§ 153. In the fourth section of the Statute of Frauds, special promises by executors or administrators to answer damages out of their own estates appear to be spoken of as one class of that large body of contracts known as guaranties. And there would be no distinction between them, but for the circumstance that the executor or administrator, being the legal representative of the party originally liable, is already, in that capacity, under a liability to pay to the extent of the property which comes to his hands. The statute, therefore, is confined to his special promise to pay out of his own estate. But as such special promise may be treated as collateral to the obligation of the estate which he represents, the distinction after all seems to be more technical than substantial. It will, accordingly, be proper to consider such promises in connection with guaranties, strictly so called, remarking, as we go on, those points in which the application of the statute to the former admits of separate notice. One observation in regard to them, however, it is important to make. As an administrator derives his office and interest from the appointment of the court, the statute affords him no protection against the enforcement of his verbal promise to answer damages out of his own estate, made after the death of the testator but before his own appointment. On the other hand, the office and interest of an executor being completely vested in him at the instant of the testator's death, the statute applies to any such promise made by him after that time.1

1 Tomlinson v. Gill, Ambl. 330; Roberts on Frauds, 201. See post, §186.

§ 154. In considering the general subject of guaranties as affected by the Statute of Frauds, it is proposed to inquire, first, what are debts, defaults, or miscarriages within the meaning of the statute; secondly, what is the nature of that special promise of the guarantor which is required to be in writing; and, thirdly, when do these liabilities so coexist or concur as to bring a case within the statute.

§ 155. The terms "debt, default, or miscarriage" seem to include every case in which one party can become liable to another in a civil action; although, in an early decision, it may be inferred to have been doubted whether they covered cases of tort.l That doubt, however, if it ever existed, was afterwards removed by the judgment of the Court of Queen's Bench, in the case of Kirkham v. Marter. The defendant had there engaged to pay the plaintiff the damage sustained by him from a third person's having, wrongfully and without his license, ridden his horse, and thereby caused its death. All the judges concurred that the liability was such as the statute would cover by force of the word "miscarriage;" Abbott, C. J., remarking that it had not the same meaning as "default or debt," and seemed to him "to comprehend that species of wrongful act, for the consequences of which the law would make the party civilly responsible." Holroyd, J., went somewhat farther, and considered that both "miscarriage" and "default" applied to a promise to answer for another with respect to the non-performance of a duty, though not founded upon a contract.2

§ 156. Under whatever class it may fall, however, the liability of the party for whom a guarantor within the statute makes himself answerable must be a clear and ascertained legal liability, capable of being enforced against the party himself.1 Upon this principle it seems that an agreement to answer for the debt of a married woman is not within the Statute of Frauds; because at common law the contract of a married woman is absolutely void. Where she, or her separate estate, is by law made liable for her debts, the statute applies.2 As to promises to answer for the debt of a minor, not incurred for necessaries, and therefore not enforceable against him upon his plea and proof of infancy, the weight of authority and of reason is in favor of holding that they are within the statute. While it is true that the minor cannot be compelled to pay the debt, if he choose to rely upon his defence of infancy, still the debt is only voidable at his instance, not void, and the defence of infancy is a personal one, of which, as between third parties (the party promising to answer for him, and the party to whom that promise is made), it cannot be assumed that the minor will avail himself; just as we have seen in a previous chapter,3 that in a suit between third parties it cannot be assumed that the promisor under an oral contract covered by the Statute of Frauds would set up that defence in a suit against himself.*

1 Buckmyr v. Darnall, 2 Ld. Raym. 1085.

2 Kirkham v. Marter, 2 Barn. & Ald. 613. It is stated, however, in a note by the reporters, that this case was furnished to them by a gentleman of the bar. The same point has been decided in Connecticut, and the statute held to be applicable to cases of tort, in Turner v. Hubbell, 2 Day, 457. See Combs v. Harshaw, 63 N. C. 198; Hayes v. Burkam, 51 Ind. 130; Baker v. Morris, 33 Kansas 580.

1 Mease v. Wagner, 1 McCord (S. C.) 395; Prentice v. Wilkinson, 5 Abb. (N. Y.) Pr. n. s. 49; First National Bank v. Kinner, 1 Utah, 100; Hooker v. Russell, 67 Wisc. 257; Buchanan v. Moran, 62 Conn. 83. This rule seems to have been overlooked in Ruppe v. Peterson, 67 Mich. 437. In that case goods had been ordered by a man who died before they were delivered. His widow, carrying on his business, subsequently agreed to pay for the goods if they were delivered to her, and they were so delivered. Her promise was held collateral to the liability of the husband's estate: but qucere, for the goods were never delivered to the husband's estate, and it was never liable for them.

2 Connerat v. Goldsmith, 6 Ga. 14. See, as to the general question of the application of the statute to promises to answer for the debt of a married woman, Kimball v. Newell, 7 Hill (N. Y.) 116; Maggs v. Ames, 1 Moore & P. 294; s. c. 4 Bing. 470; Miller v. Long, 45 Pa. St. 350.