introduces B. to C., a tradesman, and asks C. if he will supply B. with goods in the way of his trade, and that if he will, he (A.) will be answerable, and C. agrees, and the order is given, and the goods supplied accordingly, and C. enters the name of A. in his books as his debtor, and makes no application to, and never requires payment from, B., but when the usual time of credit has expired, applies to A. for payment; the contract between A. and C. is an original contract, and need not be in writing (h), and it is immaterial whether the person giving the promise receives any benefit or not from it (i). If, however, goods are supplied to one, upon the credit of a third party, and such third party is a public officer, or agent of government, having the possession or control of funds with reference to which he promises payment, and these facts are known to the persons who supplied the goods, it seems that such third party will not, in general, be considered as having made himself personally responsible to the party who supplied the goods, although the party to whom the goods were supplied, may never have been liable to him who supplied them (j), and notwithstanding the opinion of a jury may have been unfavourable to such third party, by declaring that credit was given to the individual personally, and that the creditor did not look to the fund over which such officer or agent had, or was supposed to have, dominion (k); at all events, the Court will feel disposed (in the absence of any written stipulation between the parties, and where the circumstances of the case may reasonably lead to the conclusion that

(h) See Simpson v. Penton, 2 Cr. & Mees. 430; Oldham v. Allen, 2 Cr. & Mees. 433, cit., and cases referred to.

(i) Simpson v. Penton, supra; Edge v. Frost, 4 Dowl. & Ry. 243. (j) See Macbeath v. Haldimond,

1 T. R. 172; Prosser v. Allen, Gow, 117; and the observation of Abbott, C. J., in Burrell v. Jones, 3 B. & Ald. 47.

(k) Prosser v. Allen, supra; Keate v. Temple, 1 Bos. & P. 158.

the fund, and not the third party, was looked to for payment) to give the third party the benefit of another trial (). But if the tradesman, where there

(1) Keate v. Temple, supra, (8).

(8) The case of Keate v. Temple was as follows:-The plaintiff was a tailor and slopseller at Portsmouth, and the defendant the first lieutenant of H. M. S. The Boyne. When the ship came into port, the defendant applied to a third person to recommend a slopseller who might supply the crew with new clothes, saying, "He will run no risk; I will see him paid." The plaintiff being accordingly recommended, the defendant called upon him, and used these words, I will see you paid at the pay-table; are you satisfied?" The plaintiff answered, "Perfectly so." The clothes were delivered on the quarter-deck of the Boyne; slops are usually sold on the main deck. The defendant produced samples to ascertain whether his directions had been followed; some of the men said they were not in want of any clothes, but were told by the defendant that if they did not take them he would punish them; and others, who stated that they were only in want of part of a suit, were obliged to take a whole one.. Soon after the delivery, the Boyne was burnt, and the crew dispersed into different ships; on that occasion the plaintiff having expressed some apprehensions for himself, was told by the defendant, "Captain Grey (the captain of the Boyne) and I will see you paid; you need not make yourself uneasy.' After this, the commissioner came on board the Commerce de Marseilles, in order to pay the crew of the Boyne; at which time the defendant stood at the pay-table, and having taken some money out of the hat of the first man who was paid, gave it to the plaintiff, the next man refused to part with his pay, and was immediately put in irons. The defendant then asked the commissioner to stop the pay of the crew, who answered that it could not be done. The learned Judge, in his direction to the jury, said, that if they were satisfied on the evidence that the goods in question were advanced on the credit of the defendant as immediately responsible, the plaintiff was entitled to a verdict; but if they believed that at the time when the goods were furnished, the plaintiff relied on being able, through the assistance of the defendant, to get his money from the crew, they ought to find for the defendant. A verdict was found for the plaintiff for the sum of 5761. 7s. 8d. On a motion for a new trial, (which was granted,) Eyre, C. J., said, "There is one consideration, independent of every thing else, which weighs so strongly with me, that I should wish this evidence to be once more submitted to a jury. The sum recovered is 5761. 7s. 8d., and this against a lieutenant in the navy; a sum so large that it goes a great way towards satisfying my mind, that it never could have been in the contemplation of the defendant to make himself liable, or of the slopseller to furnish goods on his credit to so large an amount; I can hardly think that had the Boyne not been burnt, and the plaintiff been asked whether he would have the lieutenant, or the crew for his paymaster, but that he would have given the preference to the latter. . From the nature of the case, it is apparent that the men were to pay in the first instance; the defendant's words were, I will see you paid at the pay-table; are you satisfied?' and the answer was, 'Perfectly so.' The meaning of which

has been any privity between him and the person to whom the goods have been furnished, give any credit whatever to such person (m); then the promise is

(m) Matson v. Wharam, 2 T. R. 80; Mines v. Sculthorpe, 2 Camp. 215; Anderson v. Hayman, 1 H. Blk. 120; and see Rains v. Storry, 3 Car. & P. 130; Barber v. Fox,

1 Stark. 270; and the observations of Holt, C. J., in Austen v. Baker, 12 Mod. 250; and of Bayley, B., in Simpson v. Penton, 2 Cr. & Mees. 430.

was, that, however unwilling the men might be to pay themselves, the officer would take care that they should pay. The question is, whether the slopman did not rely on the power of the officer over the fund out of which the men's wages 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 the whole bearing of the evidence, and that the learned Judge who tried the cause has not expressed himself satisfied with the verdict, I think this a proper case

to be sent for a new trial."

