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 Castling v. Aubert, 2 East 325. The case of Walker v. Taylor, decided by Chief Justice Tindal at nisi prius in 1834, presents a state of facts precisely analogous to those in the principal case, and upon that ground was rightly decided. 6 Car. & P. 752. And see Fitzgerald v. Dressier, 5 C. B. x. s. 885. The following are some of the American cases which seem to be in accordance with the principle of Castling v. Aubert. Allen v. Thompson, 10 N. H. 32. Here the plaintiff had obtained the account-book of his debtor as a pledge to secure the debt, and the defendant, in consideration that the plaintiff would deliver up the book to one B. to collect the demands, verbally promised the plaintiff to pay him the amount due from the debtor if B. should not collect enough for that purpose; the court holding that the delivery of the book to B on the defendant's request was in effect the same as a delivery to the defendant himself. Also Gardiner v. Hopkins, 5 Wend. (X. Y.) 23; French v. Thompson, 6 Vt. 54; Olmstead v. Greenly, 18 Johns. (X. Y.) 12; Hindman v. Langford, 3 Strobh. (S. C.) Law 207; and Wolff v. Koppel, 5 Hill (X. Y.) 458, where the rule was applied (perhaps unnecessarily) to the case of a factor guaranteeing his sales under a del credere commission. A promise by the purchaser of personal property subject to mortgage to pay the mortgage note, the mortgagor continuing liable notwithstanding the promise, is within the statute, and must be in writing. Doolittle v. Naylor, 2 Bosw. (N. Y.) 206.
§ 204. The Supreme Court of Massachusetts has very clearly announced the same doctrine in these cases where the promise is made in consideration of the relinquishment of a lien. It says that it is not enough "that the plaintiff has relinquished an advantage, or given up a lien, in consequence of the defendant's promise, if that advantage had not also directly enured to the benefit of the defendant, so as in effect to make it a purchase by the defendant of the plaintiff. . . . Where the plaintiff, in consideration of the promise, has relinquished some lien, benefit, or advantage for securing or recovering his debt, and where by means of such relinquishment the same interest or advantage has enured to the benefit of the defendant," there his promise is binding without writing. "In such cases, although the result is, that the payment of the debt of the third person is effected, it is so incidentally and indirectly, and the substance of the contract is the purchase, by the defendant of the plaintiff, of the lien, right, or benefit in question." 1
1 Gull v. Lindsay, 4 Exch. 51. The same court, a year later, apply Castling v. Aubert to the case of a verbal agreement that a judgment previously obtained against the defendant as surety on certain old obligations of a third person should stand as collateral security for certain new obligations of that person. Macrory v. Scott, 5 Exch. 907. Parke, B., speaks of the judgment as a fund which is only to be appropriated in a different way, and considers that the case falls within the principle of the decision in Castling v. Aubert. It would seem, however, that if the judgment was already binding on the defendant, and the effect of his promise was only to apply the amount to a different account of the same party, it is better to let the case stand, on the ground that in reality no new obligation is imposed upon the defendant, than to strain unnecessarily so plain a decision as that referred to.
2 Tomlinson v. Gell (not Gill), 6 Ad. & E. 571. See also Chater v. Beckett, 7 T. R. 201, where the plaintiff gave up a ca. set.; but still the defendant's promise was held bad by the statute. Dillaby v. Wilcox, 60 Ct. 71; Warner v. Willoughby, 60 Ct. 468; Bray v. Parcher, 80 Wisc. 16. But see Muller v. Riviere, 59 Texas 640, where forbearance to enforce a lien on goods was the consideration for the promise of the defendant who manages the goods to pay the third person's debt.
§ 205. The case of Houlditch v. Milne, decided by Lord Eldon at nisi prius prior to Castling v. Aubert, seems to stand by itself in English law, so far as it holds that the mere relinquishment of a lien by the creditor, whether it enures to the defendant or not, is sufficient to take the promise of the latter, made in consideration of such relinquishment, out of the statute. In that case, certain carriages belonging to one Copey had been sent by the defendant to the plaintiffs to be repaired, and the defendant gave the orders concerning them. The bill was made out to Copey when the repairs were finished; but the order came from the defendant to pack them up and send them on board ship, and about the same time a verbal statement from him that he would pay for them. Upon the receipt of that engagement, the carriages were packed and shipped accordingly. It was in evidence also that afterwards, when the bill was presented to the defendant, he said he had the money to pay it, though he did not say whether it was his own or Copey's. Lord Eldon said, if a person had obtained possession of goods on which a landlord had a right to distrain for rent, and he promised to pay the rent, though it was clearly the debt of another, yet a note in writing was not necessary, and that such a case appeared to apply precisely to the one before him. The plaintiffs had to a certain extent a lien upon the carriages, which they parted with on the faith of the defendant's promise to pay, and it was held that for that reason the case was out of the statute.1 From the circumstance that the goods in question passed into the hands of the defendant when the lien was relinquished, it might be inferred that it enured to his benefit.2 But in several of the American States, more particularly in South Carolina, it has been broadly decided that the mere relinquishment of the lien by the plaintiffs was sufficient to take the defendant's promise out of the statute.1 In Tennessee the same doctrine has been urged, but the court declined to express an opinion, and determined the case upon another ground.2