pay in 6 or 8 months, expects discount in proportion.' Soon afterwards, the son received the goods from the plaintiff, to the [212] amount of 800l. which was delivered to him in consequence of the engagement of the father abovementioned. The son was debited in the plaintiff's books, and being applied to for payment, wrote an answer to the plaintiff as follows: "Your favour of the 27th past, has been forwarded to me from Ostend, in answer to which I can only say, that I understood your credit for the goods was twelve months, which was also mentioned by your rider to my father. I shall at this rate make you remittances for the different parcels, as they become due.

The son afterwards became a bankrupt, and this action was brought against the father to recover the value of the goods.Mr. J. Heath, who tried the cause, directed the jury to consider whether the plaintiff gave credit to the defendant alone, or to him together with his son; that in the latter case, they should find a verdict for the defendant; in the former, for the plaintiff ; being of opinion, that if any credit was given to the son, the promise of the defendant, not being in writing, was void by the statute of frauds. A verdict was found for the defendant, and a rule nisi was obtained to set it aside; but the court were clearly of opinion, that this promise was within the statute, as it appeared by the letter of Hayman the younger, that credit was given to him as well as to the defendant his father, and the rule was accordingly discharged.

That the

of the person

undertaken

for, will look

to the intention as inferrible from

By the subsequent case of Keate v. Temple, in the Common Pleas,(/) it appears that, in collecting the true state of the trans- court in ascertaining action, and ascertaining the fact, whether the party promising in- the liability tended only to come in aid of the liability of the person on whose account he promised, or to become himself immediately responsible, the court will not only pay attention to the expressions used, but to the particular situation of the defendant at the time of his undertaking; and will compare the amount of the sum in question with the circumstances of the party. I feel a necessity in these cases, which turn upon such nice particularities in the facts and expressions, to exhibit the circumstances rather more at large than accords with the general plan of the work; and I do not see how the case last alluded to, can be presented with its *[213]

the situation, circumstan

ces and general responsibility of the party promising.

(p) 1 Bos, et Pull. 158.

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due effect, in an abridged state. The action was brought for goods sold and delivered, and work and labour, with the common money counts, to which the general issue of non-assumpsit was pleaded. The cause was tried before Lawrence J. at Winchester summer assizes 1797, when the principal facts in evidence were as follows. The plaintiff was a tailor and slopseller at Portsmouth, and the defendant the first lieutenant of his majesty's ship 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 plaintiff produced samples to ascertain whether his directions had been followed: some of the men said, that 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, with anchor buttons to the jacket, such as are usually worn by petty officers. The clothing of the crew in general was light and adapted to the climate of the West-Indies, where the ship had been last stationed. 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, the defendant said to him, "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 commissioners to stop the pay of the crew, who answered that it could not be done.

The learned judge in his directions 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 believ

ed 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. Verdict for the plaintiff, 5761. 78. 8d.

A rule nisi for a new trial having been obtained on a former day, on the ground of the defendant's undertaking being within the statute of frauds, the counsel for the plaintiff now showed cause, and contended that the only question in the case had been left to the jury, and decided by them, viz. whether the sailors were liable in the first instance, and the defendant only came in aid of their liability; or whether the defendant was immediately responsible. They said that if the Boyne had been burnt before the delivery of the goods, the plaintiff would have had no communication with the crew, and of course no ground of action against them; if, therefore, they were not liable on the original contract, the subsequent delivery would not shift the credit upon them.

