctrine, upon reason and principle, 
 as well as the authority of the decisions collated in this 
 article, is that a representation of an intention to do an act
 
 Art. III.] Antenuptial Ageeements. 753 
 
 at a future day, if it can be distinguished from a contract, 
 does not, in the absence of actual fraud, entitle the party 
 to whom it was made, to maintain an equitable action for 
 specific performance ; although it was made for the pur- 
 pose of so being acted upon by him ; and although it has 
 so influenced his conduct that a restoration to his former 
 condition would be impossible. On the contrary, in order 
 to enable such an action to be maintained, the representa- 
 tion must have been, in legal eflect, a contract, and the 
 plaintiff must found his action upon it as a contract. But 
 when the contract was made in consideration of marriage, 
 the statute prevents the courts from granting any relief, 
 founded upon the performance of that consideration. Con- 
 sequently a representation of an intention, made for the 
 purpose of inducing a marriage, will not sustain a bill for 
 specific performance, unless the evidence thereof is con- 
 tained in a writing sufficient to satisfy the requirements 
 of the statute of frauds ; or unless the plaintiff, or the 
 person through whom he derives liis right of action, has, 
 in addition to the celebration of the marriage, done some 
 distinct act, sufficient of itself to entitle him to relief ; his 
 performance of which was contemplated by the express 
 terms of the representation itself, or by necessary implica- 
 tion therefrom. 
 
 95
 
 INDEX. 
 
 A. 
 
 ABANDONMENT: Sceiion. 
 
 of a subsisting contract, as a ground for taking out of the statute a 
 
 stranger's promise to pay for the same service, &c., 294-320 
 
 See Discharge op Thibd Person, IV. 
 
 ACCEPTANCE AND ACCEPTOIt: 
 
 See Bill of Exchange. 
 
 ACKNOWLEDGMENT : 
 
 to lake out of the statute of limitations, not within the statute of 
 frauds, 497, and note. 
 
 ADMINISTRATOR: 
 
 See EXECtTDORS and ADillNISTRATORS. 
 
 ADMISSION: 
 
 by promise, that promisor or his property was originally liable, estops 
 promisor from showing that it was collateral, 485-489 
 
 ADPROMISSIO AND ADPROMISSOR: 
 
 defined, 329 
 
 AGREEMENTS, VERBAL: 
 
 See Statute of Frauds ; Executors and Administrators ; Collateral 
 Undertakings; Marriage Agreements. 
 
 ALTERATION OF FORM : 
 
 of existing liability for third person's debt, 490-496 
 
 Sec Former Liability, III. 
 
 AMBIGUITY : 
 
 in the words of the promise, 188, 298 
 
 And see Lla^ility of Third Person, III. 
 
 "ANOTHER PERSON : " 
 
 semblc that these words are satisfied, only when they apply to a per- 
 son in existence, and specifically designated, 358 359, CG8
 
 756 INDEX. 
 
 "ANOTHER 'PERSO'!>i" — {Continued.) Section, 
 
 whether a factor's engagement under a del credere commission 
 
 satisfies them, 358, 649, 668 
 
 whether they are satisfied by a promise to pay a deceased per- 
 son's debt, made before probate or grant of administration, 15 Twte, 
 
 16, 359 
 
 but a corporation is within them, 360 
 
 statute not applicable merely because another is also liable, .... 484, 581 
 statute inapplicable to promise to answer for promisor's own debt, 
 
 whatever its form, 214, 480, 484, 615, 617, 650 
 
 These words are not satisfied unless the promisee luns the person to 
 whom the debt or duty was to he discharged (Collateral Undertakings, 
 
 fifth rule), 361-478 
 
 origin of the rule, 363 
 
 its effect the same as if the words were *' a third person," 363 
 
 how the rule is reconciled with the language actually used, 364 
 
 I. General application of the rule : 
 
 1. Rule laid down by Lord Denman in Eastwood v. Kenyon, . . . 365 
 
 2. Not confined to cases where promise made to debtor, 866 
 
 3. Illustrations of the general principle, 366-382 
 
 4. The principle rests upon inconclusive reasoning, but it is well 
 
 settled, 383, 384 
 
 II. Where a creditor seeks to enforce the defendant's verbal contract 
 
 to pay the debt, made with the debtor, 385-426 
 
 1. The question stated, 385 
 
 2. In England a stranger to the consideration cannot enforce 
 
 a contract, 386, and note 
 
 3. The weight of authority, in the United States, is the other 
 
 way, id. ; and see 6, post. 
 
 4. Reasons for sustaining the action in the United States, stated 
 
 and discussed, with reference to the question whether the 
 statute applies, 387-395 
 
 5. "When creditor not a party to the contract, application of 
 
 the statute not dependent on same principle as when he 
 ■ was, 395, 396. And see Fund, VII. 
 
 6. American cases, where the creditor was not a party, examined 
 
 with reference to the application of the statute ; and inci- 
 dentally to the common law rule ; the right of the debtor to 
 
 release the contract ; and other questions arising, 397-426 
 
 rulings in various states that the statute does not apply, . . 397^17 
 rulings in other states that the statute does apply, 418-426 
 
 III. Indemnity against a liability to be thereafter incurred by prom- 
 
 isee, not within the statute, where no one except the promisor 
 
 was primarily bound to indemnify him, 428-437 
 
 cases illustrating this proposition, 429-436 
 
 but indemnity must be confined to the liability so to be incurred, 437 
 
 IV. Whether an indemnity against a liability to be incurred as 
 
 security for a third person, is within the statute, 438-477
 
 INDEX. 757 
 
 "ANOTHER PERSON" — (Ct^Hfmwfrf.) Section. 
 
 1. Statement of the question ; arguments on both sides, 438-440 
 
 2. Fhictuations of opinion in the English courts, 440-448 
 
 3. But parties to a bill of exchange, &c., may vary their apparent 
 
 liabilities to each other by verbal agreement, 445, 446 
 
 4. In England, indemnity for becoming bail for a third person, in 
 
 a criminal proceeding, is not within the statute, 447, 448 
 
 whether the defendant in a criminal proceeding is liable to 
 his bail, upon default, &c., 448, 7ioto 
 
 5. Fluctuations of oi)inion in the New York courts upon the 
 
 principal question, 449-455 
 
 6. But when promisor and promisee are sureties on same instru- 
 
 ment, the indemnity is not within the statute, 453, 454 
 
 7. The course of decision in Massachusetts upon the principal 
 
 question, 456, 457 
 
 8. Rulings in some other states that statute does not apply,. 458-467 
 
 9. Contrary rulings elsewhere, 408-472 
 
 10. Where it does not distinctly appear that any person except 
 
 the promisee was primarily liable, 473 
 
 11. Summing up of on both sides of the question, 474^477 
 
 "ANSWER:" 
 
 meaning of this word in the first clause of the fourth section, 83, 36 
 
 its meaning and effect in the second clause, 112 
 
 See Guaranty by Indirection. 
 
 ANTENUPTIAL AGREEMENTS : 
 
 See Marriage Agreements. 
 
 ARBITRATION: 
 
 verbal agreements for, valid, 6 
 
 submission to, by executor^ &c., not within statute, 36, and note 
 
 not an admission of assets, id. 
 
 ASSENT : 
 
 distinction between, and request, 163, 439, 400, 461 
 
 ASSETS: 
 
 See Executors and Administrators. 
 
 ASSIGNMENT AND ASSIGNEE: 
 
 when debtor's promise to pay his debt to an assignee is valid at com- 
 mon law or under the statute. See Former Liability, V. 
 assignee for benefit of creditors, his duty or implied promise not 
 
 within statute, 101 note, 531, 533 
 
 guaranty given upon assigning a chose in action by guarantor to 
 guarantee, not within statute. See Guaranty, I. 
 FcT other questions, see Transfer.
 
 768 INDEX. 
 
 ATTACHMENT : Section, 
 
 forbearing to issue, will not take out of statute promise to pay debt, 58 
 release of levy, as a ground for taking case out of statute. See Lien. 
 
 ATTORNEY : 
 
 promise to pay his costs, &c., when within the statute, 137, 398, 588 
 
 B. 
 
 BAIL: 
 
 promise to execute bail bond for another not within statute, 113 
 
 whether promise to indemnify the prorhisee for executing a baU bond 
 
 is within the statute. See Another Person, IV. 
 whether defendant in a criminal proceeding bound to indemnify his 
 
 bail 448,no«<J 
 
 BANKRUPTCY : 
 
 renewal of liability for another's debt, barred by certificate in bank- 
 ruptcy, not within the statute, 497 
 
 aliter by Lord Tenterden's act and corresponding American sta •- 
 utes, 105, and note 
 
 BILL OF EXCHANGE : 
 
 liabilities regulated by the mercantile law are not within the statute 
 of frauds, 86, 87 
 
 verbal promise to accept a bill of exchange sufficient, and not within 
 the statute, .' 86, 206 
 
 whether verbal promise to accept non-existing bill is sufficient, 206 
 
 as between the parties, it may be shown that one verbally indemni- 
 fied the other, 445, 446 
 
 whether a waiver of a technical discharge .by the drawer or indorser 
 is within the statute. See Former Liability, IV. 
 
 promise to accept or indorse bill of exchange to be given by third 
 person to promisee. See CoNDiTiONAii Promise, IV. 
 
 BOND: 
 
 executor's, to pay debts, etc., conclusive evidence of assets,. . 26, 37, note 
 
 BOOKS : 
 
 whether promisee's books evidence in his favor, upon the question 
 
 whether the promise was original or collateral, J 89-193 
 
 See Liability of Third Person, IV. 
 admissibility, generally, of the plaintiff's books, by local statutes or 
 regulations, 192, JwU 
 
 BREACH OF PROMISE: 
 
 action for, not affected by statute of frauds, , . , , , 699-701
 
 INDEX. 759 
 
 C. 
 
 CAPIAS AD SATISFACIENDUM : Sectiou. 
 
 discharge from arrest under, will take out of the statute a stranger's 
 
 promise to pay the debt, 278-284 
 
 See Discharge op Third Person, III, 1. 
 
 CHANGE OF FORM : 
 
 of a pre-existing liability of the promisor for the debt of a third 
 person. See Former Liability. 
 
 CIRCUITY : 
 
 whether the circuity of the process, whereby a person is made an- 
 swerable for the debt of another, affects the application of the 
 statute. See Guarajmty by Indirection. 
 
