If credit be given to the defendant only, and a third party be not at all responsible, the statute does not apply, and the defendant is liable on a parol undertaking, even though the debt of another be the subject matter thereof.

As where A. undertook to complete certain work in the de- Where fendant's house, but was unable to procure timber, whereupon credit is the plaintiff supplied the timber on the defendant's undertaking the defengiven to "to pay him out of the money which he had to pay A., pro- dant sole*vided the work was completed;" held not to be a collateral, ly, the stabut an original undertaking, and that the defendant was liable tute does though his promise was not in writing."(1) not apply.

Where the vendor refuses to deliver goods on the credit of the vendee, and a stranger undertakes absolutely to pay the amount, the promise need not be in writing; for it is in effect a sale to the stranger as principal. An undertaking that if the plaintiff would discharge A. out of custody, the defendant would pay the debt at all events, need not be in writing;(2) but an undertaking that if plaintiff would discharge A., and take his bill for the debt, defendant without indorsing it would pay in case A. dishonored it, must be in writing. So where the defendant engaged to "pay for all the gas which might be consumed in the minor theatre, &c., during the time it is occupied by A. B.," it was held to be an original, and not a collateral undertaking.d

*1026

ry, to

It is a question for the jury, in such cases, whether credit was It is a given to the defendant before the debt was incurred, or to an- question for the juother as the principal, taking all the circumstances of the case into consideration. If it appears that the plaintiff originally whom credebited the third person in his books, and not the defendant, it dit was is strong but not conclusive evidence that the defendant was given. surety only.

A. introduced B. to C., an upholsterer, and A. in B.'s premises, asked C. if he had any objection to supply B. with some furniture, and that if he would, he would be answerable;

difficult it may be to reconcile these decisions, with reference to the particular facts of each case, yet the general distinction between an original and a collateral undertaking was admitted in both.

* Dixon v. Hatfield, 2 Bing. 439. (9 Eng. C. L. 471.) Andrews v. Smith, 2 C. M. & R. 627. 1 Gale, 335. But where A. having commenced certain business for B., which he had undertaken, and refused to proceed without a promise from C. to pay the further expenses: Held, that C. was not liable on such promise, without a note in writing. Barber v. Fox, 1 Stark. 270. (2 Eng. C. L. 386.)

Croft v. Smallwood, Esp. 121. Browning v. Stallard, 5 Taunt. 450. (1 Eng. C. L. 154.) Edge v. Frost, 4 D. &. R. 243. (16 Eng. C. L. 199.) 1 Saund. 211. Maggs v. Amos, 4 Bing. 474. (15 Eng. C. L. 45.) 1 M. & P. 294.

Wood v. Benson, 2 C. & J. 94.

* 2 Stark. Ev. 345. Keate v. Temple, 1 B. & P. 158. Darnell v. Tratt, 2 C. & P. 82. (12 Eng. C. L. 36.)

(1) (King v. Despard, 5 Wend. 277. Towne v. Grover, 9 Pick. 306.)

(2) (A promise to pay the debt of a third person, in consideration of the promisee surrendering property levied upon by execution, is an original undertaking, and need not be in writing to render it valid. Mercein v. Andrews, 10 Wend. 461.)

C. asked A. how long credit he wanted, and A. replied, "he would see it paid at the end of six months;" C. agreed to it, and A. gave him, the order, and the goods were supplied ac*1027 cordingly; *at the end of six months, B. not having paid the amount, C. applied to A. for payment, and he paid the money; the entry in C.'s book was Mr. B., per Mr. A.; held that "the jury were warranted in finding that the. undertaking on the part of A. was not collateral."

A. is indebted to B., and C., who resides abroad, is indebted to A.; A. proposes to assign to B, the debt owing from C. to him, which B. agrees to accept; A. writes to C.'s agents in this country as follows: "As soon as you have funds belonging to C. pay on my account to B. 2917. 19s., and I will credit C., having received his order to this effect." C.'s agents verbally promise B. to pay him, as they have funds of C. in hand; A. afterwards orders C. to pay to another creditor the debt owing from C. to A., and C. gives an undertaking to pay that creditor, with a memorandum stating, that as it was alleged that a payment had been made by some person to A. on account of C., it was declared that should C. prove such payment to have been made, the amount should be deducted; C. having refused to pay the debt to this latter creditor, on the ground that the agents were liable to pay it to B.; held, that C.'s promise to pay was not a promise to pay the debt of a third person, but his own debt, and therefore not within the statute.b

