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Full text of "A treatise on the statute of frauds"

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Cornell University Law Library 

The Moak Collection 

PURCHASED FOR 

The School of Law of Cornell University 

And Presented February 14, 1893 

IN HEnORY OF 
JUDQE DOUQLASS BOARDMAN 

FIRST DEAN OF THE SCHOOL 

By his Wife and Daughter ■ 

A. M. BOARDMAN and ELLEN D. WILLIAMS 



Cornell University Library 
KF 810.W87 



A treatise on the statute of frauds. 




3 1924 018 824 551 




A Cornell University 
J Library 



The original of tiiis book is in 
tine Cornell University Library. 

There are no known copyright restrictions in 
the United States on the use of the text. 



http://www.archive.org/details/cu31924018824551 



TREATISE 



Statute of Frauds. 






'^OOD, 



AuTHOB OP " FiEE Insurance," " Lakdlobd and Tenant," 
"Slander," Etc., Etc. 



o»;o 



BANKS & BROTHERS, 

144 Nassau Street, New York ; 
473 AND 475 Broadway, Albany, N.Y. 

1884. 




Entered, according to Act of Congress, in the year 1884, by 

BAITKS & BROTHERS, 
in the OfSce of the Librarian of Congress at Washington. 



J. B. CnsHiNG & Co., Pbihtsbs, Bostoh. 



PEEFAOE. 



^ I IHERE is probably no field of the law in which judicial legis- 
-^ lation has been more vigorously indulged than in the con- 
struction and application of the Statute of Fj-auds, and none in 
which there is more needless conflict than has arisen upon the 
construction of this celebrated statute, which, to the common 
mind, seems so plain as to be incapable of misconstruction or 
doubt. But the amount of litigation arising under it has grown 
into enormous proportions, and the number of cases which have 
been before the appellate courts for decision can be counted by 
the thousands ; and now, after the lapse of nearly two centuries, 
many of the questions arising under it are not definitely settled, 
and the conflict of doctrine upon some portions of it is remark- 
able. If any argument is needed to show the advantage of the 
elastic principles of the common law, as applied to the business re- 
lations of mankind, over the arbitrary provisions of a statute, it 
seems to me that the experiences developed by this statute aflibrd it. 

When I started out in this field of the law, it was with the pur- 
pose simply to give the profession a revised and Americanized 
edition of Mr. Agnew's excellent work upon this topic ; but I soon 
found that ray own work would so largelj- exceed that of the 
author that it would be unjust to him, as well as to myself, to pur- 
sue that course ; therefore, I concluded that it would be better to 
write an original work, using such portions of Mr. Agnew's work 
as are applicable to the state of the law in this country. 

"Where the conflict of doctrine in the various States is real, and 
incapable of being reconciled, I have stated the rules adopted in 
the diflferent States ; and, where there is merely an apparent but 
no real conflict, I have endeavored to point out the real doctrine, 
and to show that no substantial difference exists. 

I have endeavored to present the different phases of the topic 



11 PREFACE. ' 

fully, and to make the work as practical as possible, by giving apt 
illustrations of the rules from the cases. 

I have given the gist of several hundred cases, English and 
American, in the notes and text ; and in the prosecution of my 
work have aimed to make it a useful book to those having occa- 
sion to use it, rather than a symmetrical or interesting one. 

In the index, under the most vexed heads of the subject, I have 
called attention to the leading cases, the gist of which is given in 
the work, with a view to calling attention directly to those cases 
whose doctrine is the most approved upon the question involved. 
I make this explanation because a similar course pursued by me 
in the index to my work upon "The Statute of Limitations " was 
criticized somewhat sharply, and said to be meaningless and illog- 
ical; but, from the very large number of letters received by me 
from members of the profession in different sections of the country 
commending this course, I yield to the convenience of the profes- 
sion, rather than to the really logical method of preparing an 
index. 

Hoping this work will lighten somewhat the labors of the pro- 
fession in investigating questions arising under these statutes, I 
submit it to their criticism. 

H. G. "WOOD. 
Boston, April 4, 1884. 



TABLE OF OOIiJ'TElsrTS. 



— »^— 

CHAPTER I. 

PAGES 

Parol Leases 4-70 



CHAPTER II. 
Assignment and Sukhender > . 71-136 

CHAPTER m. 
Guaranties, Promise by Executors, Etc 137-148 

CHAPTER rV". 
Guaranties 149-310 

, CHAPTER V. 

Agreements in Consideration of Marriage . . . 311-338 

CHAPTER VI. 
Interest in Lands 340-461 

CHAPTER Vn. 
Contracts not Pbrformable in a Year .... 463-500 

CHAPTER Vin. 
What is a Sale op Goods? 502-509 

CHAPTER IX. 
Price or Value of £10 510-514 

CHAPTER X. 
Earnest and Part Payment 514-526 



IV CONTENTS. 



CHAPTER XI. 

PAGES 

Executory Sales 528-555 



CHAPTER XII. 
Acceptance and Receipt 556-644 

CHAPTER Xni. 
Memorandum or Note in Writing 645-762 

CHAPTER XIV. 
Signature to the Memorandum 763-777 

CHAPTER XV. 
Contracts by Agents 778-796 

CHAPTER XVI. 
Declarations of Trust 798-803 

CHAPTER XVII. 
Resulting Trusts 804-817 

CHAPTER XVin. 
Specific Performance 819-873 

CHAPTER XIX. 
Pleadings 874-878 

APPENDIX 879 



TABLE OF OASES. 



Abbott V. Draper, 428, 432, 433, 435. 

c7. Gilchrist, 645. 

V. Gilman, 546. 

V. Inskep, 469. 

V. Mills, 420. 

c. Parsons, 123. 

V. Shepard, 703. 
Abeel V. Kadcliffe, 647, 656, 659, 716. 
Abel V. Wilder, 263. 
Abell V. Douglass, 414. 
Ablett, in re, 454. 
Acebal v. Levy, 558, 615,642, 643,647, 

655, 680, 737, 746, 782, 786. 
Acherley v. Acherley, 798. 
Ackerman v. Ackerman, 845. 
Ackla V. Ackla, 439. 
Ackland v. Lutley, 88, 102, 106, 107. 
Ackroyd v. Smithson, 806. 
Acland v. Lewis, 396. 
Acraman v. Morrice, 520, 588, 621. 
Acton V. Peirce, 317. 
Adams v. Adams, 485, 497. 

V. Anderson, 306. 

V. Andrews, 9. 

u. Claxton, 454. 

V. Densey, 160, 297. 

V. Foley, 637. 

V. FuUam, 827. 

V. Hill, 310. 

V. Honess, 495. 

V. McKinney, 25. 

V. McMillan, 647, 655, 678, 724, 
726, 739, 781. 

V. Patrick, 874. 

V. Eockwell, 839. 

V. Scales, 720, 726. 

u. Smilie, 431. 

V. Townsend, 434. 
Aday v. Echols, 64. 
Addison v. Dark, 30. 

V. Hack, 36. 
Adlard v. Booth, 554. 
Adkinson v. Barfield, 259. 



Adlington v. Cann, 798, 799, 802. 
Adncy, ex parte, 273. 
Adsetts V. Hives, 678. 
Agand v. King, 56. 
Agar V. Brown, 76. 
Agard v. Valentia, 845. 
Agate V. Gignough, 414. 
Aicarde v. Craig, 158, 878. 
Aiken v. Duren, 195, 208. 
Albertson v. Ashton, 779. 
Alcalda v. Morales, 161, 209, 210. 
Alchin V. Hopkins, 414. 
Alcock V. Delay, 707. 
Aldenburgh v. People, 85, 103. 
Alderman v. Chester, 469, 484. 
Aldrich v. Ames, 198, 275, 292, 295. 

V. Jewell, 155, 156. 

V. Pyatt, 510, 511. 
Aldridge i\ Johnson, 624. 
Alexander, ex parte, 454. 

V. Bonnin, 43. 

V. Combes, 518. 

V. Guiselin, 186, 507. 
Alger !•. Johnson, 875. 

V. Scoville, 154, 198, 201, 260, 264, 
265, 277, 295. 
Allaire v. Crawford, 160. 
AUard v. Greasart, 510, 511, 596, 613, 

614, 615, 641, 042. 
Allen V. Addington, 306. 

c. Aguira, 395, 425. 

0. Bennett, 652, 655, 661, 688, 694, 

700, 709, 710, 730, 740, 766. 

1 . Bower, 846. 
V. Brown, 79. 

r. Devlin, 82, 96. 

V. Eighme, 171, 299. 

V. Feland, 24. 

V. Fiske, 14, 22. 

u. Jaquish, 108. 

V. Jarvis, 550. 

V. Leonard, 185. 

V. Pryor, 183, 243, 436. 

V. Scarff, 155, 165, 262. 

V. Thompson, 152, 175, 228, 267. 



Yl 



TABLE OF CASES. 



Allen V. Webb, 845, 846. 

Allen's Estate, 824, 826. 

AUetson v. Chichester, 445. 

Allhouse V. Ramsay, 156, 195, 214. 

AUis V. Eead, 432. 

AUnutt V. Ashenden, 181. 

AUwin V. Garbenick, 266. 

Alna .!). Plummer, 726, 780, 782, 787. 

Alt V. Alt, 331. 

Alvanley v. Kinnaird, 866, 870. 

Amburger v. Marvin, 474, 480, 485, 

486, 874. 
Ambrose v. Ambrose, 803. 
Ames V. Poster, 155, 196, 261, 266. 

V. Jackson, 148, 158. 
Amory v. Kanoffsky, 76, 95, 102. 
Amsinck v. Am. Ins. Co., 15. 
Amson v. Dreber, 559. 
Anderson v. Chick, 726, 780, 824. 

,,. Davis, 207, 214. 

V. Eaulke, 458, 459. 

V. Harrold, 764, 772, 773. 

V. Hayman, 166, 167, 194, 205, 
216. 

V. Midland R. R. Co., 54. 

V. Prindle, 48. 

V. Scott, 365, 366, 597, 617, 618, 
619, 630. 

V. Simpson, 357, 367, 826, 835. 

V. Spence, 140, 275, 288, 290, 292. 
Andre u. Badman, 195, 214, 245. 
Andrews v. Dietrich, 566. 

V. Jones, 337, 424. 

u. Scottin, 458, 459. 

V. Smith, 207, 218, 231, 247. 
Androscoggin Bridge Co. v. Bragg, 

28, 35. 
Angell V. Duke, 186, 350, 423, 425. 
Ann Berta Lodge v. Lenerton, 828. 
Annan v. Morritt, 492. 
Anon. (Dal. 74, pi. 58), 115. 

(2 Dyer, 112 a, pi. 49), 82. 

(Leon. 30, pi. 83), 116. 

(1 Ld, Eayd. 182), 383. 

(Salk. 519), 138. 

(1 Salk. 280), 314, 468, 483. 

(3 Salk. 223), 26, 27. 

