Promise to answer for ration of the debtor. not within the statute, though the guarantee itself would be. A ship-owner, whose ship had been chartered, refused to let it sail until he obtained security for the freight, whereupon the defendant promised, in consideration of the plaintiff allowing the ship to sail, to procure a third party to sign a written guarantee for the freight for which the charterer would be liable; it was held that the promise of the defendant was not within the statute (a). A promise made by the defendant to pay the debt of andebt made other, in consideration of the latter being discharged from the in conside- debt, is not within the statute, because there remains no discharging separate liability of another for which the defendant promises to answer (b); as, a promise by the defendant to pay a debt of another, who has been taken in execution for it, on condition of his discharge, because by the discharge from execution the original debt is extinguished (c). So, where a landlord, entitled to distrain his tenant's goods for arrears of rent, assigns his lien upon the goods to another who, in consideration thereof, promises to pay the rent, the promise is not within the statute; because the debt. for rent is suspended by the landlord's having recourse to his right of distress (d). But a promise, made in consideration of the landlord abandoning a distress for rent due from his tenant, to pay the rent then due, and also to guarantee future rent from the tenant for which the landlord could not then distrain, was held to be within the statute; because the tenant continued liable for the future rent (e). So, where an assignment of a debt is accepted in discharge. of a debt owing from the assignor to the assignee, and the debtor promises to pay the assignee instead of his original creditor, the assignor, such promise is not within the statute, because the debt of the assignor to the assignee is thereby extinguished (ƒ). answer for misee is not The statute intends only promises made to the person Promise to to whom another is liable for the debt, default or miscar- debt, where riage for which the promise answers. A promise made to the proa debtor to answer for the debt for which he himself is the creditor. liable is not within the statute (a). A promise made to a person to indemnify him against the costs of an action which he might become liable to pay is not within the statute (b). The defendant assigned to the plaintiff the benefit of a contract which he had made with another, and guaranteed to the plaintiff the due performance of the contract; the promise of the defendant was held not to be within the statute, because the liability guaranteed by it was not owed to the plaintiff (c). 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 (d). But an indemnity given to the surety in a bail bond in a civil action was held to constitute a promise within the statute to answer for the default of the principal debtor; which decision, it seems, is to be supported, if at all, on the ground that in civil proceedings there is a legal duty in the person bailed towards his bail to keep him harmless by surrendering or paying the debt (e). The plaintiff, the bailiff of a county court, having arrested a person for non-payment of a judg ment debt, released him upon the promise of the defendant to pay the plaintiff the amount on a certain day or surrender the debtor; it was held that the promise was not within the statute, because the debt answered for was not owing to the promisee (ƒ). The terms default and miscarriages comprehend wrongful Default and acts creating a liability for damages which are not breaches miscarof contract. Thus, a person having wrongfully damaged (a) Thomas v. Cook, 8 B. & C. 728; Eustwood v. Kenyon, 11 A. & E. 438. (b) Adams v. Dansey, 6 Bing. 506. (c) Hargreaves v. Parsons, 13 M. & W. 561. (d) Cripps v. Hartnoll, 2 B. & S. 697; 4 ib. 414; 31 L. J. Q. B. 150; 32 ib. 381. (e) Green v. Cresswell, 10 A. & E. 453; and see Cripps v. Hartnoll, supra; Reader v. Kingham, 13 C. B. N. S. 344, 355; 32 L. J. C. P. 108, 110. (f) Reader v. Kingham, 13 C. B. N. S. 344; 32 L. J. C. P. 108. riage. K Consideration for the appear in writing. the plaintiff's horse, a promise by the defendant to the plaintiff to pay the damage was held to be a promise within the statute (a). A declaration alleged that the defendant promised the plaintiff to pay a sum of money, in consideration of the plaintiff withdrawing the record in an action of assault brought by the plaintiff against another; the promise, as alleged, was held not to be within the statute, on the ground that it did not appear that the latter person had committed the assault or was liable for damages (b). Contracts containing promises within the description here promise not in question have been excepted from the operation of the required to statute, so far as the consideration is concerned, by the Mercantile Law Amendment Act 1856 (19 & 20 Vict. c. 97) s. 3, which provides that such contracts, satisfying the requirements of the Statute of Frauds in other respects, shall not be deemed invalid by reason only that the consideration for the promise does not appear in writing (c). Agreement considera Agreement made upon consideration of marriage. Agreements consisting of mutual promises to marry are made upon held not to be here intended (d). An agreement to pay tion of mar- money, or make a settlement, in consideration of marriage is riage. within the statute (e). tations made to riage. Represen- If a person in order to induce a marriage makes a representation of facts, upon the faith of which the marriage induce