another, is a sufficient consideration for such promise, and will

13 M. & W. 561. 13 C. B. N. S. 344. Reader v. Kingham. 4 B. & Sm. 414. Cripps v. Hartnoll. These cases establish that the statute applies only to promises made to the person to whom another is already or is to become answerable. Accordingly in Cripps v. Hartnoll, 4 M. & Sm. 414, it was held that an indemnity given to a person for becoming bail for the appearance of another on a criminal charge is not within the statute; because there is no debt or duty owing from the person bailed to the person who becomes bail. And this distinguishes the case (if it can be distinguished) from Green v. Cresswell (cited above), inasmuch as in civil proceedings a legal duty does arise in the person bailed, towards his bail, to keep him harmless, by surrendering or paying the debt. paying the debt. But in Batson v. King, 4 H. & N. 740, Pollock, C. B., said that he thought Green v. Cresswell was not rightly decided. And the same learned judge, on the same occasion, said, "If a man says to another, if you will, at my re

make it binding, although no actual benefit accrues to the party

"self in a certain situation, the "first will indemnify him against "the consequences." And in 4 B. & Sm. 418. Cripps v. Hartnoll, the Chief Baron said that a mere promise of indemnity is not within the statute. See also 16 C. B. N. S. 537. Mallett v. Bateman. per Byles, J.

The test above laid down was also adopted by Cockburn, C. J., in 7 C. B. N. S. 392. Fitzgerald v. Dressler, dwelling especially on the concluding qualification of the passage, passage, "coupled with the ab "sence of any liability on the

part of the defendant or his "property, except such as arises from his express promise." The undertaking of a del credere agent, whereby he becomes responsible to his employer for the solvency of the persons with whom he deals, is not within the statute, being a guarantee of his own conduct in making sales and accepting purchasers, and not a promise to answer for the debt of another person, though in the event it may become so. 8 Exch. 40. Couturier v. Hastie. Leake Cont. 127. The statute does apply to an agreement to give a guarantee. 16 C. B. N. S. 530. Mallett v. Bateman.

The case of Williams v. Leper before stated (ante, 233) was recognised and acted upon in 4 Bing. 264. Bampton v. Paulin. 12 Moore,

2

undertaking. 3 Burr. 1673. 3 T. R. 24. Nerot v. Wallace. H. Black, 312. Pullin v. Stokes.

See notes to 2 Saund. 136. Barber v. Fox (m).

497. S. C. and in 6 M. & S. 204. Edwards v. Kelly; in which latter case, however, 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 for which the distress had been taken. In Williams v. Leper the court must be understood as having considered the power of immediate distress and the intention to enforce it, as equivalent to an actual distress. (See 10 B. & C. 670.) But where, under similar circumstances, the promise was to pay not only the arrears of rent then due but also the accruing rent up to the Michaelmas then next, it was held

that the part of the promise which related to the accruing rent was within the statute, and void for want of writing. 10 B. & C. 664. Thomas v. Williams. 5 M. & R. 625. S. C. And further, that the promise being entire, and this part of it being void, it was void altogether. Ibid. and Accord. 6 A. & E. 459. Head v. Baldrey. 2 N. & P. 217. S. C. 7 A. & E. 49. Mechelen v. Wallace. 2 N. & P. 224. S. C. E. B. & E. 685. Hodyson v. Johnson. (See, however, 2 Cr. & J. 94. Wood v. Benson; and also 1 Cr. & M. 101. Lord Falmouth v. Thomas, per Bayley, B.)]

(m) For the modern cases on this subject, sce post, vol. ii., notes to Barber v. Fox.

