undertaking to pay the debt; held not to be within the statute, and that the defendant was liable, though his undertaking was not in writing ". Where a broker, being employed to sell the goods of an insolvent for the benefit of his creditors, gave a parol promise to pay the rent in arrear to the landlord, if he refrained from distraining, which he threatened to do; held not to be within the statute, for, as the landlord might have immediately enforced the distress, he had a lien on the goods, the parting with which was a good consideration. Le Blanc, J., said, “this is a case where a man having a fund in his hands which was adequate to the discharge of certain incumbrances; another party undertook that if that were delivered up to him, he would take it with the incumbrances. This, therefore, has no relation to the statute of frauds." Ashton, J., considered the goods as the debtor, and therefore that the promise was not to pay the debt of another, but the debt for which the goods were liable, of which goods the defendant was the owner b. So, where the plaintiff having distrained the goods of his tenant for rent arrear, delivered them to the defendants to be sold, on their undertaking to pay him the rent for which the distress was made; held, on the authority of the preceding case, not to be a promise to pay the debt of another; for after the plaintiff had distrained, the tenant was no longer indebted; consequently, when the promise was made, there was no debt owing from the tenant. The undertaking of the defendants, therefore, was an original and not a collateral undertaking. Where the defendant, an auctioneer, being about to sell goods on premises, the landlord of which applied for rent which was in arrear, saying it was better to apply than to distrain; and If a pro mise be entire and void in part, not being in writing, it is void altogether, though part is not within the statute. the defendant said, "you shall be paid, my clerk shall bring you the money;" held, not within the statute. Where the defendant in consideration for rent undertook to pay the sum due for rent, out of the sale of the produce of the effects; held a positive engagement to pay if the goods were sufficient, and that the plaintiff was entitled to recover, on proof that the goods produced the amount of the rent". But where the defendant (an auctioneer) was about to sell a tenant's effects in August, and the plaintiff (the landlord) told him that there would be nearly a year's rent due at the Michaelmas following, and that unless he, the defendant, promised to pay him, he would put in a distress; the defendant then, in consideration that the plaintiff would not distrain, verbally promised to pay not only the rent then due, but also the rent that would be due at Michaelmas; held, that the promise to pay the accruing rent exceeded the consideration, for if the plaintiff had been paid the rent then due, he could have sustained no loss by the sale of the goods; it was nothing more than a promise to pay money that would have become due from a third person; it was therefore within the words of the statute, and the mischief intended to be remedied thereby, and consequently void. And though the promise to pay the arrears due at the time might have been good if confined to those arrears, yet as the promise was entire, and in its commencement void in part, it was void altogether, and the plaintiff could recover nothing c. "There is no case," said Lord Tenterden, C. J., “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, the landlord delivered the goods which he had distrained 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, the plaintiff gave up to the defendant policies of insurance, on which the plaintiff had a lien, to secure himself against bills, a Bampton v. Paulin, 4 Bing. 264. Stephens v. Pell, 2 C. & M. 710. 4 Tyr. 6. Thomas v. Williams, 10 B. & C. 664. See Chater v. Becket, 7 T. R. 201. 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." a Although the decisions on this subject can scarcely be deemed conflicting, yet it is difficult to lay down any rule with which all the authorities can be reconciled. The inference, however, from the preceding decisions is, that though the debt of a third party be the subject matter of a promise, yet if the promise be founded on a new and distinct consideration co-extensive therewith, and moving, not to the third party, but to the person who makes the promise; or if the third party be not liable to be sued on the debt, when the promise is made, it is not within the statute. Result of the preceding de cisions. SECTION VII. STATEMENT OF THE CONSIDERATION. A PROMISE to pay the debt of another must be founded on a sufficient consideration, as well as any other promise; and it is settled by the authority of numerous decisions, that to satisfy the statute of frauds the consideration must appear on the written undertaking on which the action is brought, as well as the promise itself, and the omission of it cannot be supplied by parol evidence, the ground