Powers & Co., and the other March, 1877, against himself as bail for stay of execution on the first-mentioned judgment. He then offered to prove, in substance, that in February, 1876, defendant Wolfe requested him to become bail for stay of execution, and, in consideration of his agreeing to do so, promised and undertook to indemnify and save him "harmless from any loss or liability, and from paying anything by reason of his so going security"; that, relying on said promise and undertaking of defendant, he did become bail for stay of execution on the judgment against Powers & Co. This offer was objected to on the ground that the agreement was not in writing as required by the statute, and the proposed testimony was excluded by the court. In the same connection it was admitted that Powers & Co. became insolvent; that plaintiff was compelled to pay the judgment, then amounting to $1,499.74, and that defendant, though often requested, had not paid any portion thereof. The question thus presented is whether the alleged agreement which plaintiff was not permitted to prove is within the clause of the supplement above quoted.

The clause in question is copied substantially from the fourth section of the English statute, 29 Car. II, c. 3, which, with slight changes in phraseology, has been generally adopted in this country. During the more than two centuries since its original enactment the construction of this section, and its application to various forms of contract, have been constantly the subject of contention; and on no question, perhaps, has there been greater diversity and contrariety of judicial decision in this as well as in the parent country. Cases of real or apparent hardship have repeatedly led courts to put a strained and unnatural construction on what appears to be a plain and easily comprehended act, passed for the purpose of preventing the commission of fraud and perjury. If time would permit, a review of the many conflicting and irreconcilable decisions that from time to time have been rendered, and the refined distinctions upon which they have been based, would be interesting; but the undertaking would be too great, and withal not specially profitable. It is very evident the statute was not intended to apply except in cases where, in addition to the promisor and promisee, there is also a third party to whose debt or undertaking the agreement of the promisor relates, and not even then unless the liability of the third party continues. In other words, the agreement, to be within the purview of the statute, must in a certain sense be a collateral and not an original undertaking. Independently of the debt or liability of the third party, there must, of course, be a good consideration for the collateral or subordinate agreement; such, for example, as a benefit or advantage to the promisor, or an injury to the promisee. It is difficult, if not impossible, to formulate a rule by which to determine whether a promise relating to the debt or liability of a third person is or is not within the statute; but, as a general rule, when the leading object of the promise or agreement is to become guarantor or surety to the promisee, for a debt for which a third party is and continues to be primarily liable, the agreement, whether made before or after, or at the time with the promise of the principal, is within the statute, and not binding unless evidenced by writing. On the other hand, when the leading object of the promisor is to subserve some interest or purpose of his own, notwithstanding the effect is to pay or discharge the debt of another, his promise is not within the statute.

If one says to another, "Deliver goods to A., and I will pay you," the verbal promise is binding, because A., though he receives the goods, is not responsible to the party who furnishes them. But if, instead of saying, "I will pay you," he says, "I will see you paid," or "I will pay you if he does not," or uses words equivalent thereto, showing that the debt is in the first instance the debt of A., the undertaking is collateral, and not valid unless in writing. In these latter cases, the same consideration, viz., the consideration of the promise of the principal, is a good consideration for the promise of the surety or collateral promisor. The credit is given as well upon the original consideration of the principal as the collateral promise of the surety, and is a good consideration for both. ** *

[Judgment granting nonsuit affirmed.]

WHITE v. RINTOUL.

(Court of Appeals of New York, 1888. 108 N. Y. 222, 15 N. E. 318.) This action was brought upon an alleged verbal promise of defendant to pay the amount of two notes owned by plaintiff and made by the firm of Wheatcroft & Rintoul.

FINCH, J. The doctrine prevailing in this state which serves to distinguish between original and collateral promises in cases arising under the statute of frauds has been reached in three stages. Each was a definite and deliberate advance toward a more faithful obser vance of the statute, and an abandonment of efforts to narrow the just and natural range of its application. When, by some authorities, it was said that a verbal promise to pay the debt of another was always collateral, and invalid if the primary debt continued to exist concurrently with the promise, a simple and easy test was furnished to determine whether the statute did or did not apply. But when that test was discarded, and it became the law that a promise to pay another's debt might be original, although that debt subsisted and was in no manner extinguished, the presence of such continued liability raised a cloud of doubt and ambiguity, which perhaps will never be entirely dissipated.

