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the meaning of this clause, and, consequently, will not be a surrender. A parol assignment of a lease from year to year, is void under this clause". So a parol surrender of a leaseo.

II. Fourth and Seventeenth Sections relating to Agreements.

4th Section.—“No action shall be brought whereby to charge any executor or administrator, upon any special promise, to answer damages out of his own estate; or to charge the defendant, upon any special promise, to answer for the debt, default, or miscarriage of another person; or to charge any person, upon any agreement made upon consideration of marriage; or upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them; or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.” This section was intended for the relief of personal representatives and others, and it was not thereby intended that they should be charged further or otherwise than by common law they were chargeable. Before the statute, a promise made, with reference to any of the subjects mentioned in this section, would not have made the party promising liable, unless such promise had been founded on a sufficient consideration. The same rule holds since the statute, with this addition, that such promise, and the consideration on which it is founded, must be in writing, and be signed by the party to be charged, or his agent. If an action is brought for the non-performance of the promise, it is not necessary that it should be stated in the declaration", that the agreement was in writing; it will be sufficient for the plaintiff to produce a written agreement in evidence at the trial (5); but if such agreement be pleaded in bar of another action, it must be shewn, on the face of the plea, that it was in writing; for, otherwise, it would not appear, that it was an agreement whereon an action might be maintaineds. Semble, that the defence that there is no contract in writing, should be pleadedt. The word "action," duly interpreted, embraces every suit in equityų. Having premised that the preceding remarks apply to each of the clauses in this section, and that they are introduced in this place for the sake of avoiding repetition, I shall proceed to consider the several clauses separately.

n Botting v. Martin, 1 Campb. 318.
o Matthews v. Sawell, 8 Taunt. 270.

2 Moore, 262. S. C.
p Barrell v. Trussell, 4 Taunt. 117.
9 Wain v. Warlters, 5 East, 10. recog-

nised in Saunders v. Wakefield, 4 B. and A. 595. and Jenkins v. Reynolds, 3 B. and B. 14; although Ld. Eldon, in exp. Minet, 14 Ves. 189. and in exp. Gardom, 15 Ves. 286, had questioned the authority of Wain v.

Warlters, according to the remark of Dallas, C. J. in Boehm v. Campbell, 8 Taunt. 682. But see the observations of Best, C. J. on the two cases in Chancery in Morley v. Boothby, 3 Bingh. 113. See also Clancy v. Piggott, 2 Ad. and Ell. 481. Hawes

V. Armstrong, 1 Bingh. N. C. 761. r Anon. Salk. 519. 3 Burr. 1890. per

Yates, J., S. P.

No action shall be brought to charge any executor or administrator, upon any special promise, to answer damages out of his own estate.] The leading case on this clause is that of Řann v. Hughes : it was stated in the declaration", “that disputes had arisen between the testatrix and the intestate, which had been referred to arbitration; that the arbitrator awarded, that the intestate should pay to the testatrix a sum of money on a day appointed; that afterwards the intestate died, possessed of effects sufficient to pay the sum awarded; that at the time of the death of the testatrix, the sum awarded remained unpaid, hy reason of which the defendant, as administratrix, became liable to pay the plaintiffs, as executors, the said sum, and, being so liable, the defendant, (not saying as administratrix,) in consideration thereof, promised to pay the same.” Pleas.-1. Non assumpsit. 2. Plene administravit. 3. An outstanding debt, on bond, and plene administravit præter. The replication took issue on all the pleas. Verdict for the plaintiffs on the first issue, and damages assessed: on the other issues, for the defendant. The plaintiffs entered judgment for the damages assessed and costs, against the defendant generally. On a writ of error in the Exchequer Chamber, it was assigned for error, that the defendant was impleaded as administratrix of

$ Case v. Barber, T. Raym. 450.
t Tidds' New Practice, 343.
u Per Lord Eldon, C. Cooth v. Jack-

son, 6 Ves. 31.

* Rann and another, executors of Mary

Hughes v. Isabella Hughes, administratrix of John Hughes.

(5) A plea of tender to the action will supersede the necessity of this proof; for by payment of money into court upon that plea, the defendant admits the cause of action. Middleton v. Brewer, Peake's N. P. C. 15.

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the intestate, yet judgment was given against her generally, and without any regard to her having goods of the intestate in her hands to be administered. The Court of Exchequer Chamber reversed the judgment. Upon a writ of error from this judgment, in the House of Lords, the following question was put to the judges : Whether sufficient matter appeared upon the declaration to warrant, after verdict, the judgment entered up against the defendant in error in her personal capacityy? Skynner, C. B. delivered the unanimous opinion of the judges, l. That there was not a sufficient consideration to support this demand, as a personal demand against the defendant: inasmuch as the defendant did not derive any

advantage from the promise, for it was a promise generally to pay upon request, what she was liable to pay upon request in another right, and the promise was not founded on any consideration of forbearance or the like, which might have supported it. 2. That the promise not being founded on any consideration, the circumstance of its being in writing (which might be presumed after verdict,) would not assist the case; for by the law of England, an agreement merely written, and not being a specialty, required a consideration. 3. That the statute of frauds had not taken away the necessity of a consideration ; for that statute was made for the relief of personal representatives, and did not intend to charge them further, than by common law they were chargeable.

