statute. It has been established by a line of cases that the surrender to a new promisor of property which was held by the creditor as security for his claim prevents the promise from falling within the statute. In some of these cases the property surrendered belonged to the new promisor subject to the creditor's lien thereon.25 In other cases, however, this was not true, and

23See infra, Sec. 478.

24 Infra, Sec. 476.

25Fitzgerald v. Dressier, 7 C. B. (N. S.) 374 (the plaintiff surrendered goods, on which he had a seller's lien, in consideration of a promise by the defendant, a sub-purchaser, to pay the price to the plaintiff, which was less than that which the sub-purchaser owed to his vendor); Westmoreland v. Porter, 75 Ala. 462 (the plaintiff surrendered a lien at the request of the defendant in consideration of the latter's promise to pay the debt. The defendant was a second lienor); Luark v. Malone, 34 Ind. 444 (the defendant, the owner of a building, promised to pay a construction debt in consideration of the surrender of a mechanic's lien on the building); Crawford v.

King, 54 Ind. 6 (surrender of a lien on property of defendant); Parker p. Dillingham, 129 Ind. 542, 29 N. E. 23 (promise in consideration of surrender of mechanic's lien on defendant's property, but held that the lien must have been actually obtained at the time of the promise, and that a promise in consideration of extension of time to the principal debtor and refraining from securing a lien, were insufficient); Johnson v. Huffaker, 99 Kan. 466, 162 Pac 1160, L. R. A. 1917 D. 872 (promise by owner of equity in land to mortgagee in consideration of the mart-gagee's forbearance to enforce immediately a mortgage imposed on the land by a prior owner); Fish v. Thomas, 5 Gray, 46,66 Am. Dec. 348 (promise by owner of vessel in consideration of a the advantage to be derived by the promisor from the surrender was something other than the restoration to him of property in which he previously had a right of ownership.26 surrender of an admiralty lien); Burr v. Wilcox, 13 Allen, 269 (promise to pay a tax to free land in which the defendant was legally interested); Manning v. Anthony, 208 Mass. 399, 91 N. . 466, 32 L. R. A. (N. S.) 1179 {promise by owner of equity to mortgagee in consideration of forbearance to foreclose); Monroe Lumber Co. v. Bateau, 192 Mich. 307, 158 N. W. 880 (promise by owner of realty in consideration of forbearance to file a lien); Hodgins v. Heaney, 15 Minn. 185 (the defendant, a mortgagee of land, promised to pay the plaintiff in consideration of the surrender of a lien thereon which was prior to defendant's mortgage); Lan-dis v. Royer, 59 Pa. 95 (the defendant, owner of a building, promised to pay a construction debt in consideration of the surrender of a mechanic's lien). Weisel v. Spence, 59 Wis. 301,18 N. W. 1652 (release of superior lien to subordinate chattel mortgagee in consideration of promise by the latter).

26The leading case on this point is Williams v. Leper, 3 Burr. 1886. (Here the plaintiff, a landlord whose tenant was in arrears, was about to distrain the latter's goods. The tenant had assigned all his property for the benefit of his creditors who had employed the defendant as a broker to sell them. The defendant learning of the plaintiff's intention to distrain, promised to pay the rent if the landlord would desist.) Castling v. Aubert, 2 East, 325 (policies of insurance held by the plaintiff as security were surrendered to the defendant on his promise to pay acceptances for which they were held); Edwards v. Kelly, 6 M. & S. 204 (the defendants promised that if property on which the plaintiff was about to distrain were delivered to be sold by one of them for the tenants, the defendants would pay the rent due); Bampton v. Paulin, 4 Bing. 264 (the defendant, an auctioneer, promised to pay the landlord rent in arrear if allowed to continue to sell goods at auction which were subject to distress); Cassels p. Alabama City etc. R. Co. (Ala.), 73 So. 494 (the defendant promised to pay the debt of another to the plaintiff in consideration of the plaintiff's turning over to the defendant property of the debtor on which plaintiff had a lien); Borcbaenius v. Canutson, 100 III. 82 (the plaintiff had a lien on a policy of insurance on the life of the defendant's deceased husband. The defendant's promise to pay for the surrender of the policy was upheld since it enabled her to collect money for her widow's allowance); Frohardt v. Duff, 156 la. 144, 135 N. W. 609, 40 L. R. A. (N. S.) 242, Ann. Cas. 1915 B. 254 (the plaintiff at the defendant's request refrained from attaching the debtor's property on part of which the defendant had a chattel mortgage). In Harburg Comb Co. v. Martin, [1902) 1 K. B. 778, 790, Stirling, L. J., said: "I do not forget that in Williams v. Leper, 3 Burr. 1886, a promise to pay rent was given by an auctioneer who had possession of property under instructions from the real owner to sell it; but, when the reasons assigned by the learned judges for their decision are examined, it appears to me that the auctioneer was treated by them as the agent of the owner, and as having authority from him to enter into a contract to pay the rent out of the proceeds of the sale. The promise must be taken to have been that of the owner, and, therefore, the case is brought within the statement of the law to which I have just referred."

In Cowenhoven v. Howell, 36 N. J. L.

These cases, some of which go somewhat beyond any general rule accepted in England, have furnished the foundation for an extension in the United States of the boundaries of the statute. It was even laid down by Chancellor Kent,26a in words often quoted26b that where "the promise to pay the debt of another arises out of some new and original consideration of benefit or harm moving between the newly contracting parties," it is not within the statute. This statement, however, unquestionably is too wide to be acceptable to-day in so far as it includes mere "harm" [to the promisee] as an adequate basis for a new original promise; and the same may be said of the suggested rule that there must be a "new and independent" consideration for a new oral promise to withdraw it from the statute.26c Such rules would altogether nullify the statute so far as new promises to pay an already existing debt are concerned, for recovery would be allowed on any promise for which there was sufficient consideration; and even apart from the statute there could be no recovery on a promise without consideration' - that is without "new and independent" consideration. Accordingly the dictum is now generally discredited.26d