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 Fish v. Hutchinson, 2 Wife. 94; Chater v. Beckett, 7 T. R. 201; Wain v Warlters, 5 East 10; D'Wolf v. Rabaud, 1 Pet. (U. S.) 476; Sears v. Brink, 3 Johns. (N. Y.) 210; Gillighan v. Boardman, 29 Me. 79; Huntress v. Patten, 20 Me. 28; Ware v. Adams, 21 Me. 177; Elliott v.
§ 192. Having now considered what is meant by the debt, default, or miscarriage of another, and what is meant by the special promise of the defendant, it remains to be ascertained when the two are so connected as to make a case within the statute; or, in other words, when the defendant's special promise is to answer for the third party's debt, default, or miscarriage. It has come to be customary to speak of such special promise as collateral to the obligation of the original debtor; and though the use of that term, as defining the nature of the promise which the statute means to embrace, has been sometimes criticised, it is believed to be, not only in the main but in strictness, correct. As will be explained hereafter, there are many cases where the obligation of the defendant is concurrent with that of the third party, and is discharged when that is discharged, and yet is not held to be affected by the statute; and for the sole reason, as our subsequent inspection of those cases will show, that it is not essentially an obligation of guaranty of, or in other words, not essentially collateral to, that of the third party. Understanding by a collateral obligation, one which is made for the purpose of securing the performance of another, and which exists only so long as that other exists, it may fairly be said that collateral promises are just what the statute intends shall be proved by writing. The question of phraseology is, however, of little consequence, except so far as it may be necessary to justify the occasional use of that term hereafter.
Giese, 7 Harr. & J. (Md.) 457; Crane v. Bulloch, R. M. Charl. (Ga.) 318; Rose v. O'Linn, 10 Neb. 304; Crooks v. Tully, 50 Cal. 254.
1 Loomis v Newhall, 15 Pick. (Mass.) 159; Hargroves v. Cooke, 15 Ga. 321.
§ 193. In the first place, the two obligations must concur or run together. Take the cases of special promises to answer for the payment of pre-existing debts of third persons. Here the statute does not apply if the liability of the original debtor is extinguished by the making and acceptance of the special promise. It has been argued that, as to such pre-existing liabilities, the language of the statute did not necessarily require that they should continue to exist concurrently with the defendant's promise, but that if one undertakes "to satisfy the debt of a person already indebted, in consideration of his instantaneous release, there seems to be no good reason for saying, that this is not a promise to answer for the debt of another within the reason and contemplation of the Act of Parliament."1 On the other hand, it may be said that if such had been the intention of Parliament, the more apt language would have been that no action should be brought to charge a person upon any special promise to pay another's debt, or to answer for his default or miscarriage, and that by the exclusive use of the latter expression, which, as applied to executory liabilities of another, undoubtedly means a collateral or contingent engagement merely, it was intended to put all special promises upon that same footing. And such would appear to have been the general policy of the statute; for the danger of perjury was in the temptation to try to hold a third party, where the claim against him who had been originally liable had proved worthless. But, however all this may be, it is now clearly settled by authority in both countries, that if, by the arrangement between the parties, the original debtor is discharged, the defendant's promise is good without writing; it clearly raises, in such case, an original and absolute, and not a collateral and contingent, liability.2 Upon this principle it has been held in England
1 Roberts on Frauds, 225.
2 Goodman v. Chase, 1 Barn. & Ald. 297; Bird v. Gammon, 3 Bing. N. C. 883; Butcher v. Steuart, 11 Mees. & W. 857; Gull v. Lindsay, 4 Exch. 45; Stone v. Symmes, 18 Pick. (Mass.) 467; Curtis v. Brown, that an agreement to convert a separate into a joint debt is not within the statute; the effect being to create a new debt, in consideration of the former being extinguished.1 And so a promise to pay the debt of another, in consideration that the plaintiff, who has taken him on a ca. sa., will discharge him out of custody, is original and not within the statute; such discharge working an extinguishment of the debt,2 Of course it must be a question to be determined upon all the circumstances of each case, whether the original debtor has been in fact discharged.1
5 Cush. (Mass.) 492, per Shaw, C. J.; Anderson v. Davis, 9 Vt. 136; Watson v. Randall, 20 Wend. (N. Y.) 201; Allshouse v. Ramsay, 6 Whart. (Pa.) 331; Draughan v. Bunting, 9 Ired. (N. C.) 10; Click v. McAfee, 7 Port. (Ala.) 62: Armstrong v. Flora, 3 T. B. Mon. (Ky.) 43; Wood v. Corcoran, 1 Allen (Mass.) 405; Lord v. Davison, 3 Allen (Mass.) 131; Haggerty v. Johnson, 48 Ind. 41; Mead v. Keyes, 4 E. D. Smith (N. Y.) 510; Andre v. Bodman, 13 Md. 241; White v. Solomonsky, 30 Md. 585; Eddy v. Roberts, 17 111. 505; Gleason v. Briggs, 28 Vt. 135. Watson v. Jacobs, 29 Vt. 169; Quintard v. D'Wolf, 34 Barb. (N. Y.) 97; Booth v. Eighmie, 60 N. Y. 238; Griswold v. Griswold, 7 Lans. (N. Y.) 72; Yale v. Edgerton, 14 Minn. 194; Parker v. Heaton, 55 Ind. 1. Whittemore v. Wentworth, 76 Me. 20; Thornton v. Guice, 73 Ala. 321; Carlisle v. Campbell, 76 Ala. 247; Doss v. Peterson, 82 Ala. 253; Miller v. Lynch, 17 Oregon 61; Brant v. Johnson, 46 Kansas 389; Webster v. Le Cornpte, 74 Md. 249; Keadle v. Siddens, 5 Ind. App. Ct. 8; Eden v. Chaffee, 160 Mass. 225. So if the estate be discharged, the executor's promise to pay the debt is binding without writing. Harrington v. Rich,
6 Vt. 666; Robinson v. Lane, 14 Sm. & M. (Miss.) 161; Mosely p. Taylor, 4 Dana (Ky.) 542; Bott v. Barr, 95 Ind. 243. If the discharge be by protracted forbearance in pursuance of a general agreement to forbear for an indefinite time, quaere if the statute applies. Templetons v. Bascom, 33 Vt. 132. See Brightman v. Hicks, 108 Mass. 246; Bunting v. Darbyshire, 75 111. 408. In Skelton p. Brewster, 8 Johns. (N. Y.) 376, and Cooper v. Chambers, 4 Dev. (N. C.) 261, the debtor was discharged, but the court took another and a less satisfactory ground for their decision. In Tompkins v. Smith, 3 Stew. & P. (Ala.) 54, the court "think there is no difference between a promise on consideration of giving day to the original debtor, and his discharge, - they both relate to his indebtedness." (!)