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 Per Shaw, C. J., in Curtis v. Brown, 5 Cush. 491. And see Nelson v. Boynton, 3 Met. (Mass.) 390; Alger v. Scoville, 1 Gray (Mass.) 398; Fish v. Thomas, 5 Gray (Mass ) 45; Dexter v. Blaucbard, 11 Allen (Mass.) 365; Burr v. Wilcox, 13 Allen (Mass.) 269; Ames v. Foster, 106 Mass. 400; Brightman v. Hicks, 108 Mass. 216; Richardson v. Bobbins, 124 Mass. 105; Smith v. Sayward, 5 Greenl. (Me.) 504; Boyce v. Owens, 2 McCord (S. C.) Law 208; Scott v. Thomas, 1 Scam. (111.) 58; Scott v. White, 71 111. 287; Stern v. Drinker, 2 E. D. Smith (N. Y.) 401; Van Slyck v. Pulver, Hill & D. (N. Y.) 47; Fay v. Bell, Hill & D. (N. Y.) 251; Mallory v. Gillett, 23 Barb. (N. Y.) 610; Spooner v. Drum, 7 Ind. 81; Luark v. Malone, 34 Ind. 444; Conradtr. Sullivan, 45 Ind. 180; Crawford v. King, 54 Ind. 6; Krutz v. Stewart, 54 Ind. 178; Lampson v. Hobart, 28 Vt 697; Cross v. Richardson, 30 Vt. 641. See Stewart v. Campbell, 58 Me. 439; Hodgins v. Heaney, 15 Minn. 185; Young v. French, 35 Wisc. 1ll; Muller v. Riviere, 59 Texas 640; Waterman v. Rossiter, 45 111. App. 155. The case of King v. Despard, 5 Wend. (N. Y.) 277, the facts of which are very similar to those in Curtis v. Brown, is perhaps determinable upon the ground that the claim against the original debtor was actually abandoned. See also, in support of the text, Corkins v. Collins, 16 Mich. 478; Arnold v. Stedman, 45 Pa. St. 186; Clapp v. Webb, 52 Wisc. 638; Gray v. Herman, 75 Wisc. 453; Vaughn v. Smith, 65 Iowa 579; Fisher v. Wilmoth, 68 Ind. 449; Stewart v. Jerome, 71 Mich. 201; Borchsenius v. Canutson, 100 111.82; Prime v. Koehler, 77 N. Y. 91; Prout v. Webb, 87 Ala. 593; Williamson v. Hill, 3 Mackey (D. of C.) 100; Rogers v. Empkie Hardware Co., 24 Neb. 653; French v. French, 84 Iowa 655; Parker v. Dillingham, 129 Ind. 542; Scudder v. Carter, 43 111. App. Ct. 252; Lyons v. Daugherty, 26 S. W. Rep. (Tex.) 146. Contra, Shook v. Vanmater, 22 Wisc. 532. Where a distinct consideration passes between the parties to a guaranty contract, it is without the statute. Graves v. Shulman, 59 Ala. 400. The necessity of the claim relinquished enuring to the benefit of the promisor seems to have been overlooked in Power v. Rankin, 114 111. 52; but the case was rightly decided, the promisor having funds of the debtor in his hands. See supra, § 187.
1 Houlditch v; Milne, 3 Esp. 86. If, as is intimated in the report, the defendant in this case had money of the principal debtor in his hands to pay the debt with there would be no difficulty in the decision. It would be a mere case of trust, and of course not within the statute. See ante, and compare Williams v. Leper, cited in the following section. In Bushell v. Beavan, 1 Bing. X. C. 103. there is an intimation of the court to a similar effect with Houlditch v. Milne, but it was unnecessary to the case, which was in point of fact determined on another ground.
2 This was the case in Tindal v. Touchberry, 3 Strobh. (S. C.) Law
§ 206. But it is obvious that Houlditch v. Milne was decided upon the supposed application of Williams v. Leper, a very conspicuous case upon this branch of the subject, and one which must now be examined, both as affording a test of the correctness of the first-mentioned decision, and as introducing us to another and most comprehensive class of cases. It will appear that the doctrine alluded to in the last section finds no support whatever in that case, when closely examined and rightly understood. The facts were that one Taylor, who was tenant to the plaintiff, being three-quarters of a year (or forty-five pounds) in arrear for rent, and insolvent, conveyed all his effects for the benefit of his creditors. They employed Leper, the defendant, as a broker, to sell the effects, and he advertised a sale of them accordingly. On the morning advertised for the sale, Williams, the landlord, came to distrain the goods in the house. Leper, having notice of the landlord's intention to distrain them, promised to pay the arrear of rent if he would desist from distraining; and he did thereupon desist. All the judges agreed that Leper's promise was not within the Statute of Frauds; and, although there are some differences in the language of their reported opinions, the ground of their decision appears to be sufficiently clear. The Chief Justice, Lord Mansfield, said: "The res gesta would entitle the plaintiff to his action against the defendant. The landlord had a legal pledge. He enters, to distrain: he has the pledge in his custody. The defendant agrees 'that the goods shall be sold, and the plaintiff paid in the first place.' The goods are the fund: the question is not between Taylor and the plaintiff. The plaintiff had a lien upon the goods. Leper was a trustee for all the creditors; and was obliged to pay the landlord, who had the prior lien. This has nothing to do with the Statute of Frauds. It is rather a fraud in the defendant to detain the £45 from the plaintiff, who had an original lien upon the goods." Mr. Justice Aston said he looked upon the goods as the debtor, as a fund between both, and he thought that Leper was not bound to pay the landlord more than the goods sold for, in case they had not sold for £45. Mr. Justice Wilmot said, "Leper became the bailiff of the landlord: and when he had sold the goods the money was the landlord's (as far as £45) in his own bailiffs hands. Therefore an action would have lain against Leper for money had and received to the plaintiff's use." And in this view Mr. Justice Yates concurred.1 Now the promise of Leper was in terms, it is true, to pay the debt in consideration of the surrender of the landlord's lien, and it was argued that he promised absolutely to pay it, and not to pay it out of the goods, or with any other restriction. But it is clear, in the first place, that it was not simply because the landlord surrendered his lien (which, being a damage to him, was a special consideration moving from him and supporting the defendant's promise) that such promise was held good; and hence Houlditch v. Milne, which depends upon this notion, cannot, to any such extent, be sustained. And in the second place, it is clear that the decision did not proceed upon the mere ground that Leper had acquired the lien which the landlord had lost, so as to make him personally a purchaser of that lien for a certain value, to wit, the amount of the debt he undertook to pay; for he was considered by all the judges as the mere trustee of the creditors whom he represented, and not as a purchaser of the lien for his own benefit; and hence the case is to be distinguished from that of Castling v. Aubert, which was merely and purely a sale of the security.1 The judges really treat it, not as a promise to pay the debt in consideration of the forbearance to distrain (which is the manner in which it is presented upon the statement of facts), but as a transaction by which certain goods were intrusted out of the landlord's constructive possession and put in Leper's hands, for the purpose of his converting them into money wherewith to pay, among other debts, that due to the landlord. It was a mere case of agency or trust. The goods were the fund in regard to which it was to be exercised. As Mr. Justice Wilmot said, Leper became the bailiff of the landlord; and it is most worthy of notice that the court seem to agree that, if the goods had not sold for more than the landlord's debt, Leper would not have been liable beyond the proceeds of the sale. The result is that Leper's obligation hardly arose out of his special promise at all. The res gesta would have entitled the landlord to his action against him, as Lord Mansfield expressly says.2