mar- takes place, he is held bound in equity to make good the representation (f). The liability of the person making such representation rests upon the ground that it would be a fraud if the facts were not as represented, and not upon the ground of contract; therefore it is not required that the representations should be in writing under the (a) Kirkham v. Marter, 2 B. & (b) Read v. Nash, 1 Wils. 305. (d) Harrison v. Cage, 1 L. Raym. (e) Montacute v. Maxwell, 1 P. Wms. 618; 1 Str. 236; Randall v. Morgan, 12 Ves. 73; Barkworth v. Young, 4 Drew. 1; 26 L. J. C. 153; Shadwell v. Shadwell, 9 C. B. N. S. 159; 30 L.J. C. P. 145; Caton v. Caton, 34 L. J. C. 564; L. Rep. 1 Ch. Ap. 137. (f) Montefiori v. Montefiori, 1W. Bl. 363; Neville v. Wilkinson, 1 Bro. C. C. 543; Hamersley v. De Biel, 12 Cl. & F. 45; 3 Beav. 469; Bold v. Hutchinson, 5 De G. M. & G. 558; 24 L. J. C. 285; 25 ib. 598. statute in order to render him responsible for them (a). But representations respecting matters of future intention to be performed upon a marriage are equivalent to promises, and are within the statute; consequently writing is necessary to establish them, notwithstanding the marriage may have taken place upon the faith of their performance (b). Contract or sale of lands, tenements or hereditaments, or any interest in or concerning them. interest in Tenancies A contract to take or give the tenancy of a house (); a Contract or contract by the plaintiff to surrender a tenancy in favour of sale of any the defendant and to endeavour to prevail on the landlord land. to accept him as tenant (d); a contract to assign a te- and occunancy (e); a contract to give up immediate possession of pation of a house which the person occupied under an agreement for a lease (ƒ); a contract for the sale of a business, as a milkwalk, or a brickyard, with possession of the premises where it is carried on (g), come within this description. An agreement made between a lessor and a lessee of premises, pending the lease, for the former to lay out a sum of money in improvements, and the latter to pay a sum every year in addition to the rent, was held not to be within the statute; because no additional interest in the land was given to the lessee beyond his previous interest under the lease, nor was any additional interest in the land given to the lessor, the annual payment not being in the nature of rent reserved, or charged upon the land (). An agreement for apartments in a house which, if executed, would create a tenancy of the apartments is within (a) Ib.; Jorden v. Money, 5 H. L. C. 185; 23 L. J. C. 865; Prole v. Soady, 2 Giff. 1; 29 L. J. C. 721. (b) Jorden v. Money, supra; Montacute v. Maxwell, 1 P. Wms. 618; Warden v. Jones, 23 Beav. 487; 2 De G. & J. 76; 26 L. J. C. 427; 27 ib. 190; and see De Biel v. Thompson, 3 Beav. 469; Webster v. Webster, 27 L. J. C. 115. (c) Mechelen v. Wallace, 7 A. & E. 49; Vaughan v. Hancock, 3 C. B. 766. (d) Cocking v. Ward, 1 C. B. 858. (e) Buttemere v. Hayes, 5 M. & W. 456. (f) Kelly v. Webster, 12 C. B. 283. (g) Smart v. Harding, 15 C. B. 652; 24 L. J. C. P. 76; Hodgson v. Johnson, E. B. & E. 685; 28 L. J. Q. B. 88; and see Green v. Saddington, 7 E. & B. 503. (h) Hoby v. Roebuck, 7 Taunt. 157; Donellan v. Read, 3 B. & Ad. 899. land. Auction. Mortgages. Shares in the statute (a); but an agreement merely for board and lodging, not stipulating for the tenancy of any specific room, is not within the statute (b). A sale of land by auction is a contract within the statute (c). The equity of redemption of land which has been mortgaged is an interest in land within the statute, and a contract made respecting it must be in writing (d). An equitable mortgage by deposit of title deeds is not within the statute, and creates an interest in the land in equity without any written evidence of the contract, because the contract is executed by the deposit of the deeds (e); but an agreement to make an equitable mortgage by deposit of deeds is within the statute, and is not binding unless in writing (ƒ). A contract for the purchase of a bond granted by the Westminster Improvement Commissioners under a statute, which gave to the bondholder the benefit of a mortgage of the lands purchased by the commissioners, was held to be within the statute (g). A contract to pay the costs of investigating the title to land upon a proposed mortgage, in case the title should turn out defective, was held not to be within the statute (h). A share in a joint stock company or co-partnership, where companies. real estate is held by the company, or by trustees for the purposes of the company, but the shareholders as such have no specific interest in the land, being entitled only to a share of the profits to be made by the business, is not an interest in land within the statute; as a share in a joint stock banking company holding real estate (i), a share in a railway company (), a share in a cost-book mining company (k); (a) Inman v. Stamp, 1 Stark. 12; and see Edge v. Strafford, 1 C. & J. 391. (b) Wright v. Stavert, 2 E. & E. 721; 29 L. J. Q. B. 161. (c) Walker v. Constable, 1 B. & P. 306; Hinde v. Whitehouse, 7 East, 558. (d) Massey v. Johnson, 1 Ex. 241, 255. (e) Russel v. Russel, 1 Bro. C. C. 269; 1 White & Tudor, L. C. 2nd ed. 541. (f) Ex parte Coombe, 4 Madd. 249. (g) Toppin v. Lomas, 16 C. B. 145; 24 L. J. C. P. 144. (h) Jeakes v. White, 6 Ex. 873. (i) Humble v. Mitchell, 11 A. & E. 205. (j) Tempest v. Kilner, 3 C. B. 249; Bradley v. Holdsworth, 3 M. & W. 422. (k) Watson v. Spratley, 10 Ex. 222; 24 L. J. Ex. 53; Powell v. Jessop, 18 C. B. 336; 25 L. J. C. P. 199; and see Caddick v. Skidmore, 2 De G. & J. 52; 27 L. J. C. 153. |