The test suggested in recent English cases 26o making the application of the statute depend "not on the consideration for the promise, but on the fact of the original party remaining liable, coupled with the absence of any liability on the part of the defendant or his property, except such as arises from his express promise" is very unsatisfactory. In the first place it is contradictory in terms, in first denying that consideration is the important matter and then asserting that certain matters are vital which themselves depend on the character of the consideration. Thus, by the second part of the rule, if the original party does not remain liable the new promise is original, but this depends on whether the consideration for the new promise, or part of the consideration, was the release of the old obligation. That kind of consideration, then, does exclude the promise from the statute. Further the test, as stated seems to imply that the surrender by the creditor of property of the promisor which was liable for the debt would exclude from the statute a promise given in return for the surrender. This again is a question of the consideration for the promise. Finally, apart from its inartistic wording, the test is unsatisfactory as an explanation of the cases, or, as a reduction of the matter to an intelligible and reasonable principle. It is true that if the promisor is liable for some other reason than his express promise, the statute is inapplicable.26p It is also true that if a novation is made by means of the new promise, the statute is inapplicable.

26n See the cases collected in the preceding section.

26o Green v. Creaswell, 10 A. ft E. 453; Fitzgerald v. Dressier, 7 C. B. (N. 8.) 374; Davys v. Buswell, [1913]

2 K. B. 47. So in Canada - Lee p. Mitchell, 23 U. Can. 314; Merner v. Klein, 17 U. Can. C. P. 287; Bond v. Treahey, 37 U. Can. Q. B. 360, 366.

26p See supra, Sec. 459.

But the English cases which hold that the surrender of property by the creditor to the promisor takes the case out of the statute are not confined to cases where the property surrendered was that of the promisor;26q and it is difficult to see any reason why the surrender of the promisor's own property should be any more effectual to avoid the statute than the surrender to the promisor, for his own benefit, of an equal amount of another person's property. There is certainly nothing in the American cases warranting such a distinction.

Sec. 475. The true test of the validity of a new oral promise should be:Is the new promisor a surety? Where two persons are originally bound for the payment of an obligation, it is immaterial for the purposes of the statute what the relation of the two to one another may be. The only important question is the relation which each assumes to the creditor.26r They may assume a joint original liability, though one is merely a surety for accommodation so far as his co-debtor is concerned. It is even possible that one who assumes a primary liability to the creditor may in fact be a surety in his relation with his co-debtor; and the latter, though between the co-debtors a principal, may by his contract with the creditor merely guarantee payment if his co-debtor (who makes to the creditor an original promise), fails to pay.26s Where,

26q See supra, \ 472.

26r Id Hetfleld v. Dow, 3 Dutch. 44, 454, Whelpley, J., said that "to settle the rights of the promisors inter sese - to ascertain, as between them, who in to pay the debt ultimately - is no part of the object of the act. It by no means follows that he who, by the arrangement between the promisors, ultimately may be bound to pay the debt is, as to the promisee, the principal debtor; that does not concern him." And another distinguished judge, quoting the foregoing passage with approval, added: "Where a party has been wilting to put himself in the position of an original promisor (either jointly or severally) to a vendor for goods purchased for the benefit of, or delivered to another, the vendor has a right conclusively to, presume that such relations or arrangements exist between the two as to make it the duty of the party or parties promising, as between themselves, to pay according to the promise. And to allow the contrary to be shown to defeat the promise, would operate as a fraud upon the vendor." Christiancy, J., in - Gibbs v. Blanchard, 15 Mich. 292.

26s This last reversal of the parties' real relations to one another is not common except in the making of accomodation negotiable paper. It is there not uncommon for the accommodating party to assume a primary liability, while the accommodated party assumes a secondary liability.

however, an original debt already exists, there is not the same possibility for reversing the natural position of the parties. There may indeed be an agreement between the debtor and the new promisor by which the new promisor as between either becomes the principal, and the original debtor merely a surety; but such a change of relation will not bring within the statute the obligation of the original debtor. A promise not within the statute when made cannot be brought within it subsequently. Unless, therefore, a complete novation with the creditor takes place,26t the only promise which can be within the statute is that of the new promisor. If, as between himself and the original promisor the debt really ought to be paid by the latter, whatever may be the other elements of the transaction, the new promisor is on principle and in fact promising to answer for the debt or default of another. The fact that he is led to do this by considerations of his own advantage, do not make the ultimate fact that the debt is another's any the less true. On the other hand if, as between the original debtor and the new promisor, the latter ought to pay the debt, he is promising to answer for his own debt, not that of another. This would not be universally admitted in the United States. Jurisdictions which hold that a beneficial consideration received by a new promisor make his promise original are logically driven to the position that one who is a mere surety may yet be an original promisor.27

26t Conceivably a novation might be made by which the new promisor undertook the primary obligation, and the original debtor merely guaranteed it, but this would require the assent of the creditor as well as that of the other parties.

