Dissenting opinion of BACON, J. fendant, upon the plaintiff delivering him the policies that he might collect them, promised that he would provide for the acceptances as they became due. [ * 441 The plaintiff, being prosecuted on one of his acceptances, brought this suit to recover of the defendant upon his promise; it appeared that the defendant had collected the policies. This was held to be an original undertaking, and not within the statute. It is true, that it presented another ground upon which the recovery could be sustained, to wit, that the defendant had possessed himself of the fund created for the express purpose of meeting the debt, and this would sustain a count for money had and received. Lord ELLENBOROUGH puts it in both aspects, and says, at the close of his opinion, citing Williams v. Leper, that he agrees with that decision to the full extent of it. "I agree," he says, " with those of the judges who thought the case not within the statute at all, and I also agree with the ground on which Mr. Justice ASTON proceeded, that the evidence sustains the count for money had and received." A distinction had crept into the books, founded upon a remark of BULLER, in Matson v. Wharam (2 T. R. 80), to the effect that, if the person to whose use goods are furnished, or property delivered, is liable at all, any other promise by a third person to pay that debt must be in writing, otherwise it is void by the statute of frauds; and upon this distinction the case of Croft v. Smallwood (1 Esp. 121) was decided. But this distinction was repudiated in the cases already cited, in all which it is manifest that the original debt was still subsisting and remained unaffected by the new undertaking; and in this state that precise point has been expressly adjudged in the case of Farley v. Cleveland, heretofore referred to, and in Rogers v. Kneeland (13 Wend. 114). The principle of the cases I have thus cited has been affirmed, and the doctrine fully recognised, in two or three modern English cases; among which are Edwards Dissenting opinion of BACON, J. v. Kelly (6 M. & Selw. 204); Bird v. Gammon (3 Bing. N. C. 883); and Walker v. Taylor (6 Carr. & Payne 752), which is, perhaps, the most recent one, and is to the fol lowing effect: The widow of a publican employed an undertaker to conduct the funeral of her deceased husband, and deposited with him the licenses of the house * 442 ] as a security for the payment of his bill. A., one of a firm who supplied the house with liquors, took out letters of administration on the estate, and B., the other partner, promised the undertaker that, if he would give up the licenses to him, he would pay the funeral expenses. It was held, that the undertaker, having surrendered the licenses, might recover his bill against B., although the widow was his employer and he had charged the administrator as his debtor. TINDAL, C. J., said, on the trial: "Here is a new contract, under a new state of circumstances; it has nothing whatever to do with the statute of frauds." In view of these authorities, I think it may be safely affirmed, that the rule in England is too well settled to admit of question, that the promise in this case is not within the statute of frauds. No case that fairly holds the contrary has been produced, or even referred to, on the argument; and so well established does this doctrine seem to be, that the elementary writers substantially concur in the principle derived from them. Thus, Chitty says: "Although the debt of another form the subject. matter of the defendant's undertaking, still, if he promised to pay the debt upon some new consideration raised by himself, and the consideration be the resignation of a charge or lien which afforded a remedy, or fund, to enforce the payment, the case does not fall within the statute." (Chit. Cont., Springfield ed. of 1851, p. 446.) Thus, also, Burge on Suretyship, 26, expresses in substance the same proposition: "Though the debt of another may have been the original cause of the promise, yet, if the person to whom it is made relinquishes some Dissenting opinion of BACON, J. right or advantage which he possessed, and which might have enabled him to obtain satisfaction of his debt, the promise by a third party to pay the debt, in consideration of such relinquishment, is an original promise, and not within the statute." (See also, Fell on Guar. ch. 2, $$ 7, 8, to the same effect.) The rule is, perhaps, still more clearly and strongly stated by Addison, in his recent treatise on Contracts, who, on a collation of the authorities, both ancient and modern, states his conclusion in the following [* 443 terms: "A contract or promise, although made concerning the debt or default of a third party, may yet be an original promise, not within the statute. If the plaintiff has a lien upon the property of his debtor in his his possession, or holds securities for the payment of his debt, and is induced to give up the lien, or part with his securities, upon the faith of the defendant's promise to pay the debt, the promise so made is not within the mischiefs provided against by the statute, although the amount promised to be paid, on the surrender of the securities, may be the subsisting debt of the third party due to the plaintiff, and the possession of the promise may have the effect of discharging the debt." (Add. on Cont. 38, 39.) To the English cases above cited and commented on, I add that of Barrell v. Trussell (4 Taunt. 