42 LECTURE III. THE STATUTE OF FRAUDS.-PROMISES BY EXECU- SALE OF LANDS. Sect. 4. Promises by Executors and Adminis trators. FORMED IN A YEAR. In the last lecture I began the consideration of those species of contracts which, according to the fourth section of the Statute of Frauds, must be evidenced by writing. I touched on the points which equally apply to each of those five species, those namely which regard the appearance in the writing of the consideration as well as the promise, the signature which the statute requires, and the consequences of not reducing to writing contracts which the statute requires should be so evidenced. It remains, before terminating the consideration of that section of the Act, to say a few words upon each of the five particular species of contracts to which it applies. The first is any special promise by an executor or administrator to answer damages out of his own estate. The principal case on this subject is Rann v. Hughes, which went up to the House of Lords, and is reported in 7 Bro. P. Ca. 556. and 7 T. R. PROMISES BY EXECUTORS AND ADMINISTRATORS. 350. n. The point decided in that case is, that the statute of Frauds in no manner affected the validity of such promises, or rendered them enforceable in any case in which at Common Law they would not have been so; but merely required that they should be reduced to writing, leaving the written contract to be construed in the same manner as a parol contract would have been had there been no writing. The opinion of the judges was delivered to the House of Lords by L. C. Baron SKYNNER, and is extremely instructive. (a) The next species of promise mentioned in the (a) It is thus essential that the consideration for the promise of the executor and administrator should appear, which consideration, as we shall afterwards see under the title of Parties to Contracts, must be other than that which attached to the original liability: it is, in fact, a new contract between new parties, for the executor is nowise bound to perform the contracts of his testator de bonis propriis, and, therefore, his promise to do so must be supported by a new consideration. Forbearance to sue an executor for some definite time for a debt due from the testator is a sufficient consideration for a promise 66 by the executor to pay it, 43 Sect. 4. Guarantees. The person whose debt is guaranteed must be himself liable. The original debt must continue. fourth section is "Any special promise to answer for the debt, default, or miscarriage of another " person." This includes all those promises which we ordinarily denominate guarantees, and has given rise to a very great deal of discussion. In the first place, it has been decided that the sort of promise which the statute means and which must be reduced to writing, is a promise to answer for the debt, default, or miscarriage of another person, for which that other person himself continues liable. Thus, if A. go to a shop, and say, "Let B. have what goods he pleases to order, and if he do not pay you, I will," that is a promise to answer for a debt of B. for which B. is himself also liable, and, if it be sought to enforce it, it must be shewn to have been reduced to writing: but, if A. had said, "Let B. have goods on my account," or "let B. have goods, and charge me with them:" in these cases, no writing would be required, because B. never would be liable at all, the goods being supplied on A.'s credit and responsibility, though handed by his directions to B. You will find this proposition amply illustrated by Birkinges v. Durnell, Salk. 27.; Bird v. Gammon, 3 B. N. Ca. 889.; Goodman v. Chase, 1 B. &A. 297.; and the notes to Forth v. Stanton, 1 Wms. Saund. 211. Goodman v. Chase presents rather a singular instance of the application of the rule of con v. Chase. struction of which I have been speaking. In Goodman (a) The result is thus given at the end of an elaborate note, to which Mr. Smith presently refers, in The rule in Williams's Saunders:-" The Bird v. Gammon, 3 B. N. C. The principle is not very The principle of the rule. Where a new Consideration arises. It was at one time thought that a verbal promise even to answer for the debt of another for these words are satisfied by a promise to answer for a debt existing when the promise was made. Nor is it less a promise to answer for that debt, nor does it cease to be one, because the debt may afterwards be no longer recoverable from the person who incurred it; and although the debt be extinguished, the default at any rate remains, and the case in question is precisely that of answering for a "default." But the action is brought upon the promise, and not upon the debt or the default; and if it were a debt at the time of the promise, it seems to be within the letter of the statute. It is also within its spirit; for a creditor would not be less likely to set up a fraudulent claim against a third person because he has lost his remedy against the original debtor: therefore, the prevention of fraud and perjury, which the statute was designed to effect, is as much needed in the one case as in the other. It is submitted that the fact that the liability is to be exclusively borne by the guarantor, is an additional reason for requiring written evidence that the promise was advisedly made. The Courts, however, have held that it is essential to the operation of this clause, that the undertaking shall be not only collateral at the time it was made, but that it shall continue to be so; and that the original demand shall remain in full force. Lord ELLENBOROUGH C. J., said, in the above named case of Goodman v. Chase, "By the discharge of Chase, with the plaintiff's consent, the debt as between those persons is satisfied [?]. **** Then, if so, the promise by the defendant here is not a collateral but an original promise, for which the consideration is the discharge of the debt as between the plaintiff and Chase." And upon this distinction between absolute and collateral promises the subsequent decisions have turned. (See Butcher Stewart, 11 M. & W. 857. per PARKE B.; Green v. Cresswell, 10 Ad. & Ell. 453. per Lord DENMAN C. J.) V. Thus the law now is, that The law a where the transaction leaves it now is. |