If this case, therefore, were to be tried by the ordinary rules applicable to the cases of principal and surety, the defendant would have been held liable. The jury had declared that credit had been given to the defendant, and it cannot for a moment be maintained that the men individually were liable to the slopseller; many of them, indeed, had expressed themselves unwilling to receive the clothes; thus, according to the finding of the jury, goods are supplied by A. to B., at the request, and upon the credit, of C.; and consequently if B. is not liable to A., it is an original contract between A. and C. The rule for a new trial, however, proceeded upon the ground that the plaintiff looked for payment to the fund rather than to the defendant, which seems borne out by the evidence; "I will see you paid at the paytable; are you satisfied?" and the answer was, Perfectly so."

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The case of Lyde v. Higgins, (1 Smith, 305,) which was decided a few years after Keate v. Temple, nearly resembles the latter case, and the judgment of the Court of King's Bench was, (and, as it would seem, a proper one,) that the promise was an original promise. The circumstances in Lyde v. Higgins were as follows:-A surgeon attended a pauper for some time, giving credit to the pauper's father for payment of his bill; but the father becoming unable to pay, and the pauper still continuing ill, the surgeon applied to the overseers of the poor to know whether he should continue his attendances at their expense: the overseers answered, they would give no authority, but if he brought in a reasonable bill they would see it paid. The surgeon continued to attend the pauper, and then brought assumpsit against the overseers for his bill for attendances, &c. as a surgeon, upon a special promise by the defendants, as overseers of the poor, to pay for curing a pauper. It further appeared in evidence upon the trial, that the pauper was a servant in place at the time, and that the parish were in the habit of employing another surgeon for the ordinary poor. Lawrence, J., at the trial on the Oxford circuit, summed up in favour of the defendants, but the jury found a verdict for the plaintiff, and the Court, upon motion for a new trial, refused to disturb it.

collateral.

And an

And an application to him for payment (n), entering his name by the tradesman in his books as debtor (o), or making out the bill of parcels in the name of the person supplied (p), or in case of his becoming bankrupt, proving the value of the goods furnished as a debt under the commission (q), have been considered as giving credit to such person.

In many cases, the expressions made use of by the party giving the promise, at the time when the promise is given, are not to be exclusively relied upon in determining whether the promise is an original or a collateral promise, such expressions being in many instances equivocal (r) (9).

Where goods had been supplied by C. to B.,

(n) Matson v. Wharam, supra ; and see Rains v. Storry, supra.

(0) Jones v. Cooper, Cowp. 227; S. C. nom Jones v. Cowper, Loft. 769; Oldham v. Allen, 2 Cr. & Mees. 433, cit.; Matson v. Whorom, 2 T. R. 80; Anderson v. Hayman, 1 H. Blk. 120; and see the observation of Holt, C. J.,

in Austen v. Baker, 12 Mod.

250.

(p) Langdale v. Parry, 2 Dowl. & Ry. 337; and see Barber v. Fox, 1 Stark. 270.

(q) Langdale v. Parry, supra. (r) Oldham v. Allen, 2 Cr. & Mees. 433, cit.; and see Simpson v. Penton, 2 Cr. & Mees. 430.

(9) In Burkmire v. Darnell, (Holt, 606,) it is said, "If two come to a shop, and one of them contracts for goods, and the seller does not care for trusting him, whereupon the other says, 'Let him have them, and I will undertake he shall pay you,' that is an undertaking for the debt and default of another, and within the act: but if the promise be, I will see you paid,' or, 'I will be your paymaster,' it is otherwise." And in Watkins v. Perkins, (1 Lord Raym. 224,) Lord Holt is reported to have said, "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."

These distinctions are now overruled, and, indeed, to allow the words spoken to be decisive of the nature of the undertaking, would in effect be, to let in the very perjury which it was the object of the statute to exclude. In giving judgment in Simpson v. Penton, (supra,) Bayley, B., referred to a case, (Oldham v. Allen, supra,) where there was a different construction upon the very same words, the circumstances making the promise in the one case an original, and in the other a collateral, undertaking.

at the request of A., an entry in C.'s books as follows Mr. B., per Mr. A.," was was not considered sufficient to make the promise as against A. collateral, no credit having given to B. (s). And in another case (t), where C.'s foreman (C. being a tailor) had, in the absence of C. from home, sent certain wearing apparel (for which A. had promised to be liable) to B.'s house, but who, on C.'s return, prevailed upon B. to let him have them again, when they were again sent to B., at A.'s request, and upon another promise by him that he would pay for them, was held not sufficient to make A.'s promise a collateral one.

2ndly. The person undertaken for, or in whose favour the promise is given, having at one time been liable, he may, from the effect of the promise, cease to be so, in which case the promise is an original promise.

Although the general rule is, that a party who promises to pay the debt of another, is not liable unless that promise is reduced into writing, yet, if there is a new and distinct consideration, as the foundation or motive of the promise, as where the party who gives the promise derives a benefit or an advantage which he did not before possess, accruing to him immediately and directly by means, or in consequence of that promise; or, where the party receiving the promise relinquishes a benefit or an advantage which he had previous to receiving the undertaking, (the promise not being a mere naked promise to pay the original debt on the foot of the original contract,) a note in writing is not necessary, though the debt of another was the original cause of the undertaking; thus, if the goods of an insolvent tenant are about to be sold, and the landlord enters and distrains for the rent in (t) Croft v. Smallwood, 1 Esp.

(s) Simpson v. Penton, 2 Cr. & Mees. 430.

121.