(5 Yin. Abr. pi. 38), 863. 
Anstey v. Marden, 196, 225, 227, 229, 

268. 
Anthony v. Haney, 23. 

■u. Leftwych, 835. 

V. Wheatons, 638. 
Antonio v. Clissey, 156, 216, 231, 240. 
Apgar V. Finney, 550. 



Apgar V. Hiler, 160, 292. 
Appleton V. Bancroft, 620, 627. > 
Arbuckle v. Hawks, 151, 156,206,211, 

216, 221. 
Archbold v. Lord Howth, 839. 
Archer v. Baynes, 660, 711, 730, 732. 
Arden v. Rowney, 205, 281. 

V. Sullivan, 46, 48, 66. 
Argeubright v. Campbell, 320, 337, 

772, 854, 878. 
Argus Co. V. Albany, 652, 666, 669, 

675. 
Arkwright, ex parte, 454. 
Armington v. Houston, 624. 
Armstrong v. Baldwin, 198. 

V. Mora, 156, 214. 

V. Katterhorn, 835. 

o. LawBon, 359, 361, 363. 

V. Vroman, 457, 460, 729. 
Arnold v. Delano, 631. 

V. Stedman, 154, 160, 260. 
Arnot V. Erie R. R. Co., 171. 
Arrington v. Larrabee, 8, 19, 30. 

V. Porter, 762, 826. 
Artcher v. Zeb, 395, 484, 498, 518, 521, 

523, 525. 
Arthur v. Midland Railway Co., 807. 
Arundale v. Gray, 115. 
Arz V. Grove, 854. 
Ashcroft V. Morrin, 680, 734. 
Ashford v. Robinson, 61, 210. 
Ashley v. Warren, 49. 
Ashman v. Williams, 26. 
Ashmore v. Evans, 493, 877. 
Ashton V. Dalton, 443, 449. 

V. Lord Langdale, 393, 396. 
Astey V. Emery, 614. 
Aston V. Wood, 806. 
Atherton v. Newhall, 558, 574, 607, 

612, 615, 641. 
Atkin V. Young, 832. 
Atkins V. Hill, 148. 
Atkinson, in re, 445. 
Atkinson v. Bell, 529, 533, 534, 535, 

536. 
Attorney General v. Cox, 134. 

V. Day, 457, 822, 832, 856. 

u. Dean and Can. of Windsor, 
806. 

V. Sitwell, 856. 
Atwater v. Hough, 550, S53. 
Atwell V. Miller, 637. 
Atwood V. Cobb, 663, 680, 684, 686, 
765. 

V. Fox, 463, 480. 



TABLE OF CASES. 



vu 



Atwood V. Lucas, 578, 574. 

V. Norton, 463, 464, 497. 
Auer V. Penu, 95. 
AufEman v. Stark, 45. 
Austen v. Baker, 213, 218. 

V. Bewley, 143. 
Austin V. Burbank, 439. 

V. Sawyer, 352, 353, 360, 377, 384. 
Aveline v. Whisson, 44. 
Avery v. Baum, 421. 

V. Halsey, 293. 
AylifEe o. Tracy, 317, 330, 670, 716, 

716. 
Ayres v. Herbert, 162. 



B. 

Baba v. Richmoiid, 421. 
Babbett v. Young, 723. 
Babcock v. Meek, 876. 
Babcock v. Stanley, 638. 

V. Terry, 294. 

V. Utter, 10. 
Bach V. Owen, 518, 520, 602. 
Back V. Andrews, 810, 814. 
Backus V. Clark, 151, 211, 221. 
Bacon v. Brown, 104. 

V. Daniels, 713. 

V. Eccles, 572, 580, 642. 
Badeley v. "Vigurs, 121. 
Bagley v. Moulton, 278. 

V. Sasser, 174. 
Baigg V. Brooks, 208. 
Bailey v. Ackerman, 705. 

V. Bensley, 752. 

c. Delaplaine, 104, 106. 

u. Freeman, 172. 

V. Harris, 624. 

V. Jones, 421. 

V. Ogden, 61, 576, 621, 631, 638, 
647, 689, 770, 773. 

V. Eutjes, 284. 

V. Sweeting, 647, 649, 650, 653, 
660, 695, 702. 

V. Wells, 831 
Bainbridge v. Wade, 181, 750. 
Baines v. Ewing, 788. 

V. Jevons, 575, 585. 
Baker, in re, 444. 

V. Bourcicault, 555. 

V. Cuyler, 621. 

V. Dillman, 160. 

V. Glass, 843. 

V. HoUobough, 854. 



Baker v. IngersoU, 178. 

V. Jameson, 876. 

V. Pratt, 97, 104. 

V. Reynolds, 45. 

... Scott, 429. 

.-. Sutton, 393. 

o: Willoughby, 117. 

V. Wimpee, 439. 
Baldey v. Parker, 510, 597, 598, 600, 

619, 620, 623, 642. 
Baldwin v. Breed, 26. 

V. Kerlin, 684. 

„. Palmer, 428, 434. 

r. Williams, 395, 503. 
Ball V. CuUimore, 48. 

■V. Dunsterville, 45. 
Ballard v. Bond, 410. 

V. Walker, 663, 764. 
Balliet v. Scott, 160, 196, 209. 
Ballingall v. Bradley, 648, 714, 762. 
Ballou V. Hale, 419. 
Baltzer v. Nicolay, 158, 728. 
Bambier v. Savage, 723, 780, 783. 
Bampton v. Paulin, 154, 269. 
Banchor w. Warren, 640. 
Bane's Case, 148. 
Bank v. Eccles, 765. 
Bank of Lansingburg v. Crary, 368, 

403, 440. 
Bankart v. Tennant, 10, 834. 
Banker v. Allen, 60. 
Bankhardt v. Houghton, 23. 
Banks v. Crossland, 150, 472, 485. 
Bankworth v. Young, 150. 
Bannon v. Bean, 410. 

V. Urton, 406. 
Baptist Church v. Bigelow, 723, 726. 
Barber v. Fox, 141, 143, 144, 146, 173, 

206, 206. 
Barclay v. Bates, 723. 
Barker v. Birt, 208, 270. 

u. Borzone, 752. 

V. Bradley, 234, 251. 

V. Bucklin, 198, 201, 209, 233, 234, 
250. 

V. Guillard, 272. 

V. Seudder, 299. 
Barkworth v. Young, 334, 649, 700, 

803, 855, 877. 
Barlow v. Myers, 233. 

V. Rhodes, 6. 

V. Wainwright, 53. 
Barnard v. Cave, 865, 867. 

I;. Pumfrett, 137, 147, 148. 

V. Whipple, 422. 



Till 



TABLE OP CASES. 



Barnes v. Barnes, 22, 25, 360. 

V. Boston & Maine R. E. Co., 819. 

V. League, 878. 

V. Pevine, 351. 
Barney v. Ball, 479, 480. 

V. Brown, 009. 

V. Patterson, 458, 461, 729. 
Barrack v. McCulIoch, 812. 
Barrel! v. Trussell, 173, 208, 270. 
Barrett v. Goddard, 630, 631. 

V. Hyndman, 268. 

o. McHugh, 164, 165, 216. 

V. Eolph, 74. 
Bafrickman v. Kuykendall, 428, 432, 

433, 655, 656, 678. 
Barringer v. Warden, 161, 209, 211. 
Barrs v. Eewkes, 806. 
Barry v. Coombs, 648, 655, 684, 714, 
779. 

V. Law, 677, 688, 770, 773, 779. 

V. Ransom, 160, 198, 235, 293. 

V. Rush, 138, 139, 140. 
Barstow v. Gray, 663, 666, 764, 765. 
Bartlett v. Downs, 132. 

a. Pickersgill, 808, 809. 

V. Pumell, 781. 

V. Wheeler, 427, 434, 495, 497. 
Bartow v. Cox, 48, 49, 54. 
Bash V. Bash, 427. 
Baskett v. Cafe, 857. 
Bason v. Hughart, 171. 
Bass u. Walsh, 571, 626, 632. 
Bassett v. Camp, 626. 
Bassford v. Pearson, 407, 652. 
Bassler v. Mesly, 826. 
Bateman v. Phillips, 178, 213, 670, 681, 

688, 751. 
Bates ?;. Chesboro, 521. 

r. Coster, 538, 539, 543. 

V. Moore, 494. 

V. Starr, 172, 216. 
Batsford v. Morehouse, 412. 
Batson v. liing, 206, 274, 287, 291. 
Batstone v. Salter, 807, 812. 
Battersbee v. Harrington, 337. 
Batturs v. Sellers, 649, 656, 772. 
Baumann v. James, 697, 702, 704, 705, 

708, 739, 850. 
Baumgarten v. Fowler, 553. 
Bawdes v. Amhurst, 61, 316, 773. 
Baxendale v. Seale, 870. 
Baxter v. Brown, 396. 
Bayley v. Boulcott, 799. 

u. Pitzmaurice, 718. 

u. M. of Conyngham, 7. 



Eaynard v. Wooley, 447, 451. 
Beach v. Allen, 351, 402. 

V. Hungerford, 151. 
Beaden v. Pyke, 78. 
Beal V. Brown, 158, 424. 

V. Sanders, 50, 56, 66, 68. 
Beall V. White, 105, 106. 
Beaman v. Eusaell, 160, 198, 235, 292, 

298. 
Beard v. Converse, 875. 

0. Liticum, 846. 
Beardman v. Wilson, 75. 
Beardslee v. Morgner, 233. 
Bearshears v. Eowe, 209. 
Beatson v. Nicholson, 854. 
Beatty v. Grim, 229, 290. 
Beaumann v. James, 718. 
Beaumont v. Brengeri, 587, 630, 634. 

V. Carter, 332. 
Beckford v. Beckford, 811. 
Beckwith v. Talbot, 647, 654, 703, 705, 

706, 709, 742, 776. 
Bedford v. Terhune, 110, 132. 
Bedinger v. Whittemore, 432. 
Beebe v. Moore, 171. 
Beecher v. Major, 807, 808. 
Beer u. London & Paris Hotel Co., 

688, 690, 692, 693, 765, 781. 
Beers v. Crowell, 395, 503. 
Bees V. Williams, 97, 102, 127. 
Beeston v. Collyer, 466, 472, 485. 
Belcher v. Costello, 308. 
Belknap v. Bender, 278, 279. 
Bell V. Bruen, 846. 
Bell V. Elliott, 22. 

V. Hewitt, 470, 484. 

». Howard, 747. 

V. Thompson, 409. 

V. Warren, 846. 

V. Welch, 181. 
Bellamy v. Burrow, 803. 

V. Ragsdale, 435. 
Bellasis v. Compton, 798, 800, 808. 
Beller v. Black, 566. 
Belt V. Marriott, 562. 
Beubow V. Townsend, 799, 800, 808. 
Benecke v. Chadwick, 734. 
Benedict v. Beebe, 351, 359, 369, 402, 
403. 

