§ 69. Reader v. Kingham. Subsequent opinions have stated that Reader v. Kingham 22 overruled Green v. Cresswell. But nowhere in the former case is it indicated that any of the justices felt Green v. Cresswell was being overruled. The facts there were different from those present both in Thomas v. Cook and Green v. Cresswell. In Reader v. Kingham, Malins had recovered judgment against Hitchcock for £34, and had a warrant of commitment issued for the debtor. The bailiff being about to arrest Hitchcock, the defendant Kingham, who was a relative, verbally promised the bailiff, who was the plaintiff, that if he would not commit Hitchcock, he the defendant, would on the next Saturday either pay £17 to the plaintiff or surrender Hitchcock. Defendant did neither. Malins previously had authorized the plaintiff to accept £17 in satisfaction of the judgment; but nowhere is there any fact indicating that Malins had authorized the plaintiff to accept that sum, or a security for that sum in consideration of postponement of serving his warrant. The court held the defendant liable. The promise was not within the statute of frauds. And the court's conclusion was correct for two reasons: (a) The promise was not made to the creditor, or one who would ever become the creditor of Hitchcock. The bailiff would not be entitled to reimbursement for the £17 from Hitchcock, as was the promisee in Green v.

ise to answer for the default of Powers & Co. Plaintiff's liability as bail for stay was merely collateral to the debt in judgment, and had in contemplation nothing but the payment thereof to the bank."

Frequent cases arise where to induce a qualified person to become surety for another on a replevin or attachment bond, the defendant verbally agrees to save him harmless. If the defendant does not sign the bond with the plaintiff, this promise is within the statute of frauds, and the defendant is not liable. Easter v. White (1861) 12 Oh. St. 219. See Hartley v. Sandford (1901) 66 N. J. L. 627, 50 Atl. 454. If, however, the defendant also be

comes liable with the plaintiff, the defendant is only promising to answer for his own debt, and not for that of another person. Ferrell v. Maxwell (1876) 28 Oh. St. 383, 22 Am. Rep. 393. The obvious reason for this distinction is that "the statute requires that a special promise to answer for the debt, etc., of another shall be in writing; it does not require that a promise to answer for a debt which is not the debt of another but is partly the debt of the promisor, shall be in writing." Beattie v. Dinnick (1896) 27 Ont. Rep. 285, 294.

22 (1862) 13 C. B. N. S. 344, 143 Eng. Reports Reprint 137.

Cresswell. The promisee was a stranger. The court repudiated the argument that the plaintiff was acting as agent for Malins. (b) The promise to pay, or even the payment of the £17 did not, as the court emphasized, discharge Malins' demand against Hitchcock. It was not intended that it should. The promise of the defendant was that if the plaintiff would not then execute the warrant to arrest Hitchcock, the defendant would pay the plaintiff, who was not and would not become Hitchcock's creditor, the sum of £17. The forbearance to arrest Hitchcock was the consideration. And if the defendant had paid the plaintiff the £17 as agreed, Malins could yet recover £34 from Hitchcock, for the £17 was intended to be in consideration of the forbearance to make the arrest, and not any part in payment of the judgment. It had no connection, collaterally or otherwise, with the debt owed by Hitchcock to Malins. As Earle, C., said: "The debts were totally distinct debts, as well as the debtors. '' 23 Nowhere in any of the opinions in that case is any language used showing that any justice intended to overrule Green v. Cresswell, which had been decided a quarter of a century previously, though that case was discussed.

§ 70. Wildes v. Dudlow. In 1874, twelve years after Reader v. Kingham, and thirty-five years after Green v. Cresswell was decided, we find in Wildes v. Dudlow 24 a conclusion reached, which applied to the facts, is admittedly contrary to Green v.

23 Of Reader v. Kingham (1862) 13 C. B. N. S. 344, it was said in 1 Reed, Statute of Frauds (1884) Sec. 100: The plaintiff, Reader, a bailiff, directed to arrest for contempt one H. A., a defaulting judg ment debtor, and authorized by M., the creditor, to take half the debt in satisfaction, proceeded to arrest H. A., and Kingham, a relation of H. A., promised Reader that he would either pay the debt or produce H. A. by a certain time; his agreement was held to be exclusively between Reader and Kingham; M. could not have sued upon it, and though

H. A. would not have been discharged by arrest under the process in question, and his debt to M. survived; yet the promise not having been made to the creditor M. it is not a guaranty, and Reader was not M.'s agent to make such an arrangement. To summarize this case, it may be said that H. A. owed M., and Kingham owed Reader; that H. A. did not owe Reader, nor Kingham owe M., therefore the promise of Kingham to answer to Reader for H. A. was collateral to nothing."

24 (1874) L. R. 19 Eq. 198.