* * *

[The cases have] ended in establishing a doctrine in the courts of this state which may be stated with approximate accuracy thus: That where the primary debt subsists and was antecedently contracted, the promise to pay it is original when it is founded on a new consideration moving to the promisor and beneficial to him, and such that the promisor thereby comes under an independent duty of payment irrespective of the liability of the principal debtor.

* * *

We are, therefore, to bring the facts of the case to the test of the rule above stated, and in doing so, we are to take them from defendant's own lips, to treat as true his representations as detailed by his adversary, and to draw from the evidence every possible inference which is favorable to the plaintiff's case.

The firm of Wheatcroft & Rintoul, of which defendant was not a member, became indebted to the plaintiff in the amount of two notes, one dated June 1, 1880, and maturing September 4, 1880, and the other dated July 1, 1880, and to become due October 4, 1880. On the 16th of August, 1880, and so before the maturity of either note, the defendant requested the plaintiff to forbear any effort at their collection until June or July, 1881, promising, if the plaintiff would do so, to pay

the amount of the notes. The plaintiff did forbear, and now sues upon the promise. The courts have held many times that a promise upon consideration of forbearance to sue the debtor is not original, and, to be valid, must be in writing. * * *

One member of the debtor firm was the defendant's son, and that firm was somewhat in debt and not managing the business successfully or satisfactorily. The defendant was a creditor of the firm. He had loaned to them something over $5,000, for which he held as security a chattel mortgage on the fixtures and machinery of the firm. He was, therefore, to some extent at least, a secured creditor. He represented to plaintiff that he had advanced all the money for the business of the firm; that he was determined to get rid of his son's partner, who was drawing money that was his money; that the business was not paying, and he wanted to give it up, or he was going to conduct it alone or through his son; that if plaintiff tried to collect his debt he would not be able to get anything; that there was a chattel mortgage against the property; that he had furnished money himself for which he had a mortgage, or would get one, and plaintiff could not get anything; that the only way and the best way would be to give the firm time; that it was late in the season, and by waiting until the next summer they could sell their beer, and that he would pay plaintiff for the two notes. That is plaintiff's account of the conversation given on his direct examination. On his cross-examination he added that defendant said he had a claim or a confession or a mortgage or some security for the amount of money due him, and that plaintiff could not get anything anyway, and that the money that was due defendant was the first to be paid out of the firm. Upon the basis of this evidence, the plaintiff contends that the defendant had a direct personal interest in procuring a forbearance to sue the firm, which he explains in his brief by saying "that if the plaintiff pressed the collection of the notes, and did not wait till the then next summer, defendant would lose his money," which had been loaned to the firm. But I do not discover a single fact in the case which tends to any such conclusion. * * *

The motive disclosed was regard for his son, and desire that his business credit should not be damaged by a failure. The purpose for which he sought delay was wholly in the interest of that son, and to enable him to market his beer the next summer, and so procure the means to pay the plaintiff without sacrifice or discredit. The debt of the firm was in no sense defendant's debt. No consideration of benefit moved to him from either party, and least of all had there been any new dealing with either which put upon him a duty of payment. Before the promise was made he owed no such duty and came under no such obligation. The doctrine of the court clearly stamps the promise as collateral and void for want of a writing. * * Judgment reversed.

*

LAMKIN v. PALMER.

