scribed, the Court held that the statute was not satisfied, as it was obviously intended that the agreement should not be perfect till the names were added at the foot.'

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§ 940. With respect to the mode of signature, it matters not whether the Christian name be set out at length or denoted by the initial, or omitted altogether; but it seems that the surname must be written at length, and that if the letter be signed by the mere initials of the party, or if it be subscribed, without signature, "by your affectionate mother," or the like, it will not suffice. A printed signature has been held sufficient where the party to be charged had written other parts of the memorandum, or had done other acts amounting to a recognition of his printed name.' Again, it is unnecessary that the agreement or memorandum should be signed by both parties; for the Statute of Frauds only requires that it should be signed "by the party to be charged therewith," that is, by the defendant, against whom the performance or damages are demanded. If it be said that, unless the plaintiff also signs, there is a want of mutuality, the answer is, that the defendant had it in his power to require the plaintiff's signature; and that if he has not done so, it is his own fault.'

Hubert v. Treherne, 3 M. & Gr. 743; 4 Scott, N. R. 486, S. C.

2 Lobb v. Stanley, 5 Q. B. 574, 581; Ogilvie v. Foljambe, 3 Mer. 53. 3 Hubert v. Moreau, 2 C. & P. 528; 12 B. Moore, 216, S. C.; Sweet v. Lee, 3 M. & Gr. 452, 460.

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Selby v. Selby, 3 Mer. 2, per Sir Wm. Grant.

'Schneider v. Norris, 2 M. & Sel. 286; Saunderson v. Jackson, 2 B. & P. 238.

6 Laythoarp v. Bryant, 2 Bing. N. C. 735; 8 Scott, 238, S. C.; Seton v. Slade, 7 Ves. 275, per Lord Eldon; Egerton v. Mathews, 6 East, 307; Allen v. Bennet, 3 Taunt. 169. The last two cases were decisions on § 17, which uses the word parties. These cases overrule the dicta of Lord Redesdale and Sir T. Plummer in Lawrence v. Butler, 1 Sch. & Lef. 13; and O'Rourke v. Perceval, 2 Ball & Beat. 58. See 3 M. & Gr. 462 n., and 2 Kent, Comm. 510. As to when a covenantee may sue for a breach of covenant, although he has not executed the deed, see Wetherell v. Langston, 1 Ex. R. 634; Pitman v. Woodbury, 3 Ex. R. 4; British Empire Assurance Co. v. Browne, 12 Com. B. 723; Morgan v. Pike, 14 Com. B. 473; Swatman v. Ambler, 8 Ex. R. 72.

7 Laythoarp v. Bryant, 2 Bing. N. C. 743, per Tindal, C. J.

Even a written proposal accepted by parol has on several occasions been deemed sufficient.'

§ 941. Having made these general observations, which will be found to apply, not only to the Statute of Frauds, but to most, if not all, of the Acts that render documentary proof necessary, it will be convenient to notice briefly such of the transactions enumerated in §§ 4 and 17 of the Act of Charles the Second, as seem to require explanation. And first as to guarantees." The law with respect to these instruments has been materially altered by the Mercantile Law Amendment Act of 1856. Prior to the 29th of July in that year, a guarantee, like other agreements, which the Statute of Frauds requires to be in writing,' was deemed invalid, unless the consideration for the promise was set forth in the document, or at least could be implied from the language used. But that rule, as was pointed out in the second edition of this work, caused such gross injustice to be perpetrated, especially in the County Courts, that the attention of Parliament was at length directed to the matter. A clause was consequently inserted in the Act just cited,' which enacts that "no special promise to be made by any person after the passing of this Act, to answer for the debt, default, or miscarriage of another person, being in writing, and signed by the party charged therewith or some other person by him thereunto lawfully authorised, shall be deemed invalid to support an action, suit, or other proceeding to charge the person by whom such promise shall have been made, by reason only that the consideration for such promise does not appear in writing, or by necessary inference from a written document.” This provision is not very artistically drawn, for, in the first place, it does not extend, as it ought to do, to guarantees made before the 29th of July 1856, and next, it is silent as to the effect that will be produced by the

1 Per Cresswell, J., in Ashcroft v. Morrin, 4 M. & Gr. 451; Smith v. Neale, 2 Com. B., N. S., 67, 88; Warner v. Willington, 3 Drewry, 532. * Guarantees must now be in writing under the Scotch law. See 19 & 20 Vict., c. 60, § 6. 19 & 20 Vict., c. 97.

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needless insertion in the memorandum of a past consideration, or of any other consideration which is insufficient in law. It remains, therefore, to be seen whether, in the last event, the Courts would admit parol evidence to vary the terms of the written document, and to show that the real consideration for the promise was other than that stated.

§ 941 A. In administering the law relating to guarantees, one of the main difficulties is to distinguish between original and collateral promises; that is, between cases where, though goods are supplied to a third party, credit is given solely to the defendant, and cases where the person for whose use the goods are furnished is primarily liable, and the defendant only undertakes to pay for them in the event of the other party making default.' As this is a question of fact for the jury, it is seldom possible to lay down any precise rule of construction, though the courts in this country, as well as those in America, have recently held that agreements by factors to sell upon del credere commission, do not fall within the fourth section of the Statute of Frauds, and consequently need not be in writing. In general, however, cases of this kind must separately be determined on their own merits; it being remembered that original promises will be valid, though verbally made,' while collateral promises must be in writing, in order to satisfy the statute.