Cresswell. But it was decided upon the assumption, believed to be incorrect, that "in the case of Reader v. Kingham when the full number of Judges was present, the case of Green v. Cresswell was overruled, and the law as laid down by Thomas v. Cook restored." A reading of the three cases should be convincing that, because of widely dissimilar facts, Green v. Cresswell never overruled Thomas v. Cook, and there is nothing in Reader v. Kingham which indicates an intention to overrule Green v. Cresswell, and the principles of law announced in the last two cases mentioned are entirely consistent.

In Wildes v. Dudlow, John Dudlow requested John N. Dudlow to sign a note with Wildes to enable Wildes to procure credit. John Dudlow verbally agreed with John N. Dudlow that if the latter would sign the note with Wildes, the former would indemnify John N. Dudlow from any loss. John N. Dudlow signed the note with Wildes and was compelled to pay it. The court held that John N. Dudlow could recover the £1,000 loss out of John Dudlow's estate, because the verbal promise was one of indemnity, and not within the statute of frauds. It must be admitted that Wildes v. Dudlow is contrary, both in reasoning and conclusion, to Green v. Cresswell; but it is believed to be erroneous in principle, even though it is the law of England today. (a) It was not a promise of indemnity, but a guaranty, because the defendant's promise was collateral to Wildes' liability to John N. Dudlow. The latter could have reimbursed himself from Wildes, and thus the promise, if we follow the reasoning of the Mississippi court, hereinafter quoted, was made to John N. Dudlow as creditor and not as debtor. (b) The real basis for the opinion however, was the feeling that Reader v. Kingham overruled Green v. Cresswell. As previously pointed out, Reader v. Kingham did not necessarily or indirectly overrule it, and no language from the former opinion can be distorted to justify such a conclusion.

But English and American courts and writers have repeated the erroneous assumption from the opinion in Wildes v. Dudlow, to the effect that Reader v. Kingham overruled Green v. Cresswell, until it must be conceded, that both in England and a majority of the American jurisdictions, the courts take the view that Green v. Cresswell is not entitled to credit.

§ 71. Was the promise to the debtor in Green v. Cresswell? The only ground upon which the conclusion reached in Green v. Cresswell is vulnerable to attack, is to say that the promise was made to the debtor, and not to the creditor. It is well established that promises for a valid consideration made to the debtor are enforceable whether in writing or not, as such agreements are outside those contemplated by the statute of frauds.25 To cite authorities that a surety who pays the obligation of a principal has the right to recover the sum in an action at law against the principal, seems useless. That is the rule in all cases where one is a surety on a note or other obligation.26 It is true of one who becomes bound on a bail bond in a civil action. It was the rule for one who became liable with the debtor for his appearance, at the time when the law permitted the debtor to be arrested for failing to pay his indebtedness.27 But because of public policy, the surety on a criminal bail bond cannot recover against the person for whom he becomes responsible. And it is contended herein lies one great difference between the verbal promise to one who, as in Green v. Cresswell, becomes a surety on a civil bail bond, and such a verbal promise to one who is likewise liable on a criminal bail bond as in Cripps v. Hartnoll.28

25 Eastwood v. Kenyon (1840) 11 Adol. & Ell. 438, 113 Eng. Reports Reprint 482. Alger v. Scoville (1854) 1 Gray (Mass.) 391. This argument was employed in Aldrich v. Ames (1857) 9 Gray (Mass.) 76, where the plaintiff, at the request of the defendant, became bail for a third person, on which the defendant promised the plaintiff to indemnify him. The court said: "This is a promise by the defendant to another, to pay his debt, or, in other words, to save him from the performance of an obligation which might result in a debt. But it is a promise to the debtor to pay his debt, and thereby to relieve him from the payment of it himself, which is not within the statute of frauds.'

26 Chapin v. Lapham (1839) 20 Pick. (Mass.) 467.

27 This was recognized by Lord Denman in Green v. Cresswell (1839) 10 Ad. & Ell. 453, 113 Eng. Reports Reprint 172, when he said: and, besides, may it not be said that the arrested debtor, who obtains his freedom by being bailed, undertakes to his bail to keep them harmless, by paying the debt, or surrendering?”

28 (1863) 4 B. & S. 414. This difference is there succinctly pointed out in this language: "Here the bail was given in a criminal proceeding; and, where bail is given in such a proceeding, there is no contract on the part of the person bailed to indemnify the person who became bail for him. There is no

It is true, plaintiff was the debtor of Reay in Green v. Cresswell; but it was contemplated that as between plaintiff and defendant, in case the plaintiff was compelled to pay Reay, the plaintiff would be creditor of Hadley, who would be liable to the plaintiff for reimbursement. With this reasoning, the defendant made