V. Benedict, 29, 35, 41. 

V. Dunning, 151, 223. 
Benford v. Schell, 639. 
Bennett v. Blain, 393, 396. 

I/, Brumfitt, 770. 

V. Carter, 726. 



TABLE OF CASES. 



IX 



Bennett v. Hull, 542. 

V. Ireland, 52, 66. 

V. Lent, 359. 

V. Nye, 537. 

V. Scott, 360, 369. 

V. Sims, 624. 
Bennett's Case, 83. 
Bennett's Settlement Trust, 808. 
Benson v. Walker, 204. 
Bent V. Cobb, 721, 781, 783. 
Bentall v. Burn, 585, 626, 628, 639. 
Bentham v. Cooper, 179. 
Bentley v. Mackay, 808. 
Benton v. Pratt, 306. 
Benzlger v. Miller, 649. 
Berkeley v. York, 103, 118. 
Berkley v. R. & S. R. R. Co., 609. 
Berkshire v. Young, 240. 
Bemal v. Hoyious, 352, 384. 
Bernard v. Bonner, 119, 124. 
Bernier v. Cabot Mf'g Co., 471. 
Berrey v. Lindley, 47, 51, 66, 69, 70. 
Berrisford ti . Milward, 332. y 
Berry v. Doremus, 172, 195, 209, 240, 

469, 494. 
Besar v. Flues, 45. 
Bessell v. Landsberg, 84 93, 94, 107, 

112, 118, 120, 126. 
Besshears v. Rowe, 160, 245. 
Bethel Steam Mill Co. v. Brown, 638. 
Bicknell v. Bicknell, 442. 
Bidden v. Leeder, 186. 
Biddle v. Ash, 6. 
Biddulph V. Poole, 96, 108, 124. 
Bigelow V. Huntley, 624. 
Bigg V. Strong, 787. 

V. Wheeling, 598. 
Bill V. Bament, 568, 585, 597, 620, 621, 

623, 628, 649, 704. 
Billingsley v. Dempewolf, 155, 203, 

216, 233, 290. 
Bingham v. Sprague, 51. 
Binney v. Ince Hall Coal Co., 445. 
Binstead v. Coleman, 862. 
Birch V. Earl of Liverpool, '485, 494. 

V. Wright, 56. 
Birchard v. Booth, 233. 
Birchell v. Neaster, 184, 211. 
Bird V. Blosse, 190,' 319, 653, 702, 731, 
764. 

V. Boulter, 781, 783, 787. 

V. Defonvielle, 46. 

V. Gammon, 207, 274, 275, 276, 
286. 

o. Gt. Eastern R. R. Co., 18. 



Bird V. Higginson, 7, 28. 

fc. Muhlenbrink, 550, 553. 

V. Munroe, 649, 658, 704. 

■u. Riehdrdson, 680. 
Birkmyr v. Darnall, 151, 159, 160, 

206, 218, 272. 
Bisdee, ex parte, 444. 
Bishop V. Bishop, 369.- 
Bishop of Rochester v. Bridges, 117. 
Bissell V. Balcom, 521. 
Bissig V. Britton, 292, 293. 
Blachford v. Ifirkpatrick, 823. 
Black V. Black, 423. 
Blackburn v. Mann, 497. 
Blackford v. Plainfield Gas Co., 257. 
Blacknall v. Pariah, 782. 
Blacknell v. Plowman, 132. 
Blagden v. Bradbear, 456, 457, 699, 

716, 730, 857, 878. 
Blair v. Smith, 421. 
Blair &c. Land Co. v. Walker, 247, 

466, 483. 
Blaisdell v. Portsmouth &c. R. R. Co., 

88. 
Blake v. Blake, 817. 

■- . Cole, 198, 292, 469, 481, 484, 485. 

V. Jerome, 27. 

V. Parlin, 194, 216. 
Blakeney v. Ferguson, 839. 

V. Goode, 469, 497. 
Blakey v. Dinsdale, 518, 519. 
Blanchard v. Child, 624. 

^. Detroit &c. R. R., 845. 

V. Weeks, 466, 480, 484, 497. 
Blanding v. Sargent, 466, 467, 479, 

484, 495. 
Blank v. Dreher, 161. 
Blanton v. Knox, 494. 
Bleakley u. Smith, 60, 682, 684, 772, 773. 
Bleecker v. Franklin, 725. 
Blenkinsop v. Clayton, 519, 585, 618. 
Bligh V. Brent, 393. 
Bliss V. Thompson, 348, 414. 
Blodgett V. Lowell, 216, 309. 
Blood V. Goodrich, 754. 

„: Hardy, 348, 779, 782. 

w. Keller, 11. 
Bloom V. McGrath, 169, 204, 205, 217. 
Bloomer v. Merrill, 100. 
Blore V. Sutton, 61, 783, 787, 832, 846. 
Blount V. Hawkins, 206. 
Blow V. Maynard, 337. 
Bluck V. Gompertz, 678. 
Blunt I!. Tomlin, 836. 
Blyer v. MulhoUand, 235. 



TABLE OF OASES. 



Boardman v. Cutter, 395, 503. 

V. Mostyn, 826, 846, 848. 

.,. Spooner, 557, 571, 614,626,627, 
641, 654, 702, 703, 709, 726, 
737, 752, 769, 770. 
Bock V. Healy, 669. 
Boehm v. Campbell, 179. 
Bog Lead Mining Co. v. Montague, 

561, 566, 603, 667. 
Bogert V. Dean, 83. 
Bogie V. Bogie, 412. 
Bohannon v. Jones, 290. 
Bolckow V. Seymour, 743, 746. 
Bold V. Hutchinson, 327. 

V. Raynor, 739, 750. 
Bolton V. Bishop of Carlisle, 90. 

V. Lancashire Railway Co., 608. 

V. Tomlin, 52, 436. 
Bomier v. Caldwell, 839. 
Bond V. Hopkins, 820. 

V. Rosling, 63. 
Bone V. Pollard, 816. 
Bonine v. Denniston, 205. 
Booker v. Tally, 215. 
Boone v. Storer, 16. 
Booth V. Eighmie, 156, 195, 214. 

f. Heist, 284. 

o. Turle, 853. 
Borat V. Carey, 337. 
Borchsensius v. Canutson, 225. 
Borrett v. Gomserra, 826. 
Borrodaile, ex parte, 451. 
Borron, in re, 455. 
Borrowman v. Free, 601. 
Borrowscale v. Bosworth, 578. 
Bosford V. Pearson, 425, 429. 
Boson V. Stathara, 799. 
Bostock' V. Jardine, 788. 
Boston V. NichoUs, 874. 
Boston Duck Co. v. Dewey, 875. 
Bostwick V. Leach, 349, 359, 362, 402, 

407. 
Botsford V. Morehouse, 92. 
Bott V. Burnell, 729. . 
Botting V. Martin, 74, 102. 
Boult, in re, 445. 
Boulter v. Arnott, 597. 
Boulton, ex parte, 445. 
Bourgeoise v. Blank, 419. 
Bourland v. County of Peoria, 655. 
Bovy's Case, 337. 
Bowen i>. Kurtz, 277. 

V. Morris, 663. 
Bowens v. Anderson, 571. 
Bowerhank v. Monteiro, 148. 



Bowerman v. Sybourn, 132. 
Bowers v. Cator, 826, 875. 

V. Bowers, 359, 362. 
Bowery v. Oystfer, 443. 
Bowes V. Pontifex, 572, 605. 
Bowlby V. Bell, 393, 503. 
Bowman v. Com, 385, 513. 

V. Stilwell, 843. 
Box V. Stanford, 434. 
Boyce v. Green, 396, 691, 709. 

V. McCuUoeh, 95. 

„. Owens, 154, 162, 260. 

V. Washburn, 356, 359, 369, 383. 
Boyd V. Croydon Ry. Co., 308. 

V. Graves, 420, 421. 

V. Moyle, 173, 176, 181. 

V. Stone, 437. 
Boydell v. Drummond, 463, 473, 475, 
477, 478, 485, 487, 496, 709,737. 
Boyers v. Elliott, 423. 
Boykin v. Dohlonde, 194. 

K. Smith, 460. 
Boynton v. Veazie, 626, 638. 
Boys V. Hyerst, 735, 765. 
Bozon V. Williams, 443, 451. 
Brabin v. Hyde, 506, 523, 526, 571. 
Bracegirdle <;. Heald, 465, 472, 474, 

485, 486, 487, 495. 
Brackett v. Evans, 407, 425. 
Bradford v. Roulston, 650, 669. 
Bradley v. Blodgett, 408. 

V. Gill, 6. 

V. Heath, 146. 

V. Holdsworth, 393, 503. 

V. Richardson, 302. 

V. Wheeler, 568. 
Bradshaw v. Thomas, 624. 
Brady v. Hauahy, 526. 

V. Oastler, 743. 

V. Peiper, 83. 

V. Stackrider, 155, 262. 
Bragg V. Cole, 436. 
Braksley v. Sharp, 6. 
Branch v. Doane, 26. 

V. Palmer, 752. 
Brand v. Focht, 570, 571, 621. 
Brandao v. Barnett, 791, 795. 
Brander v. Boles, 450. 
Brandon v. Calvert, 132. 
Brasher v. Cortland, 458. 
Btayley v. Kelly, 770. 
Braythwayte v. Hitchcock, 47, 48, 52. 
Breed v. Hillhouse, 173. 
Breese v. Bangs, 119. 
Brennan v. Bolton, 836. 



TABLE OF CASES. 



XI 



Brenner v. Brenner, 315. 

Brent v. Green, 457, 458, 460, 726, 781. 

Bresler v. Pendell, 161, 194, 221. 

Brettel v. Williams, 764. 

Brewer v. Boston &c. 11. R. Co., 421. 

V. Dyer, 232. 

v. Wilson, 846. 
Brewster v. Parrot, 117. 

V. Silence, 299. 

V. Taylor, 571. 
Brian v. Salter, 146. 
Brice v. King, 199. 
Bricker v. Hughes, 386. 
Bridge v. Bridge, 803. 
Bridge Co. v. Bragg, 22. 
Bridges v. Blanchard, 6. 

V. Duke of Chandos, 132. 

V. Purcell, 21, 30, 37, 38, 40, 400. 
Briggs V. Evans, 155, 211, 216, 219, 
257. 

V. Munchon, 654; 709. 

V. P^tridge, 796. 
Bright V. Bright, 827. 

V. McQuat, 58. 
Brightman v. Hicks, 153, 259, 260. 
Brisker v. Hughes, 352, 384. 
Britain v. Thraikill, 195, 211, 214. 
British Empire Mutual Life Assur- 
ance Co. V. Browne, 766. 
British Ins. Co. v. Commissioners of 

Texas, 308. 
Britton v. Angier, 198, 245. 
Brizeck v. Manners, 450. 
Broadbent, ex parte, 455. 
Broadwell v. Getman, 434, 466, 468, 

474, 475. 
Brock V. Cook, 839. 
Brockway v. Thomas, 45. 
Brodie v. St. Paul, 671, 712, 716, 749. 
Bromley v. Stanley, 108, 117, 123. 
Bronson v. Shroud, 161. 