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§ 942. As the promise must, in the words of the Act, be one "to answer for the debt, default, or miscarriage of another," the liability of that other must continue notwithstanding the promise, or the defendant will not be allowed to rely on the absence of a

1 Birkmyr v. Darnell, Salk. 27; 1 Smith Lead. Ca. 134; id. 4th ed. 224, S. C.; Forth v. Stanton, 1 Wms. Saund. 211 a-211 e; Barrett v. Hyndman, 3 Ir. Law R. 109. See Orrell v. Coppock, 26 L. J., Ch., 269.

2 Couturier v. Hastie, 8 Ex. R. 40; Wickham v. Wickham, 2 Kay & J. 478, per Wood, V. C.; Wolff v. Koppell, 5 Hill, N. Y. Rep., 458.

3 1 Wms. Saund. 211 b; 1 Smith Lead. Ca. 134; id. 4th ed. 224.

4 Unless for the sale of goods for the price of 10l. or upwards.

ante, § 932.

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See

As to the meaning of these words, see Macrory v. Scott, 5 Ex. R. 907.

written document. For instance, if a defendant, in consideration that the plaintiff will discharge out of custody his debtor taken on a ca. sa., promises to pay the debt, this promise need not be in writing, it being regarded as an original one; because, the moment the debtor is discharged, his liability is at an end, and the promise of the defendant cannot take effect till after the discharge. So, where a creditor had issued execution against a debtor, but subsequently it was arranged with the assent of all parties that the debtor should convey his property to a third party, who thereupon undertook, in consideration of the creditor relinquishing his execution, to pay the amount of the debt, it was held that this undertaking was not within the statute, as the effect of the arrangement was to discharge the original debtor." So, where A. promised B. to pay him a certain sum in case he withdrew his record in an action against C. for assault and battery, this was held to be an original promise.'

§ 943. On the other hand, where an execution debtor was discharged out of custody upon giving a warrant of attorney to secure the payment of his debt by instalments, and the defendant, knowing of this warrant of attorney, undertook, in consideration of the discharge, to see the debt paid, the Court held, that as the debtor's liability was kept alive by the warrant, the defendant's undertaking should be regarded in the light of a collateral guarantee, and as such, was a promise within the meaning of the statute. So, where it was agreed between a plaintiff, his attorney, and the defendant, that in consideration of the discontinuance of the suit, the defendant should pay the attorney the costs due from the plaintiff, this was considered a promise to pay the debt of another, as, in the event of its breach, the attorney might still recover his costs from the plaintiff who

1 See Gull v. Lindsay, 4 Ex. R. 45, 52.

* Goodman v. Chase, 1 B. & A. 297; Butcher v. Steuart, 11 M. & W. 857, 873; Lane v. Burghart, 1 Q. B. 933, 937, 938; 1 G. & D. 312, S. C. 3 Bird v. Gammon, 3 Bing. N. C. 883; 5 Scott, 213, S. C.

Read v. Nash, 1 Wils. 305; recognised in 3 Bing. N. C. 889; but questioned in 1 Wms. Saund. 211 c, 211 d.

Lane v. Burghart, 3 M. & Gr. 597.

retained him.' Moreover, it makes no difference whether the goods were delivered to the third party,' or the debt incurred, or the default committed by him, before or after the promise by the defendant; for a promise to indemnify, if not within the words, is at least within the spirit of the statute; and, consequently, where the language was, in effect, this :-" If you will become bail for A., and he forfeits his bail-bond, I will save you harmless," it was held to be answering for the default of another.'

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§ 944. Again, the statute applies to promises to answer for the tortious default or miscarriage of another, as well as for his breach of contract; and, therefore, where A. had killed the plaintiff's horse by hard riding without his leave, a verbal promise by the defendant to pay the damage, in consideration of the plaintiff forbearing to sue A., was held to be void. Where an entire promise is invalid as to a part for not being in writing, no action can be brought on the remainder which is not within the statute, but the whole promise, being indivisible, will be void.' A promise to pay the promisee's own debt to a third person need not be in writing, for the Act merely applies to promises made to the person to whom another is already, or is to become, answerable. It must be a promise to be answerable for a debt of, or a default in some duty by, that other person towards the promisee."

§ 945. With respect to "agreements made in consideration of marriage," the first observation which occurs is, that these words do not embrace mutual promises to marry; and therefore, not

Tomlinson v. Gell, 6 A. & E. 564; 1 N. & P. 588, S. C.

2 Matson v. Wharam, 2 T. R. 80; Anderson v. Hayman, 1 H. Bl. 120. 3 Green v. Cresswell, 10 A. & E. 453, 458; 2 P. & D. 430, S. C., overruling the dicta of Bayley and Parke, Js., in Thomas v. Cook, 8 B. & C. 728; 3 M. & Ry. 444, S. C.; and explaining Adams v. Dansey, 6 Bing. 506. Kirkham v. Marter, 2 B. & A. 613. Lexington v. Clark, 2 Vent. 223; Chater v. Beckett, 7 T. R. 201; Thomas v. Williams, 10 B. & C. 664, 671; Mechelen v. Wallace, 7 A. & E. 49.

6 Eastwood v. Kenyon, 11 A. & E. 438, 446; 3 P. & D. 276, S. C.; Hargreaves v. Parsons, 13 M. & W. 561, 570, per Parke, B.; Thomas v. Cook, 8 B. & C. 728; 3 M. & Ry. 444, S. C.