 CLASSIFICATION : 
 
 Classification of cases, where verbal agreements are valid, althongh they 
 are apparently or actually witJiin the terms of the provision relating 
 
 to collateral vndertakings, 61-72 
 
 difficulties in the way of a correct classification, 61 
 
 never attempted in England, 62 
 
 Chief Justice Kent's classification in Leonard v. Vredenburgh, 63 
 
 Chief Justice Comstock's, in Mallory v. Gillett, 64 
 
 merits and defects of these two systems, 65, 66 
 
 Chief Justice Bell's classification in Robinson v. Gilman, 65, note 
 
 general principles upon which the classification adopted in this work 
 
 is based, 67, 68 
 
 not always sustained by the cases, 92, 93 
 
 details of the plan adopted, 69-72 
 
 COLLATERAL RELATIVES : 
 
 whether within the scope of the marriage consideration,. . . . 697 and note 
 
 COLLATERAL UNDERTAKINGS : 
 
 personal contracts of executors and administrators to pay debts, etc., 
 of deceased often confounded with collateral undertakings, 12 
 
 this confusion unwarranted ; distinguishing feature of the two, 13-16 
 
 this expression never properly applicable to a promise to pay a de- 
 ceased person's debt, when made before probate or administra- 
 tion, : 15 Twte, 16 
 
 statute does not apply to a promise, the substance of which is that 
 the promisor will pay his own debt, even when it assumed the 
 
 form of a promise that he would pay the debt of another, 214 
 
 480, 484, 615, 617, 650 
 
 semble that the statute is satisfied, only when the undertaking is to 
 respond for some person specifically designated, 358, 359, 668 
 
 and that undertaking to respond for debt of a deceased person, be-
 
 760 INDEX. 
 
 COLLATERAL UNDERTAKING S — ( Continued.) Section. 
 
 fore probate or grant of administration, is not within statute, 359 
 
 but principal debtor may be a corporation, 360 
 
 a promise to answer for tlie debt, etc., of another will not be taken 
 out of the statute, because it assumed the form of an undertaking 
 
 which is not within the statute, 437 
 
 statute does not apply, merely because some other person would be 
 
 discharged by fultilment of the promise, 484, 581 
 
 husband's promise, during coverture, to pay his wife's debt contracted 
 
 before coverture, is within the statute, semble, 496, note 
 
 whether a promise to pay the promisor's debt to a transferee 
 thereof, in discharge of a debt due from the transferor to the trans- 
 feree, is valid, at common law or under the statute, unless both the 
 intermediate debts are discharged at the time of the promise,. . 324-330 
 
 509-518 and mte 
 Analysis of the subject of collateral undertakings : 
 I. Definitions of terms used in treating of collateral undertakings, . 49-51 
 distinction between guaranty and a collateral undertaking, ... 49 
 
 "original" and " collateral promises " defined, -49, 50 
 
 the use of those expressions sometimes leads to error, 50 
 
 explanation of the sense in which " promisor," " third person," 
 
 etc., are used in these pages, .* 51 
 
 n. How far the consideration affects the validity of a verbal promise 
 
 under the provisions of this clause, 52-60, 307 
 
 1. Generally the consideration is regarded as immaterial, 52 
 
 this is now settled in England, id. 
 
 it is the correct doctrine, although the contrary was formerly 
 distmctly held, .^ 52, 53 
 
 2. The consideration is only material as it helps to determine the 
 
 character of the promise, 53, 54 
 
 3. No consideration can take out of the statute a promise which 
 
 is really collateral, 54-59 
 
 this proposition illustrated by several cases, 54-59 
 
 and an original promise is not within the statute, though the 
 
 promisor derived no benefit, etc., 60 
 
 in. Classification of cases apparently or actually within the terms 
 of the 4th section; where verbal promises are, nevertheless, 
 
 valid, 61-72 
 
 difficulties in the way of any correct classification, 61 
 
 Mr. Roberts's Treatise, and the note to Forth v. Stanton, ... 62 
 Ch. J. Kent's classification, in Leonard v. Vredenburgh,. ... 63 
 
 classification by Comstock, C. J., in Mallory v. GDlett, 64 
 
 other attempts to classify cases under this clause, 65, note 
 
 merits and defects of these systems of classification, 65, 66 
 
 general principles upon which the cases are classified in this 
 
 work, 67, 68 
 
 details of the plan adopted, ,.,.,... 68-72 
 
 3ee Classification,
 
 INDEX. 761 
 
 COLLATERAL UNDERTAKINGS — (Cfen^mwerf.) Section. 
 rv. General rules by which to determine the validity of verbal prom- 
 ises under this clause of the statute, 73-83 
 
 V. Cases which are not within the statute, because they are gov- 
 
 erned by some subsequent statute, or by the law; merchant. ( First 
 
 ' Rule) 84-91 
 
 See Mercantile Law; Statutes. 
 
 VI. Cases which are not within the statute, because they do not 
 satisfy some part of the expression, " Special promise to answer." 
 {Second Rule), 94-119 
 
 1. Where the promise was not " special," 95-101 
 
 See Implied Pkomise, II. 
 
 2. Where the liability which the plaintiff seeks to enforce 
 
 grew out of something else than a " promise," 103-111 
 
 See Representation, II. 
 8. Where the promise was not directly to " answer " for the 
 
 debt, &c., of another, 112-119, 491, 492 
 
 See Guaranty by Indirection. 
 Vil. Cases which are not within the statute, because they do not sat- 
 isfy some part of the expression, " debt, default, or miscarria- 
 ges," 120-357 
 
 meaning and effect of those words, 120-125 
 
 See "Debt, Default, or Miscarriages." 
 Viil. Examination of the general doctrine, that, in order to set the 
 statute in motion, there must be two concurrent liabilities,. . 126-138 
 See Concurrent Liabilities. 
 IX. Where two liabilities did not concur, because, although the con- 
 sideration moved to the third person, he had not incurred any 
 liability therefor, when the liability of the promisor took effect. 
 
 {Third Rule), 139-268 
 
 See Liability of Third Person. 
 
 1. The doctrine generally stated and explained: its ori- 
 
 gin, 139-146 
 
 See Liability, &c., I. 
 
 2. The principle that the promise is witliin the statute, if the 
 
 promisee gave any credit to the third person, stated, 
 
 discussed, and illustrated by cases, 147-179 
 
 See Liability, &c., II. 
 8. The province of the court and jury, respectively, upon 
 the question whether the promise was original or collat- 
 eral, 180-188 
 
 See Liability, &c.. III. 
 4. Whether tlie promisee's books, &c., are evidence in his 
 favor upon the question to whom credit was given, 189-193 
 See Liability, &c., IV. 
 6. Cases where the promise in terms contemplated a resort to 
 
 the third person, 194-225 
 
 See Conditional Promise. 
 96
 
 762 INDEX. 
 
 COLLATERAL UNDERTAKINGS — (C(?7i«mwed) Section, 
 
 X. Whether an exception to the foregoing rule arises where the prom- 
 
 isor and the third person assumed a joint liability, 237-247 
 
 See Joint Promises, I. 
 
 XI. Whether such an exception arises when the third person was a 
 married woman or an infant, 248-268 
 
 1. Observations applicable to either species of auxiliary- 
 promise, 248-251 
 
 3. Where the promise was auxiliary to that of a married 
 
 woman, 252-256 
 
 See MARRrED Woman, III. 
 3. Where the promise was auxiliary to that of an infant, 
 
 not contracting for necessaries, 257-268 
 
 See Infant, &c. 
 
 XII. Where two liabilities did not concur, because, although, the prom- 
 isor and the third person were liable for the same debt, &c., the 
 third person was discharged before the promisor's liability took 
 effect. {Fourth Rule), 269-335 
 
 See Discharge op Third Person. 
 
 1. General examination of the question,. . 269-276, 284, and note 
 
 See Discharge, &c., I, II. 
 
 2. Where' the third person's discharge resulted by operation 
 
 of law, without the promisee's express discharge, . . 278-293 
 See Discharge, &c.. III. 
 
 3. Where the abandonment of the third person's liability is 
 
 inferred, as matter of fact, from the acts, &c., of the 
 
 promisee, 294-320 
 
 See Discharge, &c., IV. 
 
 4. Where the third person's discharge resulted from a tri- 
 
 partite agreement between him, his creditors, and the 
 
 promisor, 321-357 
 
 See Discharge, &c., V. 
 
 XIII. Cases not within the statute, because the promise was not made 
 to the person to whom the debt or duty assumed by the promise 
 was to be discharged. {Fifth Rule), 358-478 
 
 See "Another Person." 
 
 1. The question generally examined, 358-384 
 
 See Another Person, I. 
 3. Whether a creditor can maintain an action to recover 
 upon a verbal contract to pay the debt, when he was a 
 
 stranger to the contract and the consideration, 385-426 
 
 See Another Person, II. 
 
 3. Of contracts of indemnity, 428-477 
 
 See Another Person, III, IV. 
 
 XIV. Cases not within the statute, because the promisor was already 
 liable for the debt, &c., or a similar one, in some other form, or 
 to some other person, or had only been technically discharged 
 from a previous liability therefor. {Sixth Rule), 482-518 
 
 See Former Liability.
 
 INDEX. 763 
 
 COLLATERAL L^T)ERTAKINGS — {Continued) 8 sctioii. 
 
 1. The question general!)' examined, 482-484 
 
 Sec Former Liability, L 
 
 2. Whether party may show he was not liable for original 
 
 debt, so as to bring case within the statute, 485-489 
 
 See Former Liability, IL 
 8. How far the statute permits an existing liability for an- 
 other to be altered by verbal contract 490-496 
 
 See Former Liability, IIL 
 
 4. Promise to waive a technical defense,. 497-508 
 
 See Former Liability, IV. 
 
 5. Promise by a debtor to pay a transferee of the debt,. 509-518 
 
 See Former Liability, V. 
 
 XV. Cases not within the statute, because the substantial effect of 
 fulfilment of the promise will be to discharge the debt out of a 
 fund of the debtor. {Seventh Rule), 519-570 
 
 See Fund. 
 
 1. Origin of the rule ; doubts concerning its existence ; the 
 
 question generally discussed, 519-530 
 
 See Fund, I-IV. 
 
 2. Where the fund was placed in the promisor's hands for 
 
 the purpose of paying the promisee, 531, 532 
 
 See Fund, V. 
 d. Where there was no trust attaching to fund, specifically 
 
 in favor of the promisee, 533-548 
 
 See Fund, VI. 
 
 4. Where the creditor, debtor, and promisor were parties to 
 
 the agreement to pay the debt, 549-564 
 
 See Fund, VII. 
 
 5. Where the fund proves to be insuflScient to discharge the 
 
 promise, 565 -570 
 
 See Fund, VIII. 
 
 XVI. Cases not within the statute, because the promisor's property 
 was already liable for the debt. {Eighth Rule), 571-604 
 
 See Lien. 
 
 1. English cases from which the seventh and eighth rules 
 
 were derived, 575-591 
 
 See Lien, I. 
 
 2. American cases under the eighth rule, 592-604 
 
 See Lien, II. 
 
 XVII. Whether the seventh and eighth rules contain all the princi- 
 ples fairly to be deduced from the cases cited under them, . . 605-647 
 
 1. Statement and brief examination of various theories 
 
 derived from the cases mentioned, 606-614 
 
 comments of English and American writers thereon, . .note, 606 
 
 four theories which are now advocated, 607 
 
 these theories briefly discussed 608-612 
 
 Chief Justice Kent's proposition, as to efiFect of a new and 
 origmal consideration, 613, see also 592-594
 
 764 I IT D E X . 
 
 COLLATERAL UNDERTAKINGS — (CowCmwef?.) Section, 
 
 2. Discussion and rejection of the doctrine that a promise can 
 be taken out of the statute because the promisor's leading 
 
 object was to subserve his own interest, 615-647 
 
 See LEADiNa Object op Promisor, III 
 XVII. Cases where a guaranty is not within the statute {Ninth 
 Rule), 648-679 
 
 1. Where the debt, etc., passed from the guarantor to the guar- 
 
 antee upon a consideration moving between them 650-664 
 
 See Guaranty, I. 
 
 2. "Where the debt guarantied was thereafter to be contracted 
 
 through the agency of the guarantor, acting as the factor of 
 
 the guarantee, 665-679 
 
 See Del Credere Commission. 
 
