not within the statute, and therefore need not be in writing, inasmuch as it is a promise to pay A.'s own debt, and not that of another (r). So where an action was brought against an attorney and two others, for appearing for the plaintiff without a warrant, and the cause being carried down to be tried at the assizes, the defendant (the attorney) promised, in consideration that the plaintiff would not prosecute the action, he would pay 107. and costs of suit. Upon an action brought against the attorney upon the promise, it was held to be a promise by the defendant for his own debt, and therefore not within the statute (s). So, if money is lent to the wife at the request of the husband, it is the same in law as if it had been lent to the husband himself, for a loan to the wife at the husband's request is a loan to the husband (t). So where the declaration stated that the defendant sold to the plaintiff a bay gelding for eight guineas, and on the sale, agreed that, in consideration that the plaintiff had paid the eight guineas, the defendant promised to the plaintiff that if he did not like the gelding, and delivered it to A. to the defendant's use, that A. should pay the said eight guineas to the plaintiff, and that if A. did not pay the eight guineas, the defendant would repay them on request; and that the plaintiff did not like the gelding, but delivered it to A., and requested him to pay the eight guineas, which he refused to do it was held that the promise was not a collateral promise to pay in default of another, but was

(r) Hodgson v. Anderson, 3 B. & Cress. 842; S. C. 5 Dowl. & Ry. 735; S. P. Crowfoot v. Gurney, 9 Bing. 372; Wilson v. Coupland, 5 B. & Ald. 228; Oble v. Dittlesfield, 1 Ventr. 153; Lacy v. M'Neile, 4 Dowl. & Ry. 7; Israel v. Douglas, 1 H. Blk. 239; Fairlie v. Denton, 8 B. & Cress.

395; S. C. 2 Man. & Ry. 353; and see the observations of Buller, J., in Tatlock v. Harris, 3 T. R. 174.

(s) Stephens v. Squire, 5 Mod. 205; S. C. nom Stevens v. Squire, Comb. 362.

(t) Stevenson v. Hardie, 2 Blk. 872; S. C. 3 Wils. 388.

in effect a contract of sale; that the plaintiff bought the gelding conditionally, that if he did not like him he should receive back his money, and when the condition was performed by the dislike of the gelding, and the returning it to A., the bargain was void and at an end, and the money was in the hands of the defendant as a debtor to the plaintiff, as money received to the plaintiff's use, and A. was no more than a servant to receive the gelding and to repay the money, and that A. not repaying the money, the defendant, as master, was debtor (u). So where J. S. having undertaken to complete the carpenter's work in the defendant's house, and to find all materials, and being unable to procure timber for that purpose, it was supplied by the plaintiff on the following undertaking, signed by the defendant, "I do agree to pay A. B., (the plaintiff,) 50%. for timber to house in Annett's Crescent, out of the money I have to pay J. S., provided J. S.'s work is completed." It was held that this was not a collateral but a direct undertaking, and that it was immaterial to the defendant whether the work was done by J. S., or by any other person (v). So where A. had, for the accommodation of B., accepted a bill of exchange, and the same not being paid when due, the holder had brought his action against A. as the acceptor, and B. being made acquainted with the circumstance, desired A. to defend the action, representing to A., that as she had received no consideration for the acceptance, she might safely do so; and in consequence of such direction, A. defended the action and failed: it was held that B. was liable to pay the expenses of the defence, and that the case was not within the statute; for the action was

(u) Masters v. Marriott, 3 Lev. 363.

(v) Dixon v. Hatfield, 2 Bing. 439 S. C. 10 J. B. Moo. 42.

one in which B. was concerned, and might have been benefited by the event (w). But where a landlord of certain premises, in respect of which rent was due, gave a warrant to his broker to distrain upon the tenant, and the defendant being a creditor of the landlord, paid the broker, and took the plaintiff down to the premises to keep possession of the goods, and promised to pay him for so doing, and also to repay him sums to be advanced by him to (w) Howes v. Martin, 1 Esp. 162, (5).