(Court of Appeals of New York, 1900. 164 N. Y. 201, 58 N. E. 123.) HAIGHT, J. This action was brought to recover the sum of $2,150 upon an oral promise of the defendant to pay the plaintiff that sum out of the proceeds of the sale of the property of the M. S. Robinson Musee Company. The facts are somewhat complicated, but, for the

purpose of raising the questions presented upon this appeal, they may be briefly stated as follows:

The plaintiff was an employé and stockholder in the M. S. Robinson Musee Company, a corporation operating theaters in the city of Buffalo and in the city of Rochester. He had loaned to the president of the company, M. S. Robinson, to be used by the company in the operation of its theaters, the money in question. The Buffalo theater had been destroyed by fire, and the defendant had become obligated to pay certain indebtedness incurred by the Rochester theater. He had procured from a person in Detroit an offer to purchase from him the Rochester property, and was endeavoring to procure the consent of the stockholders for the sale to him of such theater, to the end that he might accept the offer of the Detroit gentleman and effect a sale to him, and then appropriate the proceeds to the payment of the debts of the Rochester theater which he had become obligated to pay. The defendant, in order to induce the plaintiff to sign the consent, made the agreement upon which this action is founded. The defendant, by his answer, denied many of the allegations of the complaint, and then alleged: "That the agreement referred to in the complaint, if made at all, was made without consideration, and the same, not being in writing, was void by the statute of frauds of the state of New York." * * *

The plaintiff had furnished money to be used in carrying on the business of the corporation. He was a creditor and had the right to seek indemnity from the assets of the company. The defendant was seeking a transfer of the assets of the company, so that he could convert the same into money and pay off the debts that he had become obligated to pay. The plaintiff, by his consent, released his right to follow the assets for the satisfaction of his claim, and accepted the promise of the defendant to pay him out of the proceeds of the sale. The contemplated purchaser refused to complete the purchase unless the claim of the plaintiff was settled or his consent to the transfer obtained. The sale was for $12,000. The transaction was, therefore, beneficial to the defendant, for it enabled him to relieve himself of a greater portion of the obligations assumed by him to the other creditors. The question of consideration to support the agreement was not, therefore dependent solely upon the consent of the plaintiff as stockhold

er.

* * *

Judgment [for plaintiff] affirmed.

SECTION 3.-CONTRACTS OF EXECUTORS AND

ADMINISTRATORS

The Statute of Frauds provides:

No action shall be brought whereby to charge any executor or administrator upon any special promise to answer damages out of his own estate, unless the agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized.

An executor is nominated by a testator in his will, qualifies as

executor in the probate court, receives "letters testamentary" from the court, and is then charged with the duty of paying the testator's debts out of the testator's estate and of distributing the remaining property among the beneficiaries designated in the will, according to the terms thereof. An administrator occupies the same position with respect to the estate of a deceased person, except as regards the source of his authority. The administrator is appointed by a probate court to administer the estate of a decedent leaving no will. An administrator with the will annexed is appointed by a probate court to act practically as executor, where no executor is nominated in the will, or where the person nominated by the testator fails or refuses to qualify as executor.

The above section of the Statute of Frauds carries out the general rule that guaranty contracts must be in writing. If, for any reason, an executor or an administrator, in the absence of some independent consideration to himself, contracts individually to pay the debt of the decedent whom he represents, such contract must be in writing in order to be enforceable.

SECTION 4.-CONTRACTS MADE IN CONSIDERATION OF MARRIAGE

The Statute of Frauds provides:

No action shall be brought to charge any person upon any agreement made upon consideration of marriage, unless the agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized.

This section has been construed not to require mutual promises to marry to be in writing in order to be enforceable. It is possible to construe this section to apply to mutual promises to marry, but doubtless the courts, in recognition of the fact that people generally find it more desirable to conduct such negotiations orally, have wisely excluded such contracts from the operation of the statute. The above section of the statute applies to what are sometimes called marriage settlement contracts. One of the parties to the contract, or a third party, may, in consideration that two designated persons shall marry, promise to transfer certain property to one of the contracting parties. The fact of marriage may be sufficient consideration for this promise, but, in a sense, it is a promise to make a gift upon the happening of a certain contingency. It is the kind of contract, therefore, where false testimony as to the making of such a promise might frequently be made, and it is probably for this reason that it was included among those contracts not enforceable unless in writing.