 COMPROMISE : 
 
 A promise, in compromise of a disputed claim of liability, cannot be 
 liable, brought within statute by showing that another person was 
 and the promisor was not, 485-489 
 
 CONCURRENT LIABILITIES : 
 
 I. In order to set the statute in motion, there must be two concurrent 
 
 liabilities, 126 
 
 II. The liability of the third person must be one which could have 
 
 been enforced by action, not merely an imperfect or moral 
 obligation, 127, 128 
 
 III. The third person must be, or must have been concurrently liable, 
 
 for the identical debt or duty which the promisor undertook to 
 discharge, 129-137 
 
 1. The case of Read v. Nash, which sustained a verbal promise 
 
 to pay £50, and costs, in consideration of withdrawing the 
 
 record in an action for assault and battery, 130, 131 
 
 Discussion which this case has provoked, 131 note 
 
 2. But, semble, if the promise was to pay a certain sum in satis- 
 
 faction of the action, it would be within the statute 130 note 
 
 132, 133 
 
 3. It would clearly be so if the third person appeared to be 
 
 liable in the action, id., and 134 
 
 Erroneous application of the ruling in Bray v. Freeman, 135 
 
 4 Where a verbal promise was sustained to pay interest upon a 
 principal sum payable by a third person, but upon which he 
 was not liable to pay interest, 136 
 
 5. Where a verbal promise to pay a counsel fee was sustained, 
 the services having been rendered to a married woman in an 
 action for divorce, 137 
 
 IV. Where two liabilities did not concur, although the consideration 
 
 moved to the third person, because he had incurred no liability 
 corresponding with that of the promisor, when the latter's lia- 
 bility took effect. See Liability of Third Person.
 
 INDEX. 765 
 
 CONCURRENT LIABILITIES — {Continued.) Section. 
 
 V. Where two liabilities did not concur, although the promise was 
 to pay a third person's debt, etc., because he was discharged 
 before the promisor's liability took effect. See Disciiauge of 
 Third Person. 
 
 CONDITIONAL PROMISE : 
 
 Cases where the question whether the promise was original or collateral, 
 arose upon its terms, which contemplated a resort by the promisee to 
 
 the third person, 194-225 
 
 L Where the promise was to pay, if the third person did not,. . . 195, 19C 
 this promise is conditional and presumptively within the 
 
 statute as matter of law, 195 
 
 when it may be taken out of the statute by affirmative 
 
 proof, 196 
 
 n. Where the promise was to see the promisee paid, or to that ef- 
 fect, 197-200 
 
 to see paid, presumptively imports a collateral undertaking, 
 
 but the party may show that it was original, 197-199 
 
 effect of the words " secure," " security," and " guaranty," 
 
 199 note 
 
 effect of the words " to make good," 200 
 
 m. Effect of words describing the contract between the promisee 
 
 and the third person, 201-205 
 
 " hire," 202, " purchase," 203, 204, " sell," 205. 
 
 IV. Where the promise was to become a party to' a note or bill of 
 
 exchange to be made by the third person, 206-215 
 
 1. Verbal acceptance of, or verbal promise to accept an existing 
 
 bill of exchange is valid, 206, 210 note 
 
 if non-existing, valid, only in favor of purchaser, id- 
 
 but now regulated by special statutes id. 
 
 2. Promise to accept a non-existing bill of exchange, for accom- 
 
 modation of drawer, is within the statute, 207 
 
 other cases of promise to accept, within the statute, 208 
 
 3. Whether a iiromise to indorse the bill or note of a third per- 
 
 son is within the statute, 209, 210 
 
 it clearly is so, when made for the third person's accom- 
 modation, id. and 211 
 
 4 A promise to join the third person as maker of a promissory 
 note, for his accommodation, is within the statute 211 
 
 5. A promise to indemnify the promisee against his indorsement 
 
 of a third person's bill, when made upon a consideration 
 moving to the third person, is within the statute, 212, 213 
 
 6. But promise to indorse not within statute if transaction was 
 
 really for accommodation of promisor, 214, 215 
 
 See also Another Person, IV. 
 
 V. Where promise is not within the statute, although conditional 
 
 upon non-fultilmeut by third person, . 216-325
 
 766 INDEX. 
 
 CONDITIONAL THOMISE — {Continued.) Section. 
 
 1. A promise, conditional by its terms, may be taken out of the 
 statute, by affirmative proof that the third person incurred 
 no liability, 216 
 
 3. Thus where third person was mere servant of promisor, 217 
 
 3. Or where he was not liable, although he received the benefit 
 
 of the consideration, because it was not furnished upon his 
 express or implied request, 218, 219 and note 
 
 4. These propositions illustrated by cases, 220-225 
 
 CONSIDERATION : 
 
 statute at first supposed to dispense with proof of, 9 
 
 but ruled in Rann v. Hughes that common law rule respecting con- 
 sideration, is unaffected by the statute, 10, 11 and note 
 
 statutory requirement superadded to the common law requirement 
 that there must be a consideration, id. 
 
 consideration of the promise of an executor or administrator, etc. 
 See Executors and Administrators, III, 3. 
 
 efiect of the consideration of a promise to answer for the debt, etc., 
 of another, upon the application of the statute thereto. 
 See Collateral Ukdertakings, II. 
 
 discharge of original debtor as a consideration for stranger's promise 
 to pay the debt. See Discharge op Third Person. 
 
 materiality of receipt of consideration by promisor, where promise 
 was to pay for services, etc., to be furnished under a pre-existing 
 contract with a third person, 307-313 
 
 it is material only upon the question whether the former contract 
 was abandoned, 310 
 
 in England a stranger to the consideration cannot sue upon a con- 
 tract, 386 and note 
 
 the rule in the United States. See " Another Person," II ; Fund, VII. 
 
 of the doctrine that the consideration must be co-extensive with the 
 promise, 10, 11, 496, note 
 
 of the discharge of a lien upon the property of the promisor, as the 
 consideration of a promise. See Lien. 
 
 the doctrine condemned, that whenever the consideration is new and 
 original and moves to the promisor, the case is not within the 
 
 statute, 592-594, 613 and note 
 
 See Lien, II ; Leading Object of Promisor. 
 
 agreements in consideration of marriage. See Marriage Agreements. 
 
 CONTRACT : 
 
 where the promise is to pay for services, etc., which the promisee has 
 already contracted with a third person to furnish, the test is 
 
 whether the original contract was abandoned, 294-830 
 
 See Discharge of Third Person, IV. 
 
 when a stranger to the consideration may maintain an action upon 
 a contract. See " Another Person," II ; Fund, VII. 
 
 of indemnity. See " Another Person," III, IV. 
 
 validity of verbal contracts generally. See Statute of Frauds ; 
 Executors and Administrators ; Collateral Undertakings ; 
 Marriage Agreements.
 
 INDEX. 767 
 
 CORPORATION : Section, 
 is included within tlie words " another person," 360 
 
 CREDIT : 
 
 I. Deceitful representations made to give credit to a third person, 
 
 not within the statute. See Repuesentations, II, III. 
 
 II. The test of the application of the statute, where goods, etc., fur- 
 
 nished to third person, is whether credit was given to him. 
 See Liability of Third Person, II. 
 
 III. Whether a promise to respond for goods, etc., furnished upon 
 
 the credit of a married woman or an infant, is within the 
 statute. See Married Woman ; Infant, etc. 
 
 CREDITOR: 
 
 promise not within statute unless made to creditor. Sec " Another 
 Person," I, III, IV. 
 
 whether a creditor can maintain an action upon a verbal promise to 
 pay the debt, made to his debtor, he being a stranger to the con- 
 sideration and the contract. See " Another Person," II. 
 
 or upon a verbal promise subsequently made to him by person who 
 received the consideration from the debtor ; id., and Fund, VI. 
 
 whether he can maintain an action upon a like verbal promise, when 
 he was a party to the agreement, but a stranger to the consideration. 
 See Fund, VII. 
 
 when entitled to attack antenuptial or postnuptial settlement. See 
 Marriage Agreements, IV. 
 
 D. 
 
 "DEBT, DEFAULT OR MISCARRIAGES:" 
 
 meaning and effect of these words, 120-12') 
 
 "Debt" indicates liability arising purely out of a contract, 121 
 
 "Default" is applicable cither to a breach of contract or a breach 
 
 of duty, 121, 122 
 
 "Miscarriages" is applicable exclusively to a liability arising out 
 
 of a tort, 122 
 
 the three together include every act for which a third person 
 
 may be subjected to an action, 123 
 
 the statute is applicable to promises to respond for the tort of a third 
 
 person, as well as his contract, 123-125 
 
 as trespass or trover, id. 
 
 or the default of a collecting agent 124 note 
 
 DEBTOR: 
 
 promise made to debtor, not within statute. See " Another Person.'' 
 
 DECEASED PERSON : 
 
 whether the promise to pay a deceased pei"son's debt, made before 
 probate or grant of administration, is within the statute, 15 note, 16, 359
 
 768 INDEX. 
 
 DECEITFUL REPRESENTATIONS : Section, 
 
 See Representations, II. 
 
 "DEFAULT:" 
 
 meaning of the word, i 
 
 See " Debt, Default or Miscarriages." 
 
 DEFENCE OF THE STATUTE: 
 
 who entillcd to interpose it, and who may be compelled to inter- 
 pose it, •, 160,161 and note, 173 
 
 DEFINITIONS : 
 
 of wordi<, jfcc, used in a special sense, 49-51 
 
 DEL CREDERE COMMISSION: 
 
 Whether the contract of a factoi\ acting under a del credere commission 
 
 IS within the statute. 
 it wquld seem that this description of contract does not satisfy the 
 
 letter of the statute, as there is no " another person,". . . . 358, 649, 668 
 but courts have generally regarded it as within the letter, but with- 
 out the intent, 649 
 
 the contract and factor's liability defined, 665 
 
 varying opinions as to whether the factor is a principal or a 
 
 surety, 665 note 
 
 contract is now admitted to be without the statute, 666 
 
 various reasons assigned for that conclusion, 666 and note 
 
 most satisfactory is that it is extension of his liability as factor,. 667, 668 
 but semble, also, that it is not for the default, etc., of a.uy particular 
 
 person, 668 
 
 various American cases, holding that the contract is not within the 
 
 statute, 669-675 
 
 they have been followed in England, 676-679 
 
 DELEGATION : 
 
 a description of novation. See Novation. 
 
 DEVASTAVIT : 
 
 See Executors and Admintstratgrs, III, 2. 
 
 DISABILITY : 
 
 of third person, whether it takes out of the statute an auxiliary 
 promise to respond. See Infant, &c. ; Married Woman. 
 
 DISCHARGE OF LIEN : 
 
 if it operates to discharge the debt, a stranger's promise to pay 
 the money is not within the statute, 286-293 and note 
 
 otherwise, the application of the statute depends upon the ques- 
 tion whether the new promisor was interested in the property. 
 See Lien.
 
 INDEX. 769 
 
 DISCHARGE OF PROMISOR: Section. 
 
 where promise was llie renewal of a liability from which the prom- 
 isor had been teelmieally (liseliari,a'd. Sec Foiimku Liahimty, IV. 
 
 of the doctrine that a promise to pay to a creditor of the promisor's 
 creditor a debt due by the promisor, is not valid, at common law or 
 under the statute, unless both of the intermediate debts are dis- 
 charged, 324-330 ; 509-518 and note. 
 
 DISCHARGE OF THIRD PERSON : 
 
 discharge of estate in consideration of personal undertaljing of exec- 
 utor or administrator will not take the case out of the statute,. . 15 note 
 discharge of original debtor through laches, will not save a stran- 
 ger's promise to pay the debt, 55, 56, 58 
 
 a promise to pay a certain sum in discharge of an admitted debt of a 
 
 third person is within the statute, 130 note, 133, 133 
 
 and semble that the rnlc is the same, if the payment will satisfy a 
 
 clami of liabilit)% whether well founded or not, id. 
 
 doctrine that where debtor has provided for pajnnent of debt by 
 contract with third person, creditor's election to enforce the con- 
 tract discharges the debtor, 399 note, 400, 401 
 
 Tlie third person's discharge, before tlie promisor's liaUlity took effect, wiU 
 take out of the statute a jyromise to answer for tlie same debt, etc. 
 