V. Wyman, 543. 
Brook V. Goring, 122. 
Brooklyn Oil Refinery v. Brown, 650. 
Brooks !). Haigh, 180, 181. 
Broom v. Batchelor, 175, 180, 181. 
Broughton v. Griffin, 65. 

17. Hutt, 872. 
Brown v. Allen, 550. 

V. Atwood, 277. 

V. Barnes, 153, 876. 

V. Bellows, 647, 843. 

V. Bowen, 20, 22. 

V. Bradshaw, 155, 262. 

V. Brown, 198, 200, 245, 350, 821. 



Brown v. Burtinshaw, 94, 96. 

V. Bussey, 174. 

V. Conger, 315, ,322. 

V. Curtis, 156, ^65, 298. 

V. Finney, 846. 

V. Poster, 752. 

V. George, 151, 211, 221, 233. 

V. Hall, 630. 

V. Hazen, 195, 211, 214, 245. 

u. Jones, 836. 

V. Morris, 351, 367, 423. 

V. Sanborn, 513. 

V. Strait, 209. 

V. Symons, 489. 

V. Wadsworth, 19. 

V. Weber, 155, 223, 245, 253. 

V. Whipple, 688, 689, 705, 742. 

V. Wiman, 532. 

V. Woodworth, 15, 34. 
Browne ». Warner, 70. 
Browning v. Stallard, 208, 275, 285. 
Brownson v. Crosby, 439. 
Bruce, ex parte, 450. 

u. Burr, 298, 299, 301. 

v. Hastings, 423. 
Brumfield v. Karson, 666. 
Brunton v. DuUens, 178, 230. 
Brush V. Carpenter, 289, 290, 291, 293. 
Bryan v. Hunt, 754. 

I/. Johnson, 414. 

V. Whistler, 6, 9, 22, 28. 
Bryant t;. Crosby, 352, 359, 384, 506. 
Bryson v. Peak, 873. 
Buchanan v. Logansport &c. R. R. 
Co., 16, 35. 

V. Paddleford, 196, 199, 209. 
Buck V. Hurst, 425. 

V. Pickwell, 352, 358, 359, 362, 506, 
669, 678, 714. 
Buckingham v. Osborne, 559, 560, 607. 
Buckley v. Beardslee, 61. 
Buckmaster v. Harrop, 456, 72.3, 727, 
823, 832. 

V. Russell, 696. 

V. Smith, 624. 

V. Thompson, 844, 845. 
Budd V. Thurber, 240. 
Buell V. Miller, 758. 
Bugbee v. Kendrickson, 205. 
Bulfin V. Dunne, 450. 
Bull V. McCrea, 466, 467, 469, 470. 

V. Grissey, 352. 

V. Griswold, 384, 506. 
BuUard v. Wait, 620. 
Bullion V. Campbell, 411. 



xu 



TABLE OF CASES. 



Bullock V. Lloyd, 296. 
Bulmer v. Norris, 393, 396. 
Bult V. Morrell, 769. 
Bulteel, ex parte, 450. 
Bumford v. Purcell, 162, 
Bunnell v. Tainter, 423. 
Bunting v. Darbyshire, 156, 173. 
Bunton v. Smith, 65. 
Burdett v. Wright, 132. 
Burges v. Wiekham, 746. 
Burgess v. Moxon, 447. 
Burke v. Creditors, 844; 

V. Haley, 726, 781, 874. 
Burkhalter v. Farmer, 216, 218. 
Burkham v. Maston, 870. 
Burkhill, in re, 447. 
Burlingame v. Burlingame, 405, 429, 

489. 
Burn V. Phelps, 134. 
Burnard v. Nerat, 494. 
Burnet v. Dougherty, 414. 
Burney v. Ball, 466, 469. 
Bumham v. Hubbard, 104. 
Bums V. Lynde, 45. 

„. Sutherland, 846. 
Burnside v. Merrick, 423. 
Burr V. Beers, 235. 

V. Wilcox, 154, 160, 196, 254, 260. 
Burt V. Wilson, 854, 878. 
Burton v. Barclay, 76, 86. 

V. Curyea, 626. 

V. Reevell, 46, 63. 

V. Scherff, 7. 
Bush V. Cole, 722. 

V. Holmes, 559, 573, 574. 

V. Sprague, 309. 
Bushell V. Allen, 156, 194, 309. 

V. Beavan, 190. 

V. Wheeler, 502, 576, 584, 605, 615. 
Bushnell v. Passmore, 412. 
Buskirk v. Cleaveland, 526. 
Bussell V. Gallagher, 419, 420. 
Butcher v. Stapely, 826. 

V. Stewart, 180, 207, 214, 275, 749. 
Butler V. Thompson, 788, 790. 
Butterfield v. Hartshorn, 276. 
Buttermere „. Hayes, 350, 399, 412, 

875. 
Butters v. Glass, 790. 
Buxton V. Lister, 370. 

V. Eust, 60, 652, 654,669,695,705, 
709, 710, 742. 
Byasse v. Reese, 351, 362, 363, 383, 

597. 
Byrd v. Odem, 839. 



Oaballero v. Slater, 182. 
Cabot V. Haskins, 312, 495, 773. 
V. Winsor, 663, 738, 744. 
Cabot Bank v. Morton, 308. 
Caddick v. Skidmore, 422, 718. 
Cadle V. Moody, 128, 133. 
Cadwalader v. App, 685. 
Cady V. Quarterman, 66. 
Cagger v. Lansing, 827. 
Cahill V. Bigelow, 15, 148, 155, 158, 

194, 219, 262. 
Cailleux v. Hall, 198. 
Cain V. McGuire, 351, 362, 363, 383, 386. 
Calder v. Dobell, 753. 
Caldwell v. McKain, 174. 
Calhoun v. Hays, 420. 
Calkins v. Chandler, 233, 243, 246. 

V. Falk, 648, 689. 

V. Lockwood, 571, 631, 638. 
Callaghan v. Callaghan, 870. 
Callis V. Bothamley, 507, 668. 
Calverley v. Williams, 869. 
Calvin v. Williams, 395, 503. 
Cameron v. Clark, 240. 

V. Spiking, 689. 
Campbell v. Campbell, 434. 

V. Eindley, 162, 199, 235. 

«. Smith, 236. 
Cannan v. Hartley, 92, 93, 106, 135. 
Cannel v. Buckle, 317, 716. 
Caperton v. Gray, 162, 194. 
Card V. Jaffray, 680, 767. 
Cardell v. McNiel, 298, 299, 301. 
Carlisle v. Cooper, 6. 
Carlton v. Redington, 8, 15. 
Carmack v. Masterton", 684. 
Carpenter v. Galloway, 513. 

V. United States, 48. 
Carr v. Benson, 17. 

V. Dooley, 407. 

V. Passaic Land &c. Co., 680, 846. 
Carraway v. Andersen, 876. 
Carrington v. Roots, 42, 353, 384, 887, 

491, 652. 
Carroll v. Cowell, 717. 

V. Powell, 456, 461. 
Carstrike v. Mason, 56. 
Carter, in re, 453. 

V. Brown, 479, 492. 

V. Hamilton, 658, 714. 

u. Harlan, 9, 15, 30, 32, 34, 36. 

V. Thomas, 140. . 

V. Touissant, 619, 620, 621, 635. 



TABLE OF CASES. 



jdii 



Carter v. "Willard, 620. 
Carton v. Moss, 153. 
Cartwright v. Pinkney, 83, 124. 
Carver v. Lane, 674. 
Carville v. Crane, 155, 219, 262. 
Carey v. Rawson, 442. 
Carey v. Ins. Co., 22. 

V. Whitney, 420. 
Casler i>. Thompson, 839. 
Cason V. Chesley, 537, 550, 551. 
Cass ('. Waterhouse, 708. 
Cassell V. Collins, 351, 402. 
Casslt V. Hobbs, 703. 
Castle V. Bcjardsley, 61. 

V. Sworder, 671, 578, 616, 621, 636. 
Castleman v. Harnish, 169. 
Castling v. Aubert, 152, 196, 208, 226, 

227, 228, 267, 303. 
Caston V. Moss, 162. 
Castro V. lilies, 437. 
Catlett V. Bacon, 826. 
Catlin V. Gratz, 457. 
Caton V. Caton, 316, 322,326, 330, 331, 

415, 768, 774. 
Caulkins v. Hellman, 558, 662, 570, 
571, 578, 587, 595, 596, 609, 
612, 614, 681, 750. 
Causton v. Chapman, 512. 
Cave 1/. Hastings, 650, 663, 655, 695, 

696, 704, 705, 739. 
Cawthorne v. Cawdrey, 472. 
Cawthors v. Carden, 487. 
Cayuga R. R. Co. v. Niles, 19. 
Chadbum v. Green, 56. 
Chadwick v. Maden, 809. 
Challoner v. Davis, 87. 
Chamberlain y. Dunham, 52. 

V. Ingalls, 247. 
Chamberlaine's Case, 82. 
Chambers v. Bedell, 27. 

t,. Kelly, 681. 

V. Leversadge, 145. 

V. Massey, 875, 878. 
Champion v. Doty, 216, 218, 233. 

V. Plummer, 61, 666, 677, 691, 
688, 779. 
Champlin v. Parrish, 726, 875, 878. 
Chandler v. Spear, 32. 
Chapin v. Lapham, 156, 198, 289, 290, 
292, 296, 304. 

V. Merrill, 198, 290, 295. 

V. Potter, 559, 560. 
Chaplin v. Rogers, 366, 576, 584, 585, 

617, 630, 632, 633, 639. 
Chapma;n v. Bluck, 62. 



Chapman v. Callis, 739. 

V. Chapman, 447. 

u. Morton, 685. 

V. Ross, 160. 

V. Searle, 627. 

V. Sutton, 176. 

p. Thumblethorpe, 27. 

. . Towner, 47, 51, 62, 69, 70. 
Chappel V. Marvin, 638, 639. 
Chappell V. Dann, 723. 
Charlewood v. Duke of Bedford, 717, 

786, 838. 
Chamley «. Hansbury, 846. 
Chase v. Day, 194, 204, 216, 233. 

V, Jefferson, 27. 

