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 Bampton v. Paulin, 4 Bing. 264.
§ 210. The next of the leading English cases to which it is deemed necessary to call particular attention, in connection with this branch of the subject, is one which establishes a principle entirely distinct from any of those which have been before examined, though it has been strangely confounded with them. The principle is, that where the transaction between the parties is in its nature a purchase of the debt itself, the defendant's promise to pay the whole or any part of the amount to the original creditor, as the consideration of the purchase, is not affected by the statute. The case referred to is that of Anstey v. Marden in the Common Pleas, where the facts were briefly as follows: The defendant being insolvent, it was verbally agreed between him and one Weston and the defendant's creditors (among whom was the plaintiff), that Weston should pay, and the creditors should accept, ten shillings in the pound upon Marden's debts, in full discharge and satisfaction thereof, and that the creditors should assign their claims to Weston. When it was afterwards proposed to reduce this agreement to writing, the plaintiff refused to sign, and brought this action against Marden for the full amount of his claim, objecting to the defence upon the agreement, and Weston's readiness and ability to perform it, that it was not enforceable against Weston for want of a memorandum in writing, and consequently his own engagement to accept ten shillings was nudum pactum. The defence was nevertheless held good. Chambre, J., said: "This was a contract to purchase the debts of the several creditors, instead of being a contract to pay or discharge the debts owing by Marden. It was of the substance of the agreement that these debts should remain in full force, to be assigned to Weston. When he had purchased them he did not mean to exact them rigorously, but the contract was a contract of purchase, and he had a right to make use of the names of the original creditors to recover the same to the full amount, if Marden had effects to satisfy the debts. Instead of being a contract to discharge Marden from his debts, it was a contract to keep them on foot." 1 If the effect of the decision should be taken to be, that the mere discharge of the third person's liability to his original creditor, without discharging him altogether, is not what the statute contemplates, it might seem to be setting up a nice distinction. But its real force is conceived to be that the primary and essential character of the transaction was a purchase for value of certain choses in action, differing from any other purchase merely in the fact that incidentally the debt of a third party was satisfied.1 And it is perhaps well to observe that this decision is not, as was intimated by one of the judges, in conflict with the previous case of Chater v. Beckett, nor with the still earlier case of Case v. Barber; for in both, while there was a strong resemblance in other respects to Anstey v. Marden, the circumstance of the assignment of the debt to the party making the promise was wanting, and the promise was rightly held to be within the statute.2
1 Slingerland v. Morse, 7 Johns. 463.
2 Rogers v. Collier, 2 Bailey 581.
3 McCray v. Madden, 1 McCord, Law 486. 4 Edwards v. Kelly, 6 Maule &. S. 209.
1 Anstey v. Marden, 1 Bos. & P. X. R. 133. See Therasson v. McSpe-don, 2 Hilton (N. Y.) 1; Humphreys v. St. Louis R. R.,37 Fed. Rep. 307.
§ 211. Lastly, the case of Tomlinson v. Gill requires to be noticed, with a view to an accurate understanding of the question under discussion. The reporter's statement of facts is that "the defendant Gill promised, that if the widow of the intestate John Gill would permit him to be joined with her in the letters of administration of his assets, he would make good any deficiency of assets to discharge the intestate's debts;" and he adds that the case was on a "bill by creditors of the intestate against Gill, for a satisfaction of their debts, and performance of the promise." But apparently this is incorrectly stated, for the Chancellor, Lord Hardwicke, says: "The bill is founded on an argument [agreement], which is not unusual where there is a contest about obtaining administration. It is not uncommon, upon such occasions, for the simple contract creditors to agree, that administration shall be granted to a specialty creditor, upon terms of his agreeing to pay the debts equally and pari passu. Such agreements are seldom put in writing." Again, when speaking of the creditors' right to relief in equity, he says that they are entitled to it, "for the promise was for the benefit of the creditors, and the widow is a trustee for them. 2dly, the bill is brought for an account, and that draws to it relief, like the common case of a bill to be paid a debt out of assets."1 This language is scarcely reconcilable with an absolute engagement to see the whole amount of the debts paid, but indicates rather a transaction in part like that in Castling v. Aubert, the control of the assets being the security acquired by the defendant, and in part like Williams v. Leper, the assets begin a fund between both the defendant and his fellow-creditors. The case was, however, decided before either of those mentioned. The Chancellor remarks that "the modern determinations have made a distinction between a promise to pay the original debt, and on the foot of the original contract, and where it is on a new consideration; " but his only reference is to Read v. Nash, which was decided a few years earlier than the case before the court, and which is declared to be strong to the purpose that here was a new, distinct consideration, such as would take the defendant's promise out of the statute.2 It is difficult to see how Read v. Nash applied. There the defendant promised to pay a certain sum and costs, in consideration that the plaintiff would not proceed to trial, and would withdraw his record, in an action against a third person for assault; and the express ground for the decision was that the third party, the defendant in the action for the assault, was not a debtor, that he did not appear to have been guilty of any default or miscarriage, and that as the cause was not tried, and he might have succeeded, he never was liable to the particular debt, damages, or costs. Clearly, therefore, the case affords no support to the decision in Tomlinson v. Gill, where the debt was certainly actually existing, if that decision be taken as broadly as the reporter's statement indicates.