3 Alger v. Scoville, 1 Gray, 391; Eastwood v. Kenyon, 11 Ad. & El. 446; 3 P. & Dav. 282; Aldrich v. Ames, 9 Gray, 76 (1857). See, also, Jepherson v. Hunt, 2 Allen, 417; Perkins v. Littlefield, 5 Allen, 370; Draper v. Putnam, 7 Allen, 172.
4 Wait v. Wait, 28 Vt. 350; Alger v. Scoville, 1 Gray, 391; Robinson v. Gilman, 43 N. H. 485. An oral promise by A. to B. to pay him a debt due him from C. is void if C. still continues liable for the debt, and no new consideration exists between A. and B., although there is a valuable consideration moving between C. and A. for the new promise. Furbish v. Good-now, 98 Mass. 296 (1867). The verbal promise of A. to pay the debt of B. if C. will discontinue a suit for its recovery, then pending against B., and a discontinuance of the suit in consideration of that promise will not sustain a recovery by C. against A. Such a promise is within the statute. Duffy v. Wunsch, 42 N. Y. 243 (1870). And see Brown v. Weber, 38 Ib. 187; Pfeiffer v. Adler, 37 Ib. 161; Mallory v. Gillett, 21 lb. 413.
5 In Nelson v. Boynton, 3 Met. 396, Mr. Chief Justice Shaw thus states the rule: "The terms original and collateral promise, though not used in the statute, are convenient enough to distinguish between the cases where the direct and leading object of the promise is to become the surety or guarantor of another's debt, and those where, although the effect of the promise is to pay the debt of another, yet the leading object debtors promises to pay the debt, the statute does not apply, since the primal object of the promisor was his own discharge, and the discharge of the others is merely incidental.1 So a promise to a debtor to pay his debt to a third person is not within the statute.2
§ 1438. In respect to the next clause relating to agree-ments made in consideration of marriage, a distinction has been taken in England between contracts in consideration of marriage, such as settlements and provisions in view thereof, and simple promises to marry, - the latter not being within the statute.3 But such promise must not be to marry after the space of a year; otherwise the subsequent clause of the statute would apply, and it must then be in writing.4 But whether a settlement made after marriage, founded on parol agreement before marriage, would be supported as upon sufficient consideration, seems questionable, though the preponderance of authority would seem to be in favor of upholding it.6 The celebration of the marriage is not considered as such a part performance of contracts in consideration of marriage as to take them out of the statute.6
§ 1439. The next clause relating to "any contract or sale of lands, tenements, or hereditaments, or any interest in and concerning them," has been held not to apply to mere licenses of the undertaker is to subserve or promote some interest or purpose of his own. The former, whether made before or after, or at the same time with the promise of the principal, is not valid, unless manifested by evidence in writing; the latter, if made on good consideration, is unaffected by the statute, because, although the effect of it is to release or suspend the debt of another, yet that is not the leading object on the part of the promisor." See, also, Fitzgerald v. Dressier, 7 C. B. (N. S.) 374 (1859).
1 Castling v. Aubert, 2 East, 325.
2 Fiske v. McGregory, 34 N. H. 414 (1857).
3Cork v. Baker, 1 Strange, 34; Harrison v. Cage, 1 Lord Raym. 387.
4 Derby v. Phelps, 2 N. H. 515.
5 Randall v. Morgan, 12 Ves. 67. In this case it was questioned; but Lord Thurlow, in Dundas v. Dutens, 1 Ves. Jr. 196, and Mr. Justice Story, in Jenkins v. Eldredge, 3 Story, 291, uphold the validity of the contract. See, also, Simmons v. Simmons, 6 Hare, 352. See, however, Montacute v. Maxwell, 1 P. Wms. 618.
6 Dundas v. Dutens, 1 Ves. Jr. 196; Montacute v. Maxwell, 1 P. Wms. 618; s. c. 1 Strange, 236.
§ 1440. The question whether a contract for articles which are the produce of land is within this clause of the statute has given rise to many and conflicting judgments. The cases are so contradictory that it is difficult to state any rule, and it has been said by Lord Abinger that "taking the cases all together, no general rule is laid down in any one of them that is not contradicted by some other."1 The late cases seem, however, clearly to recognize this distinction, that where the contract is for things growing on the land which are such as would go to the heir, it is within the statute; when it is for such crops as would go to the executor, or may be sold on execution, it is a sale of chattels not within this clause.2 Another way of putting the distinction is between annual productions caused by the labor of man which are not within the statute, and the annual productions of nature not referable to the industry of man except at the period when they were first planted, which are within the statute.3 Under the former class are growing crops of grain and vegetables.4
1 Nettleton v. Sikes, 8 Met. 34. But see Smith v. Surman, 9 B. & C. 561. And it is held that the rescission by parol of a sale of land, for which the consideration has not been paid, is not within the statute. Arrington v. Porter, 47 Ala. 714 (1872).
2 Carrington v. Roots, 2 M. & W. 248; Whitmarsh v. Walker, 1 Met. 313; Dubois v. Kelly, 10 Barb. 496; Wolfe v. Frost, 4 Sandf. Ch. 72; Riddle v. Brown, 20 Ala. 412; Mumford v. Whitney, 15 Wend. 380; Stevens v. Stevens, 11 Met. 251; Houghtaling v. Houghtaling, 5 Barb. 379; Thomas v. Sorrell, Vaugh. 350, in which last case the distinction between a mere license and a license coupled with a grant is admirably stated; Wickham v. Hawker, 7 M. & W. 63. See, also, The Collins Co. v. Marcy, 25 Conn. 239. An agreement by W. to take S. into her boarding-house, with lodgings for himself and man and accommodations for a horse, is not an agreement for an interest in land, and need not be in writing. Wright v. Stavert, 2 El. & E. 721 (1860), explaining Inman v. Stamp, 1 Stark. 12; Edge v. Strafford, 1 C. & J. 391. As to what is a contract relating to an interest in lands, see, also, Horsey v. Graham, Law R. 5 C. P. 9 (1869); Kelly v. Webster, 12 C. B. 283; Massey v. Johnson, 1 Exch. 241; Rice v. Roberts, 24 Wis. 461..