The counsel for the defendant was proceeding to argue in support of the rule, but was stopped by the Court, and Eyre, Chief Justice, delivered his opinion to the following effect :-" There is one consideration independent of every thing else, which weighs so strongly with me, that I should wish the evidence to be once more submitted to a jury. The sum recovered is 5761. 73. 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 the 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 pay-master, but that he would have given the preference to the latter. The circumstances of this case create some prejudices against the defendant, but which I think capable of explanation. There is some appearance of harshness in making the men purchase these clothes against their inclination. But it was in evidence, that though they were pretty well clothed, yet their clothes were adapted to a warm climate, rather than to the service in which they were to be engaged. It was therefore the bounden duty of. the officer to take some course to oblige the crew to purchase proper necessaries. We all know, that a sailor is so singular a

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creature, so careless of himself, that he cannot, though his life depend upon it, be prevailed upon, without force, even to bring up his hammock upon deck to be aired. We know that he will risk any danger in order to employ his money in a way that he likes, rather than lay it out in that provident method which his situa tion may require. The whole of the imputation then on the defendant and Captain Grey amounts to this, that when the men were to be clothed, they wished them to be somewhat well dressed. I do not know but that this circumstance may have had some influence with the jury. But I do not feel the force of it "when opposed to the weight of the evidence on the other side, so as to make the officer liable for so large a sum. 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 then was, “ perfectly so." The meaning of which was, that however unwilling the men might be to pay themselves, the officer would take care that they *[216] should pay. The question is, whether the slopman did not in fact 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 to giving credit 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 to a new trial.'

Where there

The principal point is, then, it seems, in all these cases, wheis no liabilither or not the party who is to be benefited by the promise is li ty in the party promised able at all, for this is implied in the very notion of a collateral for, the pro- promise; if there is no such liability, there is nothing to which

mise is an o

riginal one, the new promise can be collateral, or in relation to which it can and subjects be regarded as an undertaking to answer for the debt, default, or

the promiser

mon action

to the com- miscarriage of another person. It must, therefore, without such of indebitatus liability in a third person, be an original undertaking in the party assumpsit. promising. And, in a case of this sort, where goods are delivered to one person at the request of another, who alone stands forth as the purchaser and the party responsible, the common action of indebitatus assumpsit is the proper remedy against him, without regard to the special promise, the case being out of the statute altogether; and of course no written evidence of the promise is

necessary. But where the undertaking is collateral, by reason of the existing liability, a special declaration on such promise be comes necessary; and if the undertaking was to pay upon request, the count must state formally and explicitly, that a request was made; nor will the usual allegation in the common counts, that the defendant did not pay, although often requested, in such case, be sufficient.

But a special declaration

is necessary where the promise is collateral, and within

the statute.

Whether such special mode of declaring is necessary, or not, will depend upon the question, whether the promise was original or collateral; the point has, therefore, sometimes come under adjudication, not on the statute of frauds, but on the rules of plead-[217] ing; as in the case of Masters v. Marriott,(9) where the plaintiff declared in an action of assumpsit, that the defendant had sold to him a bay gelding for eight guineas, and that he agreed on the sale, that in consideration the plaintiff had paid to the defendant the eight guineas, he, the defendant, promised to the plaintiff, that if he disapproved of the gelding, and delivered it to Barham for the defendant's use, that Barham should repay the said eight guineas, and if Barham did not pay it, that defendant would repay it on request. The declaration then averred, that the plaintiff did disapprove of the gelding, and delivered it to Barham, and requested him to pay the eight guineas, which he refused to do upon request. The plaintiff also declared in another count upon an indebitatus assumpsit for another eight guineas, had and received to his use, and concluded that the defendant, not regarding his said several promises, had not, although often requested, repaid the said sums, to the damage of the plaintiff. On non assumpsit pleaded, a verdict was given for the plaintiff, with entire damages; and it was moved in arrest of the judgment, and ar gued several times, that the promise to repay the eight guineas, if Barham did not do it, was a collateral promise to pay in default of another, and that the defendant was not a debtor, but only a surety in default of Barham, and that, consequently, a special request to the defendant ought to have been laid, and that a sæpius requisitus fuit was insufficient; that there should have been a notice, that Barham had not paid, and a special request to the

(q) 3 Lev. 363; and see 1 Roll. Abr. 27, 30, 32. 1 Roll. Rep. 275-6. Cro. Jac. 386, 500. 3 Bulst. 94. 1 Danv. Abr. 68. 1 Vent. 43, 268, 293, 311. 2 Vent. 36. 1 Salk. 23. 2 Saund, 136.

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