This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
1 Thornton v. Williams, 71 Ala. 555. .
2 See Waterman v. Rossiter, 45 111. App. 155.
1 Towne v. Grover, 9 Pick. (Mass.) 306. And see Scott v. Thomas, 1 Scam. (111.) 58.
2 Marion v. Faxon, 20 Conn. 486. A distinction has been intimated between promising that property levied upon and released to the debtor should be returned, and promising that the debtor should return it, but this seems to be a mere criticism upon words. Tindal v. Touchberry, 3 Strobh. (S. C.) Law, 177.
3 Bushell v. Beavan, 1 Bing. N. R. 103. The ground taken by the court was that no one was bound collaterally with the defendant to procure the signature to the guaranty. This seems to be but a narrow view of the case, for if the effect of the defendant's promise was to engage that the original debt should be paid (which was the further and essential question), then it was collateral to the debtor's own liability. This case was commented upon unfavorably in Carville v. Crane, 5 Hill (N. Y.) 483.
§ 178. A mere engagement to let a party have goods by way of purchase, which goods are to be applied in payment of a debt of the purchaser, it can scarcely be necessary to say, is not affected by the Statute of Frauds.1 But where, upon an account stated between two parties, it appeared that a large part of an amount which one acknowledged by letter to have received from the other was a sum due to the latter from a third party, which the former allowed to be transferred to the debit side of his account, it was held that he was not liable for that sum, the arrangement amounting to a promise without consideration to pay such third party's debt.2 A conditional promise also, as, to pay a certain sum for a third person if so much should be found to be owing by him, is held to be within the statute.3
§ 170. It has been said that a promise to pay only a, portion of the debt, in satisfaction of the whole, if the debtor failed to meet his obligation, was not within the statute, because it was not a promise to answer for the debt due.4 The case in which the remark was made, however, was decided on wholly independent grounds, and this distinction (which is, if for no other reason, to be deprecated as founded merely upon the letter of the statute) appears to have been entirely disregarded in a late decision of the Lord Chancellor.5
§ 180. It hardly needs to be said that an administrator's verbal submission to arbitration of a claim against his intestate's estate will be binding upon him, notwithstanding the
1 Price v. Combs, 7 Halst. (N. J.) 188. Mather v. Perry, 2 Denio (N. Y.) 162. See Moorehouse v. Crangle, 36 Ohio St. 130.
2 French v. French, 2 Man. & G. 644. 3 Barry v. Law, 1 Cranch (C. C.) 77.
4 By Mansfield, C. J., in Anstey v. Marden, 1 Bos. & P. N. R. 124. See post, § 210, where that case is fully examined. A similar suggestion is made in Jolley v. Walker, 26 Ala. 690.
5 Emmet v. Dewhurst, 3 McN. & G. 587.
Statute of Frauds, such a submission having no effect to hold him liable to pay the award out of his own estate.1
§ 181. Since the case of Pasley v. Freeman,2 decided in the Queen's Bench in 1789, it has been considered, both in England and in this country, that the provisions of the statute in regard to verbal promises to answer for the debts, defaults, or miscarriages of others do not apply to false and deceitful representations as to the credit or solvency of third persons. The doctrine commends itself as a firm stand taken by the courts against actual frauds and cheats, but at the same time comes dangerously near to an invasion of the statute which was wisely designed to prevent them; and accordingly it has been strongly condemned by Lord Eldon.3 Impelled because the presence of this element of intention to deceive and defraud was the very point on which Pasley v. Freeman held that Stat. 29 Car. II., did not apply; and the purpose of the Tenterden Act was to require writing in a case for which 29 Car. II. had failed to do so.1 Nevertheless it has been held in several States that the Tenterden Act, as re-enacted there, did not require writing in cases of misrepresentation in regard to credit, etc., if fraudulently made.2
1 Ailing v. Munson, 2 Conn. 691; Holderbaugh v. Turpin, 75 Ind. 84. See the whole subject of submissions by administrators and executors well discussed in Williams on Executors, 1519-1522.
2 Pasley v. Freeman, 3 T. R. 51, followed in England in Eyre v. Duns-ford, 1 East 318; Haycraft v. Creasy, 2 East 92; Tapp v. Lee, 3 Bos. & P. 367; Foster v. Charles, 6 Bing. 396; and in this country in Wise v. Wilcox, 1 Day (Conn.) 22; Hart v. Tallmadge, 2 Day (Conn.) 381; Russell v. Clark, 7 Cranch (C. C.) 69; Patten v. Gurney, 17 Mass. 182; Benton v. Pratt, 2 Wend. (N. Y.) 385; Allen v. Addington, 7 Wend. (N. Y.) 9; Upton v. Vail, 6 Johns. (N. Y.) 181; Ewins v. Calhoun, 7 Vt. 79; Weeks v. Burton, 7 Vt 67; Warren v. Barker, 2 Duv. (Ky.) 155.
3 In Evans v. Bicknell. 6 Ves. 186, the remarks of the learned judge are so judicious that it may be well to insert them. He says of Pasley p. Freeman: "The doctrine laid down in that case is in practice and experience most dangerous. I state that upon my own experience; and if the action is to be maintained in opposition to the positive denial of the defendant against the stout assertion of a single witness, where the least deviation in the account of the conversation varies the whole, it will become necessary, in order to protect men from the consequences, that the Statute of Frauds should be applied to that case. Suppose a man asked whether a third person may be trusted answers, ' You may trust him; and if he does not pay you, I will.' Upon that the plaintiff cannot recover; because it is a verbal undertaking for the debt of another. But if he does not undertake, but simply answers, ' You may trust him: he is a very honest man and worthy of trust,' etc., then an action will lie. Whether it is fit the law should remain with such distinctions, it is not for me to determine. Upon the case of Pasley v. Freeman, I have always said, when I was Chief Justice, that I so far doubted the principles of it by that consideration, Parliament enacted what may be called a supplement to the Statute of Frauds, to the effect that "no action shall be brought whereby to charge any person upon or by reason of any representation or assurance made or given concerning or relating to the character, conduct, credit, ability, trade, or dealings of any other person,1 to the intent or purpose that such other person may obtain credit, money, or goods upon [meaning 'money or goods upon credit'],2 unless such representation or assurance be made in writing, signed by the party to be charged therewith."3 The plain meaning of this statute seems to be that it requires writing to charge a defendant upon any representation made in regard to the credit, etc. of a third party, whether the representation was made in good faith, or was known to be false and was made in order to deceive and defraud the plaintiff; as to make it not unfit to offer, as I always did, to the counsel, that a special verdict should be taken: but that offer was so uniformly rejected, that I suppose I was in some error on this subject. I could therefore only point out to the jury the danger of finding verdicts upon such principles; and I succeeded in impressing them with a sense of that danger so far, that the plaintiffs in such actions very seldom obtained verdicts. It appears to me a very extraordinary state of the law, that if the plaintiff in the case of Pasley v. Freeman had come into equity, insisting that the defendant should make good the consequence of his representation, and the defendant positively denied that he had made that representation, and only one witness was produced to prove it, the court of equity would give the defendant so much protection that they would refuse the relief; and yet upon the very same circumstances the law would enable the plaintiff to recover. Whether that is following equity, or not quite outstripping equity, is not a question for discussion now; but it leads to the absolute necessity of affording protection by a statute, requiring that these undertakings shall be in writing." This was done twenty-seven years after by Lord Tenterden's Act, referred to in the text. See also Carr, ex parte, 3 Ves. & B. 108.