Ibid. 52. Hart v. Buckminster. Cro. Eliz. 756. Willoughby v. Brook. Dy. 196, a. Rainsford v. Smith; and the authorities cited in the margin (b); and a difference is there taken between where the thing is recited in the condition. in general words, and where in particular: as where the condition of a bond was to pay all the legacies which J. S. had devised by his will, the obligor cannot plead that J. S. had not devised any legacies, because that would be contrary to the admission in

(b) [2 B. & Ad. 544. Hill v. Manchester Water Works. See also 7 Exch. 780. Horton v. Westminster Improvement Commissioners. That an estoppel may be by matter of recital, see 1 A. & E. 792. Lainson v. Tremere. 3 Nev. & M. 603. S. C. 2 A. & E. 278. Bowman v. Taylor. 4 Nev. & M. 264. S. C. 8 M. & W. 209. Carpenter v. Buller. 3 Y. & Jerv. 423. Edwards v. Brown. It is a question of construction whether a recital is intended to be a statement which all parties to the deed have mutually agreed to admit to be true; or the assertion of one of them only. 7 C. B. 781. Young v. Raincock. 14Q.B.557. Stroughill v. Buck. 5 Exch. 565. Wiles v. Woodward. 9 Exch. 256. Hills v. Laming. But an estoppel must be certain to every intent; and therefore, if the thing be not precisely and directly

the recital; but it would be otherwise if the condition had been to pay all the legacies which J. S. should devise by his will, for then the recital admits nothing. And the same distinction is taken in 2 Rep. 33, b. Doddington's case. All. 13. 1 Rol. Abr. 872, 873. Cro. Eliz. 362. Strowd v. Willis. Moor. 23, pl. 79. Moor. 23, pl. 79. 1 Mod. 113. Backwell v. Bardue. 1 Show. 59. Salter v. Kidley. 10 Vin. 468, 469, 470, tit. Estoppel (c). So where a person undertakes by bond to do an act, it is not suffi

alleged, or be mere matter of supposal, it shall not be an estoppel. Accordingly a recital in a release, that A. was lawfully or equitably entitled, is no estoppel for want of certainty of allegation. 2 B. & Ad. 278. Right v. Bucknell. Again, an allegation in the instrument of matter immaterial to the contract therein contained, works no estoppel. 8 M. & W. 209. Nor would the one party be estopped, in an action by the other, not founded on the deed, and wholly collateral to it, to dispute the facts admitted in it. Ibid. 6 H. & N. 520. S. Eastern Railway v. Warton. 31 Law J. C. P. 1. Fraser v. Pendlebury. Accord.]

(c) [1 A. & E. 801, 802. Lainson v. Tremere. 3 Nev. & M. 668, 609. 2 B. & Ad. 278, 281. Right v. Bucknell.] 10 C. B. 35. Kepp v. Wiggott.

cient for him to shew that he has done all in his power; for the condition is for his benefit, and if not performed he is subject to the penalty. This rule is, however, subject to this exception, viz., where the condition is prevented being performed by the act of God, as by the death of the party before the day; or by the act of the law, as if a bond be given conditioned to do an act, and a statute afterwards makes it unlawful; or by the act of the obligee himself, for it would be unjust that he should take advantage of his own wrong. Bull. N. P. 164, 165 (d). But there are some cases of conditions, where the law does not require a strict performance according to the letter of the condition, provided the substance and intent of the condition is performed; as where the condition is to make a feoff

(d) But if the obligor might have performed the condition, he shall not avail himself of its having become impossible by his own laches. 12 East, 436. Bigland v. Skelton. [So when a condition

ment, if the obligor makes a leuse and release to the obligee and his heirs, it is held to be a performance, because it amounts in law to a feoffment. Co. Litt. 207, a. Plow. 156, b. Throckmorton v. Tracy. 1 Rol. Abr. 426. So, where the condition of a recognizance in the Palace Court, was to surrender the principal to the gaoler of that court, if he should be condemned: error of that judgment and affirmance, and upon that the bail rendered the principal to the King's Bench, the whole proceedings being removed thither: the Court of K. B. held the render a good performance of the condition; for the intent of the condition was answered by the defendant's being in prison to answer the plaintiff's demand. 1 Str. 49. Freshwater v. Eaton.

becomes impossible by any act of the obligor, such impossibility forms no answer to an action on the bond. 3 A. & E. 883. Beswick v. Swindells, per Cur. 5 Nev. & M. 382. S. C.]