statute does not apply, and the defendant is liable on his parol agreement, under a common count for goods sold (h).

W. undertook to complete certain work in the defendant's house, but was unable to procure timber. Whereupon the plaintiff supplied the timber, on the defendant's undertaking "to pay him for it out of the money that he, the defendant, had to pay to W., provided W.'s work was completed." The Court held that this was not a collateral, but a direct undertaking by the defendant (i). In Darnell v. Pratt (k), it appeared that a mother took her son to school, the father being then alive but it did not appear what transpired on that occasion. Afterwards a bill was delivered to the defendant, (the boy's uncle,) who said it was quite right to deliver the bill to him, for he was answerable. It was decided at nisi prius, and afterwards by the court, that it was properly left to the jury to say whether the original credit was not given to the defendant only.

Although the debt of another form the subject matter of the defendant's undertaking, still, if he promised to pay the debt upon some new consideration raised by himself; and the consideration be the creditor's resignation of a charge or lien on goods, which afforded him a remedy or fund to enforce payment, the case does not fall within the statute.

Thus, where a broker, being employed to sell the goods of an insolvent, for the benefit of his creditors, in order to prevent the landlord of the insolvent from distraining for rent then in arrear, which he was about to do, gave him a parol promise to pay the rent then due, if he would desist; this was holden not to be within the Statute of Frauds; inasmuch as the landlord had, through the medium of the threatened distress, a lien on the goods; a legal pledge, the parting with which was a good consideration for the promise (7).

And where the landlord had actually distrained, and in con

(h) Croft v. Smallwood, 1 Esp. R. 121; 1 Saund. 211, a, note; Edge v. Frost, 4 D. & R. 243; Langdale v. Parry, 2 id., 337; Barber v. Fox, 1 Stark. R. 270. A memorandum by E., "I engage to pay for all gas which may be consumed in the M. theatre, whilst occupied by A. B.," is an original undertaking or order by

E., and the common count for goods sold suffices; Wood v. Benson, 2 C. & J. 94, post 411.

(i) Dixon v. Hatfield, 2 Bing. 439; 10 Moor, 42, S. C.

(k) 2 C. & P. 82.

(1) Williams v. Leper, 3 Burr. 1886; 2 Wils. 308, S. C.; Bampton v. Paulin, 4 Bing. 264; 12 Moor, 497, S. C.

sideration of the plaintiff delivering up the distress to the defendant, he promised "to pay all such rent as shall appear to be legally due from the tenant," it was held (m), that the statute did not apply, and that the case was governed by Williams v. Leper.

In the late case of Thomas v. Williams (n), these decisions were considered and explained. A. B. was indebted to the plaintiff in rent due the 25th of March. In August, the defendant, as an auctioneer, was about to sell the goods of A. B., which were upon the premises. On the day of sale, the plaintiff, the landlord, came to distrain for his rent due 25th March. The defendant, in consideration of his not distraining, verbally promised to pay him, not only the arrears then due, but also the rent which would become due at the ensuing Michaelmas. It was held that the promise was void; and, being entire (o), that not even the rent due on 25th March was recoverable. In delivering judgment, Lord Tenterden, C. J., said, "There is no case in which the promise of payment has gone beyond the amount of the right vested in the party to whom the promise was made, or beyond the assumed value of the fund out of which the payment was to be made. In Edwards v. Kelly (p), the landlord to whom the promise was made had actually distrained the goods of his tenant, and delivered them to the defendant to be sold, in consideration of his promise to pay the rent due for which the distress had been taken. In Castling v. Aubert (q), the plaintiff gave up to the defendant, policies of insurance, on which the plaintiff had a lien to secure himself against bills which he, on the faith of that lien, had accepted for the accommodation of the assured; and the person to whom he delivered them promised to discharge the bills, and give to the plaintiff the same indemnity that his lien afforded him. In these cases, the promise was founded on a new consideration, distinct from the demand that the plaintiff had against the third person, although its performance would have the effect of discharging that demand, and releasing that person. In Williams v.Leper (r), there was no actual distress, but there was a power of immediate distress, and an intention to enforce it; and I think the Judges

(m) Edwards v. Kelly, 6 M. & Selw.

204.

(n) 10 B. & C. 664.

(0) See Wood v. Benson, post 411.

(p) 6 M. & Selw. 204.
(q) 2 East, 325; post 408.
(r) Ante 406, and note (l).

must be understood to have considered that power as equivalent to an actual distress. It is not necessary now to decide whether it was rightly so considered, because, supposing it to have been rightly so considered, the decision will not go beyond the amount of the arrears then due, and for which the right of distress might have been immediately exercised."

Where the plaintiff, having goods in his possession under an absolute bill of sale, forbore to sell them, upon the defendant's verbal undertaking to pay the debt, to secure which the bill of sale was given, the verbal promise was held to be sufficient (s). And a parol promise to an agent to provide for bills he had accepted for his principal, if the broker would give up certain valuable papers whereon he had a lien, and by means of which his demands could be satisfied, is valid (t).

It is reported to have been decided, that a promise to sign a bail bond in a bailable action, commenced against a third person, in consideration that the plaintiff would not arrest the latter, is not within the statute (u).