117), where the same point is adjudged. It was a case where the plaintiff was about to sell the property of one Abbott, under a bill of sale executed to him by Abbott. Having taken. the property, the defendant, in consideration that the plaintiff would relinquish the possession to Abbott, promised verbally to pay the plaintiff 122l., being the debt of Abbott due to the plaintiff, and to collect which the plaintiff was about to make the sale. The plaintiff obtained a verdict, but, on a rule to show cause, the defendant insisted that the plaintiff was not entitled to recover, because this was an agreement to answer for the debt Dissenting opinion of BACON, J. of another, and there was no signature of the party sought to be charged. The counsel for the defendant, on the argument, insisted that here was no benefit derived to the defendant, as there was no delivery of the goods. to the defendant; but HEATH, J., said: "There was a detriment moving to the plaintiff, which is a good consideration; for in consequence of his forbearance, the goods were afterwards taken and sold on an execution against Abbott." At a subsequent day, the rule was discharged, MANSFIELD, C. J., saying: "What is this but the case of a man who, having the absolute power of selling goods, refrains upon the request of another? It is not a promise to pay another's debt." The cases decided in this state, with perhaps an occa* 444 ] sional exception, affirm the same rule, even if they do not carry the doctrine somewhat further. It will be sufficient for our present purpose, however, if they shall be found to be substantially in accordance with the English cases. I will examine them very briefly: Slingerland v. Morse (8 Johns. 463) is the earliest reported case where this question was presented. The plaintiff in that case had distrained the goods of his tenant for rent; the defendant agreed that he would deliver the goods in six days, or pay the amount of the rent, and thereupon the distress was abandoned and the goods left with the tenant. This was held to be an original, and not a collateral undertaking, and that no writing was therefore necessary; it was decided, substantially, upon the authority of Williams v. Leper. It has been said, in regard to this case, that it may perhaps be sustained on the ground that the goods were a fund in the hands of the defendant, from the possession of which his liability resulted. But, in answer to this, it is only necessary to say, that no such reason is given for the decision, and in the case it is expressly stated that the goods were left with the tenant. The cases of Skelton v. Brewster (8 Johns. 376), and Gold v. Phillips (10 Id. 412), I do not cite in this connec Dissenting opinion of BACON, J. tion; for, although they both recognise the doctrine of Chancellor KENT in Leonard v. Vredenburg, and hold the promise good, because it was founded upon a distinct consideration arising between the newly-contracting parties, yet, as in both cases, property had been delivered to the defendant, to enable him to discharge the debt, they do not fall within that precise class to which this case belongs. The case of Chapin v. Merrill (4 Wend. 657) was an agreement to indemnify another for becoming the guartor of a third; and it was held not to be within the statute, and is in point to show that it is not necessary that the defendant should receive any benefit from what was done by the plaintiff, the considertion in that case being purely harm to the plaintiff. Jackson v. Raynor (12 Johns. 291) is sometimes cited as conflicting with the prior cases of Skelton v. Brewster and Gold v. Phillips, and with the distinction I am [ * 445 seeking to illustrate. It clearly does not with the latter, for no lien was surrendered or benefit waived. by the plaintiff. The case came fairly within that class, where the agreement is valid by reason of property being placed in the hands of the promissor to pay the debt, in consideration of which he agrees to discharge it. The court put the decision, however, upon the express ground that the original debt was still subsisting; a distinction which is no longer recognised. There cannot be a doubt that, on the precise state of facts disclosed in that case, the decision would now be the other way. In the case of Gardiner v. Hopkins (5 Wend. 23), the plaintiff had a lien upon the sheets of a law-book he was printing for one Wiley, and the defendant promised that if he would deliver the sheets, he would pay the balance of his account-the claim against Wiley still remaining in force. The case, as stated, leaves it a little uncertain, whether the delivery was made to Wiley, or to the defendant, who was his assignee. The decision proceeded |