Where A., being indebted to B. and Co. for goods sold, and upon being released from his liability, assigned to the latter a debt which was due to him from C. and Co.; and notice of the assignment was given to a partner in the house of C. and Co., who, by parol, promised in the name of the firm to pay the debt to B. and Co. out of the partnership funds; held, in an action by B. and Co. against C. and Co. for money had and received, that the promise was not within the statute."(1)

A promise to pay a debt for which another is liable, founded on a consideration distinct from the demand which the plaintiff had against such other person, is not within the statute, though its performance would have the effect of discharging that demand. Where . being insolvent, a verbal agreement was en*1028 tered *into between several of his creditors and B., whereby B. agreed to pay the creditors 10s. in the pound in satisfaction

Simpson v. Penton, 2 C. & M. 430. Darnell v. Tratt, 2 C. & P. 82. (12 Eng. C. L. 36.)

с

Hodgson v. Anderson, 3 B. & C. 842.

(10 Eng. C. L. 247.) 5 D. & R. 735.

Lacy v. M'Neile, 4 D. & R. 7. (16 Eng. C. L. 185.)

(1) (Where A. in consideration of property transferred and delivered to him by B. promises to pay and discharge amongst other creditors of B. named and specified at the time, the demand or claim of C. against B. on certain notes held by him, an action will lie by C. against A., although the promise of A. is not reduced to writing. Ellwood v. Monk, 5 Wend. 235.)

of their debts, which they agreed to accept, and to assign their debts to B.; held, that this was not a collateral undertaking, but an original contract to purchase the debt."

Where the defendant sent the carriages of a third person to the plaintiff to be repaired, and after they were repaired they were delivered according to the defendant's order, and on his promising to pay for the repairs, but the bill was headed by the plaintiff to the third person. Lord Eldon, C. J., held that the case was not within the statute, because the plaintiff had a lien on the carriages, with which he had parted at the defendant's request.b

So where the plaintiff, a broker, having a lien on certain policies of insurance effected for his principal, for whom he had given his acceptances, the defendant promised that he would provide for the payment of those acceptances as they became due, upon the plaintiff's giving up to him such policies in order that he might collect for the principal the money due thereon from the underwriters, which was accordingly done, and the money was afterwards received by the defendant; held not to be within the statute.

So, where the plaintiff, having goods in his possession under an absolute bill of sale, forebore to sell them, on the defendant's *undertaking to pay the debt; held not to be within the statute, *1029 and that the defendant was liable, though his undertaking was not in writing.

Where a broker, being employed to sell the goods of an insolvent for the benefit of his creditors, gave a parol promise to pay the rent in arrear to the landlord, if he refrained from distraining, which he threatened to do; held not to be within the statute, for, as the landlord might have immediately enforced the distress, he had a lien on the goods, the parting with which was a good consideration. Le Blanc, J., said, "this is a case where a man having a fund in his hands which was adequate to the discharge of certain incumbrances; another party under

Anstey v. Marden, 1 N. R. 124. Where the plaintiff, an occupier of land, resisted a suit by the vicar for tithes, at the request of the defendant, who promised to him the costs which he should thereby incur: Held, that such promise was not within the statute. Adams v. Dansey, 6 Bing. 506. (19 Eng. C. L. 149.)

b

Houlditch v. Milne, 3 Esp. 86. See 1 Saund. 211, c. 5 Ed.; where the learned editors contend, that the relinquishment of the lien, at the defendant's request, was not the true ground of the defendant's liability; but that credit had been given to him only, and that the real owner of the carriages was not at all liable.

Castling v. Aubert, 2 East, 325. The principle of this and similar cases seems to be very clear; the plaintiff had a right to retain the policies, and if the defendant had personally undertaken to pay him a sum of money in consideration of his giving up the policies, the doing so, being a relinquishment of an advantage by the plaintiff, would have been a good consideration to enforce the payment of the money. 2 Stark. Ev. 346. In 1 Saund. 211, c. 5th Ed., it is observed that the cases of Castling v. Aubert, and Anstey v. Marden, supra, were decided not to be within the statute, on the ground that there was in both cases, a purchase of an interest, not a mere undertaking to pay the debt of another.

