by becoming "a mere guarantor or surety of another's debt." The real distinction of purpose or object which it is sought to bring out is doubtless that between intending that the consideration for which the promise is given shall benefit the promisor himself, or shall benefit a third person, the co-debtor. This is apparent in the quotation from Shaw, but the idea has become blurred in the quotation from the Nebraska decision, and is generally indistinctly stated by those who make the purpose of the promisor the test. Even when the matter is carefully stated and understood it is to be observed that the promisor's intention with respect to the consideration can be distinguished only by considering whether the consideration was in fact to be received by and become advantageous to the promisor, or was to be received by and be beneficial to another. The nature of the consideration in fact given for a promise therefore furnishes more exactly and simply than the promisor's supposed purpose, the test presumably sought by those who inquire into that purpose. Thus understood, this test is open to the criticism made hereafter 20 of judicial dicta directly adopting as a test the beneficial character of the consideration.

A reason for the indistinctness with which the proposed test of the purpose of the promisor is often stated, may be found in the desire of courts to state a principle in such a way as to harmonize all decisions. There are doubtless certain lines of cases excluded from the operation of the statute for the reason that the main object of each of the contracting parties, and the main purpose of the contract have nothing to do with the payment of the debt of another, such payment if it occurs being merely incidental; 21 but any attempt to make this principle account for the generality of decisions on the provision of the Statute of Frauds here in question, is doomed to failure. 22

20 Infra, § 472.

21 See infra, § 484.

22 In Harburg Comb Co. v. Martin, [1902] 1 K. B. 778, 786, 787, Vaughan Williams, L. J., defined the extent of certain exceptional cases as follows: "Whether you look at the 'property cases' or at the 'del credere cases,' it seems to me that in each of them the conclusion arrived at really was that

the contract in question did not fall within the section because of the object of the contract. In each of those cases there was in truth a main contract -a larger contract-and the obligation to pay the debt of another was merely an incident of the larger contract. As I understand those cases, it is not a question of motive-it is a question of object. You must find what

§ 471. A new promise whereby the promisor makes the debt of another his own.

An attempt is often made to distinguish new promises which fall within the statute from those falling outside its limits by saying that where the new promisor makes the debt his own, the promise is not within the statute. The difficulty with this definition is that it is liable to be misunderstood. If it is taken to mean that wherever the new promisor undertakes for any valid consideration to pay the debt, it becomes his and his promise is not within the statute, the rule is not supported by the cases, for it is at least requisite that the promisor must receive a consideration beneficial to himself in order to make an oral promise by him binding, and it will in the next sections be argued that it is also necessary that the consideration must be received as the equivalent of the promised debt, not as the equivalent merely of the risk the promisor may run of losing his money if the primary debtor cannot be compelled to fulfil his obligation. The emphasis, therefore, in stating the maxim must be laid on the word "debt" becoming his own as distinguished from a liability being incurred under a special

it was that the parties were in fact dealing about. What was the subjectmatter of the contract? If the subject-matter of the contract was the purchase of property-the relief of property from a liability, the getting rid of incumbrances, the securing greater diligence in the performance of the duty of a factor, or the introduction of business into a stockbroker's office-in all those cases there was a larger matter which was the object of the contract. That being the object of the contract, the mere fact that as an incident to it-not as the immediate object, but indirectly-the debt of another to a third person will be paid, does not bring the case within the section. This definition or rule for ascertaining the kind of cases outside the section covers both 'property cases,' and 'del credere cases.' . . . It was suggested that the true definition of cases which do not come within s. 4

should be, not those in which the obligation to pay the debt of another is an incident of a larger contract, but those in which the main object is to secure the promisor's own personal interest. But, I think, if such a definition were adopted, there would be nothing left to come within s. 4, because in every case there must be a consideration for which the promisor bargains to come to him from the promisee. That is as true of mere forbearance as of anything else." It is to be observed, however, as a commentary on the attempt made in the above extract to bring the "property cases" within the scope of the suggested rule, that in those cases the one and only object of the creditor who transfers the property is to get his debt paid; and the new promisor agrees to that object, but he agrees to do it in order to get the consideration which he wants, just as does every surety or guar

antor.

promise. Even if the statement is made in this form, however, it is open to possible misconstruction; for if it is taken to mean that the obligation must become exclusively that of the new promisor as distinguished from that of the original obligor, the cases are opposed to the rule. It is not requisite that the new promise shall be taken in discharge of the old indebtedness. 23 If, however, the meaning of the rule is understood to be that the new promisor must have become either (1) the sole debtor or (2) the principal debtor as between himself and the original debtor, or (3) that the creditor must be justified in so assuming, the rule is identical in substance with the less ambiguously stated rule, the correctness of which is hereafter urged. 24

§ 472. Whether the receipt of a new and beneficial consideration by a promisor takes his promise out of the

statute.