 (Collateral Undertakings, Fourth Rule), 2G9-357 
 
 the rule stated, 269 
 
 its origin, 271, 279 
 
 its first announcement provoked considerable opposition, 272 
 
 but now universally established, id. 
 
 I. That the rule is satisfied, although the discharge was not the con- 
 
 sideration of the promise, 273 
 
 II. Whether an executory agreement to discharge suffices, 274-276 
 
 284 note 
 HI. Where the third person's discharge arose by operation of law, 
 from some act or omission of the promisee, without an express 
 discharge, .- 278-293 
 
 1. Discharge from arrest, under a ca. sa., with the creditor's 
 
 assent, suflices, 278 
 
 cases illustrating this proposition 279-285 
 
 it makes no ditference that the promise was a guaranty 
 
 that the d(;btor should pay, 280 
 
 or that the execution or arrest was irregular, 281-284 
 
 2. Whether the rule is satisfied by the discharge of a levy 
 
 under a fieri facias or a distress warrant, 286-293 
 
 IV. Where an abandonment of the third person's liability, under au 
 existing contract, is inferred, as matter of fact, from some act or 
 
 omission of the promisee, other than an agreement, 294-320 
 
 1. The general doctrine, and the grounds upon which it 
 
 rests, 294-296.305 note 
 
 the test is whether the promisee could recover against the 
 
 original contractor, ^ 297, 305 note 
 
 97
 
 770 INDEX. 
 
 DISCHARGE OP THIRD PERSON — (Cow^mwetZ.) Section, 
 points of similarity between the application of this doc- 
 trine and of the third rule, 298, 299 
 
 cases illustrating the foregoing remarks, 300-306 
 
 the abandonment may be proved by words only, 305 
 
 unless the contract was of such a nature that words will 
 not suffice, 806 
 
 2. Whether the receipt of the consideration by the promisor 
 
 is material in this class of cases, 307-313 
 
 3. Where the new promise was in terms an assumption of 
 
 the liability of the original contractor, 314-320 
 
 V. Where the third person was discharged by an agreement to which 
 
 his creditor and the new promisor were parties, 321-357 
 
 The doctrine of novation defined and explained, 321, 333 
 
 1. Where the agreement between the three parties provided 
 
 for the payment to the promisee of a debt due by the 
 
 promisor to the third person, 324-337 
 
 This process is known in the civil law as a delegation, .... 325 
 
 2. The common law doctrine with respect to such agree- 
 
 ments, as laid down by Buller, J., in Tatlock v. Harris, 
 and the three propositions derived therefrom, , . . , 326 
 
 3. Cases illustrating the proposition that the promise is good 
 
 when both the intermediate debts are extinguished, and 
 showing what acts are sufficient to extinguish them, 327-337 
 
 4. Where the agreement was, that the new promisor assumed 
 
 the third person's liability, in consideration of the lat- 
 
 ter's discharge, 338-357 
 
 The three persons in interest must concur, 338 
 
 * The consideration passing between the promisor and 
 
 the third person is immaterial, id. 
 
 What suffices to discharge the debtor, 339 
 
 5. Cases illustrating the general doctrine, and the rule that 
 
 the transaction is valid only where the three persons in 
 
 interest concurred, 340-352 
 
 It is not necessary that the debt discharged should be 
 a clearly ascertained liability, 353 
 
 6. Where the third person and the new promisor assumed a 
 
 joint liability in discharge of a previous several liability 
 of the third person alone, 354-356 ; 342-344 
 
 DISCONTINUANCE OF SUIT : 
 
 will not take out of the statute a stranger's promise to pay the debt, 58 
 
 DISPUTED CLAIM : ' 
 
 a promise to compromise disputed claim of liability cannot be brought 
 within the statute, by showing that promisor was not liable, and a 
 third person was, 485-489
 
 INDEX. 771 
 
 DISTRESS WARRANT : Section, 
 
 forbearance to issue, will not take out of the statute a stranger's 
 
 promise to pay the debt, 58 
 
 discharge of a levy under, as a ground for taking out of the statute 
 
 a stranger's promise to pay the rent, 286-293 
 
 And see Lien. 
 
 DIVORCE : 
 
 a promise to pay a counsel fee for services rendered to a married 
 woman in an action for divorce, is not within the statute, 137 
 
 E. 
 
 ENTRIES : 
 
 in the books of the promisee, whether evideijce that the contract was 
 original. See Liability op Thied Person, IV. 
 
 ESTOPPEL: 
 
 when promisor cannot prove original promise was collateral, . . . 485-489 
 
 EVIDENCE: 
 
 before the statute, all contracts proved by oral testimony, 2, 8 
 
 statute introduced a new rule, 3, 5, 8 
 
 admissibility of entries in promisee's books, sending a bill to prom- 
 isor, etc., to show promise original, 189-193 
 
 See Liability of Third Person, IV. 
 general admissibility of plaintiff's books in his own favor under local 
 statutes, or rules of evidence, 192 Twte 
 
 EXCEPTIONS : 
 
 to statute of frauds, are cases governed by mercantile law or some 
 other statute, 84 
 
 EXECUTION: 
 
 forbearance upon, no reason why statute is inapplicable, 58 
 
 whether release of levy takes promise out of statute, 286-293 
 
 See DiscHAROR op Third Person ; Lien. 
 New York decisions as to effect of release of levy under, 293 note 
 
 EXECUTORS AND ADMINISTRATORS: 
 
 questions arising under the provisions of the fourth section of the 
 
 statute relative to their promises, 12—48 
 
 I. This provision considered in connection with the second clause of 
 
 the same section, ■ 12-16 
 
 the statute avoids their verbal promises to answer damages out 
 
 of their own estates ; oliject of this provision, 12 
 
 frequently confounded with provisions relative to collateral 
 undertakings, 12, 13
 
 772 INDEX. 
 
 EXECUTORS AND ADMlNlST'RA.TOTiS — iContmtted.) SecHon. 
 
 points of similarity between eacli provision, 13 
 
 points of dissimilarity between them, 14 
 
 executor, etc., already liable 'for debts, etc., in his representative 
 capacity, and property held by him pledged for their payment, 14 
 
 errors to which the confusion has led 15 note 
 
 the two classes of cases always plainly distinguishable, Ifi 
 
 II. Promises to pay the debt of the deceased made before probate or 
 
 administration, 16-22 
 
 in general such promises properly belong to neither class,. . . 16, 359 
 whether executor's promise before probate is within the statute, 17-22 
 distinction in such cases between an executor and administrator, 17 
 
 Lord Hardwicke's ruling in Tomlinson v. Gill, 18, 19 
 
 whether the doctrine, of relation back to grant of administration 
 
 affects the question, 19 
 
 doubtful whether any such distinction exists 20 
 
 this question examined on principle, irrespective of any statu- 
 tory provision affecting executors' rights and duties 21 
 
 effect of statutes requiring executors to qualify, 22 
 
 III. When promise not to be fulfilled out of estate of the promisor, 23-32 
 
 1. Promise in representative capacity, not affected by statute,. . . 23 
 
 whether a promise not in terms attaching to- promise's 
 estate is within statute, id. 
 
 2. Whether possession of assets will suflSce to take the promise 
 
 out of the statute, 24-32 
 
 the question examined upon principle, 24, 25 
 
 the rule established in Stebbins v. Smith, 26 
 
 apparent departure from it in Silsbee v. Ingalls, 27 
 
 the same rule followed in Pratt v. Humphrey, 28 
 
 the question further examined, 29 
 
 cases tending to a contrary ruling, 30-32 
 
 whether the rule applies to an executor de son tort, 30 
 
 promisor must actually possess assets — a devastavit will 
 
 not suffice, 31 
 
 promisee can recover only his proportionate part of the assets, 32 
 
 3. What constitutes a sufficient consideration for an executor's 
 
 or administrator's promise to respond personally, 32 note 
 
 IV. When the subject matter or the form of the promise does not 
 
 satisfy the statute, 33-48 
 
 1. Implied promises, liabilities not growing out of promises, 
 and promises to do some act. other than to " answer dam- 
 ages," not within the statute, 33 
 
 implied promises ; payment of interest upon or part of the 
 principal of a debt or legacy, 34, 35 
 
 representation not within the statute 35 a 
 
 submission to arbitration not a promise to " answer dam- 
 ages," within the statute, 36 
 
 nor is it an admission of assets 36 note
 
 INDEX. 773 
 
 EXECUTORS AND ADMINISTRATORS — (Cbn/mwerf.) section. 
 
 effect of an award in such cases, id. 
 
 express promise to pay the award is within the statute, . 37, 38 
 2. Statute confined to liabilities of e.xecutor, etc., in representa- 
 tive capacity, 39 
 
 cases illustrating this construction, 40, 41 
 
 8. Whether an executor, etc., is liable at law on an express 
 
 promise to pay a general legacy or distributive share, . . 42-48 
 
 in England he is not liable although he has assets, 42 
 
 otherwise, if legacy was specific or has been separated from 
 
 common stock, id. 
 
 in several of the United States action at law may be main- 
 tained, sometimes without an express promise, 43 
 
 4. But the statute applies when the action seeks to charge the 
 
 defendant personally upon such a promi.se, 44 
 
 scmble, the rule is otherwise when promise was made and 
 
 action is brought in a representative capacity, 45, 46 
 
 but not so ruled in Massachusetts, 45, 46 
 
 EXPROMISSIO AND EXPROMISSOR: 
 
 defined, _^ ^^..^^ ^..^.^ 322 
 
 EXTENSION: 
 
 of time of payment of debt, not sufficient to take out of statute 
 another's promise to pay it, 58 
 
 EXTINGUISHMENT OF ORIGINAL DEBT: 
 
 will take promise out of statute. See Dischabge op Third Person. 
 
 F 
 
 FACTOR: 
 
 under a del credere commission. See Del Credere Commission. 
 
 FIERI FACIAS • 
 
 discharge of levy under, as a ground for taking out of the statute a 
 stranger's promise to pay the debt. See Execution ; Discharqh 
 OK Third Person; Lien. 
 
 FORBEARANCE : 
 
 sufficient consideration for executor's personal promise to pay, ... 32 note 
 will not take out of statute a stranger's promise to pay, 58 
 
 FORilER LIABILITY : 
 
 Cases where the promise was the reneical of a former lialn'lif)/ of the 
 promisar, or the removal of some t^ehnirtil impediment to its enforce- 
 ment hy the promisee. (Collateral Undertakings, Sixth Ru!e),. . 482--518 
 I. The rule stated and explained; the statute does not apply merely 
 because another person wa.s liable, jointly or severally, with the 
 promisor, ; . ^ 482-484
 
 774 INDEX. 
 
 FORMER LIABILITY — (Coniinued.) Section. 
 
 II. When the promise admits original liability, promisor cannot bring 
 
 it within the statute by showing that he was not, and some 
 
 other person was liable, 485-489 
 
 includes an admission of liability of the promisor's property,. . . . 487 
 
 III. "When verbal alteration of the form of a previously existing lia- 
 
 bility for another may be made, 490-496 
 
 but that promisor was a member of a corporation, which was 
 
 primarily liable, does not affect the-question, 496 
 
 whether a liability in one right will sustain a verbal promise to 
 
 answer in another right, 496 and note 
 
 rV. A promise to waive a technical defence, against an action 
 
 founded upon a former engagement of the promisor for the 
 
 debt of another, is not within the statute, 497-508 
 
 1. As in the case of bankruptcy, limitations, &c., 497 
 
 so where a new promise was made before the statute of 
 limitations had run, 497 note 
 
 2. Whether the principle extends to cases, where one partner 
 
 promises to pay a debt, for which the other partner had 
 pledged the firm credit without authority, . . 498-500 and note. 
 