Barrell v. Trussell, 4 Taunt. 117.

took that if that were delivered up to him, he would take it with the incumbrances. This, therefore, has no relation to the statute of frauds." Ashton, J., considered the goods as the debtor, and therefore that the promise was not to pay the debt of another, but the debt for which the goods were liable, of which goods the defendant was the owner. So, where the plaintiff having distrained the goods of his tenant for rent arrear, delivered them to the defendants to be sold, on their undertaking to pay him the rent for which the distress was made; held, on the authority of the preceding case, not to be a promise to pay the debt of another; for after the plaintiff had distrained, the tenant was no longer indebted; consequently, when the promise was made, there was no debt owing from the tenant. The undertaking of the defendants, therefore, was an original and not a collateral undertaking.

Where the defendant, an auctioneer, being about to sell goods on premises, the landlord of which applied for rent which was in arrear, saying it was better to apply than to distrain; and *1030 *the defendant said, "you shall be paid, my clerk shall bring you the money;" held, not within the statute. Where the defendant in consideration for rent undertook to pay the sum due for rent, out of the sale of the produce of the effects; held a positive engagement to pay if the goods were sufficient, and that the plaintiff was entitled to recover, on proof that the goods produced the amount of the rent.d

If a promise be

entire and

void in

But where the defendant (an auctioneer) was about to sell a tenant's effects in August, and the plaintiff (the landlord) told him that there would be nearly a year's rent due at the Michaelmas following, and that unless he, the defendant, promised to part, not being in pay him, he would put in a distress; the defendant then, in writing, it consideration that the plaintiff would not distrain, verbally prois void al- mised to pay not only the rent then due, but also the rent that together, would be due at Michaelmas; held, that the promise to pay though part is not the accruing rent exceeded the consideration, for if the plaintiff within the had been paid the rent then due, he could have sustained no statute. loss by the sale of the goods; it was nothing more than a pro

mise to pay money that would have become due from a third person; it was therefore within the words of the statute, and the mischief intended to be remedied thereby, and consequently void. And though the promise to pay the arrears due at the time might have been good if confined to those arrears, yet

Williams v. Leper, 2 Wils. 408. 3 Burr. 186. In this case "there was a power of immediate distress, and an intention to enforce it; and I think the judges must be understood to have considered that power as equivalent to an actual distress." Per Lord Tenterden, C. J., in Thomas v. Williams, 10 B. & C. 670. (21 Eng. C. L. 144.)

Edwards v. Kelly, 6 M. & S. 204. Where the plaintiff, at the request of the defendant, became a co-surety with him in an indemnity bond, to a third person, on the defendant's promise to save him harmless: Held, that the promise was not within the statute. Thomas v. Cooke, 8 B. C. 728. (15 Eng. C. L. 333.)

с

Bampton". Paulin, 4 Bing. 264. (13 Eng. C. L. 425.)

Stephens v. Pell, 2 C. & M. 710. 4 Tyr. 6.

as the promise was entire, and in its commencement void in part, it was void altogher, and the plaintiff could recover nothing. "There is no case," said Lord Tenterden, C. J., "in which the promise of payment 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. In Edwards v. Kelly, the landlord delivered the goods which he had distrained to the defendant to be sold, in consideration of his promise to pay rent due, for which the distress had been taken. In Castling v. Aubert, the plaintiff gave up to the defendant policies of insurance, on which the plaintiff had a lien, to secure himself against bills, *which he on the faith of that lien had accepted *1031 for the accommodation of the assured, and the person to whom he delivered them promised to discharge the bills, and give to the plaintiff the same indemnity that his lien afforded him. In these cases the promise was founded on a new consideration, distinct from the demand that the plaintiff had against the third person, although its performance would have the effect of discharging that demand, and releasing that person."b

cisions.

Although the decisions on this subject can scarcely be deemed Result of conflicting, yet it is difficult to lay down any rule with which the preall the authorities can be reconciled. The inference, however, ceding defrom the preceding decisions is, that though the debt of a third party be the subject matter of a promise, yet if the promise be founded on a new and distinct 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 promise is made, it is not within the statute.

SECTION VII.

STATEMENT OF THE CONSIDERATION.

A PROMISE to pay the debt of another must be founded on a sufficient consideration, as well as any other promise; and it is settled by the authority of numerous decisions, that to satisfy the statute of frauds the consideration must appear on the written undertaking on which the action is brought, as well as the promise itself, and the omission of it cannot be supplied by parol evidence, the ground of such decisions being, that the term "agreement," used in the 4th section, includes both the

Thomas v. Williams, 10 B. & C. 664. (21 Eng. C. L. 143.) See Chater v. Becket, 7 T. R. 201.

• Per Lord Tenterden, C. J., 10 B. & C. 670. (21 Eng. C. L. 145.)