act, C shall pay him such a sum, or that if C do not pay him such a sum, he (A) will pay the same, this is no collateral promise, unless C was privy to the contract, and recognised himself as a debtor also; but otherwise A is the sole debtor, and the statute is out of the case. Upon the whole, however, it will be found difficult, if not impossible, to lay down any rule, in the abstract, for the construction of these kinds of expressions; they must go to the jury, together with the accompanying circumstances, from which they are to collect, by inference, to whom the credit is really given.

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the statute.

In discussing this critical part of the statute, though much has of necessity been left to float on the facts and circumstances of the particular cases, one anchorage has at least been gained, viz. that the person undertaken for, must be or become liable at the time the promise by the third person is made. But whether the Whether the spirit and language of the statute, and the analogy of the cases person undertaken for, will warrant us in saying, that to bring a case within it, the should contiliability of the person on whose accouut the promise is made, nue liable, for the promise ought to continue unchanged in its relation and subject matter, to be a promise within until the performance of the collateral promise, is a point not so clear upon the authorities. The promise required to be in writing by the statute, is that which is specially made to answer for the debt, default, or miscarriage of another; and it seems as if in some of the cases, an opinion has been entertained, that to answer or become responsible for the debt, and particularly for the default or miscarriage of another, implied an undertaking to do that which another was liable to perform, in case of his failure only, and could not be applied to an absolute engagement to pay the debt, or perform the duty of another, upon that other's being. instantaneously discharged from his own obligation; which should be considered as an original promise by substitution, rather than as a collateral undertaking; for that a collateral undertaking it could not be, unless there was a subject existing to which it might have this relation.

The reader should, however, be reminded, that, although 'collateral promise' has become the technical phrase, whereby the promise within the statute has generally been distinguished, such word does not occur in the statute itself, and cannot, therefore, be taken as a certain criterion, in deciding whether a promise for another is, or is not, within the meaning of this law. The pro

mise mentioned by the statute is as well that whereby a man undertakes to answer for the debt, as for the default of another; and although, where the original party was liable to the performance of some act, (to which case the words default or miscarriage seem properly applicable) the promise may be construed in the limited sense of an alternative undertaking only; yet such interpretation will be too narrow, where the promise is to pay the debt of another. * [225] To answer for another man's debt *seems to be a phrase extending as well to promises to pay another's debt, where the promise is made in consideration of an instantaneous discharge of the party originally liable, so as to substitute the promiser in his place as the only debtor, as where the engagement is only meant to be in the alternative: and as the greatest lawyers have, for a series of years, strongly declared their conviction of the expediency of a liberal construction of the statute, there does not appear to be any just ground for confining this clause to the case of such promises only which suppose the liability of the original debtor to remain. Where, indeed, there was no previously existing debt, as where the undertaking arises upon the furnishing and delivery of goods by a trader to a third person, to place such case within the reach of the statute, it is necessary that the deliveree should become liable; in such case, therefore, the liabilities of the party undertaken for, and the party undertaking, must necessarily exist together. But if I undertake to satisfy the debt of a person already indebted, in consideration of his instantaneous release, there seems to be no good reason for saying, that this is not a promise to answer for the debt of another, within the reason and contem plation of the act of parliament. In the report of a case just decided in the Common Pleas,(y) the Lord Chief Justice, before whom the case was tried, is stated to have said, that at the trial it appeared to him to be doubtful, how far the promise in that case could be deemed to be within the statute; for that he did not see how one person could undertake for the debt of another, when the debt for which he was supposed to undertake, was discharged by the very bargain; but his Lordship, in delivering his subsequent opinion on the case, laid no further stress upon this point, and Mr. Justice Chambre observed, that he should have thought the case within the statute of frauds, but for another reason to which the reader's attention will be next invited.

(y) Anstey v. Marden, 1 New Reports, 130.

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Where the debt is to be kept on foot, after payment by the

party promis.

the statute..

If the original debtor is intended to be only relatively and not absolutely discharged, and the person promising substitutes aimself as the debtor, in consideration of the release of the party indebted, quoad the original creditor, the right of suing for the original debt being only understood to be transferred, the transaction assumes a character, which, according to many recent cases, takes it clearly out of the statute. The case which has just been ing, and to be transferreferred to, is a good example of this rule of construction; of red to him which the reader will have no just idea, without a full statement of as a purchaser thereof, its circumstances. The declaration was for a breach of promise, the promise in not replacing stock which had been sold out by the plaintiff is not within for the defendant, and the produce whereof had been paid to the defendant, to which the defendant, after the general issue, pleaded as follows, viz. that the plaintiff ought not to have or maintain his said action against him, to recover any more or greater damages than the sum of 5257. because he says, that he, the defendant, on such a day, was indebted to the plaintiff, by virtue of the said several promises and undertakings in the said declaration mentioned, in the sum of 9764, 28. 6d. and no more, and that he, the said defendant, afterwards, and before the commencement of this suit, to wit, on, &c. at, &c. was also indebted to divers other persons, to wit, James Greenwood, &c. &c. in certain other large sums of money respectively, and the defendant being so indebted as afore. said, the defendant was unable to pay to them, his said creditors, the full amount of the said several debts, whereof the said plaintiff, and the said several other creditors of the said defendant, then and there had notice; and that it was thereupon computed and agreed, upon an investigation had by the plaintiff, and the said several other creditors of the defendant, that the estate and effects of the said defendant would not extend to pay 108. in the pound, on the amount of the debts due and owing by the defendant, whereupon it was then and there proposed and agreed, by, between, and amongst the plaintiff and the said several other creditors of the said defendant, and also by Thomas Weston, by the procurement of the defendant, and at the request of the plaintiff, that the said Thomas Weston should and would pay out of his own proper monies to the plaintiff, and the said several other creditors of the defendant, a sum of money *equivalent to 108. [ 227 ]

