Part II. The general question in all these cases is, Statute of Whether the person, for whom the promise is Frauds. B. N. P. 281. Matson v. Wharam, 2 T. Rep. So. Jones v. Cooper, Cowp. 227. 2 Ander son v. 1 H. Blac. 120. said to have been made, was ever liable? for if he were, and the promise of the defendant is collateral to and in aid of his credit, and not a direct promise to be answerable in the first instance, it is void; whether made before or after the delivery of the goods, or performance of the other benefit, for the satisfaction of which it is intended as a security. Thus if one man request another to supply goods to a third person, saying, if he does not pay you 1 will'; I will be bound for the payment of the money as far as 800l. or 1000l.*; or other words, signifying that he does not consider himself as the principal debtor, the proHayman, mise will not bind him, unless reduced into writing; and although the promise be to pay the debt of another, and also to do something Chater v. else, still no action is maintainable on it: but Becket, 7 if it plainly appear that the person promising intended that he for whose use the articles were supplied should never be charged with them by the person of whom they were bought, and the creditor never considered such third person as his debtor, a parol promise is binding, for there is no debt, default, or miscarriage in the third T. Rep. 201. person. In these cases, therefore, it will often be very important to see to whom credit was originally given by the seller of the goods; and though his books, or the bill of parcels, cannot be evi dence Statute of Frauds. dence for him, yet if he originally charged the Ch. II. f. 1. third person, that will be strong evidence against him: Where the books are in possession of the plaintiff, notice should be given to him to produce them, that they may be read on the part of the defendant, or parol evidence given of their contents, if he is not made debtor in them. 3 Burr. 1921. Williams Leper. ibid. 1986. 2 East. If an agent buy goods at an auction, and do not name his principal'; or an auctioneer Simon v employed to sell goods by the creditors of the Moitvos, owner, when the landlord enters to distrain, promise, in consideration of his desisting, to pay the rent'; or a third person, in consideration of the holder of any commodity, on which he has a lien, delivering it up, promise to pay the value; in all these cases no written memo- 3 Castling randum is necessary; for, in the first case, no v. Aubert, credit at all was ever given to the third person; 325. and, in the others, there is an entire new consideration, detrimental to the plaintiff, and moving from him to the defendant, and on which the third person could not be sued. Again, whenever a person is under a moral obligation to make satisfaction for a benefit which another has actually received, and he promises to pay it, the promise is binding upon him, though not reduced into writing: as where a pauper is taken ill, and an apothecary sent for without the knowledge of the overseers, who attends and cures her, and the Watson vi 281 Part II. overseers promise to pay his bill, this promise Statute of is binding upon them. Frauds. Read v. 305. Crosby v. 602. N. P. 282. I Lord Cases where no debt was due from the third person, and where there was no default or miscarriage by him, as actions of Tort, Trespass, or the like, are not within the statute; and if in such case a third person verbally promise to pay the plaintiff a sum of money, in consideration of his withdrawing the record, it will be binding. The sale of standing grass has been held to be within the statute, as conveying an interest in the land, though a different decision had formerly vide Bul. taken place as to the sale of standing timber. That part of the clause which makes void parol promises, in consideration of marriage, was at Philpot v. one time thought to affect mutual promises to marry; but, by later decisions, it has been held to extend only to those cases where a father or other person promises to pay a sum of money by way of portion to the person married. Raym. 182. Wallet, 3 Lev. 65. The next provision requiring a memorandum in writing, where the contract is not to be performed within a year, does not appear to afford much room for doubt or discussion; the obvious intention of the legislature was, that those agreements which were, in all events, to remain unperformed for a year together, should rest upon some better evidence than the frail memory of man. But where it is from the nature of the promise itself uncertain whe ther Ch. II. f.1. Anonymous, 1 Salk.280. cited in Com. Rep. 50. Benton • Case v. Em ther it will be performed within a year or not, it has been held not to be within the statute, though the contingency does not in fact happen till after that time; and, therefore, if a man promise to pay a sum of money when a ship arrives, or when he shall be married, or to leave it at his death,' this promise, if founded on good consideration, is binding, though not in writing. The seventeenth clause, viz. that relating blers, to the sale of goods of the value of 10l. and 3 Bur. 1278. upwards, has given rise to the most discussion, and some contradictory cases are to be found upon it. There seems to be no reason for confining this clause to contracts to be performed immediately, and excluding executory contracts from the operation of it; yet such a construction at one time prevailed in Westminster Hall; and if the thing sold were to be delivered at a distant time, it was held not to be within the statute; but, by a modern decision,' this dis- Vide Sitinction has been overruled, and this clause of the statute is now held to extend to all contracts for the sale of goods of the value of 107. or upwards, whether they are to immediately, or at a future time. But it is still held, that where work is to be done, as where a chariot is to be built," this not being a mere contract of sale, but, in some degree, founded upon the work and labour to be performed, is not within the statute. be delivered Another case was also determined before that of Rondeau and Wyatt, in which it was mon v. Metivier, B. N. P. 280. 3 Bur. 1921. 2 > Rondeau v. Wyatt, H. Blac. 63. Towers v. Os borne, 1 Stra. 506. Frauds. V. An drews, 4 Bur. 2101. Part II. held, that where an agreement was to sell corn Statute of by measure, which was unthrashed at the time of the agreement, it was not within the statute." Clayton Lord Loughborough in his judgment on the case of Rondeau and Wyatt, distinguishes this case from the one then before the Court, by observing that some work was to be done to the corn; but he admits this to be a very nice distinction, and it must be observed, that at the time this case was determined, the general received opinion was, that all executory contracts were excluded from the operation of the statute; and the case appears to have been principally decided on this ground. der v. Coraber, 20. cited in In cases which are within the operation of the statute, and where the terms of it are not Alexan- complied with, the contract is void altogether;" neither the buyer nor the seller can enforce the 1 H. Blac. performance of it, and even if confessed in an answer to a Bill in Equity, still if the statute be insisted upon, that Court, it should seem, VideCases from the majority of the cases,' will not decree Rondeau a performance; and it is settled that no action v. Wyatt, & 1 Fonbl, at law can be maintained on such admission.+ The weighing off goods in the presence of Rondeau the buyer's servant has been held a sufficient V. Wyatt, delivery within this clause, and where A. 3 Simon v. bought a stack of hay standing in B.'s yard, and afterwards sold a part of it to C. who took such part; this was held sufficient evidence of deChaplin, livery to A. to take the case out of the statute." So where goods are ponderous, and not easily Treat. Eq. 168. ubi fupra. Motivos, ubi supra. v. Rogers, 1 East.192. 9 moved, |