an obligation in fact,26 or because he is incompetent to bind himself legally, as where an agent gives an oral personal guarantee of an ultra vires contract of his principal,27 or a promisor guarantees performance of an agreement made by a married woman under common-law disability,28 is not within the statute. The same has been held of guarantee that an infant should pay debts incurred by him.29 But now that it is generally recognized 30 that an infant's contracts are not void but only voidable, the correct view seems to be that a guaranty of an infant's obligation is within the statute.31 So, the statute is inapplicable, "where the effect of the new promise is to extinguish the liability of the original party before the obligation of the new promise attaches, as in the case of a promise to pay the debt if the promisee will discharge the primary debtor from a capias ad respondendum. In such event the discharge from the writ by operation of law, destroys the debt, so that there is nothing to which the new assumption can stand as collateral. In cases of this class it has been repeatedly decided that the statute did not apply." 32 It seems immaterial in
26 Mease v. Wagner, 1 McCord, 395. In this case the defendant on buying goods from the plaintiff for the funeral of a friend (Mrs. Bradley) said: "Charge them to the estate of Dr. Bradley, and as soon as his nephew comes to town he will pay for them, or I will." The nephew refused to pay and was not the executor or administrator of the estate. The defendant was held liable, the court saying: "had the defendant undertaken for the estate or legal representative of Mrs. Bradley, who was legally bound to pay the expenses of her funeral, it would have been a different question." In Read v. Nash, 1 Wilson, 305, the plaintiff's testator brought an action for assault against J, and the defendant being present promised the testator if he would not proceed to trial, to pay him £50 and costs; whereupon the testator withdrew his record. The promise was held not within the statute because it did not appear that there was liability on the part of J, for if he had proceeded to trial he might have obtained a verdict. In Mount-Stephen v. Lakeman, L.R.7 H. L 17, affirming L. R. 7 Q. B. 196, the defendant had requested the plaintiff to do certain work upon a sewer of which a Board of Health had charge. A question was raised by the plaintiff whether the Board would authorise the work or become responsible for its payment, and the defendant then said: "go on and do the work and I will see you paid." The Board repudiated any obligation and in fact was not liable. The court held that the jury was warranted in finding the defendant had entered, into a personal and primary contract to pay for the work; and Lord Selborne said: "There are some observations in the opinions of the learned judges in the Court of Queen's Bench which certainly do look at first sight as if some of those learned judges thought that there might be a valid contract of suretyship, or a secondary liability upon the principle of a guaranty for the debt of some one else, to which the law relative to that description of contracts would apply, although there might be in truth no principal debtor. If that was the view of the learned judges, with all respect to them, I must confess myself unable to follow it. There can be no suretyship unless there be a principal debtor, who of course may be constituted in the course of the transaction by matters ex post facto, and need not be bo at the time, but until there is a principal debtor there can be no suretyship. Nor can a man guarantee anybody else's debt unless there is a debt of some other person to be guaranteed." See also Ledlow v. Beeton, 36 Ala. 590; Ingraham v. Strong, 41 III. App. 46; Resseter c. Waterman, 151 111. 169, 176, 37 N. E. 875; Downey v. Hinch-man, 25 Ind. 453; Jepherson v. Hunt, 2 Allen, 417;Sampsonp. Swift, 11 Vt. 315; Walker v. Norton, 29 Vt. 226; Brown v. Gillies, 26 Dom. L. R. 438, aff'd in Gillies v. Brown, 53 Can. S. C. 557.
27 Voris v. Star City Building Assoc., 20 Ind. App. 630, 50 N. E. 779. See also Drake v. flewellen, 33 Ala. 106; Kilbride v. Moss, 113 Cal. 432, 45 Pac. 812. But see Hooker v. Russell, 67 Wis. 257, 30 N. W. 358, an action on an oral promise made by the defendant, an officer of a village, to pay for the services rendered to the village if it failed to, do so where the court refused to decide as unnecessary the question whether the village was under a liability; but held that the debtor was not liable.
28 King v. Summitt, 73 Ind. 312, 315, 38 Am. Rep. 146. But see Magga v. Ames, 4 Bing. 470. If the married woman had a separate estate which equity would charge for payments of the debt, a promise by another to guarantee payment is within the statute. Connerat p. Goldsmith, 6 Ga. 14. See also Re Hoyle,  1 Ch. 84, 99.
29 Harris v. Huntbach, 1 Burr. 373; King v. Summitt, 73 Ind. 312, 315, 38 Am. Rep. 145; Roche v. Chaplin, 1 Bail. (S. C.) 419.
30 See supra, Sec.226.
31 This was so held in Dexter v. Blanchard, 11 Allen, 365. The Massachusetts case has been criticised by text writers, Browne on Statute of Frauds [3d ed.), Sec. 158 (the learned author retracted his criticism in the 4th Ed,); 1 Brandt on Suretyship (3d Ed.), 169, n. 73, on the ground that the infant's obligation is voidable and therefore gives no real remedy to the creditor. But the Massachusetts case is supported by other cases. Baldwin v. Hiers, 73 Ga. 739; Scott v. Bryan, 73 N. C. 582; Brown v. Farmers', etc., Nat. Bank, 88 Tex. 265, 31 S. W. 285, 33 L. R. A. 369, and, on principle, the practical worthlesaness of the creditor's remedy on the primary obligation, whether because the principal debtor has no funds, or is outside the jurisdiction, or because of any other reason the claim cannot be collected, seems immaterial so long as there is what the law recognises as a primary obligation. To this effect is Browne on the Statute of Frauds (4th and 5th Eds.), Sec. 156. The contrary view would involve a curious difficulty if the infant should ratify his obliga-tion. Surely then, on any view, the guarantor's promise would be to answer for the debt of another, and if the ratification takes effect by relation, his promise would have to be treated as within the statute from the outset. Yet the infant by his ratification could hardly be allowed to affect the rights of third persons.