in the pound, on the amount of their respective debts,in full sarisfaction and discharge thereof; which said sum of money they, Bb

the plaintiff, and the said several other persons, creditors of the defendant, should and would severally accept and receive in full satisfaction and discharge of their said respective debts. The plea then states the mutual promise to perform the said agreement, and avers that, in pursuance of the same agreement, the said Thomas Weston, before the commencement of this suit, to wit, on such a day, tendered, and offered to pay, out of his own proper monies, for and on the behalf of the defendant, to the plaintiff, the sum of 5257. being so much as amounted to 108, in the pound, upon the said sum of 976l. 2s. 6d. the said amount of the said debt, which sum so tendered, the plaintiff refused to accept. And that the said Thomas Weston, from the time of making the said agreement, always hitherto had been, and still was ready to pay the said sum of money to the plaintiff, &c. The third plea was like the former, only stating the agreement between the plaintiff, the defendant, and Thomas Weston. And the fourth plea was like the second, except that it did not specify the names of the creditors. The replication joined issue on the plea of non-assumpsit, and tendered issues on the agreements stated on the other pleas; and issues were joined thereon.

It has before been mentioned, that on the trial of this cause, the Chief Justice expressed a doubt whether that could be properly said to be a promise within the statute, by the very terms of which the debt was supposed to be discharged, and that his Lordship did not seem to adhere to this doubt in the sequel. Some arguments, too, have been adduced, to show the restrictions of the statute to apply to this description of promises. In the opinion of Mr. Justice Chambre, as delivered by him in the same case, great stress was laid upon the circumstance, that the intent of the contract was not to discharge the party indebted, but to keep the debts on foot; which, indeed, was the feature of the case which gave to it the character of a purchase. It appeared to that

*[228] learned judge, to "be perfectly clear, that the transaction in sub

stance was a contract to purchase the debts of the several creditors, instead of being a contract to pay or discharge the debts ow ing by Marden. He observed further, that if the contract had been that, which it was represented to have been, on the special pleas, he should have thought it a case within the statute of frauds.

Upon the same principle of considering the transaction in the light of a purchase, the case of Castling v. Aubert,(z) was determined by the court of King's Bench, to be entirely clear of the statute. The case was shortly thus: the plaintiff, who was the policy broker for one Grayson, had policies of insurance in his hands, belonging to his principal, which were securities on which he had a lien for the balance of his account. And on the faith of these he agreed to accept bills for the accommodation of his principal. One of these bills became due, and actions were brought against the plaintiff as acceptor, and against Grayson as drawer. It was desirable, that the policies should be given up by the plaintiff to the defendant, to whom Grayson had at that time transferred the management of his insurance concerns, in order to enable him to recover the money for the losses incurred from the underwriters; and the defendant undertook, upon condition that the policies were made over to him, to settle the acceptances due, and to lodge money in a banker's hands for the satisfaction of the remainder, as they became due. This transaction was considered in the light of a purchase by the defendant of the plaintiff's interest in the policies. And not in that of a mere promise to the creditor to pay the debt of another due to him; for it was in truth a promise by the defendant to pay what the plaintiff would be liable to pay, on condition of having the securities put into his the defendant's hands, as the means of enabling him to indemnify the plaintiff; or, as Mr. J, Le Blanc put the case, one man having a fund in his hands, which was adequate to the discharge of *certain incumbrances; another person undertook that, if the fund was delivered up to him, he would take it with the incumbrances.'

It should be remarked, that the Chief Justice, in this case of Castling v. Aubert, laid considerable stress upon the circumstance that the defendant had not the discharge of Grayson principally in his contemplation, but the discharge of himself. “That was his moving consideration, though the discharge of Grayson would eventually follow; which is an illustration of Mr. Justice Chambre's reasoning, in the above-mentioned case of Anstey v. Marden, in the Common Pleas, except that, indeed, the contract there was not only not made in contemplation of the discharge of the original debtor, but with the direct purpose of keeping his debt on foot. In Anstey v. Marden, the contract was a purchase (z) 2 East, 325.

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