0. Long, 19. 

V. Lowell, 675. 

V. Willard, 627, 631. 
Chater v. Beckett, 184, 186, 229, 274, 

487. 
Chenery v. Dole, 419. 
Cheney v. Cook, 174. 
Cherry v. Heming, 44, 468, 473, 485, 

497. 
Chesapeake & Ohio Canal Co. </. 

Young, 846. 
Chessman v. Whittemore, 92, 412, 413. 
Chester v. Dickinson, 422. 
Chesterman v. McCosttin, 223. 
Chetham 7). Williamson, 17. 
Chetwood v. Britain, 854. 
Cheveley v. Fuller, 730. 
Chicago &c. Coal Co. <>. Liddell, 160, 

220, 875. 
Chicago Dock Co. k. Kenzie, 15, 158, 

878. 
Chichester v. Cobb, 771. 

V. Vass, 320, 336. 
Chidister v. Springfield &c. R. R. Co., 

846. 
Child V. Comber, 663, 680. 

V. Godolphin, 856. 

V. Monins, 147. 

V. Pearl, 314. 
Childers v. Childers, 801, 803. 
Chinnock v. Marchioness of Ely, 680, 

731, 735. 
Chippendale, ex parte, 464. 
Chissum v. Dewes, 444. 
Christie v. Simpson, 726. 
Christmas v. Oliver, 98. 
Christ's Hospital v. Budgin, 810. 
Christy v. Courtenay, 812, 815. 
Church V. Brown,' 705. 
Church &c. v. Farron, 684, 824. 



XIT 



TABLE OF CASES. 



Clabaugh v. Byerly, 437. 
Claggett V. ICllbourne, 422, 423. 
Claflin V. Carpenter, 20, 351, 358, 359, 
' 361, 363, 383, 440. 

V. Parm &e. Bank, 612. 
Clancy v. Piggott, 213, 268. 
Clapham v. Langton, 746. 
Clapp V. Draper, 358. 

V. Lawton, 199, 235, 240, 283. 

V. Webb, 261. 
Clark V. Baker, 752. 

V. Bulmer, 504. 

V. Burnham, 683. 

V. Carpenter, 409. 

V. Chamberlin, 654, 659, 682, 709. 

„. Clark, 843. 

V. Gondii, 414. 

V. Draper, 639. 

V. Duffy, 507. 

V. Graham, 415, 506. 

V. Hall, 154, 231, 233, 240. 

V. Levi, 156, 304. 

V. N. Y. Life Ins. Co., 657, 713. 

V. Nichols, 538, 547. 

V. Pendleton, 313, 469, 470, 479, 
484, 485, 498, 499. 

V. Schultz, 351,402. 

V. Smaridge, 56. 

V. Smith, 56. 

V. Tucker, 523, 562, 570. 

V. Vt. Cent. K. R. Co., 24, 25. 

V, Wright, 575. 
Clarke v. Callaw, 874. 

V, Davidson, 405. 

V. Fuller, 60, 61, 656, 718. 

V. Grant, 858, 861, 863, 866, 868. 

V. Marriatt, 578. 

V. Eeilly, 839. 

V. Eussel, 162. 
Clason V. Bailey, 661, 663, 666, 725, 

764, 769. 
Clavering's Case, 830. 
Clay V. Rufford, 866. 

V. Walton, 161. 

V. Yates, 529, 534, 535, 537, 550. 
Clayton v. Andrews, 527, 529, 532, 533. 

V. Blakely, 47, 50, 56. 
Cleaveland v. Rogers, 409. 
Cleaves v. Foss, 726, 780. 
Clemay v. Piggott, 208. 
Clemens v. Broomfield, 108. 
Clement v. Durgin, 35, 36, 400, 402. 
Clerk V. Wright, 670, 715, 716, 823. 
Cleveland v. Williams, 640. 
Cleverley v. Brett, 138. 



Click V. McAffee, 156, 195, 214. 
Clifford V. Luhriug, 216, 224. 
Clinan v. Cooke, 44, 61, 684, 707, 712, 
716, 730, 742, 743, 778, 821, 
824, 826, 833, 846, 858, 863. 
Clive V. Beaumont, 732. 
Clopper V. Poland, 240, 264. 
Close V. McCuUough, 83, 89. 
Clouter, ex parte, 452. 
Clowes V. Higginson, 859, 869. 
Clute V. Carr, 9, 19, 30, 35. 
Clymer v. De Young, 161, 211, 245, 

246. 
Coan V. Mole, 66. 
Coard v. Holdemess, 806. 
Coats V. Chaplin, 558, 643, 717. 
Cobb V. Arundell, 641. 

V. Fisher, 13, 20, 31. 

V. Hall, 433. 
Cobold V. Caxton, 553. 
Coburn, ex parte, 21. 

V. Elmwood, 420. 
Cock V. Baker, 311, 313. 
Cocker v. Cowper, 9, 22. 
Cocking V. Ward, 84, 126, 348, 350, 

397, 425. 
Coddington v. Goddard, 663, 688, 738, 

744, 745, 772, 788. 
Codman v. Bailey, 778. 

V. Winslow, 420. 
Cody V. Cadwell, 494. 
Coe V. Clay, 5. 

V. Duffield, 176, 653, 702. 

V. Hobby, 108, 109. 

V. Turner, 92, 412. 
Coffman v. Campbell, 752. 

V. Hampton, 512. 
Coggs V. Bernard, 163. 
Cohen v. Piatt, 600. 
Colbourn v. Dawson, 181, 751. 
Colburn v. ToUes, 171. 
Colby V. Norton, 421. 
Coldham v. Showier, 181, 771, 772. 
Cole V. Dyer, 182. 

V. Potts, 824, 835. 

V. Shurtliff, 174. 

V. White, 823, 834. 
Coleman v. Chester, 402. 

u. Foster, 15, 31. . 

V. Garrignes, 778. 

V. Gibson, 605. 

V. Maherly, 102. 

V. Upcot, 190, 654, 663, 667, 690. 
Colerick v. Hooper, 684, 844, 845. 
Coles i>. Coles, 423. 



TABLE OF CASES. 



XV 



Coles V. Pack, 180. 

V. Pilkington, 326, 820, 832, 839, 
840. 

V. Trecothick, 654, 699, 709, 720, 
726, 728, 768, 778. 
Colles V. Evanson, 80, 135. 
Collier v. Coates, 432. 
Collins, in re, 452. 

V. Collins, 843. 

V. Thayer, 432. 
Collins Co. V. Marcy, 6, 19, 30. 
Collinson i\ CoUinson, 814, 815. 
CoUis V. Bothamley, 466. 
Colman v. Eyles, 203, 230. 

V. Packard, 411. 
Colson V. Thompson, 843. 
Colt V. Netterville, 394, 395. 

V. Root, 151, 160, 196, 206, 209. 
Com V. Rigney, 25. 
Combe's Case, 45, 725. 
Comes V. Lamson, 486, 490, 491. 
Comfor^; v. Kierstead, 554. 
Coming, ex parte, 442, 446, 452. 
Commins v. Scott, 654, 684, 688, 692, 

693. 
Compton V. Martin, 480, 494. 
Comstock V. Morton, 160, 292. 

V. Smith, 624. 

V. Ward, 463, 464, 473, 474, 485. 
Cone V. Dudley, 413. 
Conington v. Anderson, 726. 
Conkey v. Hopkins, 160, 198, 289, 293. 
Connally v. Kettlewell, 164, 194, 216, 

218. 
Connecticut &c. Ins. Co. v. Cleveland 

&c. E. R. Co., 173. 
Connelly v. Doe, 92. 
Connerat v. Goldsmith, 156. 
Connor v. Williams, 232. 
Conradt v. Sullivan, 154, 199, 262. 
Consociated &c. Society v. Staples, 246. 
Converse v. Harzfeldt, 752. 
Conway v. Starkweather, 58. 
Cooeh V. Goodman, 4, 44. 
Cood V. Cood, 850. 
Cook V. Anderson, 663. 

V. Barrett, 161, 209, 210. 

V. Daggett, 428. 

V. Elliott, 171. 

V. Gwavas, 805. 

V. Moore, 232. 

,/. Prigdon, 16, 21, 22, 28, 36, 37. 

u. Steams, 13, 14, 15, 20, 21, 30, 
35, 400. 
Cooke, in re, 444. 



Cooke V. Chapman, 637. 

V. Millard, 5S0, 542, 543, 544, 545, 
550, 551, 552. 

V. Tombs, 184, 397, 609, 708, 823. 
Cookes r. Maskall, 318, 332. 
Coorabe, ex parte, 451, 452. 
Coombs V. Bateman, 518, 522, 523. 

V. Bristol &e. Exeter R. Co., 566, 
678, 590, 603, 013. 
Coon V. Smith, 421. 
Cooper V. Bill, 626, 630. 

V. Chambers, 153, 156, 195, 207, 214. 

V. Dedrick, 174. 

V. Elston, 527, 532, 533, 542, 574. 

o. Hood, 687, 719, 847. 

V. Phibbs, 871. 

V. Smith, 660, 693, 701, 710, 732, 
739, 741. 

V. Worraald, 322, 336. 
Coote V. Jecks, 446. 
Cooth V. Jackson, 698, 823, 854, 857, 

875. 
Cope V. Williams, 435. 
Copeland v. Gubbins, 133. 

V. Watts, 90, 104, 132. 
Copper &c. Co. u. Spencer, 411. 
Coquard v. Union Depot Co., 257. 
Coquillard v. Suydam, 877. 
Corbet's Case, 117. 
Corbett v. Cochran, 156, 206, 214, 215. 

V. Norcross, 420. 
Corbin v. McChesney, 246. 
Corder v. Drakeford, 184. 
Corkins i-. Collins, 154, 260. 
Cormack v. Masterton, 787. 
Corner v. Shew, 148. 
Cornish r. Searell, 88. 

V. Stubbs, 15, 25, 42. 
Cornthwaite v. First National Bank, 

140, 147. 
Cosack V. Descourdes, 656. 
Cothcart v. Kernahan, 781. 
Cottee V. Richardson, 75. 
Cotterell v. Stevens, 161, 210, 526. 
Cotting I'. King, 877. 
Cottington v. Fletcher, 803, 805, 856. 
Cottrell V. Apsey, 504. 

«. Hughes, 132, 183. 
Couch V. Goodman, 485. 

V. Meeker, 187. 
Coughlin V. Knowles, 433. 
Coulton V. Ambler, 357. 
Coupland v. Maynard, 84. 
Courtail v. Thomas, 89, 90, 103, 124. 
Courtney, in re, 446. 



XVI 



TABLE OP CASES. 



Courtwright v. Leonard, 640. 

V. Stewart, 543, 544. 
Cousins V. Phillips, 86. 
Coutourier v. Hastie, 206, 207, 209, 302, 

303. 
Cowden v. Gottgetreau, 155, 217, 353. 
Cowen V. PhUlips, 63. 
CowenhaTcn v. Howell, 263. 
Cowie V. Kemfry, 794. 
'Cowles V. Bawne, 844. 

V. Marble, 414. 

V. Warner, 500. 
Cowley V. Watts, 682, 687, 730. 
Cpx V. Bray, 411. 

V. Burt, 51, 52. 

V. Cox, 832. 

V. Middleton, 718. > 

u. Peeble, 438. " 

V. Weller, 278. 
Coziue V. Graham, 854, 875. 
Crahb v. Crabb, 800, 814, 816. 
Crabs v. Fetick, 26. 
Crabtree v. Welles, 433. 
Crackwell v. Owerell, 56. 
Craddock v. Eiddlesburger, 377. 
Craig V. Godfrey, 781. 