Or to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person.] In order to bring a case within this clause of the statute, it is essentially necessary that the person, on whose behalf the promise is made, should be liable as well as the promiser, or, as it is sometimes expressed, (though the propriety of the expression has been questioned,) (6) that the promise should be collateral, and not original. This distinction will be illustrated by the following cases, which are arranged under two divisions ; first, cases within the statute ; secondly, cases not within the statute.

y D. P. 14 May, 1778. 4 Bro. P. C. p. 27. Tomlin's ed. 7 T. R. 350. n.

(6) Many of the doubts upon this statute have arisen from making use of the word collateral, which is not a word used in the statute." Bull. N. P. 281.

1. Cases within the 2nd Clause of the 4th Section.-In an action upon the case the plaintiff declared, that the defendant, in consideration that the plaintiff would let his gelding out to hire to J. S.2, promised the plaintiff that J. S. should re-deliver the gelding, but that J. S. never did re-deliver him. It was objected, that the plaintiff had not any remedy against the party upon the contract, for not re-delivering the gelding, except by an action of trover upon the subsequent tort, in case of demand and refusal; and, therefore, as such remedy accrued from a wrong, subsequent to the contract, the present case was not within the meaning of the statute; but the court overruled the objection, observing, that the party was also liable in detinue upon the original delivery or bailment, the bailment having been such as in its nature required a re-delivery; and if the bailee will not re-deliver the thing bailed, the only adequate remedy is an action of detinue against the bailee; consequently, this promise of the defendant's, that J. S. should re-deliver the horse bailed, for which there was a remedy against J. S. upon the bailment, was a collateral promise, and, therefore, a promise to answer for the act and default of another, within the statute. A. had wrongfully, and without the license of B., ridden his horse, and thereby caused his death; it was holdena that a promise by a third person to pay the damage thereby sustained, in consideration that B. would not bring any action against A., is a collateral promise within the statute of frauds, and must be in writing. The defendant, in consideration that the plaintiff would not sue J. S.”, promised to pay the plaintiff the money due from J. S.; this was holden to be within the statute, for there was not any consideration stated for which the plaintiff had promised not to sue, and if there had, J. S. could not have availed himself of this agreement between the defendant and plaintiff, but the debt would still have subsisted, and, consequently, the promise was collateral. J. S. was indebted to the plaintiff in a sum of money, for the recovery of which the plaintiff had commenced an action; whereupon the defendant, in consideration that the plaintiff would stay his action against J. S., promised to pay the plaintiff the money owing to him by J. Š. This was holden to be clearly within the statute ; on the ground that there

a debt of another still subsisting, and a promise to

was

pay it.

An opinion formerly prevailed, that, in order to bring a z Buckmyr v. Darnall, Ld. Raym. 1085. b Rothery v. Curry, Bull. N. P. 281.

Salk. 27 B. R. 6 Mod. 248. S. C. c Fish v. Hutchinson, 2 Wils. 94. a Kirkbam v. Marter, 2 B. & A. 613.

case within the statute, it was necessary that there should be an existing debt owing from the person on whose behalf the undertaking was made, at the time of such undertaking. Hence, a promise on the behalf of another, for the payment of the price of goods, before the delivery of such goods, was holden not within the statute: because at the time of the promise there was not any debtd (7). But this distinction was overruled in the following cases In an action for goods sold and deliveredo, it appeared in evidence, that the goods in question had been delivered to J. S. in consequence of a parol promise by the defendant to the plaintiff in these words, I will pay you if J. S. will not.J. S. was entered as the debtor in the plaintiff's books. The court were of opinion, that this promise by the defendant was a collateral undertaking within the statute. The defendant had asked M. (one of the plaintiffs,) whether he was willing to serve J. S. with goods ? M. answered, that he did not know J. S.; to which the defendant replied, “If you do not know him, you know me, and I will see you paid. M. then said, he would serve him; to which the defendant answered, “He is a good chap; but I will see you paid.A letter was afterwards received by the plaintiffs from J. S. containing an order for certain goods, which were afterwards sent to him. The plaintiffs made J. S. the debtor for these goods in their books; J. S. having refused to pay for the goods, an action for goods sold and delivered was brought against the defendant. The court held, that the case was within the statute, there not having been any promise in writing, and gave judgment for the defendant; Buller, J. observing, that the general rule now was, that if the person for whose use the goods are furnished be liable, any other promise by a third person to pay that debt must be in writing.

d Mawbrey v. Cunningham, sittings e Jones v. Cooper, Cowp. 227.

after H. T. 1773, cited in Jones v. f Matson and another v. Wharam, 2 Cuoper, Cowp. 228.

T. R. 80.

(7) In Legge v. Gibson, B. R. M. 29 G. 3. MS. Buller, J. said, " that he had always been of opinion that Lord Mansfield's doctrine in Cunningham v. Mowbray was right, and warranted by the statute ; because in these cases, when a third person is called in, the real meaning is, that the party will not trust the person first applying, and gives credit to the last; that Lord Mansfield's distinction between a promise made at the time and afterwards was sound. This case had been overruled, but he had seen no reason to alter his opinion.”

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