 3. Or to cases where the promisor had been discharged from a 
 
 fonner joint debt by operation of some rule of law,. . 501, 503 
 
 4. The statute does not apply where a guarantor, indorser, &c., 
 
 discharged by laches, &c., renews his liability, 503-508 
 
 rulings contra in Connecticut, _ 504 
 
 cases showing that a waiver of the discharge, with full- 
 knowledge of the facts, is valid at common law and under 
 
 the statute, 505-507 
 
 whether a contract, upon a new consideration, to waive the 
 
 discharge, is good without showing knowledge, 508 
 
 V. Whether the promise of a debtor to pay his debt to a transferee • 
 thereof, in discharge of a debt of the transferor to the trans- 
 feree, which remains imdischarged after the promise, is valid 
 at common law, or within the statute of frauds,. 509-518 and note 
 the current of authorities in the United States is, that promise to 
 pay to a transferee is valid, under the statute and at common 
 
 law, without any new consideration, 510, 518 and Tiote 
 
 but it seems that the English courts still adhere to the rule that 
 in order to render it valid-, both intermediate debts must be 
 
 discharged, id, and 33'^330 
 
 the debt must be ascertained and defined — not a mere possi- 
 bility, 518 not^ 
 
 but if only computation, measurement, &c., required, it maybe 
 the subject of such promise, 518 note, 334 
 
 FRAUDULEKT CONVEYANCES: 
 
 marriage a suflicient consideration to sustain antenuptial conveyance 
 
 against creditors, ; 696 
 
 unless grantee, &c., party to an actual fraud, . ; id. note 
 
 the rule respecting postnuptial conveyances. See Marriage Agree- 
 ments, IV.
 
 INDEX. 775 
 
 FRAUDULENT REPRESENTATIONS: SecUon. 
 
 liability created by, is not witliiu the statute. See Representa- 
 tions, II, IV. 
 
 FUND: 
 
 Cases where the existence of a fund of the debtor in the promisor's 
 Jiands takes out of the statute a promise to pay anot/ier's debt, (Col- 
 lateral Undertakings, Seventh Rule,). . . '. 519-570 
 
 I. Where the promise was to apply to the payment of another's debt, 
 
 money or property of the debtor in the hands, or to come to 
 the hands, of the promisor, 519, 526 
 
 II. Conflict of opinion as to whether the rule extends any further, 520-523 
 
 and see post I X 
 
 III. The more extended rule adopted ; its origin, 523-529, and see 2^ost IX. 
 
 IV. The fund need not be applicable to tlie f ulfiliuent of the promise 
 
 in the same fonn in which it came from the debtor, 530 
 
 • V. Where the fund was placed in the promisor's hands for the 
 
 express purpose of paying the promisee,. , . . '. 531, 533 
 
 case of an assignee for benefit of creditors, 533 
 
 VI. Where there was no specific trust in favor of the promisee, arid 
 
 he founds his action upon an express promise made upon a 
 consideration moving from him, in contemplation of a fund in 
 the hands of the promisor proceeding from the debtor, . . 533-548 
 
 1. Where the promisor controls the fund, but fulfilment of his 
 
 promise will acquit him of a duty, the statute does not 
 
 apply, 533 
 
 cases thereupon, 534-540 
 
 cases contra, 541-545 
 
 2. It does apply where fulfilment of his promise will not acquit 
 
 him of a duty, 533, 546, 547 
 
 4. Or where he does not control the fund, 533, 548 
 
 VII. Where the promise was made to the creditor, in consideration 
 
 of a fund then furnished to the promisor by the debtor, 
 the three being parties to the agreement, 549-504 
 
 1. Cases holding such an agreement not within the statute, . 551-563 
 
 2. Ruling in Massachusetts, that all agreements depending upon 
 
 a fund, are within the statute, 563, 564 and note 
 
 VIII. Whether, if the fund proves insuflicient, the promisor can be 
 
 holden for the deficiency, 629, 56.5-570 
 
 1. He cannot, as a general rule, 565, 566 
 
 3. But if the fund is unpaid price of property purchased from 
 
 the" debtor, its inadequacy is immaterial, 530, 567 
 
 3. Rulings allowing, in other cases, a recovery for the deficiency 
 
 criticized, 568-570 
 
 IX. Of the doctrine tluvt a fund proceeding from the creditor will 
 
 take the case out of the stat)ite, and other disputed ques- 
 tions connected with the above principles, 528, 606 note, 607-614 
 And see Leading Object of Promisor, II, III.
 
 776 INDEX. 
 
 G. 
 
 GUARANTOR: Section. 
 
 renewal by a guarantor of a liability from whicli he had been dis- 
 charged by laches, &c., not within the statute, 503-507 
 
 whether it is necessary to show that the renewal was being made 
 with full knowledge of the discharge, 508 
 
 theory, long upheld in New York, that a guarantor of a note, «S5C., 
 might be regarded as a maker. See Guaranty, I, 3. 
 
 GUARANTY: 
 
 erroneously applied to personal undertakings of executors, &c., 13 
 
 collateral undertakings also erroneously called guaranties, 49 
 
 definition and derivation; distinction between collateral contracts 
 
 and guaranties, id 
 
 guaranty of payment or collection implied in some of the United 
 
 States, upon the transfer of a chose in action, 100 note, 653 note 
 
 such a guaranty is not within the statute, 100 note 
 
 a promise to procure the execution by a fourth person of a guaranty 
 
 for a third person held not to be within the statute, 114, 115 
 
 See Guaranty by Indirection. 
 the word presumptively imports that the promise was collateral, 199 note 
 
 but presumption may be rebutted, id. 
 
 not within the statute unless the person for whom the guaranty was 
 
 given is also liable for the same debt, 280, 366 
 
 And see Conbitional Promise, V. 
 guaranty that property of debtor in hands of promisor will sell for 
 
 enough to pay the debt, when coupled with promise to pay it, . 568, 570 
 general rule as to the contract of guaranty implied upon assignment 
 
 of chose in action, 653 note 
 
 Ouaranties which are Twt within the statute cf frauds, although principal 
 debtor continued liable, (Collateral Undertakings, Ninth Rule,). . 648-679 
 these two kinds are the only descriptions of guaranty not within 
 
 the statute, 648, 649 
 
 in each of them the title passed to the guarantee through the 
 
 guarantor, 649 
 
 the rule stated, , 649 
 
 L Where the subject of the guaranty was a chose in action, trans- 
 ferred by the guarantor to the guarantee, upon a consideration 
 moving between them, 650-664 
 
 1. Grounds upon which this description of guaranty has been 
 
 sustained, 650-652 
 
 evidently a c^se not within intent of statute, 653 
 
 may be regarded as mere extension of warranty implied by law, 654 
 English case puts it upon the ground that guarantee could not 
 enforce the contract against original debtor, 655 
 
 2. New York cases presenting great variety of circumstances under 
 
 which question arises, 656-663
 
 INDEX. 777 
 
 GUARANTY — ( Continued) Section, 
 
 remarkable legal controversy in New York, growing out of the 
 idea that under such circumstances guarantor could be treated 
 
 as maker of the note, etc., 656, note 
 
 final abaiulouuient of that theory and establishment of the nilc 
 
 now recognized,.. 6G0-CG3 
 
 full statement of that rule 063 
 
 3. Other American cases upon the question, 664, note 
 
 effect of the statute of usury upon the question id. 
 
 II. Where the debt guarantied was thereafter to be contracted 
 through the agency of the guarantor, as the factor of the 
 guarantee. See Del Credere Commission. 
 
 GUARANTY BY INDIRECTION : 
 
 meaning and effect of the expression " to answer for," as used in the 
 second clause of the fourth section, 113 
 
 I. Semble that a promise to do some act for the creditor's security is 
 
 not within the statute, if it does not directly require the 
 
 promisor to discharge the debt, 113-119 
 
 as to execute a bail bond for a debtor arrested on mesne 
 
 process, 113 
 
 or to procure a fourth person to execute a guaranty for a third 
 
 person, 114, 115 
 
 or to retain the amount of the debt in the hands of the promisor 
 
 out of moneys payable to the debtor, 116 
 
 And sec Fund. 
 
 II. But in Illinois it has been held, that a guaranty by indirection is 
 
 within the statute, 117 
 
 III. An agreement to purchase a debt is not a guaranty, 118, 119 
 
 IV. For analogous cases, see Conditional Promise. 
 
 H. 
 
 "HIRE:" 
 
 effect of the use of this word, upon the question whether a promise 
 was original or collateral, 202 
 
 I. 
 
 IMPEDniENT : 
 
 a promise, the effect of which is merely to remove some impediment 
 to the enforroment of a liability by the promisee, is not within the 
 statute. See FoR>tEU Liability. 
 
 IMPLIED PROMISE: 
 
 of the distinction between an assent of the third person and his re- 
 quest, when the question is whether he beraine liable, 163, 439, 460, 461 
 
 whether promise to pay a debt, made to a debtor, upon a considera- 
 tion moving from him, raises an implied promise in favor of the 
 
 creditor, 389 
 
 98
 
 778 INDEX. 
 
 IMPLIED FBOM.IQ'E— {Continued.) Section, 
 
 of the implied promise of a principal to protect his surety, bail, etc., 
 
 from loss, 438, 439, 477 
 
 in England it is held that no such promise arises in favor of bail in a 
 
 criminal proceeding, 447, 448 and Tiote 
 
 I. Executors' and administrators' implied contracts are not within 
 
 the first clause of the fourth section, 38-35 
 
 II. Implied contracts to answer for the debt, etc., of another, are not 
 
 within the second clause, , 95-101 
 
 the word " special " is used in this clause in contradistinction to 
 " implied," 95 
 
 statute does not apply when defendant's undertaking was im- 
 plied in consequence of a payment by plaintiff on his account, 96 
 
 so where a contract was implied from the terms of a deed from 
 plaintiff to defendant, 97, 98 
 
 so where the action was founded upon an implied warranty of 
 genuineness of a signature, 99 
 
 or an implied guaranty of payment or collection upon the trans- 
 fer of a chose in action, 100 
 
 or the duty of a principal to indemnify his agent, 101 
 
 the implied promise of a trustee for benefit of creditors is not 
 within the statute, 101 Twte, 531, 533 
 
 Incidental liability : 
 
 for third person, not within the statute, 615 
 
 INDEMNITY : 
 
 contracts of indemnity not within statute, when no one except prom- 
 isor boimd to indemnify promisee. See " Another Person," III. 
 
 the rule is unsettled, when the indemnity was against a liability to, 
 be incurred as sm'ety for a third person. See "Another Per- 
 son," IV. 
 
 but where promise of indemnity was in substance promise to pay 
 third person's debt to promisee, the statute applies, 212, 213 
 
 INDIRECT GUARANTY: 
 
 See Guaranty by Indirection. 
 
 INDORSEMENT AND INDORSER: 
 
 a promise to indorse the note or bill of exchange of a third person, 
 
 to be given to the promisee, is within the statute, 209-211 
 
 principle the same although promise was to indemnify promisee, if he 
 
 would afterwards indorse and get discounted, 212, 213 
 
 but the statute does not apply when promisor was real debtor, or 
 
 when indorsement was for his accommodation 214, 215, 445, 467 
 
 the statute does not apply to an indorser's renewal of liability, when 
 
 he has been discharged for want of protest, etc., 503-508 
 
 whether, in order to avoid the effect of the statute, it is necessary 
 
 • that he should have had full knowledge of the facts, 508 
 
 See also Bill op Exchange.
 
 INDEX. 779 
 
 INFANT AND INFANCY: Section, 
 
 promise to pay debt contracted during infancj'', required, by Lord 
 
 Tentcrdcn's act, to be in writing, 105 and note 
 
 so by special statute in some of the United States, id. 
 