V. Van Pelt, 424. 
Cram v. Fitch, 209. 
Crampton v. Varna Railway Co., 831. 
Crane v. Bullock, 156, 172, 178. 

t). Gouch, 424. 

w. Powell, 710. 
Cranston v. Smith, 876. 
Craske v. Christian Union Publishing 

Co., 66. 
Cravener v. Bowser, 412. 
Cravens v. Kiser, 409. 
Crawford v. King, 154, 260, 263, 290. 

V. Morrell, 186. 

V. Woods, 158, 878. 
Crawshay v. Maule, 423. 
Creagh v. Blood, 97, 98, 103, 129, 

130. 
Creech v. Crochett, 51. 
Creel v. Bell, 153, 161, 209, 210. 
Cresswell v. Wood, 289. 
Crira V. Fitch, 196. 

Cripps V. Hartnoll, 198, 274, 287, 291. 
Crocker v. Cowper, 6. 
Crockett v. Scribner, 546, 553. 
Croft V. Smallwood, 217. 
Crofts V. Beale, 173. 
Cromeliu v. Thiess, 48, 51. 
Crook V. Corporation of Seaford, 63, 
829, 839, 851. 



Crookshank v. Burrell, 206, 537, 542, 

554. 
Croome v. Lediard, 868. 
Crop V. Norton, 803, 807, 809. 
Cropper v. Cook, 753. 

V. Pitman, 155, 219, 262. 
Crosby v. Joralemon, 195, 209, 293. 

V. Wadsworth, 4, 150, 353, 355, 
360, 374, 383, 384, 387, 396. 
Cross V. Ballard, 198. 

V. Ererts, 876. 

V. O'Donnell, 558, 571, 613, 621, 
642. 

V. Richardson, 155, 175, 260, 265, 
267. 

V. Williams, 218. 
Crossflcld, ex parte, 449. 
Crossly v. Maycock, 680, 732, 733. 
Croswell v. Crane, 45. 

V. Currie, 235. 
Crouk V. Trumble, 824. 
Crowell V. Maugh, 421. 
Crowfoot V. Guerney, 285. 
Crowley v. Vitty, 68, 93, 108, 119, 121. 
Crull V. Dodson, 394, 503. 
Crutchfleld v. Donathan, 189,686, 764, 

765. 
Cudlip V. Randall, 50. 
Cuff V. Penn, 754. 
Culpepper v. Aston, 805. 
Cumberland &c. R. E. Co. v. McLana- 

han, 15, 28, 36. 
Cumming v. Roebuck, 789, 790, 792, 

794. 
Cummings v. Arnold, 758. 

V. Dennett, 545. 

V. Gill, 839. 
Cummins v. Nutt, 420, 839. 
CunliSe v. Harrison, 572, 601, 604, 606. 
Cunningham v. Ashbrook, 566. 
Curie V. Eddy, 437. 
Curling v. Flight, 393. 
Curnutt V. Roberts, 435. 
Currant v. Jago, 811. 
Currey v. Lackey, 843. 
Currie v. Anderson, 584, 591, 593. 

V. McLean, 473. 
Curry v. Com. Ins. Co., 26. 
Curteis' Trusts, in re, 800. 
Curtis V. Blair, 778. 

V. Brown, 152, 155, 195, 196, 214, 
225, 261, 264. 

V. Hoyt, 26. 

V. Noonan, 31, 34. 

V. Pugh, 580, 604. 



TABLE OP CASES. 



XVU 



Curtis V. Sage, 494, 500. 

Cusack V. Robinson, 560, 562, 560, 

615, 621, 631, 034, 641, 667. 
Gushing v. Breed, 626, 638. 
Cutler V. Collison, 421. 

V. Pope, 363, 355, 359, 361, 362, 
883, 606. 
Cutter V. Emery, 292. 

V. Hinton, 155, 217, 219, 262. 
Cutting V. King, 688, 690. 
Cutts, ex parte, 457. 
Cuxon V. Cliadley, 286. 



D. 

Dack V. Hart, 186. 
Daggett V. Patterson, 407, 876. 
Daintry, in re, 454. 

Dale V. Hamilton, 422, 822, 823, 827, 
840, 846, 854. 

V. Stimpson, 634. 
Dalton V. Rust, 409. 
Daly V. Wilder, 725. 
Dames v. Peck, 615. 
Damon v. Osborn, 559, 560, 580. 
Dana v. Hancock, 737, 754, 758. 
Danf orth v. Laney, 826, 835. 

V. Lowry, 414. 

V. Walker, 559, 573, 574, 616. 
Daniels r. Bailey, 352, 413, 415. 

V. Davison, 61, 681, 846. 
Dankersley v. Levy, 117. 
Dannef elser v. Weigel, 624. 
Darby v. Darby, 854. 

V. Whittaker, 843. 
Dark v. Johnston, 15. 
Darlington v. McCann, 156, 223. 
Darnell v. Trott, 212, 218. 
Damley v. London &c. Railway Co., 

843. 
Darst V. Bates, 199. 
Dauber v. Blackney, 175, 267, 298, 

300. 
Davenish v. Moffatt, 52, 57. 
Davenport v. Gentry, 429, 472. 
Davenport's Case, 77. 
Davey v. Shannon, 497, 498, 499. 
Davidson v. Cooper, 677. 

V. Green, 337. 
Davies, in re, 443. 

•,. Marshall, 11, 31. 

V. Otty, 801, 802, 809, 855. 
Davis V. Banks, 245, 247. 

V. Calloway, 235. 



Davis V. Eastman, 573, 621. 

V. Henry, 421. 

V. Hill, 666. 

o. Jones, 718, 752. 

V. Judge, 420. 

V. Moore, 559, 560, 670. 

V. Parish, 437. 

V. Reyner, 141, 146. 

V. Robertson, 762. 

V. Sander, 15. 

V. Shields, 656, 737, 764, 765, 772, 
796. 

V. Symonds, 858. 

V. Thompson, 51. 

V. Townsend, 421. 

V. Walker, 405, 410. 

V. Wright, 141. 
Davison v. Davison, 826. 

V. Gent, 96, 126, 131, 132, 133. 

V. Stanley, 124. 
Davone v. Finnell, 566. 
Daw V. Jewell, 420. 

V. Terrell, 453. 
Dawes :;. Eastman, 574, 

t. Peck, 641. 

c. Shields, 714. 

V. Young, 156. 
Dawson v. Clarke, 806. 
Day V. Cloe, 214. 

V. Elmore, 174. 

V. N. Y. Centl. R. R. Co., 428, 430, 
471, 475. 

<,. WUson, 432. 
Dayton v. Craik, 97. 

V. Williams, 876. 
Deacon v. Colquhoun, 808. 
Deal V. Maxwell, 543, 544, 545, 550. 
D'Almaine v. Moseley, 806. 
Dean v. Anderson, 820. 

V. Dean, 854. ' 

V. Tallman, 169, 217. 

V. Walker, 236. 
Deane v. Caldwell, 96. 
D'Aquillar v. Drinkwater, 336. 
Dearborn v. Parks, 209, 276. 
D' Arras v. Keyser, 830. 
De Biel v. Thompson, 327, 334, 709. 
Decker v. Schaffer, 198. 
De Cordova v. Smith, 666, 764. 
Deg V. Deg, 803. 
Delane v. Delane, 807. 
Delaney v. Root, 351, 354, 358, 359, 

361, 363. 
Delano v. Montague, 45. 
Delarnoix v. Bulkley, 111. 



XVIU 



TABLE OF CASES. 



De Manneville v. Crompton, 332. 
De Medina v. Poison, 70. 
Dement v. Williams, 418. 
De Merrett v. Bickford, 235. 
Deming v. Kemp, 510. 
Dempsey v. Kipp, 7, 14, 22, 39. 
Denison v. Wertz, 117. 
Denmead v. Glass Co., 614, 641. 
Denn v. Fearnside, 48, 55. 
.Denne v. Light, 847. 
Denny v. Hancock, 870. 

0. Williams, 557, 571, 576, 577. 
Denton v. Davies, 802. 

V. McKenzie, 770. 

V. Stewart, 872. 
De Porquet v. Page, 709. 
Derby v. Phelps, 311, 312, 463,470. 
Derrick v. Brown, 469, 470. 
Deshon v. Bigelow, 624. 
Deslage v. Pearee, 30, 35. 
Despain v. Carter, 839. 
Devaux v. Steinkeller, 308. 
Deven v. Thomas, 61. 
Devenish v. Baines, 798. 
De Visme, in re, 811, 812. 
Devlin v. Woodgate, 151, 223. 
Devoy v. Devoy, 815. 
Dewey v. Bardwell, 421. 
De Wolf V. Eabaud, 178, 290. 
Dexter t). Blanchard, 156, 158, 261, 304. 
Dickerson v. Chrisman, 64. 
Dickinson v. Colter, 198, 222, 288. 

V. Dickinson, 509. 

V. Gay, 752. 

V. Marrow, 627. 

V. Silwall, 788, 792. 
Dickson v. Frisbie, 472, 487, 488. 
Dighton V. Greenvil, 87. 
Dike V. Green, 843. 
Dillwyn v. Llewellyn, 821. 
Dilts V. Parke, 162, 252. 
Dilworth, in re, 445. 
Dinkel v. Gundelfinger, 493, 874. 
Dipples V. Corles, 799. 
District &c. v. Moorhead, 498. 

of Columbia v. Johnson, 675, 677. 
Dix V. Marcy, 427, 428. 
Dixie V. Davis, 54, 55. 
Dixon V. Bromfield, 778, 779. 

V. Fletcher, 601. 

V. Frazer, 155, 165, 216, 218, 262. 

V. Hatfield, 213, 231. 

V. Mucklestone, 455. 

V. Oliver, 830. 
Doane v. Dunham, 752. 



Doane v. Newman, 165, 229. 

Dobell 0. Hutchinson, 653, 654, 697, 

702, 730. 
Dobson, ex parte, 445. 

V. CoUis, 494. 

V. Litton, 684, 844, 845. 
Dock V. Boyd, 241. 

Dodd V. Acklom, 96, 100, 104, 106, 134. 
Dodge V. Crandall, 495. 

V. Dodge, 92, 413. 

V. Lean, 647. 

V. McClintock, 15, 19, 23, 28, 33, 
35, 36, 38. 
Dodsley v. Varley, 622, 623, 625. 
Doe V. Amey, 47, 52, 67. 

V. Bell, 66, 70. 

V. Benjamin, 134. 

V. Breach, 66. 

V. Bridges, 125. 

V. Browne, 47, 70. 

u. Burdett, 769. 

V. Calling, 52. 

u. Cochran, 414. 

