in contract, and where he was answerable to an action of tort, where the guarantor would not have been liable. Thus, where the declaration stated that in consideration the plaintiff would deliver his gelding to A, the defendant promised that A should re-deliver him safe, it was held that this was a collateral undertaking, and Powell, J., said: "The objection that was made was, that if English did not re-deliver the horse he was not chargeable in an action upon the promise, but in trover or detinue, which are founded upon the tort, and are for a matter subsequent to the agreement. But I answered that English may be charged on the bailment in detinue on the original bailment, and a detinue is the adequate remedy, and upon the delivery English is liable in detinue, and, consequently, this promise by the defendant is collateral, and is within the reason and the very words of the statute."(a) In Read v. Nash, (b) it was held that a promise to pay damages by a third person in case the plaintiff would withdraw his record, in an action of assault and battery, was not within the statute.(c) In Fish v. Hutchinson, (d) it was held that a promise to pay the debt of a third party, in consideration that the plaintiff would stay an action commenced, was within the statute. The Court said: "Here is the debt of another party still subsisting, and a promise to pay it. It is not like the case of Read v. Nash. In that case there was no debt in another, it being an action of battery, and it could not be known before trial, whether the plaintiff would recover any damages or not. But in the present case there is the debt of another still subsisting, and a promise (a) Birkmyr v. Darnell, Ld. Raym. 1085. (b) 1 Wils. 305. (c) And see Stephens v. Squire, 5 Mod. 205. (d) 2 Wils. 94. CHAP. III. CHAP. III. to pay it." (a) In Kirkham v. Marter, (b) A had wrongfully, and without license of the owner, ridden his horse, and thereby caused its death; and it was held that a promise by a third person to pay the damage thereby sustained, in consideration that the owner would not bring any action against A, was a collateral promise, and must be in writing. "This case," said Holroyd, J., "is certainly within the mischief contemplated by the legislature, and it appears to me to be within the plain intelligible meaning of the words of the Act of Parliament." And Abbott, C.J., said: "The wrongful riding the horse of another without his leave and license, and thereby causing its death, is clearly an act for which the party is responsible in damages, and therefore, in my judgment, falls within the meaning of the word 'miscarriage.'" His lordship distinguished the case from Read v. Nash, (c) saying: "The promise there was to pay a sum of money as an inducement to withdraw a record in an action of assault brought against a third person. It did not appear that the defendant in that action had even committed the assault, or that he had ever been liable in damages; and the case was expressly decided on the ground that it was an original and not a collateral promise. Here the son had rendered himself liable by his wrongful act, and the promise was expressly made in consideration of the plaintiff's forbearing to sue the son." It is submitted that the effect of this decision is to overrule Read v. Nash. In that (a) And see King v. Wilson, 2 Str. 873; Elkins v. Heart, Fitz. 202; Rothery v. Curry, B. N. P. 281; Thompson v. Bond, 1 Camp. 4; Ex parte Adney, Cowp. 460; French v. (b) 2 B. & Ald. 613. case the ground on which the judgment was based was that as the original action had not been tried, it was not proved that the defendant in it had ever committed the assault that is to say, that he might have had a defence. The same argument, however, would apply to the defendant in the original action for causing the death of the horse he, also, might have had a defence. In both cases the original defendants practically admitted their liability. (a) But the case has never been expressly overruled, and the principle laid down in it was followed in Bird v. Gammon. (b) There, the plaintiff, having issued execution against one Lloyd for debt, Lloyd, with the assent of the plaintiff, conveyed all his property to the defendant, who thereupon undertook to pay the plaintiff the debt due from Lloyd, the plaintiff withdrawing the execution. It was held that the defendant's undertaking was not an undertaking to pay the debt of a third person, within the meaning of the statute, Tindal, C.J., saying: "This is not an agreement to pay the debt of a third person, but an agreement that if the plaintiff would forego his claim on Lloyd the defendant would pay the amount of the debt due on his own account. The case, therefore, falls within the principle of Read v. Nash." (c) In Jarmain v. Algar, (d) it was held that a promise by the defendant to execute a bail bond in a suit to be commenced against A B, in consideration of the plaintiff forbearing to arrest A B on a writ already issued, was not within the statute. CHAP. III. Sect. III. Where a person, at the request of another, enters Bail in criminal proceedings. CHAP. III. into a recognizance of bail for the appearance of a third person to answer a criminal charge, this is not within the statute, for there is no contract on the part of the person bailed to indemnify the person who becomes bail for him. (a) It has been decided, however, that where the plaintiff becomes bail for a stranger in civil proceedings, in consideration of the defendant's request and of the defendant promising to indemnify him against the consequences, no action lies upon such promise unless it be in writing.(b) Liability Where the debt or liability guaranteed against is exguaranteed extinguished. tinguished by the promise, the undertaking is original, and not within the statute. Thus, where the plaintiff had taken A into custody on a ca sa, and released him in consideration of the defendant promising to pay the debt, it was held that the discharge of A out of custody by the consent of the plaintiff extinguished the debt, and that therefore the promise to pay the debt was an original promise. (c) And in Butcher v. Steuart, (d) the facts of which were similar, Parke, B., said: "It appears to me that this is an absolute promise, in consideration of the agreement of the plaintiff to discharge the defendant from execution. It is not a promise to answer for the debt, default, or miscarriage of another, (a) Cripps v. Hartnoll, 4 B. & S. 414; 32 L. J. Q. B. 381. (b) Green v. Cresswell, 10 A. & E. 453; 2 P. & D. 430. See the distinction between these cases pointed out by Williams, J., in Cripps v. Hartnoll, ubi supra; and see also Batson v. King, 4 H. & N. 739. (c) Goodman v. Chase, 1 B. & Ald. 297; and see Browning v. Stallard, 5 Taunt. 450; Bird v. Gammon, 3 Bing. (N. C.) 883; 5 Scott, 213; Lane v. Burghart, 1 Q. B. 937; Maggs v. Ames, 4 Bing. 470; 1 M. & P. 294. (d) 11 M. & W. 873. but is a promise to pay a debt in the event of the other contracting party doing a certain act. It is, therefore, within the decision of Goodman v. Chase, and does not require a memorandum in writing to satisfy the statute.” But where a suit in Chancery was pending between A and B, which C conducted for A as his attorney, and an agreement was made between B and C, with the consent of A, purporting that in consideration of the suit being put an end to, B promised to pay C the costs due to him from A, it was held that this was an agreement by B to pay the debt of another, and, therefore, ought to be in writing. (a) And CHAP. III. Sect. III. Where the defendant, in order to get rid of an incum- Novation. brance on his own property, or to obtain some direct personal advantage to himself, promises to pay the debt of another, the promise is not within the statute. if the original debt is discharged and extinguished by the substitution in lieu thereof of a new contract by a third person, to pay the amount of that debt, such new contract is not a collateral promise to answer for the debt or default of another. (b) Thus, where A was indebted to B and Co. for goods sold, and, upon being released from his liability, assigned to the latter a debt, which was due to him from C and Co.; and notice of the assignment was given to a partner in the house of C and Co. who, by parol, promised in the name of the firm to pay the debt of B and Co. out of the partnership funds; it was held, in an action by B. and Co. against C and Co. for money had and received, that the promise was not within the sta (a) Tomlinson v. Gell, 1 N. & (b) Add on Contrs. 153. P. 588; 6 A. & E. 564. |