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.
177. In 1 Wms. Saund. 211 b, a note to Forth v. Stanton, it is suggested that Houlditch v. Milne may be reconciled with the other cases, because it appears upon all the circumstances of the case that the sole credit was given to the defendant, and that the real owner of the carriages was not at all liable; on which ground the case would clearly be not within the statute.
1 See Mercein v. Andrus, 10 Wend. (N. Y.) 461, which, however, was actually determined upon a different question unconnected with the statute. Also Slingerland v. Morse, 7 Johns. (N. Y.) 463; Stewart v. Hinkle, 1 Bond (C. C.) 506; and the following South Carolina cases: Adkinson v. Barfield, 1 McCord, Law 575; Siau v. Pigott, 1 Nott & McC. 124; Dunlap v. Thome, 1 Rich. Law 213; Whitehurst v. Hyman, 90 N. C. 487.
2 Randle v. Harris, 6 Yerg. 508.
1 Williams v. Leper, 3 Burr. 1886. In the report of the case in 2 Wilson 308, it is said that Taylor, the tenant, had made a bill of sale to Leper as trustee for the creditors. See Clark v. Hall, 6 Halst. (X. J.) 78; Alger v. Scoville, 1 Gray (Mass.) 391; Woodward v. Wilcox, 27 Ind. 207; Stoudt v. Hine, 45 Pa. St. 30. See ante, § 187.
1 Both these points are well illustrated in the similar case of Edwards v. Kelly (see post, § 208), where the argument was that, as no consideration moved to the defendant, and as the defendant had no personal interest in the transaction, Williams v. Leper did not apply; but, notwithstanding those facts, the court held it did apply because of another and the true point in that case.
2 This view of such transactions, where the property of the debtor is ing "it was much better so to apply than to put in a distress and stop the sale," when the defendant, after inquiring the amount, said, "Madam, you shall be paid; my clerk shall bring you the money." The court were all clearly of opinion that the case was not distinguishable from Williams v. Leper, and refused to set aside a verdict for the plaintiff.1
§ 207. It is deemed well worth while to have analyzed this decision, because out of a misunderstanding of it has grown a doctrine, which seems to make a dead letter of the Statute of Frauds in many cases of promises to pay the pre-existing debt of another; namely, that any new consideration, distinct from the debt and moving between the parties to the guaranty, will take it out of the statute.
§ 208. In a case in the Queen's Bench, the facts were almost identical with those in Williams v. Leper, and the correct view of that decision well enforced and illustrated. A third party owed the plaintiff for rent, and the plaintiff distrained upon the premises, cattle, goods, and chattels, of greater amount than the rent in arrear, and the same were about to be sold to satisfy his claim; whereupon it was agreed between him and the defendants that he should deliver up the distress and permit the goods to be sold by one of them for the tenant, upon their joint undertaking to pay the plaintiff the rent due. That undertaking was held binding. Lord Ellenborough, C. J., said: "Perhaps this case might be distinguishable from that of Williams v. Leper, if the goods distrained had not been delivered up to the defendants. But here was a delivery to them in trust, in effect, to raise by sale of the goods sufficient to satisfy the plaintiff's demand; the goods were put into their possession subject to this trust."1 All the judges concurred in the opinion that Williams v. Leper was decisive of the ease. Afterwards, that decision was recognized and applied in the Common Pleas. The defendant, an auctioneer, was employed by third parties to sell certain goods on the premises, and the plaintiff's agent applied to him for rent due to the plaintiff, sayplaced in the hands of the defendant, as his agent, or trustee, is clearly set forth in Belknap v. Bender, 75 N. Y. 446; Ackley v. Parmenter, 98 N. Y. 425.
1 Edwards v. Kelly, 6 Maule & S. 208. Note the suggestion of Bay-ley, J., in which Holroyd, J., concurred, that making the distress suspended the debt, and that consequently when the promise was made there was no debt to which it was collateral.
§ 209. It seems, therefore, that the English courts have clearly apprehended the force of Williams v. Leper as embracing mere cases of a trust assumed by the defendant in regard to property in the hands or under the control of the plaintiff, and in which the discharge of the third person's debt was merely incidental to the execution of that trust. It does not decide, any more than Castling v. Aubert decides, that the mere relinquishing by the plaintiff of his hold upon the property is, as being "a new consideration moving between the immediate parties to the guaranty," a circumstance sufficient to take the promise of the defendant out of the statute. In the case of Slingerland v. Morse, in New York, the declaration stated that the defendants, in consideration that the plaintiff had delivered to them certain articles, undertook and promised by their agreement in writing (which, however, as it did not express any consideration, was inefficient as a memorandum) to deliver the same articles to the plaintiff on demand or pay $450. The proof was that one Buys was duly authorized by the plaintiff to distrain for rent to that amount due to the latter from his tenant, and that the articles mentioned in the declaration were duly distrained, of which notice was given to the tenant, accompanied with an inventory of the articles distrained, but the goods were not removed; and that the defendants, at the request of the tenant, signed an agreement indorsed upon the inventory of the goods, as follows: "We do hereby promise to deliver to Peter Slingerland all the goods and chattels contained in the within inventory, in six days after demand, or pay the said Peter $450." Buys thereupon suspended the sale of the goods and left them in the house of the tenant. The court below considered this to be a mere collateral undertaking, but on motion for a new trial the Supreme Court held the case of Williams v. Leper to be in point, and granted the motion.1 But it is obvious that the distinguishing feature of that case escaped the court; inasmuch as the proof before them did not show that the defendants were to do anything with the goods towards paying the debt; their agreement being, in substance, that the distress should be simply forborne for six days, at the end of which time the goods should be delivered up or the money paid. The doctrine in Williams v. Leper, however, may be rightly applied, as it has been in South Carolina, to cases where the plaintiff simply suspends an execution upon goods of the debtor, in consideration of the promise of the defendant to apply the proceeds of the goods to the satisfaction of the execution;2 or where the defendant simply holds the goods from the original debtor for the purpose of paying the debt, and promises to pay it, if the creditor will postpone his attachment.3 In such cases, the remark of Mr. Justice Bayley perfectly applies; the substance of the contract "is as if the defendants had proposed to the plaintiff in these words: You must convert the goods into money in order to satisfy yourself the arrears due, if you will allow us to do this we will pay you."4