V. Collings, 56. 

V. Cooke, 133. 

V. Courtenay, 120, 123, 125. 

V. Cox, 47. 

V. Crago, 62. 

v. Davies, 47. 

V. Dignowitty, 413. 

V. Downs, 222. 

V. Forwood, 125. 

V. Gardner, 48. 

V. Geekie, 93. 

V. Glenn, 88. 

V. Guy, 148. 

V. Jackson, 48. 

V. Johnstone, 94, 126. 

V. Jones, 123. 

V. Marchetti, 86. 

V. Milward, 84, 94, 108, 121. 

V. Moifatt, 46, 47, 63, 66, 70. 

V. Oliver, 131. 

V. Pedgriph, 654, 767. 

v. Poole, 84, 123, 125. 

V. Pyke, 77. 

u. Ridout, 94. 

V. Smith, 52. 

V. Stagg, 81, 87. 

V. Stanion, 94. 

V. Stratton, 70. 

V. Taniere, 52, 62. 

V. Thomas, 90, 91, 138. 

V. Walker, 85. 

V. Watts, 47. 



TABLE OF CASES. 



XIX 



Doe V. "Wells, 93. 

V. Williams, 128. 

V. Wood, 13, 47, 128, 133. 
Doidge V. Bowers, 47, 55. 
Dole V. Stdmpson, 557, 570, 639. 

V. Young, 288. 
Dolling V. Evans, 717. 
Donaldson v. Waters, 432. 
Donellan v. Read, 69, 93, 399, 468, 

495, 496, 497. 
Donnison v. People's Caffi Co., 689. 
Donnorau v. Wilson, 642, 544. 
Donohoe v. Conrahy, 802, 803. 
Dooley v. Eilbert, 571. 
Doolittle V. Taylor, 228. 

Dorr V. Barney, 57. 

Dorwin «. Smith, 160, 295,' 296. 

Doscher v. Shaw, 80. 
Doty V. Wilder, 656, 724, 726, 782. 
Dougan v. Blocher, 827, 828. 
Douglas V. Jones, 156, 220. 

V. Shumway, 351, 363, 440. 

V. Spiers, 661, 666, 764. 

V. Vincent, 317. 
Dow V. Brown, 419. 

V. Terrell, 456. 
Dowdle V. Camp, 432. 
Dowell V. Dew, 65, 837. 
Dowling V. McKenney, 185, 428, 506. 
Downey v. Hinchman, 156, 158, 292. 
Downs V. Marsh, 605. 

V. Ross, 537, 539, 543, 544. 
Dows V. Montgomery, 624. 

V. Swett, 299, 300. 
Dowse V. Coxe, 148. 
Doyle V. Dixon, 466, 467, 469, 471, 485, 
498. 

<,. White, 156, 203, 207, 219, 233, 
276. 
Drake v. Fleurellen, 196, 289, 304. 

c/. Newton, 51, 66. 

V. Seaman, 648. 

V. Wells, 8, 9, 13, 19, 23, 29, 351, 
354, 360, 361, 363, 384. 
Draper v. Pattina, 769. 

.;. Snow, 299. 
Draughan u. Bunting, 156, 234, 252,292. 
Dressel v. Jordan, 666, 765. 
Dresser v. Dresser, 312, 465, 466, 467, 

469, 481. 
Drew V. Martin, 810, 812, 814. 
DriscoU V. Marshall, 25. 
Druly V. Hunt, 293. 
Drummond v. Burrell, 463, 474, 486, 
500. 



Drury v. MacNamara, 63. 

V. Young, 054, 656, 669, 673, 698, 
729, 769, 770, 772. 
Druse v. Wheeler, 9, 14, 19, 23, 39, 42. 
Dubois v. Kelly, 349, 359, 369. 
Dubuque v. Miller, 52. 
Dudley v. Littlefield, 422. 

■0. Sawyer, 624. 
Duf alt V. Gorman, 204. 
Duff V. Snider, 495, 497. 
Duffy !!. O'Donovan, 875. 

V. Wunsch, 156,160,220,253,266. 
Dugan V. Colville, 839. 

V. Cowzleman, 161. 
Duineen v. Rich, 9, 30, 35. 
Duke V. Harper, 48, 56. 

of Beaufort v. Patrick, 831. 

of Devons v. Eglin, 830. 

of Leeds v. Earl of Amherst, 821. 

bf Norfolk v. Browne, 809. 
Dummer v. Pitcher, 812, 814, 816. 
Dumper v. Dumper, 815. 
Duncan v. Blair, 186. 

u. Sylvester, 419. 
Duncombe v. Tickridge, 196, 207, 304. 
Duncroft v. Albrecht, 393, 503. 
Dundas v. Dutens, 321, 322, 334, 335, 

337. 
Dung V. Parker, 158, 315. 
Dunlap V. Thome, 259, 260. 
Dunlop V. Higgins, 654. 

V. Lambert, 641. 

V. Perry, 640. 
Dunn V. Trustees &c., 48. 

V. West, 198, 235, 290, 292, 295. 
Dunnage v. White, 806. 
Dunne v. Ferguson, 352, 354, 356, 383, 

386, 387. 
Dunning v. Roberts, 156, 219. 
Dupont V. Starring, 421. 
Duppa V. Mayo, 355, 364, 366, 874. 
Durand v. Wyman, 76. 
Durant v. Allen, 263. 

V. Rogers, 875. 
Durham v. Arledge, 174, 206, 272. 

V. Munrow, 195, 208, 298. 
Durrell v. Evans, 612, 773, 775, 776, 

780, 782, 783, 785, 786. 
Dutchman v. Tooth, 180. 
Dutton V. Solomonson, 641. 
Duval V. Getting, 325. 
Duvall V. Peach, 414. 
Dyas V. Cruise, 778, 787. 
Dyer v. Clark, 423. 

u. Dyer, 806, 810, 811. 



XX 



TABLE OF CASES. 



Dyer v. Forrest, 609. 

V. Gibson, 175, 267. 

v. Graves, 186, 408, 410. 

V. Libby, 597. 

o. Martin, 854. 

V. Sandford, 31, 34. 
Dygert v. Eemorshnider, 315. 
Dykers v. Townsend, 250. 
Dynes v. O'NeU, 425. 



E. 

Eager v. Eichelberger, 640. 

Eagle Mowg. and Eeapg. Mach. Co. v. 

Shattuck, 298. 
Earl V. Rogers, 82. 

of Arundel v. Lord Gray, 122. 

of Aylesford's Case, 826. 

of Berkeley v. Abp. of York, 90, 

117, 123, 124. 
of Carnarvon u. Villebois, 118, 

123. 
of Damley v. London, Chatham, 

and Dover R. C, 859, 866. 
of Egremont v. Courtenay, 123, 

124. 
of Egremont v. Forwood, 124. 
of Falmouth v. Thomas„184, 354, 
857, 382,391,.S99,436,496, 644. 
of Plymouth v. Hickman, 803. 
East Tenn. &c. R. E. Co. v. Staub,469, 

470. 
Easter v. White, 293. 
Eastern R. R. Co. v. Benedict, 503. 
Eastler v. Henderson, 100. 
Eastman v. Anderson, 350, 425. 

V. Foster, 440. 
Eastwood V. Kenyon, 175, 196, 197, 

198, 201, 277, 292. 
Eaton V. Eaton, 429. 

V. Whitaker, 64, 477, 824, 826. 
V. Winne, 22, 24. 
Eberly v. Lehman, 830. 
Ebert v. Wood, 420. 
Ebrand v. Dancer, 807, 811. 
Ecker v. Bohn, 267, 876. 
Edan v. Dudfleld, 575, 576, 584, 620, 

625. 
Eddy V. Davenport, 278. 
V. Davidson, 163. 
V. Roberts, 161, 214, 245. 
Ede V. Knowles, 447, 451. 
Eden v. Blake, 657. 
Edge V. Frost, 212. 



Edge V. Strafford, 5, 18, 348, 398. 

V. Worthington, 450, 451. 
Edgerton v, Hodges, 518. 
Edinfield v. Canady, 241, 290. 
Edmunds v. Bushell, 753. 

V. Downes, 739, 752. 
Edwards, ex parte, 453. 

V. Baugh, 179, 180. 

V. Clemens, 51. ' 

V. Fidel, 807. 

V. Fry, 832, 836. 

V. Grand Trunk R. R. Co., 530, 
537, 545, 546, 550, 657, 570. 
593, 614, 621, 641. 

V. Hall, 393. 

V. Jevons, 181. 

V. Johnson, 778. 

V. Kelly, 154, 208, 269. 

u. Martin, 445. 

V. Wickwar, 87. 
Egerton v. Matthews, 646, 765. 
Eggleston v. N. Y. &c. R. R. Co., 9, 
22, 32. 

V. Wagner, 681, 684, 782. 
Egremont v. Courtnay, 118. 
Eichelberger v. McCauley, 532, 550, 

551, 552. 
Elder v. Warfleld, 162, 216. 
Eleyr.Positive Assurance Co., 465, 766. 
Elfe V. Gadsden, 656, 714, 729. 
Elkins V. Heart, 273. 
EUenwood v. Fultz, 198. 
EUet V. Faxon, 427. 
Ellicott V. Peterson, 466,468,479,480. 

V. Turner, 469, 470, 494. 
Elliot V. Elliot, 815, 816. 
ElUott V. Giese, 156, 162, 178. 

V. Jenness, 876. 

V. Thomas, 581, 599, 604, 875. 
Ellis V. Deadman, 655, 678, 685, 714. 

V. Grubb, 369. 

V. Levy, 182. 

V. Paige, 51. 
Ellison V. Brigham, 550. 

V. Jackson, 247, 284. 

o. Wisehart, 174, 266, 293, 296. 
Ellwood V. Monk, 234. 
Elmendorf v. Harris, 843. 
Elmore v. Kingscote, 655, 679, 715, 
716, 737, 746. 

V. Stone, 618, 619, 620, 626, 630, 
631, 632, 633. 
Else V. Barnard, 778. 
Elting V. Vanderlyn, 243. 
Elwell V. Shaw, 45. 



TABLE OP CASES. 



XXI 



Ely V. McKnight, 407. 

V. Ormsbeo, 620. 
Embury v. Connor, 402. 
Emerick v. Sanders, 243. 
Emerson v. Slater, 224, 290, 309, 758. 
Emery v. Smith, 463, 471, 479. 
Emley v. Drumm, 456, 407, 401. 
Emmerson v. Heelis, 360, 375, 386, 

512, 699, 773, 778, 780, 781. 
Emmett v. Dewhurst, 268, 736. 
Emmons v. Scudder, 48. 
Emmott V. Kearns, 179. 
Endicott v. Penny, 726. 
Ennis v. Waller, 726. 
Eno V. Woodworth, 508. 
Entwhistle v. Davis, 393. 
Episcopal Church i-. Wiley, 726. 
Erben v. Lorillard, 405, 427, 429, 430. 
Erskine v. Adeane, 423. 

