detriment to himself, by his relinquishment of legal proceedings (for he might at least have obtained a judgment of assets quando acciderint) has purchased a title of action upon the undertaking of the defendant. But without such special agreement, in which the executor steps out of his representative character, an action cannot be sustained against an executor, otherwise than as an executor, and if the action is brought against him in the character of *[207] executor, to recover a demand out of the testator's estate, *any special promise to pay the testator's debt is a mere nudum pactum, if there are no assets, and if there are any, the extent of the promise is measured by the extent of the assets, or in other words, the promise superinduces no obligation upon the original representative liability. Since the case, however, of Wain v. Warlters, and more particularly Egerton v. Matthews, already so much discussed, it seems that the writing, to be valid, within the 4th section of the statute, should, in the case of such promise made by an executor, not only state the consideration whether it be forbearance of suit, or whatever else, in terms, but that the undertaking on both sides should be comprised in the agreement, so as to make it a subject of action to either party; for it was intimated by the Chief Justice, in the first-mentioned case, that 'the obliga

in consideration that the plaintiff would accept the defendant for his
debtor, promised to pay the debt to the plaintiff. And for want of al-
leging a sufficient consideration for the promise, the declaration was
judged insufficient. Upon the principle of the determination in Barber
v. Fox, cited above in this note, it seems that a verdict for the plaintiff
could not have cured this radical defect: but in the case of Roe v-
Haugh, 1 Salk. 29, which was the converse of the last-mentioned case
in its circumstances, and the relative situation of the parties, the ver-
dict was held by four judges against three to have cured the omission
to allege a sufficient consideration in the declaration. There, in consi-
deration that the plaintiff would accept C to be his debtor for 201. due
to him from A, in the place of A, C promised and undertook to B to
pay to him the 201.; and this was adjudged good, after a verdict, with-
out express averment that A was discharged; for the majority of the 1
judges in the Exchequer Chamber held, that being after verdict, they
ought to do what they could to help it, and that, therefore, they would
not take it as a promise only on the part of C, because, as such, it could
not bind, unless A was discharged; but they construed it as a mutual
promise, viz. that C promised B to pay the debt, and B promised in
consideratione inde to discharge A.

tory part of the transaction was indeed the promise, which will account for the word promise being used in the first part of the clause, but still, in order to charge the party making it, the sta tute proceeds to require that the agreement, by which must be understood the agreement in respect of which the promise was made, must be reduced into writing.'

PART VI.

On collateral Promises.

BY the 2d clause of the 4th section of the statute, it is provid ed that "no action shall be brought whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person, 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 authorised."

In entering upon this branch of the statute, it may be of impor tance in the first place to inform the student, that what *was said *[208] in the preceding part of this chapter, relative to the necessity of a consideration to make the promise binding, notwithstanding a compliance with the statute as to the circumstance of writing, applies with equal propriety to the subject of the present examination; for the statute, as was observed, has made no alteration in the common law requisites, by superadding a further constituent of the validity of a promise under certain circumstances; and as appears from a multitude of authorities, these collateral promises were mere nuda pacta, before the statute, unless they were supported by a consideration, which consideration it was also necessary to set forth upon the pleadings. If A, therefore, promise in writing to B, that in consideration he will sell goods to C, if C does not pay for them, A will himself pay for them, this is an actionable undertaking, since the statute, because it was made in writing, and was founded upon a consideration sufficient for its support before the statute.(k) It will be unnecessary to say any thing more on the contents of the written agreement, which by

(F) 1 Roll. Abr. 27, pl. 49. 2 Str. 873, King. Wilson.

* [209]

If the person for whose use goods are furnish

the cases of Wain v. Warlters, and Egerton v. Matthews, has been laid under a severer requisition than, according to former opinions, perhaps, it was considered as being subject to, as the doctrine of those cases has been already much considered. I shall, therefore, pass on to the examination of the circumstances and qualities which constitute the particular species of promise or undertaking, in the view of this clause of the section; and these appear principally to regard the liability—the consideration— and the promise itself; for, First, it seems that there must be a liability in the original party to the payment of a debt, or the performance of some act, existing and ascertained at the time of making the collateral promise. Secondly, the consideration of the collateral promise must have immediate respect to the liability; and, Thirdly, it should appear that the collateral promise was made to the person to whom the original party was immediately liable, and to do the same thing which the original party was liable to do; and if the payment of a debt be the object of a promise, *the payment thereof should appear to have been promised in prospect of the final discharge of the original debtor, and not, by way of substitution and purchase.