 Whether an auxiliary promise to rc)<jx>iid for a debt contracted by an 
 infant, not for neci'ssaries, is icillioat the statute by reason of tJie dis- 
 ability of tlic "priiruiry debtor. 
 
 I. General doctrine of the elfect of a disability of the primary debtor 
 
 upon the application of the statute, 248-251, and 248 rwt.e. 
 
 II. The question with respect to the disability of an infant, 257-267 
 
 general statement of the rights and disabilities of an infant, 257 
 
 effect of these principles upon the application of thg statute, . . 258 
 
 • examination of the adjudications, 259-2(56 
 
 infant not liable for repairs of his dwelling, 261 note 
 
 father's and guardian's liability for clothes supplied infant, 263 and note 
 cases where an action was sustained in favor of a surety against 
 an infant principal, and in favor of a person who had paid his 
 debts at his request, the debts being for necessaries, 266 note 
 
 INSUEANCE : 
 
 verbal contract for, valid, 5 and note 
 
 INVALIDITY OF TOE PROMISE : 
 
 who entitled to insist upon it, and who may be compelled to do 
 so, 160, 161 and mte, 173 
 
 J. 
 
 JOINT PROmSES : 
 
 I. Whether an auxiliary promise is out of the statute when the 
 promisor undertook jointly with the person benefited, 227-247 
 
 1. Cases where the joint promise is clearly not within the 
 
 statute, 227-229 
 
 2. The case whereupon the doubt arises, 230 
 
 3. Authorities supposed to maintain the proposition that the 
 
 statute is not applicable, 231-234 
 
 4. Michigan case to that effect 235, 236 
 
 5. Authorities bearing with greater or less directness, upon the 
 
 other side of the question 237-241 
 
 6. Comments upon the cases, and examination of the question 
 
 upon principle, 242-247 
 
 II. Assumption by two persons jointly, of the antecedent several 
 
 debt of one, is out of the statute, ^ 354, 356 
 
 but see a case apparently contra, 342-344 
 
 in. So, where one of two joint debtors assumed the debt severally,. 357 
 rV. Whether a joint guaranty of a note, etc., made upon its transfer, 
 by the holder and another as his surety, is within the statute, 
 
 656 note, 659, 663
 
 780 INDEX. 
 
 JOINT SURETIES: Section, 
 
 a promise by one joint surety to indemnify the other is not within 
 the statute, 463, 454 
 
 JURY: 
 
 whether promisee gave any credit to third person is generally a ques- 
 tion for the jury 150, 180 
 
 they are to take into consideration all the attending circum- 
 stances, id., 153-179 
 
 how far the general question, whether the promise was original or 
 
 collateral, belongs to the jury, 180-188 
 
 See Liability of Third Person, III. 
 
 questions for the jury when the promisee insists that he had aban- 
 doned the original .contract, etc., 298 
 
 K. 
 
 KENT, CHIEF JUSTICE : 
 
 his classification in Leonard v. Vredenburgh 63 
 
 whether the thu'd class of cases was correctly defined by him, 593 
 
 594, 613 and note. 
 See Leading Object of Promisor ; Lien, II. 
 
 L. 
 LAW MERCHANT : 
 
 statute not applicable to cases governed by, 84r-86 
 
 LEADING OBJECT OF THE PROMISOR: 
 
 Whether the doctrine is law, that a promise to pay a third persorCs debt 
 is Twt within the statute, whenever the promisors leading object was 
 to subserve some interest of his awn. 
 
 this question generally referred to, preliminary observations 
 thereon, 520, 521, 571 
 
 I. Cases where property was surrendered to the promisor in consid- 
 
 eration of his promise to pay a charge thereon, which have 
 been supposed to be dependent upon and illustrations of this 
 
 doctrine, 575-604 
 
 See Lien, I, II. 
 comments of English and American writers, upon those 
 cases, note, 606 
 
 II. Various theories derived from the above mentioned cases, and 
 the subsequent American adjudications of the same general cnar- 
 acter, 606-614 
 
 statement of four propositions now advocated upon their 
 
 authority, 607 
 
 these propositions briefly examined, 608-614 
 
 III. This question discussed and the doctrine condemned, 615-647
 
 INDEX. 781 
 
 LEADING OBJECT OF THE PROMISOR — (<7<mftntt«?.) Section. 
 
 1. The question stated, etc., 615-G19 
 
 distinction between this proposition and that depending upon 
 the leading object of the transaction, 01.>-<>16 
 
 2. Cases which repudiate this doctrine, 620, G21 
 
 Fulhvm V. Adams, 620 
 
 Maule v. Bucknell, 621 
 
 3. Cases which depend upon this doctrine, 622-628 
 
 Emerson v. Slater, 623-626 
 
 Kutzmeyer v. Ennis, 627 
 
 4. Cases where this doctrine was unnecessarily asserted,. . . . 629-639 
 
 5. Cases which negative this doctrine by implication, 640-646 
 
 6. Conclusion of the discussion, 646, 647 
 
 LEADING OBJECT OF THE TRANSACTION: 
 
 when not to render party liable for another's debt, etc., case is not 
 ■within the statute, 615 
 
 LEGACY: 
 
 action at law for general legacy will not lie, 42 
 
 otherwise for specific legacy, or when general legacy severed, id. 
 
 but under special statutes it will lie in some of the United States,. . . 43 
 
 LIABILITY OF THIRD PERSON: 
 
 in order to set the statute in motion there must be two concurrent 
 
 liabilities, 126 
 
 the liability of the third person must be one which could be enforced 
 
 by legal proceedings, 137 
 
 it must be for the same debt or duty which the promisor imder- 
 
 took to discharge, 129-137 
 
 illustrations of the general proposition. See Concubrent Liabili- 
 
 TtES, III. 
 Cases not vriihin tJie statute, because tJw third person, although he 
 received the consideration, incurred no liability concurrent with the 
 
 jyrmiisor's. (Collateral Undertakings, Third Rule.) 139-267 
 
 the rule stated, 139 
 
 the rule examined upon principle, 140, 141 
 
 L Early English cases from which the rule has been derived, 142 
 
 Lord Mansfield's theory, in IVIawbrey v. Cunningham, that a 
 promise before the consideration was furnished is not 
 
 within the statute, 144, 145 
 
 abandoned by him, 145 
 
 formally overruled, and the modem doctrine settled in Mat- 
 son V. Wharam, 146 
 
 n. Where the third person made no express promise to respond, the 
 
 test is whether any credit was given him, 147-179 
 
 1. Elementarj- analysis of this question, 147-152 
 
 In most cases the third person's liability dc]iends upon 
 acceptance by promisee of his express or implied under- 
 taking, 147, 148
 
 782 INDEX. 
 
 LIABILITY OF THIRD FBRSO'i^ — (Contmrnd.) . Section. 
 
 the test, then is whether the promisee parted with the con- 
 sideration upon the sole credit of the promisor, or upon 
 the credit of both, 148, 149 
 
 third person must have been a conduit through which 
 promisee received the consideration, 149 
 
 generally the question is for the jury; they are to consider 
 all the attending circumstances, 150 
 
 the application of the statute depends upon what took place 
 when the contract was consummated, and subsequent 
 events will not affect it, 153 
 
 2. English cases upon the question of credit to the third person, 
 
 and showing the application of the principle, 153-163 
 
 the proposition illustrated that all the attending circum- 
 stances are to be weighed, 155, 156, 158 
 
 person falsely representing himself as authorized by another 
 
 to pledge his credit, 157 
 
 who may insist upon the invalidity of the promise, 160, 161 
 
 distinction between third person's assent and promise, 163 
 
 3. Ainerican cases to the same effect, 164-179 
 
 Judge Story's doubts whether the principle was sound, 165 
 
 but now firmly settled by authority; illustrations of its 
 
 application, 166-179 
 
 when the defendant cannot be compelled to insist upon the 
 
 defence of the statute, 173 
 
 III. The province of the court and jury, respectively, upon the ques- 
 
 tion whether the promise was original or collateral, 180-188 
 
 questions which undoubtedly belong to the jury, 180 
 
 it is sometimes said that the jury are entitled to pass upon 
 
 the import of the words used, 181, 182 
 
 but it seems that unless words of equivocal meaning are 
 
 used, their effect belongs to the court, 183 
 
 cases thereupon, 184-188 and note. 
 
 when words used are of equivocal meaning, the question is 
 
 in what sense the promisee received them, 188 
 
 IV. Whether the promisee's books, etc., are evidence in his favor, 189-193 
 
 it is conceded that they are evidence against him, 189 
 
 cases where it has been intimated that they were not evidence in 
 
 his favor, 190, 191 
 
 the authorities in support of this proposition criticized, 192 and riot^. 
 admissibility of the plaintiff's books under local statutes or rules 
 
 of evidence, id. 
 
 reasons for the opinion that the books, etc., are, in general, admis- 
 sible, 193 
 
 V. Where the promise in terms contemplated a resort by the prom- 
 
 isee to the third person. See Conditioxal, Promise. 
 
 VI. Whether an exception to the rule arises when the promisor and 
 
 the third person assumed a joint liability. See Joint Pkomises, L
 
 INDEX. 783 
 
 LIABILITY OP THIRD PERSON — (Con^inw«</.) Sectiou. 
 
 VII. Whether the piomise is within the statute when it was auxiliary 
 to that of a married woman or an infant. See Maiiried 
 WoiLV-N ; Infant and Infancy. 
 
 Cases not within t/te statute because the third persoii's lialiUity teas dis- 
 cluirged before tluit of tlie promisor took effect. 
 
 See Discharge of Third Person. 
 
 LIEN: 
 
 Cases where a promise to pay anotJier's precedent debt isr not within * 
 Vie statute, because it was founded upon tlie surrender of a lien to the 
 
 promisor. (Collateral Undertakings, eighth rule.) 571-604 
 
 preliminary statement of questions connected with this prin- 
 ciple 520, 521, 528 
 
 the question also to be discussed, whether this is any thing 
 
 but a corollary from another proposition, 571 
 
 See Leading Object op Promisor. 
 
 the rule stated, 573 
 
 doubtful whether the surrender of the lien simultaneously 
 
 with the promise is essential, 573, 602, 604 
 
 lien must have attached to property of promisor, 574 
 
 And see II, post. 
 but his interest may have been acquired simultaneously with 
 making the promise, id. 
 
 I. The English cases whence this principle, the principle depending 
 
 upon a fund, and several questionable theories have been de- 
 rived, 575-591 
 
 Tomlinson v. Gill 57(j 
 
 Williams v. Leper, 577^ 578 
 
 Houlditch V. Milne, 579 
 
 Castling v. Aubert, 580, 581 
 
 Barren v. Trussell, erroneously classed with this series 582 
 
 Edwards t. Kelly, 583 
 
 Bampton v. Paulin, 584 
 
 Thomas v. Williams 585 
 
 Walker ■». Taylor, 586 
 
 Clancy v. Piggott, 587 
 
 Tomlinson v. Gell, . . 588 
 
 Gull V. Lindsay, 589 
 
 Fitzgerald v. Dressier, 590, 591 
 
 1. These' cases are constnied in England to have depended upon 
 
 the fact that the promisor or his property was already 
 liable to pay the debt, 591, 600 and note, 602 
 
 2. The comments of English and American elementary writers 
 
 thereon, note, 60« 
 
 II. American cases depending upon the surrender of a lien by the 
 
 promisee, 592-004 
 
 1. Chief Justice Kent's proposition that a new and an original 
 consideration, etc., will take the case out of the statute 592
 
 784 INDEX. 
 
 LIEN — {Continued) Section. 
 
