I have now touched on the points which [with one exception made by the provisions of a recent statute in the case of guaranties] equally apply to each of those five species of contracts to which the 4th section of the Statute of Frauds relates; those, namely, which regard the appearance in the writing of the consideration and other terms as well as the promise, the signature which the statute requires, and the consequences of not reducing into writing contracts which the statute requires should be so evidenced. It remains, before terminating the consideration of that section of the Act, to consider each of the five particular species of contracts to which it applies.
The first is-any special promise by an executor or administrator to answer damages out of his own estate.
The principal case on this subject is Rann v. *Hughes (a), which went up to the House of Lords. The point decided in that case is, that the Statute of Frauds in no manner affected the validity of such promises, or rendered them enforceable in any case in which at Common Law they would not have been so; but merely required that they should be
(a) 7 T. R. 350, n.; 7 Bro. Parl. C. 550. Forth v. Stanton, 1 Wms. Saund. p. 211, n. 2. 110 reduced into writing leaving the written contract to be construed in such a manner as a parol contract would have been, had there been no writing. The opinion of the judges was delivered to the House of Lords by L. C. Baron Skynner, and is extremely instructive. Being very short, it is here inserted :-"It is undoubtedly true that every man is by the law of nature bound to fulfil his engagements. It is equally true that the law of this country supplies no means nor affords any remedy to compel the performance of any agreement made without sufficient consideration. Such agreement is nudum pactum ex quo non oritur actio; and whatever may be the sense of this maxim in the civil law, it is in the last-mentioned sense only that it is to be understood in our law. The declaration states that the defendant, being indebted as administratrix, promised to pay when requested, and the judgment is against the defendant generally. The being indebted is of itself a sufficient consideration to ground a promise, but *the promise must be co-extensive with the consideration, unless some particular consideration of fact can be found here to warrant the extension of it against the defendant in her own capacity. If a person indebted in one right, in consideration of forbearance for a particular time, promise to pay in another right, this convenience will be a sufficient consideration to warrant an action against him or her in the latter right; but here no sufficient consideration occurs to support this demand against her in her personal capacity, for she derives no advantage or convenience from the promise here made. For if I promise generally to pay upon request what I was liable to pay upon request in another right, I derive no advantage or convenience from this promise, and therefore there is not sufficient consideration for it. But it is said that if this promise is in writing, that takes away the necessity of a consideration, and obviates the objection of nudum pactum, for that cannot be where the promise is put in writing: and that after verdict, if it were necessary to support the promise that it should be put in writing, it will after verdict be presumed that it was in writing: and this last is certainly true; but that there cannot be nudum pactum in writing, whatever may be the rule of the civil law, there is certainly none such in the law of England. All contracts are by the laws of England distinguished into agreements by specialty and agreements by parol; nor is there any such *third class, as some of the counsel have endeavoured to maintain, as contracts in writing. If they be merely written and not specialties, they are parol, and a consideration must be proved. But it is said that the Statute of Frauds has taken away the necessity of any consideration in this case; the Statute of Frauds was made for the relief of personal representatives and others, and did not intend to charge them further than by common law they were chargeable." His Lordship here read those sections of that statute which relate to the present subject. He observed, "that the words were merely negative, and that executors and administrators should not be liable out of their own estates, unless the agreement upon which the action was brought, or some memorandum thereof, was in writing and signed by the party. But this does not prove that the agreement was still not liable to be tried and judged of as all other agreements merely in writing are by the common law, and does not prove the converse of the proposition, that when in writing the party must be at all events liable." He said that "all his brothers concurred with him that in this case there was not a sufficient consideration to support this demand as a personal demand against the defendant, and that its being now supposed to have been in writing makes no difference."1
The next species of promise mentioned in the 4th section is, any special promise to answer for the debt, default, or miscarriage of another person.
*This includes all those promises which we ordinarily denominate guaranties, and has given rise to a very great deal of discussion.
In the first place, it has been decided, that the sort of promise which the statute means, and which must be reduced into writing, is a promise to answer for the debt, default, or miscarriage of another person, for which that other person himself continues liable. Thus, if A. go to a shop, and say, "Let B. have what goods he pleases to order, and if he do not pay you I will," that is a promise to answer for a debt of B. for which B. is himself also liable: and if it be sought to enforce it, it must be shown to have been reduced into writing: but if A. had said,"Let B. have goods on my account," or, "Let B. have goods and charge me with them:" in these cases no writing would be required, because B. never would be liable at all, the goods being supplied on A.'s credit and responsibility, though handed by his directions to B. (b).2