the provisions of this section. Samuel V. R. Hunter, as executor of De Young's estate, received moneys belonging to the plaintiff, which were put 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 the stock so transferred, the decedent should 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. Hine, 9 Wright, 30, (g) as the fund was provided for by the original debtor, whether his own or that of the plaintiff, 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 plaintiffs, 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 the 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 the 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.

the same day he gave the plaintiffs an order on the defendants 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 confederacy, 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 Moulton. 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 promise is within the statute, as it is settled the other way in New York. The case of Curtis v. Brown, 59 Massachusetts (5 Cushing), 488, which has already been cited, (h) is open perhaps to considerable criticism, for other reasons besides its repudiation of the New York rule; but the doctrine 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 indebted 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 conveyed certain real estate to the defendant, and as part of the consideration therefor, the defendant promised to

(h) See § 418.

pay the plaintiffs the amount of the note." It being admitted 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 promise 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 discharge 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. Brown, 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 Howard, 28, (¿) is not, he contended, opposed to Curtis v. Brown, "for in that case the promise of the defendant was an original undertaking on a good and valid consideration moving from the plaintiff to the defendant." He

(i) A case which will receive a very careful examination in chapter xvii.

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 transfer of property from the original debtor to the new promisor, as taking the promise of the latter to the original creditor out of the statute," but the authorities in Massachusetts, 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 promisor, 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.”(j)

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.

§ 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

(j) 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; Westheimer 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 approvingly in Clapp v. Lawton, 31 Connecticut, 95.

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, Pike 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 upon 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 contractors, 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