 2. From this was derived the doctrme that the surrender of a 
 
 lien sufficed, whether made to the debtor or the promisor, 593 
 
 594 
 
 3. The modern principle is that the lien must have been sur- 
 
 rendered to the promisor, 594, 595 
 
 4. Nelson v. Boynton, wherein the modern doctrine was first 
 
 declared, 596 
 
 5. Malloiy i\ Gillett, the leading case, 597 
 
 6. Other cases following on the same side, 597-603 
 
 7. Where the lien was only inchoate, 600 
 
 8. Where its surrender was only constructive, 601 
 
 9. Whether its cotemporaneous surrender is essential, 602, 604 
 
 10. The principle that the statute applies unless the lien was sur- 
 rendered to the promisor, is believed to be permanently 
 established, 603 
 
 III. Examination of the question whether this is an independent 
 principle, or merely a corollary from one of more extended 
 application. See Leading Object of Pkomisor. 
 
 LBHTATIONS : 
 
 whether the jury are entitled to determine the meaning of a writing 
 alleged to contain an acknowledgment or new promise, . 180, and note 
 
 renewal of liability for debt of another, barred by statute of limita- 
 tions, not within statute of frauds, 497 
 
 the same rule applies where the new promise was made before the 
 statute of limitations had run, 497, note 
 
 but see Lord Tenterden's act, and corresponding American statutes, 
 
 105 and note 
 
 M. 
 
 "MAKE GOOD": 
 
 effect of these words on the question whether the promise was origi- 
 nal or collateral, 200 
 
 MANSFIELD, LORD : 
 
 his theory that there could be no nudum pactum if the contract was 
 
 in writing, 9 
 
 his theory that a promise was not within the statute, if made before 
 
 the consideration was furnished, 144, 145 
 
 MARRIAGE AGREEMENTS : 
 
 agreements upon consideration of marriage must be in writing, 680 
 
 policy of this enactment ; whether its effect has been beneficial, 681, 682 
 
 not applicable to false representations, 683-686 
 
 And see post, V. 
 distinction between agreements upon consideration of marriage, and 
 those made in consideration of a promise of marriage, or in con- 
 templation of marriage, 687-690
 
 INDEX. 785 
 
 MARRIAGE AGREEMENTS — (Ctf?i<irtM«f.) Section. 
 
 whether a promise made upon consideration of marriage can be with- 
 drawn before the actual marriage, GOl , 692 and note 
 
 consent of a guardian, etc., to a marriage, cannot be withdrawn with- 
 out cause, G93 
 
 Analysis of the subject op promises upon consideu.vtion of 
 marriage. 
 L Nature, etc., of the marriage consideration ; who is within its 
 
 scope, 694-G9S 
 
 1, Marriage is a vahiable consideration, and the highest Ivnown to 
 
 tlie law, 695 and note 
 
 consequently a grantee upon that consideration takes as a purchaser • 
 
 for value, cutting off intermediate equities ; instances,. . 695, 696 
 antenuptial settlement good against creditors, unless grantee, etc., 
 
 was a party to an actual fraudulent intent, 696 and note 
 
 2. Husband, wife and issue are within its scope; how far collateral 
 
 relatives are, 697 and mta 
 
 II. What contracts are within this provision, and vice versa. 
 
 1. Statute not applicable to actions for breach of promise of mar- 
 
 riage, : 699-701 
 
 2. It is applicable to all agreements creating rights, etc., not flow- 
 
 ing from matrimonial relation, 702, 703 and note 
 
 3. But not where marriage was merely an inducement to the con- 
 
 tract, the completion of which did not afiFect its obligatory 
 character, '^O'l) ''^OS 
 
 4. Or where execution of the contract depended upon the mar- 
 
 riage, if the consideration was entirely distinct, 706 
 
 6. The rule where there was a distinct consideration, in addition to 
 
 that of mari'iage, 708-718 
 
 a distinct and independent consideration will render the statute 
 mapplicable, 708-710 
 
 cases where there was a distinct, but not an independent consid- 
 eration, 712-717 
 
 Crane v. Gough, a Maryland case, 712, 713 
 
 Riley v. Riley, a Connecticut case, regarded as erroneously de- 
 cided 714-716 
 
 Finch V. Finch, an Ohio case, contra, 717 
 
 , what is tlic correct rule, in this class of cases, 718 
 
 III. Whether marriage is such a performance of a verbal agree- 
 
 ment, made in consideration thereof, as to entitle the party 
 in equity to specific performance, 720-728 
 
 1. The general doctrine is that if one party has relied upon the 
 
 word, etc., of the other, equity will not relieve, 720-725 
 
 cases cbntra, not regarded as law, "^20, note 
 
 the rule is the same, although the agreement was that a writing 
 
 should be executed, ''^24 
 
 2. But if there was any actual fraud or trick, the rule is other- 
 
 wise .* 722, note, 726-728 
 
 99
 
 786 INDEX. 
 
 MARRIAGE AGREEMENTS — (Cor. iim^erZ.) Section. 
 
 IV. Whether a postnuptial settlement can be sustained, on the 
 
 ground that it was made in execution of a verbal antenuptial 
 
 promise, 729-741 
 
 some early authorities that verbal antenuptial promise will sus- 
 tain postnuptial settlement against creditors, 729, note 
 
 but the rule is now well settled otherwise, 729-734 
 
 it is not altered by the recital of a verbal antenuptial agreement, id. 
 case where a postnuptial settlement was unsuccessfully inter- 
 posed to defeat an equity of redemption, 730 
 
 whether duty to provide for wife and children will ever prevent 
 
 a settlement from being voluntary, 735 and rvoie 
 
 whether verbal antenuptial contract will sustain written contract 
 
 or conveyance as valuable, as between parties, &c., 735, 736 
 
 voluntary postnuptial settlement is valid between parties and vol- 
 unteers, 737 
 
 cases where verbal agreements between husband and wife were 
 
 said to have been executed during coverture, 737, 738 
 
 diflSculty of determining such questions, 739 
 
 but alleged acts of performance must indicate a binding agreement ; 
 a will is not sufficient, 740, 741 
 
 V. Whether equity will enforce an antenuptial representation of an 
 intention, where the statute would prevent the enforcement of a 
 similar promise, 742-761 
 
 1. Statement of the question to be examined, 742, 743 
 
 2. Various English cases, wherein the question arose, stated and 
 
 criticised, 744-760 
 
 De Beil v. Thomson ; Hammersley v. De Biel, 744-747, and riote. 
 
 Lassence v. Tiemey 748, 749 
 
 Surcome v. Pinniger, 750 
 
 Maunsell v. White, 751 
 
 Jorden v. Money ; Money v. Jorden, 752-754 
 
 criticisms upon that case ; subsequent decisions of subordi- 
 nate equity courts, 755 and 7U)te 
 
 Caton v. Caton, 756-758 
 
 Williams v. Williams, the latest case, 759, 760 
 
 3. The rule stated, as derived from all the cases, to the eflfect that 
 
 there is no difference between such a representation and a 
 contract, 761 
 
 MARRIAGE SETTLEMENTS : 
 
 various questions relative to the validity of, under, and independeutly 
 of the statute. See Mabriage Agreements. 
 
 MARRIED WOMAN: 
 
 I. Promise to pay married woman's attorney in action for divorce, . . 137 
 
 II. Husband's promise during coverture to pay his wife's debt con- 
 
 tracted before coverture, is within the statute, semble, 496, note
 
 INDEX. 787 
 
 MARRIED WO'M.A'N — {Continued.) SecUon. 
 
 Iir. Whether a married woman's disability to contract takes out of the 
 
 statute an auxiliary promise to respond, 248-256 
 
 1. The general doctrine of the effect of a disability of the primary 
 
 contractor, 248-251, and 248, 7wte 
 
 2. The question examined with reference to a married woman's 
 
 disability, 252-256 
 
 a married woman's contract absolutely void at common law, 252 
 
 nevertheless her credit has a legal existence, 252, and note 
 
 guaranty of married woman's contract binding at common law, 253 
 
 but the reason for this ruling is obscure, 256 
 
 rV. Contracts between husband and wife, and antenuptial agree- 
 ments, how affected by the statute, and the remedies thereon,. 
 See Mabkiagk Agreements. 
 
 MERCANTILE LAW : 
 
 cases governed by, not within the statute, , 84-88 
 
 "MISCARRIAGES": 
 
 meaning, etc., of the word. See " Debt, Default, or MiscARRiAGEa" 
 
 N. 
 
 NEW PROMISE : 
 
 waiving the defence of the statute of limitations, not within the stat- 
 ute of frauds, 497, and Twte 
 
 reviving former liability, when not within statute. See Former Lia- 
 
 BrLITY. 
 
 NOVATION : 
 
 the process by which one person becomes substituted as a debtor in 
 place of a third who is discharged, 331 
 
 term, and rules, etc., borrowed from the civil law, id. 
 
 definition and modes of novation as given by Pothier, 322 
 
 expromissio and adpromissio, 295, 322, 338 
 
 the civil law pennits a novation to be effected without the consent of 
 the original debtor, 296 
 
 but the common law requires his concurrence, id. 
 
 same practical result effected by party disqualifying himself from 
 enforcing the contract. See Discharce of Tiiiud Persox, IV. 
 
 where effected by agreement to discharge a debtor in consideration 
 of his debtor agreeing to pay debt to the original creditor, 324-337 
 
 this is styled a delegation in the civil law, 325 
 
 common law rule said to be that both the intcmiediatc debts must be 
 discharged, 326 
 
 novations thus effected. See Discitargk of Tiiiro Person, V, 2, 3. 
 
 whether this rule is still in force. See FoiniEii Liabii-ity, V. 
 
 where the third peison's antecedent liability to the promisee was dis- 
 charged, in consideration of its assumption by the promisor,. . . 338-357 
 See Discharge of Third Person, V, 4-6.
 
 788 INDEX. 
 
 NUDUM PACTUM : Section, 
 
 exploded theory that there can be no nudum pactum in writrng,. ; . 9-11 
 
 a ' 
 
 OKAL AGREEMENTS : 
 
 See Statute op Frauds ; Executors and Administrators ; Coir 
 
 LATERAL UNDERTAKINGS ; MARRIAGE AGREEMENTS. 
 
 ORIGINAL DEBTOR : 
 
 his discharge will take out of the statute a promise to answer for the 
 debt. See Discharge of Third Person. 
 
 P. 
 
 PAROL AGREEMENTS : 
 
 See Statute of Frauds ; Executors and Administrators ; Col- 
 lateral Undertakings ; Marriage Agreements. 
 
 PARTNERSHIP : 
 
 waiver of excess of power by a partner in making the firm liable for 
 
 another's debt, semble, not within statute, 497-500 
 
 so of a revival of partnership debt after a technical discharge,. . 501, 503 
 
 PAYMENT OF INTEREST: 
 
 by an executor, when an admission of assets, 34, 35 
 
 is a waiver of a discharge of a guarantor by laches of the creditor, . . 505 
 
 PRINCIPAL DEBTOR: 
 
 See Third Person. 
 
 PRIVY: 
 
 in England stranger to consideration cannot sue upon a contract, 386, note 
 the rule in the United States. See Another Person, II ; Fund, VII. 
 
 POSTNUPTIAL SETTLEMENTS : 
 
 SeeMAKBiAGE Agreements. 
 
 PROMISE, IMPLIED : 
 
 See Implied Promise. 
 
 PROMISE TO IVIARRY: 
 
 not withm statute, 699-701 
 
 PROMISE, VERBAL : 
 See Statute of Frauds; Executors and Administrators; Collateral 
 Undertakings ; Marriage Agreements.
 
 INDEX. 789 
 
 PROMISEE: Section, 
 
 statute not applicable if promisee was not the creditor. See "Anotuek 
 Pkkson." 
 
