for the defendant in a certain manner; it was held, that the attorney for the plaintiff was personally bound to pay the costs when taxed in the mode specified, and could not be considered as a surety for his client, as his client was not bound by that arrangement (a). So where the solicitors of the assignees of a bankrupt tenant, upon whose lands a distress had been put in by the landlord, gave the following written undertaking:-"We, as solicitors to the assignees, undertake to pay to the landlord his rent, provided it does not exceed the value of the effects distrained." It was held, the solicitors were personally liable; for as solicitors they had no power to pledge the credit of their clients, and consequently could not bind the assignees (b). So where a person represented to a publican that he had authority from the committee of one of the electioneering candidates of a borough, to open the publican's house for the entertainment of voters in the interest of such candidate, and promised the publican to see him paid, and the publican, relying upon the representations so made, opened his house, and afterwards sent in his bill to the committee, before making any demand upon the other party, to whom, however, the publican wrote a letter requesting his good offices to get his bill discharged; and it appeared in evidence, that the committee had not authorized the party at whose solicitations the house had been opened, to act as he had done; it was held, that the promise was not within the statute (c). So where it appeared that the defen

(a) Iveson v. Conington, 1 B. & Cress. 160; S. C. 2 Dowl. & Ry. 307.

(b) Burrell v. Jones, 3 B. & Ald.

47; and see Hall v. Ashurst, 1 Cr. & Mees. 714.

(c) Thompson v. Bond, 1 Camp. 4, (6).

(6) The plaintiff in this case brought assumpsit for work and labour, goods sold, &c., to recover the sum of 457. from the defendant, for having, at the defendant's instance, employed himself in canvassing

dant's brother employed the plaintiff to sell a considerable estate for him in Ireland, and that the

for the Right Hon. R. B. Sheridan, one of the candidates for the borough of Westminster, and opened his house for the entertainment of voters in the interest of such candidate. For the defendant it was contended, that the undertaking being a collateral promise to pay the debt of another, and not being reduced into writing, was void under the Statute of Frauds. For the plaintiff it was contended, that whatever might have originally passed between the parties, the plaintiff was, at all events, entitled to recover the whole of his demand; for even supposing the plaintiff had given credit to the committee, still, as they had not authorized the defendant to act as he had done, they were not liable; and as it was certain an action must lie against some one, this was the debt of the defendant alone, and he was personally responsible for it in that action. Lord Ellenborough expressed himself as follows: "The undertaking of the defendant seems to have amounted to this, that he would see the plaintiff paid, which, in consideration of law, is only a collateral promise to pay the debt of another; and had he been authorized by the committee, as he represented, so that they would have been liable, it would beyond all question have been void for not being reduced into writing. But it now appears, that he had no orders from the committee to open the house, and that he had no authority, as their agent, to employ the plaintiff; still I am of opinion, that the plaintiff cannot enforce his demand in the present action. If I represent that I have an order from A., when I have no such order, and so induce a person to deal with me on the credit of A., I am not principally liable as for a debt of my own; an action may be brought against me for the deceitful representation, by which this person was induced to give credit to A., but he cannot recover as upon a contract which was never entered into. So here, though the defendant may be liable in a different form of action, he cannot be considered as a debtor for goods sold to the extent of the plaintiff's demand; as it appears, however, that the defendant himself frequently partook of the refreshments in the plaintiff's house during the election, it will be necessary to decide, whether these were furnished to him on his own personal credit, or on the general representation, that the committee desired the house to be opened for the candidate's friends. In the former case, the defendant will be liable in this action to the amount of his own consumption; but in the latter, which, under the circumstances, seems the more probable case, he is entitled to a verdict on the whole declaration." The jury found a verdict for the plaintiff, with 107. damages.

By the 6th section of the statute 9 Geo. 4, cap. 14, (commonly called Lord Tenterden's Act,) no action can be brought whereby to charge any person upon or by reason of any representation 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 such representation or assurance, unless such representation or assurance be made in writing, and signed by the party to be charged therewith. It seems a question, therefore, whether an action would

plaintiff gained his livelihood by doing business of that nature, and that accordingly the plaintiff attended the Earl of Shelburn several times on the subject of a proposed purchase by him of this estate, and that pending this transaction, the defendant wrote a letter to the plaintiff in the following words:" My brother desires to treat with Lord Shelburn for selling him the late Mr. Bagnall's estate in Ireland, and if he goes on with the purchase, you may depend upon a handsome gratuity from my brother, which I assure and promise you shall not be less than 300/." There was a postscript to the following effect:-"My intention is that the money shall be paid you upon executing the writings." The plaintiff afterwards concluded the purchase, and having obtained a verdict for the 3007., upon a motion for a new trial the Court thought it clear that no action could lie upon this promise against the defendant's brother, because it by no means appeared that the defendant had any authority from him to write this letter, by which the promise was made, but the defendant himself was bound to perform it; for he had expressly undertaken that the promise should be performed (d). So where one covenanted for himself, his heirs, &c. under his hand and seal, for the act of another, he was held to be personally liable, though he described himself in the deed as covenanting for, and on the part and behalf of, such other person the Court observing that there was nothing against law

(d) Gordon v. Martin, 2 Barnard. 13; and see Redhead v. Cator, 1 Stark. 14.

now lie against the defendant for the deceitful representation, for the reason, that the representation or assurance was not reduced into writing; and unless, therefore, such an undertaking could be considered as an original undertaking, the plaintiff would have at law no means of recovering the charges and expenses he had been put to in consequence of the defendant's promise.

in it, if he would bind himself for his principal, he probably consented to it upon an indemnity (e).