27In Maxey v. Hideout, 173 Fed. 172, 176, the court said of "a later parol engagement by the defendant to furnish the plaintiff with the necessary means to perfect his title" that "such obligation, although by parol, may be original in its nature, although the railway company was primarily liable." In Home Nat. Bank v. Estate of Waterman, 134 111. 401, 486, 29 N. E. 503, the court said: "Assuming the transaction of August 10, 1882, to have been a direct and original promise by Waterman and his associates to pay the debt, yet it does not follow that the makers of that promise were not securities for the harvester company, and were not released by the subsequent extensions of time given to that company. It is manifest that, notwithstanding that promise, the debt, as between the company and the signers of the writing, continued to be the debt of the company, and that had such signers paid the debt to the bank, they would have had recourse for the amount bo paid, upon the company." But if it is mani-

At first sight it may seem surprising that whether a new promise to the creditor is within the statute of frauds should depend not on the nature of the bargain with the creditor, but on the relation of the promisor to one who is not a party to the contract; but if the purpose of the statute is borne in mind, and if the statute is compared, for instance, with statutes protecting married woman from contracts of suretyship for their husbands, there will be less reason for surprise. That the relation of the new promisor to the debtor is vital is most clearly shown by the cases where the promisor assumes for sufficient consideration the obligation of the debtor.28 Where by the bargain between the promisor and the original debtor the promisor is bound to pay, the debt is his own and not within the statute. Contrariwise if as between them the original debtor still ought to pay, the debt cannot be the promisor's own and he is undertaking to answer for the debt of another.

Thus if a partner orally promises to pay a debt of his firm he is a principal, since his promise is to pay his own debt and, therefore, not within the statute. But if the firm was not liable for the debt, but another person, as for instance an individual partner, was liable, the promise is within the statute; and this seems to be true whether the promisor or promisee was aware who was liable as the original debtor,29 for certainly a surety may receive a beneficial consideration for his promise.30 It is true that the creditor cannot be prejudiced by ignorance of the relation between the original debtor and the new promisor, but there is no reason why he should not be benefited; a promise cannot be held within the statute when the creditor was justified in supposing it an original promise, but a promise which the creditor might naturally have supposed within the statute may be proved to be primary by facts of which he was feet that the debt continued to be the debt of the company, it should be equally manifest that the new promise was to answer for the debt of another. That the existence of a relation of principal and surety between the two debtors is the true test seems recognised, however, in Rev. L. Okla. (1910), Sec. 1030.

28Seeutfro, Sec.478.

29 Taylor v. Hillyer, 3 Blackf. (Ind.), 33,26 Am. Dec. 430, and note; Wagnon v. Clay, 1 A. K. Marsh. (Ky.) 257; Smith v. Sheridan, 175 Mich. 391, 141 N. W. 684, 688; Greenleaf v. Burbank, 13 N. H. 454; Davis v. Evans, 30 Vt. 182.

30 See supra, Sec. 472.

ignorant. Thus, when goods are bought by one who promises to pay for them if X, to whom the goods are sent, does not, though in form there is a guaranty clearly within the statute; yet if X, who was supposed by the creditor to be an executor and liable for the goods as such, has never been appointed executor, this fact, though unknown to the creditor, will make the promise original.31 So in the case of a new promise, if the whole consideration was furnished by the creditor and was not the equivalent of the debt, and, as previously shown,32 it rarely will be, the creditor must know he is receiving a promise from one who stands in the position of a surety. On the other hand, if full consideration equivalent to the amount of the debt has been received from the debtor, it is immaterial whether the creditor knows it or not. If he knows the facts, he knows the new promisor is really the principal debtor; but if ignorant of the facts the new promisor is none the less the one primarily liable, and there is no reason why his oral promise should not bind him. Though the principles thus stated are too narrow to explain those cases in which it is held that the transfer of a beneficial consideration, or the surrender of security by the creditor makes a promise to pay the debt of another, original, it is believed that they are nevertheless the fundamental principles at the bottom of the subject, which have since the statute was enacted more or less clearly guided judicial decisions.