 PROMISOR'S OWN DEBT : 
 
 that a promise is not witliin tlic statute, when its substance was that 
 the promisor would pay his own debt, whatever its form or who- 
 ever is also liable, , 214, 480, 484, 015,617, 650 
 
 See FoRMEU LijVbility ; Fund ; Lien ; Leading Object, etc. ; Del 
 
 Credere Commission; Guakanty, I. 
 
 PROMISSORY NOTE: 
 
 liabilities regulated by the mercantile law are not within the 
 
 statute, 86-88 
 
 the statute does not apply to a promise by one party to a note to 
 
 indemnify another party, 445, 446 
 
 waiver of a technical discharge by an indorser, whether within the 
 
 statute. See Former Liability, IV. 
 promise to indorse third person's note for his accommodation 
 
 within the statute, 209-213 
 
 80 of a promise to join a third person in a note to be made for his 
 
 accommodation, 211 
 
 but when the promisor was the real debtor the rule is different, . .214, 215 
 
 445, 467 
 And see Conditional Promise, IV. 
 PROPERTY : 
 
 promise to pay a debt which is already a lien upon promisor's prop- 
 erty, not within the statute. See Lien : Leading Object of Promisor. 
 the series of English cases upon that subject, 575-591 
 
 PURCHASE: 
 
 an agreement to purchase a debt is not within the statute, 118, 119 
 
 effect of the use of the word upon the question whether the promise 
 
 was original or collateral, 203, 204 
 
 of the doctrine that a promise is without the statute when its consid- 
 eration was the purchase of an interest, . . 574, 580, 591, 606, note ; 620 
 
 note; &2,\,note; Q41,7wte 
 PURCHASER: 
 
 person coming within scope of marriage consideration is a purchaser 
 for value, 695, 696 
 
 Q. 
 
 / QUESTIONS OF FACT : 
 
 See Jury. 
 
 QUESTIONS OF- LAW : 
 
 arising on the use of particular words, as descriptive of the contract 
 between the promisor and the promisee, or between the promisee 
 and the third person. See Conditional Promise, I.— IV. ; Llvbilitt 
 OF Third Person, III.
 
 790 I »• D E X . 
 
 R. 
 
 RENEWAL OF LIABILITY: Section, 
 
 statute not applicable to. See Former Liabilitt, IV. 
 
 REPRESENTATION : 
 
 I. Of executors, etc., not within the statute, 33, 35 a 
 
 II. A liability for third person's debt, founded upon a deceitful rep- 
 
 resentation, not within the statute, 102-111 
 
 the second clause relates only to promises, 103 
 
 1. The general doctrine established in England ; opposition 
 
 thereto of distinguished jurists, 102-106 
 
 but the law altered by Lord Tenterd^n's act, 105 
 
 similar provisions in several of the United States ; cases 
 
 thereupon, 105 note 
 
 2. Whether, if such a representation was accompanied by a 
 
 promise to respond for the debt, the plaintiff can disregard 
 the promise and recover upon the representation, . . 107-111 
 
 III. Where the defendant gave credit to the third person by repre- 
 
 senting that he was liable for the debt, the statute does not 
 apply, 488 
 
 rV. Fraudulent representations, made to induce a marriage, are not 
 
 within the statute, 683-686 
 
 V. Whether equity will take a distinction between a representation 
 of an intention and a promise, so as to enforce the former 
 when the latter would be within the statute. See Marriage 
 Agreements, V. 
 
 REQUEST: 
 
 person liable for services, etc., furnished for his benefit only when 
 
 they were also fm-nished at his request, 218, 219, and note 
 
 distinction between third person's request and his assent, as raising an 
 
 implied assumpsit on his part to the promisee, 163, 439, 460, 461 
 
 RULES: 
 
 to determine the validity of engagements alleged to be within the 
 second clause of the fourth section, 73-83 
 
 [For references to the places where these rules are discussed, etc., see 
 the Table of Contents ; and this Index, title Collateral Under- 
 takings.] 
 
 S. 
 SALE: 
 
 ancient laws regulating sales, 8, note 
 
 eflFect of the use of " sale " or " sold," upon the question whether the 
 
 promise was original or collateral, 205 
 
 For other principles, see PtTRCHASE.
 
 INDEX. 70 1 
 
 "SECURE" AND "SECURITY": Section, 
 effect of the use of these words upon tlie question whether the prom- 
 ise was original or collateral 199 and note 
 
 "SEE PAID": 
 
 such a promise is presumptively collateral, 197-200 
 
 but presumption may be overcome by proof, id. 
 
 " SPECIAL PROMISE " : 
 
 moaning of the word " spedal," as used in the statute, 95 
 
 its ellect is to exclude implied promises, 95-101 
 
 See Implied Promises. 
 the word " promise " excludes a liability which grows out of a repre- 
 sentation. See Representation. 
 
 SPECIFIC PERFORMANCE: 
 
 of agreements made upon consideration of marriage. See IVIab- 
 RiAGE Agreements, III, V. 
 
 STATUTES : 
 
 contracts regulated by some other statute are exceptions to the stat- 
 ute of frauds, 84, 89-91 
 
 statute of limitations. See Limitations. 
 
 local statutes invalidating verbal agreements in cases not within the 
 statute of frauds, 5 
 
 Lord Tenterden's act requires representations concerning credit, &c., 
 to be in writing, 105 
 
 the same provision in several American statutes 105 and note 
 
 cases construing these provisions, id. 
 
 • 
 
 STATUTE OP FRAUDS: 
 
 general survey of, 1-11 
 
 title of, does not indicate its subject matter, 1 
 
 prevalence of the evils against which it was aimed, 2 
 
 its object and effects wen; to introduce a new r\xle of evidence,. , . 2, 5, 8 
 
 persons to whom its authorship has been attributed, 3 
 
 its awkward and incongruous phraseology accounted for, 3 
 
 history of its passage tlirougli both Houses of Parliament, 3, Tiote 
 
 Lord Nottingham its autlior, 4 
 
 this treatise confined to the 4th and 17th sections, 5 
 
 those sections generally in force in countries governed by the common 
 
 law, id. 
 
 most of the perplexities arising in their application, caused by depart- 
 ures from spirit of statute, 6 
 
 varying dispositions of the courts towards the statute, and effect 
 
 thereof upon its construction, 6, 7 
 
 necessity of some restriction of its language by constniction, 7 
 
 does not dispense with the necessity of proving a consideration, . . . 9-1]
 
 792 INDEX. 
 
 STATUTE OP FRAUDS — ( Continued.) Section. 
 
 doctrine of Lord Mansfield and Justice Wilmot, that writing dis- 
 penses with a consideration, 9 
 
 this doctrine exploded by the House of Lords, 10 
 
 but questions pertaining to the consideration and the application oi 
 the statute often confounded, .' 11 
 
 statute superadds a writing to a valuable consideration, as necessary 
 to validity of contract, i id. 
 
 provisions relating to executors' and administrators' promises. See Ex- 
 ecutors AND Administrators. 
 
 provisions relating to special promises to answer for the debt, etc., of 
 another person. See Collateral Undertakings. 
 
 provisions relating to agreements in consideration of marriage. See 
 Marriage Agreements. 
 
 STATUTE OF LIMITATIONS: 
 
 See Limitations. 
 
 STORY, JUSTICE : 
 
 his theory that credit might be given to a primary and to an auxil- 
 iary promisor, without bringing the latter's undertaking within the 
 statute, 165 and note 
 
 his theory that marriage was a sufficient performance of an agree- 
 ment in consideration of marriage, to e.ntitle the party to a decree 
 for specific performance of the agreement, 720, note 
 
 STRANGER: 
 
 in England a stranger to the consideration cannot sue upon a con- 
 tract , .' 386 and note 
 
 the rule in the United States. See Another Person, II ; Fund, VII. 
 
 SUBSEQUENT EVENTS: 
 
 application of the statute not affected by events subsequent to the 
 
 consummation of the contract, 152 
 
 unless they are necessary to make the jiromisor's obligation perfect, 
 
 as the delivery of goods sold, etc., ; 144, 145 
 
 SURETY: 
 
 promise to indemnify for becoming surety for a third person. See 
 
 Another Person, IV. 
 renewal of a surety's engagement after discharge by laches, etc., not 
 
 within statute. See Former Liability, IV. 
 surety for a married woman or an infant. See Married Woman; 
 
 Infant, etc. 
 for the general principles relative to the validity of a verbal contract 
 of suretyship, see Collateral Undertakings.
 
 INDEX. 793 
 
 T. 
 
 THIRD PERSON: Section, 
 
 in treating of collateral undertakings, designates the person for 
 whose debt, etc., the defendant is supposed to have undertaken to 
 
 answer, 51 
 
 consideration moving to, will not take a collateral promise out of the 
 
 statute, 58 
 
 nor will the fact that the consideration moved to third person bring 
 
 an original promise within the statute, 60 
 
 must be specifically designated, semble, 358, 668 
 
 quere, whether this expression can apply to a deceased person, .... 359 
 
 includes a corporation, 360 
 
 unless there was a third person, the statute does not apply. See 
 Concurrent Liabilities; "Another Person." 
 TIME: 
 
 application of the statute depends upon what happened when the 
 
 contract was consummated, 152 
 
 TORT: 
 
 promises to respond for a third person's tort are within the statute, 123-125 
 TRANSFER: 
 
 an agreement by a debtor to pay his debt to a creditor of his creditor, 
 vahd only when both the intermediate debts are discharged (Buller, 
 
 J., in Tatlock v. Harris), 326 
 
 See Discharge of Third Person, V, 2, 3. 
 whether the rule still prevails at common law and under the statute, 
 
 See Former Liability, V. 
 effect of a transfer of property by a debtor to the promisor, upon a 
 
 promise to pay the debt. See Fond. 
 guaranty implied upon the transfer of a chose in action, 100 note, 653 note 
 
 such a guaranty not within the statute, 100 
 
 an express verbal guaranty valid, when given upon the transfer of a 
 chose in an action from guarantor to guarantee. See Q-uaranty, I. 
 TRIPARTITE AGREEMENTS: 
 
 Judge Story's theory respecting, 165, and Tioie 
 
 between creditor, debtor and a stranger, whereby stranger, upon a 
 consideration received firom debtor, promises creditor to pay the 
 debt. See. Fund, VIL 
 TRUSTEE FOR BENEFIT OF CREDITORS: 
 
 his duty or imphed promise not within the statute, ... 101 note, 531, 532 
 
 u. 
 
 tJSURY: 
 
 where statute of, prevents recovery beyond amount received for a 
 
 guaranty, although guaranty is good by statute of frauds, 664 note 
 
 100
 
 794 INDEX. 
 
 ' . Y. 
 
 VERBAL AGREEMENTS : Section. 
 
 See Statute of Frauds ; Executors and Administrators ; Collateral 
 
 Undertakings; Marriage Agreements. 
 
 w. 
 
 WAIVER: 
 
 of a teclinical defence against a liability for a third person's debt, 
 
 not within the statute. See Former Liability, IV. 
 so of excess of power by agent, partner, etc., in making the promisor 
 
 liable for another's debt See Former Liability, IV. 
 
 WARRANTY: 
 
 its origin identical with guaranty, 49 
 
 implied upon sales, etc., not within statute. See Implied Promise. 
 other warranties not within the statute. See Guaranty. 
 
 WORDS: 
 
 province of the court and jury respectively, in determining the 
 
 import, etc.,' of words used in entering into an undertaking. See 
 
 Liability op Third Person, III. 
 where they are of equivocal import the question is in what sense did 
 
 the promisee receive them, 180 
 
 cases depending upon the construction of the words of the statute. 
 
 See Collateral Undertakings, VI-XIII; Executors and 
 
 Administrators, IV; I^Iarriage Agreements, IL
 
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