Whether the

promise is within the statute, where the promiser is himself al

ready liable.

of debts, or rather of the right of recovering debts for the promisor's own benefit; in Castling v. Aubert, the promiser took upon himself to answer for the payment of monies to which the promisce was liable, in consideration of having the fund transferred to him, out of which was to come his indemnity. The object of the promise was in neither case the discharge of the original debtor, though in the one case that discharge would follow eventually from the undertaking of the purchaser, while, on the other, the continuance of the original debt was implied in the very undertaking. The principle of the transactions in both cases was the same, though the consequences were dissimilar.

It may be worthy of remark, that Lord Ellenborough, in the case of Castling v. Aubert, illustrated his distinction between the discharge which arises collaterally and eventually, and that which follows as the direct purpose of the undertaking, by the case of a bill of exchange, upon which several persons are liable: in such case, says his Lordship, if it be agreed to be taken up by one, eventually, others may be discharged; but the moving consideration is the discharge of the party himself, and not of the rest, although that also ensues; and his Lordship seemed to consider such undertaking by a party already liable, as plainly out of the * [230] statute. Agreeable to which doctrine is the authority of Lord Holt, in Stephens v. Squire,(a) which case was thus-an action had been brought against Squire, an attorney, and two others, for appearing for the plaintiff without a warrant; and this cause being carried down to be tried at the assizes, the defendant promised, that in consideration the plaintiff would not prosecute the action, he would pay 107. and costs of suit. And an action was brought against the defendant upon this promise; but the court were of opinion, that this could not be said to be a promise for another person, but for his own debt, and, therefore, not within the statute. According to the report of the same case in Comberbach,(b) the Chief Justice observed, that it was an original promise, and the party himself liable. Upon which, Sir Bartholomew Shower asked his Lordship, whether it would not have been plainly within the statute, if the promisor had not been a party. But Holt desired him to put that case when it came. Here, said his Lordship, he appears to be a party concerned in the former action. It is to be observed, that the defendant in the case just (b) Page 362.

(a) 5 Mod. 205.

mentioned was not only liable, but had actually been sued, and that his promise therefore had a direct view to his own discharge, though it would operate eventually in discharge of third persons; which brings it within the doctrine so satisfactorily stated by the present Chief Justice of the King's Bench, in the case of Castling v. Aubert, just mentioned.(90)

But it should further be considered, that the 10%. undertaken for was not the debt of any other person, but offered by the defendant as a compensation for damages; therefore, perhaps, that part of his undertaking which respected the costs, came more properly into question upon the statute; as to which, upon the ground of his being a party, and liable himself, according to the above- [231] mentioned doctrine, the case seemed to be out of the statute. But suppose the defendant had expressly said to the plaintiff, go to J. S. (being one of the other persons concerned in doing that which was the subject of the action) and ask him for to pay the costs, and if he will not, I will be personally and wholly responsible for the amount; perhaps a promise expressed in these terms, though made under those circumstances, would be considered as falling within the statute. For such appears to be the doctrine of Winckworth v. Mills,(c) in which it was held by the late Lord Kenyon, at nisi prius, that a promise by the indorsor of an unpaid note, to indemnify the holder, if he would proceed to enforce payment against the other parties to the note, must be in writing, or it would be void, under the statute of frauds.(91)

The reader will observe, in the perusal of the instructive case of Anstey v. Marden, above cited, that the Chief Justice in his opinion stated, that it had rather struck him at the trial, that the promise being only to pay 108. in the pound, and not to pay the whole debt, it was an original agreement, and, therefore, not within the statute. But he afterwards admitted in the argument, that Chater v. Beckett(d) was a decisive authority the other way. The (c) 2 Esp. 484. (d) 7 T. R. 201; and see Lexington v. Clark,

2 Vent. 223.

(90) Watson v. Turner, et al. Exchequer. Bull. Ni. Pri. 281, seems to be grounded on the same doctrine.

(91) The counsel for the plaintiff seeming to be dissatisfied with his Lordship's ruling, he offered to save the point, but they declined it.

[232] If the promise has not

an immediate respect to the liability, but springs out of a new and distinct transaction, it is not within the statute.

great point of the adjudication, in Chater v. Beckett, viz. that a parol promise to pay the debt of another, and also to do some other thing, is void as to both, by the statute of frauds, such contract being entire and incapable of separation, has in an early part of this work been set before the reader, so as to save the necessity of any further observations thereon in this place.

*It is to be observed, in the second place, in regard to these promises founded on the liability of another person, that to constitute them such as are necessary by virtue of the statute of frauds to be committed in writing, the consideration should appear to have an immediate respect to the liability of the party promised for. If it spring out of any new transaction, or move to the party promising upon some fresh and substantive ground, of a personal concern to himself, the statute of frauds does not attach upon such promise, but the same may be good, if the consideration be sufficient, though existing in parol only.

