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.
4 See Barry v. Ransom, 12 N. Y. 462; Apgar v. Hiler, 24 N. J. L. 812; Ferrell v. Maxwell, 28 Ohio St. 383 In the report of Green v. Creswell, in 4 Jurist, 169, the judges are stated to have themselves referred to the upon the ground that where the defendant is co-surety he is, as such and without any special promise, liable already to contribute, and that his special promise to pay the whole may be regarded as but a matter of regulation of contribution between the two sureties. But to this there are two answers: first, that though called regulation of contribution, it is really a promise to pay what he was not otherwise liable to pay for a third party; and, secondly, that he was never liable to contribute at all except by force of the relation of co-suretyship into which he entered, and owed no antecedent debt or duty of his' own. This distinction failing, the case of Green v. Creswell, so far as it asserted that the defendant's special promise was collateral to the third party's implied liability, and so within the statute, must be regarded as directly in conflict with Thomas v. Cook.
§ 161 b. As an authority for that doctrine, however, Green v. Creswell has been practically overruled by later English cases; and the English rule appears to be now settled in conformity with Thomas v. Cook. Cripps v. Hartnoll, in the Queen's Bench, 1862, was the case of a special promise by the defendaDt to indemnify the plaintiff for becoming surety on the bail-bond of a third party arrested on a criminal charge. It was held that the defendant's special promise was collateral to the third party's implied obligation to indemnify the plaintiff, the court placing their decision on the authority of Green v. Creswell as binding upon them, but at the same time doubting whether that case was rightly decided.1 On appeal to the Exchequer Chamber, the judgment was reversed upon the distinction taken by the court to save the case from the authority of Green v. Creswell, that here the bail-bond was to answer a criminal charge, and that on such a bond there was no implied obligation of the prindifference of fact mentioned in the text, as distinguishing that case from Thomas v. Cook.
1 Cripps v. Hartnoll, 2 Best & S. 697; on appeal, 4 Best & S. 414; 10 Jurist, n. s. 200; 11 Weekly Rep. 953.
cipal to indemnify his surety; but the judges very pointedly declined to be understood as acknowledging the decision in Green v. Creswell, where the bail-bond was in a civil case, to be right. The authority of Green v. Creswell was after wards brought directly in issue in Wildes v. Dudlow,1 1874, before Vice-Chancellor Malins, where the question was whether an executor should be allowed to charge the estate upon the following case: his testator had requested him to make a note jointly with the testator's son-in-law, and for his accommodation, and promised the executor to indemnify him against loss by so doing; and the note having been made accordingly, the executor was compelled to pay. The Vice-Chancellor held that the testator's promise of indemnity was not within the statute, and that the executor could charge the estate; and remarked that the case of Green v. Creswell had been overruled, and the law as laid down in Thomas v. Cook restored. That the case to which he referred as overruling Green v. Creswell really did overrule it, is not true without qualification;2 but the decision of the Vice-Chancellor is directly in conflict with it, and in view of this, and the repeated judicial criticisms to which it had been previously subjected, it may be considered that in England the case of Green v. Creswell is no longer of authority, and that, as first held in Thomas v. Cook, a defendant's special promise to indemnify a plaintiff against loss by becoming responsible for a third person's performance of his duty to a fourth is not brought within the statute by the coexistence of the implied liability of the third party to the plaintiff in such a case.
1 Wildes v. Dudlow, L. R. 19 Eq. 198.
2 It was the case of Reader v. Kingham, 13 C. B. n. 8. 344, in which it was held that the third party's debt, which the defendant promised to answer for. must be (to come within the statute) a debt to the promisee, not a debt to a fourth party; a perfectly sound doctrine, supported by several other cases. Post, § 188. The court in Green v. Creswell certainly asserted the contrary, and perhaps put the decision quite as much upon that ground as upon the ground that the defendant's promise was collateral to the third party's implied obligation to the promisee, the plaintiff. But in so far as the case stood upon the latter ground, it had not been overruled up to the time of Wildes v. Dudlow.
§ 161 c. In Massachusetts the same doctrine prevails,1 and so in New York,2 Maine,3 New Hampshire,4 New Jersey,5 Georgia,6 Kentucky,7 Iowa,8 Indiana,9 Minnesota,10 Wisconsin,11 Nebraska,12 and apparently in Vermont,13 Connecticut,14 and Michigan.15 In Pennsylvania, North Carolina, and Illinois16 the doctrine of Green v. Creswell is maintained, and the special promise to indemnify held to be within the statute, by reason of the coexisting implied obligation of the third party;17 in South Carolina,18 Tennessee,19
1 Aldrich v. Ames, 9 Gray 76. And see Perley v. Spring, 12 Mass. 297; Chapin v. Lapham, 20 Pick. 467; Blake v. Cole, 22 Pick. 97.
2 Sanders v.Gillespie, 59 N. Y. 250. Previous decisions in this State were conflicting. See Harrison v. Sawtel, 10 Johns. 242; Chapin v. Merrill, 4 Wend. 657; Carville v. Crane 5 Hill 484; Kingsley v. Balcome, 4 Barb. 131; Barry v. Ransom, 12 N. Y. 462; Mallory v. Gillett, 21 N. Y. 412; Baker v. Dillman, 12 Abb. Pr. 313. The question has been fully discussed, and the doctrine of Sanders v. Gillespie, following Thomas v. Cook, affirmed in Tighe v. Morrison, 116 N. Y. 263.
3 Smith v. Sayward, 5 Greenl. 504.
4 Holmes v. Knights, 10 N. H. 175; Cutter v. Emery, 37 N. H. 567; Demeritt v. Bickford, 58 N. H. 523.