Again: The person undertaken for, or in whose favour the promise is made, may never have been liable, from there being no privity between him and the person receiving the promise; in which case the promise is an original promise (ƒ) (7): or from (f) Houlditch v. Milne, 3 Esp. 86, and see supra.

(e) Appleton v. Binks, 5 East,

148.

(7) The case of Oldham v. Allen, referred to by Bayley, B., in his judgment in Simpson v. Penton, as it is stated in the second volume of Messrs. Crompton and Meeson's Reports, (p. 433,) is at variance with the proposition above laid down; but it is submitted with much deference, that a material ingredient is omitted in the statement of that case, if the undertaking was, as it is said to be in those reports, in part original and in part collateral; the case, as stated, shows the undertaking to be, (according to the author's view of the case,) wholly an original one.

The report is in these words: "The defendant had sent for a farrier to attend some horses, and said to the farrier, I will see you paid.' The plaintiff (the farrier) 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."

For any thing, therefore, that appears from this statement, there had been no communication between the farrier and the owners of those horses whom the farrier happened to know, and whom he had debited in his books it was not by their direction that the farrier had been called in to attend those horses,-their owners had never (at least for any thing that appears) pledged their credit with the farrier, and non constat they might have preferred not to have had his assistance: the circumstance of the farrier's having made the owners debtors, could not, without their privity, make them responsible, and unless there was privity, the undertaking, it is submitted, was in no part collateral.

The decision in Houlditch v. Milne, seems to fall within the principle above laid down, though from the observations attributed to Lord Eldon, it may be considered to be referable to another principle. The case in evidence was, that carriages belonging to a Mr. Copey had been sent by the defendant to the plaintiff to be repaired, and that the defendant had given the plaintiff orders respecting them: the bill for the repairs, which was the subject of the action, was made out in the name of Copey. When the carriages were repaired, the defendant sent an order to pack them up, and send them on board ship. The plaintiff upon this sent to the defendant to know who was to pay for them; the defendant said he had sent them, and he would pay for them. In consequence of this, the carriages were packed up C

the conduct of the person receiving the promise, in electing to make the promise an original promise, by trusting solely to him who gives the promise or undertaking, and giving no credit whatever to him for whose use or benefit it was given (g); thus, if A.

(g) Croft v. Smallwood, 1 Esp. 121; Edge v. Frost, 4 Dowl. & Ry. 243; and see Lord Eldon's observations in Houlditch v. Milne,

supra; and the judgment in Birkmyr v. Darnell, 1 Salk. 27; S. C. 3 Salk. 15; but see Colman v. Eyles, supra.

and sent on board ship, and the bill was made out and delivered to the defendant; he desired time to look over it, and when the plaintiff's clerk called a second time, he said the charges appeared very high, but desired the clerk to call in a few days, and he would settle it. Not having done so, the plaintiff's attorney waited upon him, when he said he was told the bill was a most exorbitant one, 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. For the defendant it was contended, that the plaintiff must be nonsuited, upon the principle, that if Mr. Copey was at all liable, the undertaking of the defendant must be in writing; and that Mr. Copey was liable must be taken to be the fact, as the bill sent to the defendant was made out in Copey's name, and contained charges for work done (as it must be presumed) by Copey's own order. Lord Eldon, after stating he was not disposed to nonsuit the plaintiff, observed, that in general cases, to make a person liable for goods delivered to another, there must be either an original undertaking by him, so that the credit was given solely to him, or there must be a note in writing: there might, however, his Lordship observed, be cases to which this rule did not apply. If a person got goods in his possession on which the landlord had a right to distrain for rent, though it was clearly the debt of another, yet a note in writing was not necessary; it appeared, his Lordship observed, to apply precisely to that case. The plaintiff's 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.

The latter words of his Lordship seem to imply, that the case was at one time within the statute; or, in other words, that Mr. Copey was, previous to the delivering up of the carriages to the defendant, liable to the plaintiff for the repairs. But how did Mr. Copey ever make himself liable? It is true, that it was in evidence that one of the carriages had been bought by Mr. Copey, and paid for by him, but it does not appear from the report, that Mr. Copey ever in any manner pledged, or gave the defendant authority to pledge, his credit with the plaintiff; and if such was the case, Mr. Copey was at no time liable to the plaintiff, and the promise, therefore, was never within the statute. (See the observations of the editors of Williams's edition of Saunders's Reports, vol. 1, p. 211, c. n. i., on this case, but which, however, do not seem, from what fell from Mr. Justice Williams, in Clancy v. Piggott, 2 Ad. & Ell. 473, to have met with that learned Judge's approbation.)