Thus, unless the liability of the person to whom, in the case of Buckmyr v. Darnall, the horse had been lent, had arisen upon an implied contract to re-deliver him, for which detinue might be brought (which is a species of mixed remedy, resting partly on contract, and partly on tort) the promise of the defendant would have wanted that correspondence with the original liability of the party answered for, which was necessary to bring it within the statute; for it was remarked by Powell, Justice, with his usual discrimination, that there must not only be a remedy against the other, but a remedy upon the same contract; and, as the counsel for the plaintiff put it, the question upon the statute is not only whether an action does or does not lie against the party himself upon the contract, but also whether it does or does not lie against him upon collateral respects. If, therefore, the promise is founded upon a fresh, distinct consideration, moving to the party promising, it seems a perfectly established doctrine, upon all the cases, that the statute will not extend to it. In the case of Castling v. Aubert, we have seen, that there was a distinct and new consideration, viz. the giving up of the securities, which were in the hands of the plaintiff. The argument at the bar seems, therefore, to have taken much too narrow a ground, when it was contended, if the report states accurately the words of the counsel, that the statute was no bar to the plaintiff's recovery in that case, as it only applied to cases, where there was no consideration

for the promise; for if that had been the only object of the statute, it would have been nugatory in respect to this branch of its provisions, since, as has been sufficiently shown, the promise would have been a nudum pactum by the common law, without a sufficient consideration. Doubtless, therefore, it was not the circumstance of there being a consideration for the promise, which was the point for the counsel to have insisted upon, but that there was a new and engrafted consideration, moving to the party himself, who made the promise, and not to the party in respect to whose liability the promise was made. The authorities adduced to prove, that the existence of a consideration took a case out of the statute, did not prove what is certainly not law, but they proved that this was the consequence of there being a distinct consideration superadded. As in Meredith v. Short,(e) where the promise was in consideration of a delivery of a note, under J. S's hand, for 50%. and so again in Love's case,(ƒ) where the promise was by a stranger to a sheriff's officer, in consideration that he would restore goods taken on a fieri facias, to pay the debt of the defendant.

Thus, also, it appears, from the case of Tomlinson v. Gill,(g) reported by Mr. Ambler, to have been clearly Lord Hardwicke's opinion, that if the consideration of the promise takes its root in a transaction distinct from the original liability, the case is out of the statute. There the defendant Gill promised the widow and administratrix of an intestate, that if she would permit him to be joined with her in the letters of admininistration, he would make good any deficiency of assets, to discharge the intestate's debts. Thus, also, in Read v. Nash,() the consideration of the promise was perfectly distinct from any liability of the original defendant Tuack, the plaintiff's testator, brought an action of assault and battery against one Johnson; the cause being at issue, the record *entered, and first coming on to be tried, the *[234] defendant Nash, being then present in court, in consideration that Tuack would not proceed to trial, but would withdraw his record, undertook and promised to pay Tuack 501, and the costs in that suit to be taxed up to the time of withdrawing the record; the statute was pleaded, and the plaintiff demurred, and Lee, Chief Justice, declared the opinion of the court to be, that this

(e) 1 Salk. 25; and see S. C. in 2 Lord Raym. 759, by the name of Meredith. Chute. (f) 1 Salk. 28. (g) Ambler, 330. (h) 1 Wils. 805.

promise was an original promise, sufficient to found an assumpsit upon against Nash; Johnson was not a debtor; the cause was not tried; he did not appear to be guilty of any default or miscarriage; there might have been a verdict for him, if the cause had been tried, for any thing the court could tell; he never was liable to the particular debt, damages, or costs.

But the case most illustrative of this distinction between a promise, the only moving consideration for which is the liability of another person, and that which is grounded upon a superadded inducement, is that of Williams v. Leper,(i) reported in Burrow, which was as follows: Taylor, a tenant of the plaintiff, being in arrear for rent, to the amount of 451. for three-quarters of a year, conveyed all his effects for the benefit of his creditors. They employed Leper, the plaintiff as a broker, to sell the ef fects; who, accordingly, advertised a sale. On the morning advertised for the sale, Williams, the landlord, came to distrain the goods in the house. Leper, having notice of the plaintiff's intention to distrain, promised to pay the arrear of rent, if he would desist from distraining; and Williams, on the faith of this promise, desisted accordingly. At the trial a verdict was found for the plaintiff, for 451. and on a case reserved, it was contended on behalf of the plaintiff, that this was not such a special promise for the debt of another, as was within the statute of frauds; which statute only meant to prevent parol promises, where there was no new consideration moving from the *[235] party making the promise to the party to whom it was made: that the legislature did not mean to prevent direct undertakings, but only collateral ones, for the debt, default, or miscarriage of others. Whereas, here was a new consideration; for the goods of Leper were, at the time of the promise, liable to the landlord's distress. It was, therefore, a direct undertaking for himself, and not for another. The plaintiff had a legal interest in these goods, prior to the bill of sale, and was deprived by the defendant of an advantage, which he could never have again. The property of the goods was in Leper, as a trustee for the creditors, at the time when he made this promise; it was, therefore, an original undertaking, moving upon a consideration personal to himself.

(i) 3 Burr. 1886.