of such decisions being, that the term "agreement," used in the 4th section, includes both the consideration for the promise and the promise itself. If the consideration does not appear on the face of the written memorandum on which the action is brought, it is nudum pactum, and the defendant will not be liable thereon b. Per Lord Tenterden, C. J., 10 B. & C. 670. Wain v. Warlters, 5 East, 10. Saunders v. Wakefield, 4 B. & A. 595. Goodman v. Chase, 1 B. & A. A party cannot be charged on a promise to pay the debt of another, unless the consideration for the promise, as well as the promise itself, be in writing. This doctrine was first laid down in Wain v. Warlters, wherein the defendant was sued on his guarantee, which was in these words, "Messrs. Wain and Co., I will engage to pay you by half-past four this day, 561., and expenses on bill that amount on Hall," signed John Warlters. To this it was objected that it did not express the consideration of the defendant's promise, and parol evidence of the consideration having been offered, Lord Ellenborough, before whom the cause was tried, refused to receive it, and nonsuited the plaintiff. A rule nisi having been obtained for setting the nonsuit aside, the court, after hearing the arguments of counsel on both sides, discharged it, Lord Ellenborough, C. J., observing, that "the obligatory part was indeed the promise, which would account for the word promise being used in the first part of the clause; but still in order to charge the party making it, the statute proceeded to require that the agreement, by which was to be understood the agreement in respect of which the promise was made, must be reduced into writing. And indeed it seemed necessary for effectuating the object of the statute, that the consideration should be set down in writing, as well as the promise; for otherwise the consideration might be illegal, or the promise might have been made upon a condition precedent, which the party charged might not afterwards be able to prove, the omission of which might materially vary the promise, by turning that into an absolute promise which was only a conditional one." Grose, J., "What the statute requires in writing, is the agreement, (not the promise, as mentioned in the first part of the clause,) or some note or memorandum of the agreement. If the court were to adopt the construction contended for on behalf of the plaintiff, it would be the means of letting in those very frauds and perjuries which it was the object of the statute to prevent, for without the parol evidence the defendant could not be charged upon the written contract for want of a consideration in law to support it. The effect of the parol evidence would then be to make him liable, 761. 1 Hodges, 183. Barrell v. Reynolds, 3 B. & B. 14. 6 Moore, 86. Clancey r. Pigott, 2 Ad. & Ell. 473. 1 H. & W. 20. James v. Williams, 5 B. & Ad. 1109. and thus he would be charged with the debt of another by parol testimony, when the statute was passed with the very intent of avoiding such a charge, by requiring that the agreement. should be in writing." Le Blanc, J., "I think we must take it, that the agreement includes the consideration for the promise, as well as the promise itself."a The propriety of this decision was questioned in several subsequent cases, but it was at length fully sustained in the case of Saunders v. Wakefield, since which it has been considered as established law. In the latter case, the defendant was sued on his guarantee, which was in these words, “Mr. Wakefield will engage to pay the bill drawn by Pitman in favour of Stephen Saunders;" the court on demurrer recognized the case of Wain v. Warlters, and decided that the defendant was not liable on the guarantee, as it did not state the consideration. "The words of the statute," said Abbott, C. J., "are special promise. Now, at common law no action would lie, unless there was some specialty or peculiarity in the promise. It is impossible to conceive how there can be such specialty, unless the consideration for the promise be stated; for it is the consideration which makes it a special promise. The consideration, therefore, must have been in the contemplation of the legislature, when they used the words special promise. If so, it will follow that a party is not entitled to recover, unless the written agreement contain some specialty, which cannot be, unless it contain the consideration for the promise." b It is observable, that this case was decided upon distinct grounds from that of Wain v. Warlters. In the latter case, the court gave their judgment, on the grounds that the word. 'agreement" included the consideration as well as the promise; whereas in Saunders v. Wakefield, the court considered that the words "special promise," included the consideration, and said, that upon principle, independently of the authority of Wain v. Warlters, the plaintiff was not entitled to recover. It is not necessary that the consideration should appear in The con sideration Wain v. Warlters, 5 East. 10. A. 595. |