It has been established by a line of cases that the surrender to a new promisor of property which was held by the creditor as security for his claim prevents the promise from falling within the statute. In some of these cases the property surrendered belonged to the new promisor subject to the creditor's lien thereon.25 In other cases, however, this was not true, and

23 See infra, § 478. 24 Infra, § 475.

25 Fitzgerald v. Dressler, 7 C. B. (N. S.) 374 (the plaintiff surrendered goods, on which he had a seller's lien, in consideration of a promise by the defendant, a sub-purchaser, to pay the price to the plaintiff, which was less than that which the sub-purchaser owed to his vendor); Westmoreland v. Porter, 75 Ala. 452 (the plaintiff surrendered a lien at the request of the defendant in consideration of the latter's promise to pay the debt. The defendant was a second lienor); Luark v. Malone, 34 Ind. 444 (the defendant, the owner of a building, promised to pay a construction debt in consideration of the surrender of a mechanic's lien on the building); Crawford v.

King, 54 Ind. 6 (surrender of a lien on property of defendant); Parker v. Dillingham, 129 Ind. 542, 29 N. E. 23 (promise in consideration of surrender of mechanic's lien on defendant's property, but held that the lien must have been actually obtained at the time of the promise, and that a promise in consideration of extension of time to the principal debtor and refraining from securing a lien, were insufficient); Johnson v. Huffaker, 99 Kan. 466, 162 Pac. 1150, L. R. A. 1917 D. 872 (promise by owner of equity in land to mortgagee in consideration of the mortgagee's forbearance to enforce immediately a mortgage imposed on the land by a prior owner); Fish v. Thomas, 5 Gray, 45, 66 Am. Dec. 348 (promise by owner of vessel in consideration of a

the advantage to be derived by the promisor from the surrender was something other than the restoration to him of property in which he previously had a right of ownership.26

These cases, some of which go somewhat beyond any general rule accepted in England, have furnished the foundation for an extension in the United States of the boundaries of the statute. It was even laid down by Chancellor Kent, 26 in words often quoted 26 that where "the promise to pay the debt of another arises out of some new and original consideration of benefit or harm moving between the newly contracting parties,” it is not within the statute. This statement, however, unquestionably is too wide to be acceptable to-day in so far as it includes mere "harm" [to the promisee] as an adequate basis for a new original promise; and the same may be said of the suggested rule that there must be a "new and independent" consideration for a new oral promise to withdraw it from the statute.26 Such rules would altogether nullify the statute so far as new promises to pay an already existing debt are con

323, 325, the court said: "In case of a promise to become liable for an existing debt or obligation, there must, in order to sustain such promise, and render it unobjectionable in view of the statute, be a substantial consideration moving to such promisor. In such transactions, the simple fact that a good consideration for the assumption exists, is not sufficient; but superadded to this, such consideration must be apparently beneficial to the party undertaking to pay the debt and assume the obligation. By force of the statute, an unwritten promise to pay the debt of another, is inefficacious; the new assumption, consequently, if it is to have any legal obligation, must not have such an object in view as its primary purpose, but the primary purpose must be to promote the interest of him who takes the burthen upon himself. Hence it is, that in such transactions, a mere detriment to the promisee, the original obligation remaining unextinguished, will not support a promise of this character. Such a consideration would be good at common law, independently of the effect of the statute, because before the pas

sage of the act, any legal agreement to pay the debt of another was valid, but now such an agreement must be in writing. The consequence is, that agreements which will have the effect to discharge the debt of another, must be founded in a motive of interest, selfish in the promisor. The distinction is between a promise, the object of which is to promote the interest of another, and one in which the object is to promote the interest of the party making the promise. The former is within the operation of the statute. The latter is unaffected by it."

28a Leonard v. Vredenburgh, 8 Johns. 29, 5 Am. Dec. 317.

286 See Chamberlin v. Ingalls, 38 Ia. 300, 301; Peele v. Powell, 156 N. C. 553, 557, 73 So. 234.

26c In Brinkley &c. Mfg. Co. v. Cook, 110 Ark. 325, 161 S. W. 1065, however, the court applied this rule, enforcing a promise to pay another's debt though the consideration (surrender of a mechanic's lien on the debtor's property) apparently enured solely to the debtor's benefit. See also the following note, ad fin.