So where the original demand is destroyed or discharged, by the new parol agreement, the statute does not, in general, apply. A., being insolvent, a verbal agreement was entered into between several of his creditors and B., whereby B. agreed to pay the creditors 10s. in the pound, in satisfaction of their debts; which they agreed to accept, and to assign their debts to B. The Court held that this agreement was not within the Statute of Frauds, it not being a collateral promise to pay the debt of another, but an original contract to purchase the debt (x). And where the vendee of goods, being unable to pay for them, transferred and delivered them to the defendant, and the latter agreed to become the purchaser, and promised the vendor to pay for them, the Court considered that this was a new sale, and not a mere promise to pay the debt of another (y).

On the same principle, it has been determined that a promise to produce a third person, or pay a debt due from him on a judg

(s) Barrell v. Trussell, 4 Taunt. 117. (t) Castling v. Aubert, 2 East, 324, 325. The Court considered that the agreement was a purchase of the papers; see Houlditch v. Milne, 3 Esp. R. 87.

(u) Jarmain v. Algar, R. & M. 248; 2 C. & P. 249, S. C.: Sed qy. (x) Anstey v. Marden, 1 New R.

124.

(y) Browning v. Stallard, 5 Taunt.

450.

ment, in consideration that the plaintiff, who had taken his debtor in execution upon a ca. sa., would consent to his discharge out of custody, is an original promise, and not within the statute; such discharge operating as an extinguishment of the debt (≈). But the statute applies, if the original demand be allowed to subsist, and the parties merely stipulate for an indulgence to the debtor; as, that an action commenced shall be stayed (a).

If the third party be not by law liable for the demand, as in the case of goods, not being necessaries, furnished to an infant, the defendant's promise cannot be considered collateral, and consequently need not be in writing (b).

Nor does the statute apply if the defendant were himself, either alone or jointly with others, originally liable for the demand which forms the subject of his subsequent promise. An action having been brought against the defendant (an attorney) and two others, for appearing for the plaintiff without a warrant, the record was carried down to be tried at the assizes, when the defendant verbally promised, in consideration that the plaintiff would not further prosecute the action, that he, the defendant, would pay 107. and costs; and the Court held that such promise was binding (c). In Edge v. Frost (d), it appeared that the defendant had, in writing, promised to see the plaintiff paid for gas apparatus put up for a third person, &c., (not shewing the consideration); and upon evidence being given at the trial that the defendant had given orders both before and after the written engagement, Abbott, C. J., told the jury, that he was liable, independently of the guarantee, although he had no interest in the premises where the apparatus was put up. And a parol promise by the defendant to pay the plaintiff a sum of money, which the defendant owed I. S., and which the latter owed the plaintiff, in pursuance of the order of I. S., falls within the same principle (e).

So a promise by a surety to a person, to indemnify him if he also would become surety for the principal, is not within the statute (ƒ).

And where a claim to tithes had been made against the plaintiff, an occupier of lands in the parish, and legal proceedings had been taken against him to enforce the demand, it was decided that the promise of the defendant, (another parishioner,) to indemnify the plaintiff against costs, if he would persist in defending the suit brought against him by the tithe claimant, was binding, though not in writing (g).

2ndly. Of the Form and Requisites of a written Contract to guarantee (h).

It is now fully settled that, to render a memorandum or agreement in writing valid, under the 4th section of the statute, the consideration for the promise, as well as the engagement itself, must be stated therein, and that the omission cannot be supplied by parol testimony (i). This doctrine is established, (independently of the common law rule of evidence, that parol testimony is not admissible to supply the defects of, or add to, a written agreement (k)), with a view to give full effect to the object of the act, namely, the prevention of fraud and perjury; it being considered that the admission of parol evidence to shew the terms or consideration of the contract, would induce the mischief which the legislature meant to obviate. It is also considered, that the term "agreement," used in the 4th section, includes the consideration for the promise, as well as the promise itself.

The following memoranda have therefore been considered insufficient :

"Messrs. W. & Co., I will engage to pay you by half-past four this day, 567., and expenses on bill of that amount on Hall. J. W." (1).

(9) Adams v. Dansey, 6 Bing. 506; 4 M. & P. 245, S. C.

(h) As to the general rules in regard to the form and signature of an agreement, reduced into writing under the act; see ante, 59.

(i) Wain v. Warllers, 5 East, 10; Saunders v. Wakefield, 4 B. & Ald. 595; Jenkins v. Reynolds, 6 Moore, 86; 3 B. & B. 14, S. C.; Morley v. Boothby, 3 Bing. 107, 112, 113; 10 Moor, 395, S. C. It seems that if an attorney, in his professional character, give an undertaking to pay the debt and costs in an action, in considera

tion of staying proceedings, the Court, of which he is an officer, will entertain a summary application against him, to enforce payment, although the undertaking be void under the statute, because it was not reduced into writing; In re Greaves, K. B. H. T. 1827, cited 1 C. & J. 374; or because the writing does not express the consideration. Semble, Evans v. Duncombe, 1 C. & J. 372. Money paid under a void guarantee, not recoverable back; Shaw v. Woodcock, 7 B. & C. 73.

(k) See ante, 55, 81.

(1) Wain v. Warlters, suprâ.