(5) The case of Winckworth v. Mills, (2 Esp. 484,) which was decided by the same learned Judge who decided Howes v. Martin, very closely resembles the latter case. The circumstances in Winckworth v. Mills were as follows: The plaintiff was the indorsee of one Brough, who was the indorsee of the defendant, who was himself the indorsee of Taylor & Son, of a promissory note drawn by one Sharp in favour of Taylor & Son for 607., payable three months after date at Taylor's house. When the note became due, the plaintiff's clerk called for payment at Taylor's house, but the note was not paid, and the clerk, by mistake, left it at Taylor's house; he immediately returned, and informed Taylor & Son of the circumstance, and demanded it, but they denied having it, and it was considered as lost. The plaintiff and Brough immediately waited on the defendant, and informed him of the circumstance, whereupon he furnished them with a copy of the note, and promised, if they would endeavour to recover the amount of it from Taylor & Son, that he would indemnify them. They applied to Sharp, whom they found was a man of no substance. They afterwards applied to Taylor & Son, and they, on being threatened, paid 30%. in part, and gave a new security by a note for the remaining 30l. This last note not being paid when due, an action was brought on it against Taylor & Son, and a judgment obtained on it by default. Taylor & Son then brought a writ of error on the judgment, and afterwards became bankrupts. Upon this, Winckworth, the plaintiff, brought his action to recover from Mills, the defendant, the expenses he had been put to in endeavouring to recover the money from Taylor & Son, on Mills' promise of indemnifying him, and added a count against him as indorser of the original note. Lord Kenyon asked, if there had been any note in writing from Mills to the plaintiff, promising to indemnify him in the manner stated; and on being answered in the negative, his Lordship then added, that he was of opinion the action could not be supported to recover that part of the demand claimed under the promise of indemnity; that it was a promise for the debt and default of another, and so could not, under the Statute of Frauds, be maintained without a note in writing; but as to the unpaid part of the original note, the plaintiff was entitled to recover it. The counsel for the plaintiff seeming to be dissatisfied with his Lordship's ruling, he offered to save the point, but they declined it.

the person who was in possession of the goods distrained; Lord Ellenborough was of opinion, that since there was a principal, namely, the landlord who was responsible for the necessary expenses of the distress, the case was within the Statute of Frauds, and that the debt was to be considered as the debt of another, and consequently the defendant could not be liable without a note in writing (r).

3rdly. The person giving the promise must be liable out of his own funds.

A promise by one to pay the debt of another out of the debtor's own funds, when they shall come to the hands of the party promising, upon receiving the debtor's directions for that purpose, is not within the operation of the statute, it not being an undertaking by the party promising to be answerable for the debt of another, but only faithfully to apply the funds of the debtor, and is therefore not within the mischief contemplated by the act: thus, where the declaration stated that A. was employed to do work on certain houses, and that the defendant was employed as surveyor over him, and to receive monies to be paid to A. for such work; and that in consideration that the plaintiff would provide and deliver to A. such materials as should be required to enable him to do the work, the defendant promised the plaintiff to pay him for them out of such monies received by him as should become due to A. for the work, if A. would give him an order for that purpose; with an averment that A. gave the defendant such order, and that he required certain materials which the plaintiff provided and delivered to him to the value of 1,000/., and that that sum became due to A. for the work, and that the defendant was requested by the plaintiff to pay him for the materials out of such monies received by him as were due to

(x) Colman v. Eyles, 2 Stark. 62.

A. for the work; and that although the defendant had received 1,000l. to be paid and then due to A., and although the said order had not been revoked, the defendant refused to pay the plaintiff. To a plea put in, that the promise in the declaration mentioned was a special promise to answer for the debt of A., and that there was no memorandum or note thereof in writing, it was held, on demurrer, that the plea was bad, for the defendant's promise was an original, and not a collateral one (y).

II. The person undertaken for, or in whose favour the promise is given, must be liable as well as the person giving the promise, or the promise is not a collateral promise.

The person undertaken for, or in whose favour the promise is given, may, 1st, never have been liable; or, 2ndly, having at one time been liable, he may, from the effect of the promise, cease to be so : in either case the promise is an original promise.

1st. He may never have been liable owing to his incapacity to incur responsibility; as where he is an infant, and the money advanced for his benefit (in consequence of a promise by a third party) is in respect of matters for which the law would not make the infant liable, being for things other than necessaries (z); or from an inability on the part of the person giving the promise, to make the person undertaken for liable; as where the attornies for the plaintiff and the defendant, in a cause which was ready for trial, entered into an agreement without the knowledge of their principals, whereby they undertook that the record should be withdrawn, that certain things should be done by the plaintiff and the defendant, and that costs should be taxed

(y) Andrews v. Smith, 2 Cr. M. & Ros. 627; and see Dixon v. Hatfield, 2 Bing. 439; S. C. 10 J. B. Moo. 42; and Parkins v. Moravia,

1 Car. & P. 376.

(z) Harris v. Huntback, 1 Burr. 373.