(i) Fitzgerald v. Dressier, 29 L. J. (C. P.) 113; 7 C. B. (N S.) (97 E. C. L. R.) 374.
1 Sharpe v. Speckenagle, 3 S. & R. 463; Palethorpe v. Lesher, 2 Rawle, 274; Snevily v. Read, 9 Watts, 396; Lathrop v. Briggs, 8 Cow. 171; Ransom v. Keyes, 9 Bo. 128; and this, although he may have been discharged on terms not afterwards complied with : 1 T. R. 558; 6 lb. 525; 7 lb. 420.- r.
A judgment creditor, who had taken the body of his debtor in execution, agreed that he might be set at liberty on giving security to abide the event of the trial of an issue to be framed for ascertaining whether he had the means, by the property in his marriage settlement or otherwise, of satisfying the judgment; the debtor acknowledging that this agreement was made for his accommodation, without prejudice to the creditor's right by the debtor's enlargement. The issue was tried accordingly, and found for the debtor. Held, that the taking of the body of the debtor in execution was a satisfaction of the debt, at law; and that equity would not enforce the debt against property afterwards coming to the debtor on the death of his wife, by the trusts of the marriage settlement: Magniac v. Thomson, 15 How. 281.-s.
Of the Statute of Frauds? The Court of Queen's Bench, in Mountstephen v. Lakeman (k), held that it' might be, if at the time the promise was made the promisor and promisee expected that a legal obligation would be incurred by the third person. In that case the plaintiff had been employed to construct a main sewer by a Local Board of Health, of which the defendant was chairman. When the sewer was nearly completed the board gave notice (under 11 & 12 Vict. c. 63, s. 69) to the occupiers of the adjoining houses to connect their drainage within 21 days, or the board would do the work at their expense. Before the 21 days had expired, the plaintiff, having completed the sewer, was about to leave the place with his carts, etc., when the defendant sent after him, and the following conversation took place. The defendant said : "What objection have you to making the connections?" The plaintiff answered : "I have none; if you or the board will order the work, or become responsible for the payment." The defendant replied: "Go on and do the work, and I will see you paid." Plaintiff accordingly did the work under the superintendence of the surveyor of the *board; and sent in the account to the board debiting them with the amount. The board refused payment on the ground that they had not authorised the order, and after more than two years, the account being still unpaid, the plaintiff brought an action against the defendant. The Court of Queen's Bench thought that the conversation did not amount to an undertaking of the defendant to be primarily liable for the work; but only to a promise that, if the plaintiff would do the work on the credit of the board, the defendant would pay if the board did not; and that this was a promise to be answerable for the debt of another within sect. 4 of the Statute of Frauds, which not being in writing could not be enforced. The Court of Exchequer Chamber however thought that there was evidence on which the jury might have found that the defendant agreed to be primarily liable, and on this ground reversed the judgment of the Queen's Bench (7); and the decision of the Exchequer Chamber was subsequently affirmed in the House of Lords (m). The affirmative proposition therefore laid down by the Court of Queen's Bench being in the opinion of the Exchequer Chamber not necessary to the decision of the case, and the House of Lords affirming the decision of the latter, *the proposition itself seems at present still doubtful, so far at least as it is inconsistent with the previous decisions (n).
(4) L. E. 5 Q. B. 613; 39 L. J. (Q. B.) 275
It was at one time thought that a verbal promise,. even to answer for the debt of another for which that other remained liable, might be available if founded on an entirely new consideration, conferring a distinct benefit upon the party making such promise. This idea is, however, confuted by Serjt. Williams in his elaborate note to the case of Forth v. Stanton (0). The rule there laid down by him, which has ever since been approved of, is, that the only test and criterion by which to determine whether the promise needs to be in writing, is the question whether it is or is not a promise to answer for a debt, default, or miscarriage of another, for which that other continues liable (p). If it be so, it must be reduced into writing; nor can the considera(l) L. E. 7 Q. B. 196; 41 L J. (Q. B.) 67.
(m) Lakeman v. Mountstephen, L. E. 7 H. L. (E. & I.) 17; 43 L. J. (Q. B.) 188.
(n) But see the judgment of Lord Selborne, L. E. 7 H. L. (E. & I.) at p. 24 43 L. J. (Q. B.) 192.
(o) 1 Wms. Saund. 211.
(p) Hodgson v. Anderson, 3 B. & C. (10 E. C. L. E.) 855; Taylor v. Hilary, 1 C. M. & E. 741; Browning v. Stallard, 5 Taunt. (1 E. C. L. E.) 450. 118 tion in any case be of importance except in such cases as Goodman v. Chase, in which the consideration to the person giving the promise is something which extinguishes the original debtor's liability (q).1 It has
(q) You will see Sergt. Williams's criterion approved of in Green v. Cress-well, 10 A. & E. (37 E. C. L. R.) 453, and Tomlinson v. Gell, 6 A. & E. (33 E. C. L. R.) 564.
1 To guard against the danger arising from the facility by which loose or ill-remembered words might be tortured into a contract on the part of him who used them, the common law wisely provided that a liability should not depend upon mere words unaccompanied by a consideration for their basis. And as the danger was felt to be the more strong where the words related not to an undertaking by a party for his own benefit, but on behalf of a third person, the fourth section of the Statute of Frauds superadded a writing to the common law requirement of a consideration. Whether such a provision has been conducive of more benefit than harm may well be doubted (see Holmes v. Knights, 10 N. H. 176), for the decisions to which it has given rise are as remarkable for their multitude as for the difficulty of their perfect classification.