Mr. Justice Buller, in the case of Matson v. Wharam,(4) laid down the rule as to the liability of the person for whom the promise is made, thus, "the general line now taken is, that ed at the re- if the person for whose use the goods are furnished is liable at quest of a third person, all, any other promise by a third person to pay that debt must be the promise in writing, otherwise it is void by the statute of frauds." Which of such third rule, although the terms of it have reference only to the circumstances of the case in which it was promulged, has been conformed to by subsequent authorities, as a geral principle for the construction of this provision of the statute. The purpose

person to pay the debt must be in writing, and it is not material whether the proof stating the rule as above, in the case just alluded to, was to mise was be- answer the point contended for by the counsel for the plaintiffs, fore or after the delivery on the authority of Jones and Cooper,(m) where a distinction had of the goods. been taken between a promise for the payment of goods for another person before delivery, and after delivery, the former having been held by Lord Mansfield to be an 'original undertaking, and so not within the statute of frauds, but the latter a collateral undertaking, and consequently falling within the statute. It was

upon this occasion, said by Mr. J. Buller, "I argued the case in Cowper, the facts of which were, that a person who was going abroad, wished to make some provision for his mother-in-law, in his absence, and said to a baker, you must supply my motherin-law with bread, and I will see you paid" that case was tried before Nares, J. at Bristol. I was for the plaintiff, and cited the case of Mawbray v. Cunningham,(z) in which Lord Mansfield said, "this is a promise made before the debt accrues; and what is the reason of the tradesman's requiring that promise? It is because he will not trust the person for whose use the goods are intended ;" and the plaintiff obtained a verdict. But Nares J. overruled this determination, and nonsuited the plaintiff, and [210] this court afterwards refused to grant a new trial.”

But with all due respect for the above observations of the learned Judge, it is impossible to help remarking, that the case of Jones v. Cooper seems not to have overruled the determination in Mawbray v. Cunningham, for though in both cases the promise was made before the delivery of the goods, yet in the case at nisi prius, determined by Lord Mansfield, the promise was simply to see the goods paid for; whereas, in Jones v. Cooper, the promise was expressly conditional, as thus, "I will pay you if Smith will not ;" and Smith was entered the debtor in the plaintiff's books. And upon this distinction, as it appears by the report in Cowper, the new trial was refused; and Lord Mansfield observed, that the general distinction was a clear one; meaning, as his Lordship afterwards made it appear, the distinction between an undertaking before the delivery of the goods, and afterwards; but, said his Lordship, there may be a nicety where the undertaking is before delivery, and yet conditional; and upon this sub-distinction between promises conditional and promises unqualified, made before delivery, it appears that the case of Jones v. Cooper was in reality decided. But the distinction upon which Mawbray v. Cunningham was decided by Lord Mansfield at Guildhall, was directly overruled by the abovementioned case of Matson and another v. Wharam, which was an action for goods sold and delivered, and tried before Mr. Justice Wilson, when a verdict was found for the plaintiffs, subject to the opinion of the court on the following case: the defendant Wharam ap

(n) Sittings after Hilary Term, 1773, at Guildhall.

plied to Matson, one of the plaintiffs, and asked him if he was willing to serve one R. C. of Pontefract, with groceries; he answered, that he dealt with nobody in that part of the country; and did not know R. C. to which the defendant, Wharam, replied, "if you don't know him you know me, and I will see you paid." Matson then said, he would serve him; and Wharam answered, he is a good chap, but I will see you paid. A letter was afterwards received by the plaintiffs from R. C. containing [211] an order for goods, to the amount of 77. and the goods were sent according to the order. The plaintiffs made R. C. the debtor for these goods in their books. They afterwards applied to R. C. by letter, for payment of the debt, and receiving no answer, they then applied to the defendant, Wharam, who refused to pay, and there having been no promise in writing, according to the statute of frauds, judgment was given for the defendant.

We observe, that in the case just considered, although the promise was not conditional in expression, yet that the circumstances sufficiently imported an understanding among all the parties, that both the party for whose use the goods were delivered, and the party expressly promising to pay, were to become liable. Such liability, therefore, of the person on whose account the promise is made, is an essential point of inquiry, and must be gathered from the circumstances of the case, as is strongly instanced in the case of Anderson, v. Hayman,() which it will be necessary to give the reader a pretty full account of, to assist his comprehension of this critical subject.

The plaintiff was a woollen-draper in London, and employed one Biffin as a rider, to receive orders from his customers in the country. The defendant meeting with Biffin at Deal, desired him to write to the plaintiff to request him to supply the defendant's son, who traded to the West-Indies, with whatever goods he might want, on his the defendant's credit; saying at the same time, use my son well, charge him as low as possible, and I will be bound for the payment of the money, as far as 8004, or 1000l. Biffin accordingly wrote to the plaintiff the following letter: 'Mr. Hayman of this town says, his son will call on you, and leave orders; and he has promised me to see you paid, if it amounts to 1000l. N. B. If deal for 12 months credit, and

(0) 1 Hen. Blackst. 120.