V. Plummer, 30, 359, 361, 362. 
Eshleman v. Harnish, 217. 
Esling V. Williams, 6. 
Esmay v. Grotser, 854. 
Espy -v. Anderson, 758. 
Essex V. Essex, 422, 423, 500. 
Estabrook v. Gebhart, 233. 
Estes V. China, 14, 22. 
Esty V. Aldrich, 466, 469, 479. 
Eton V. Luyster, 124. 
Etting V. Vanderlyn, 173. 
Eutz V. Mills, 787. 
Evans v. Dunscombe, 805. 

u. Green, 423. 

V. Hardman, 407. 

V. Harris, 567. 

V. Lohr, 297. 

i;. Mason, 160. 

V. Prothero, 655. 

V. Roberts, 352, 354, 355, 360, 374, 
375, 376, 378, 383, 384, 386, 
391, 392. 

V. Thompson, 111. 
Everett v. Clements, 640. 

V. Parks, 641. 
Ewins V. Calhoun, 306. 
Exchange Bank v. Rice, 199, 232, 235. 
Eyre v. Eyre, 846. 

V. McDowell, 453. 
Ezelle V. Parker, 48. 



Fairchild v. Pairchild, 423. 
Eairlie v. Denton, 276, 285, 286. 



Fall V. Hazleregg, 828. 

Fall River Whaling Co. v. Borden, 

423. 
Fallraer v. Dale, 220. 
Falls V. Miller, 634. 
Fane v. Fane, 799. 
Farebrother v. Simmons, 779, 780, 781, 

783. 
Farina v. Home, 585, 607, 626, 629, 

636. 
Parish v. Wilson, 173. 
Farley, ex parte, 444, 448. 

V. Cleaveland, 196, 231, 234, 240, 
244. 

V. Stokes, 839. 
Farmer v. Robinson, 796. 

V. Rogers, 73, 81, 82, 83, 87. 
Farmers' Bank of Amsterdam v. Blair, 

215. 
Famam v. Davis, 428. 
Farrall v. Davenport, 833. 
Farrar v. Farrar, 413. 
Farrell v. Maxwell, 294. 
Farrington v. Donohoe, 467. 
Farson v. Goodale, 118. 
Farwell v. Lowther, 047, 678, 688, 690. 

V. Mather, 684, 686, 687, 714, 742, 
750. 
Fawkes v. Lamb, 753. 
Fay V. Bell, 259, 260. 

V. Smith, 567. 

V. Wheeler, 395, 503, 507, 508. 
Fears v. Story, 260. 
Featherstone v. Fenwick, 443. 
Felch V. Taylor, 350, 436. 
Fell V. Chamberlain, 864. 
Feltham v. Cartwright, 12. 
Felthouse v. Bindley, 60, 730. 
Fenley v. Stewart, 660, 764. 
Fenner v. Hepburn, 63. 
Fentimau v. Smith, 9, 22, 30, 43. 
Fenton v. Emblers, 314,468, 474, 480, 

482, 484, 485. 
Fenwick v. Floyd, 729. 

V. Potts, 450. 
Ferguson v. Dunne, 371. 

0. Storer, 656, 084. 
Ferrell v. Maxwell, 100, 292. 
Ferren v. O'Hara, 544. 
Ferris v. Barlow, 174, 297. 

V. Irving, 845. 

V. MuUins, 445, 453. 
Ferry v. Pfeiffer, 65. 
Fessenden v. Mussey, 656, 721, 772. 
Fickett V. Swift, 545, 546, 550. 



xxu 



TABLE OP CASES. 



Field, in re, 771. 

«. BoUand, 765. 

V. Kunk, 560, 598, 609. 
Piero V. Eiero, 405. 
riles V. MoLeod, 160, 195, 208. 
Einch V. Finch, 810, 814. 
Findley v. Wilson, 435. 
Finney v. Apgar, 540, 547, 549. 

V. Finney, 422. 
Pinucane v. Kearney, 839. 
First National Bank u. Bennett, 204, 

293. 
Fish V. Campion, 118, 123. 

V. Hutchinson, 154, 173, 272. 

v. Eichardson, 141, 144. 

„. Thomas, 152, 174, 195, 196, 
209,254,261,297. 
Fisher v. Kerlin, 684. 
Fiske V. McGregory, 198, 781. 
Fitch V. Burk, 352. 

V. Constantine &c. Co., 39. 

V. Sargent, 102. 

V. Seymour, 402. 
Fitzgerald v. Dressier,, 192, 206, 209, 
254, 268, 287, 292. 

V. Fitzgerald, 317. 

V. Morrissey, 264. 

V. Vickers, 719, 847. 
Fitzmaurice v. Bayley, 61, 656, 703, 

705, 718, 737, 782, 786. 
Fitzpatrick v. Beatty, 844. 
Fitzsimmons v. "Woodruff, 539. 
Flanders v. Crolius, 219. 
Fleeman v. McKean, 624. 
Fleet V. Murton, 753. 
Fleming v. Easter, 234. 

u. Kamsay, 407. 
Flemm v. Whitmore, 160, 198. 
Fletcher v. McFarlane, 436. 
Flight V. BoUand, 663. 
Flint V. Corbitt, 538, 543, 544, 545, 550. 
Flintofe v. Elmore, 780. 
Flood V. Einlay, 867. 
Floyd V. Buckland, 829, 839. 
Folger V. Mitchell, 420. 
Foligno V. Martin, 767. 
Folsom V. Great Falls Co., 348. 
Foot V. New Haven &c. E. E. Co., 15, 

19, 20, 22, 32, 400. 
Foote V. Emerson, 473, 481. 
Foquet v. Moore, 84, 108, 110, 121. 
Forbes v. Hamilton, 361, 403, 404. 

V. Shattler, 754. 
Force v. Butcher, 684, 846. 
Ford V. Finney, 245, 407. 



Ford V. Eockwell, 221. 

V. Tates, 714, 738. 
Ford's Estate, in re, 86. 
Fordyce v. Willis, 798, 799, 809. 
Forrest v. Forrest, 811. 
Forster v. Hale, 422, 798, 802, 803, 846. 

V. Eowland, 60, 730, 7.34, 767. 
Forsyth v. Dickson, 554. 
Fort V. Gooding, 489. ^ 
Forth V. Stanton, 141, 143, 145, 173, 

215, 256, 266, 269, 874. 
Foss V. Haynes, 872. 
Foster v. Browning, 9, 19, 30, 35. 

V. Charles, 306. 

u. Frampton, 572. 

V. McO'Blenis, 479, 480. 

V. Eockwell, 641. 

V. Sleeper, 702. 
Foulks V. Burns, 413. 
Fowkes V. Pascoe, 812, 813. 
Fowle V. Freeman, 663, 680, 764, 765. 
Fowler v. Burget, 158. 

V, Clearwater, 298. 

V. Lewis, 875. 

V. Moller, 172. 

V. Radicon, 739, 846. 
Fox, in re, 395. 

V. Nathans, 56. 
Foxeraft v. Lyster, 819, 820, 829, 833. 
Fragano v. Long, 641. 
Frame v. Dawson, 65, 830, 832, 836, 842. 
Francam v. Foster, 468. 
France v. August, 234. 
Francis, The, 571, 614. 
Frank w. Harrington, 352, 360, 383, 388, 
392. 

V. Miller, 486, 659, 662. 
Franklin v. Long, 626. 
Frary v. Sterling, 495, 500. 
Frash v. Polk, 288. 
Frazer v. Child, 408. 
Frear v. Hardenburgh, 351, 403. 
Freeman v. Freeman, 827. 

V. Gainsford, 393, 396. 

o. Hadley, 22. 

u. Underwood, 18. 
Freeport v. Bartol, 654, 709, 739. 
French v. Freeman, 630. 

... French, 173, 175, 273. 

V. Thompson, 152, 228. 
Fricker v. Tomlinson, 568, 649. 
Frith V. Midland Eailway, 843. 
Frogley v. Lovelace, 45. 
Frost V. Deering, 45. 

V. Hill, 726, 787. 



TABLE OP CASES. 



xxm 



Frost II. Moulton, 844. 
V. Tarr, 469, 498. 
Frostburgh Mining Co. v. N. E. Glass 
Co., 558, 575, 584, 587, 596, 
597, 609, 614, 041. 
Frye v. Shepler, 846. 
Fryer v. Warne, 35. 
Fugate V. Hanaford, 647. 
Fuhr V. Dean, 6, 19. 
FuUam v. Adams, 232, 245, 261, 277, 

281. 
Fuller V. Bean, 566. 
V. Reed, 410. 

V. Plymouth Commissioners, 401. 
Fulmerston v. Steward, 123. 
Fulton V. Moore, 460. 
V. Robinson, 750. 
Funk V. Haldeman, 15, 17. 
Furbish v. Goodnow, 172, 263, 276. 
Fumess i'. Meek, 74(5. 
Furniss v. Sawers, 526. 
Furnivall i: Grove, 62, 77, 100, 106, 108, 

119, 134. 
Fyson v. Kitton, 696, 698, 713. 



G. 



Gadbury, in re, 816. 

Gadden v. Pierson, 158, 292. 

Gaddis v. Leeson, 523. 

Gadsden v. Lance, 479. 

Gaetz V. Foos, 198, 292. 

Galbraith v. Gedge, 423. 

Galbreath v. Galbreath, 420, 827. 

Gale V. Kixon, 663, 712. 

Gallairt v. Roberts, 573. 

Galloway !■. Herbert, 48. 

Galston v. Sigmund, 844. 

Galvin v. Prentice, 426, 429, 430, 431, 

479. 
Galway v. Shields, 432. 
Gammon v. Butler, 433. 
Garbutt v. Watson, 527, 529, 533, 539. 
Gardener v. Fenner, 145. 
Gardiner v. Fell, 802. 

u. Gray, 649. 

V. Hopkins, 152, 219, 228. 

V. Snydam, 568, 640. 
Gardner v. Armstrong, 874. 

!;. Gardner, 44, 45. 

V. Grout, 572, 574. 

V. Hazleton, 718. 

V. Howland, 639. 

V. Joy, 547. 



Gardner v. Rowe, 803. 

V. Rowland, 25. 
Gardom, ex parte, 176, 181. 
Garfield v. Paris, 571, 573, 576. 
Garner v. Hodgkius, 292. 

V. Shebblefiekl, 854. 
Garr v. Gomer, 843. 
Garrard v. Grinling, 867. 

V. Tuck, 132. 
Garred v. Macey, 843. 
Garrett v. Garrett, 158. 

V. Handlcy, 670. 

V. Malone, 408. 

V. Wilkinson, 812. 
Garrick v. Taylor, 807, 808. 
Gartnell v. Stafford, 063, 764. 
Garver i-. McNulty, 413. 
Gascoigne v. Thwing, 808. 
Gates V. Salmon, 419. 
Gault V. Brown, 498, 499, 510, 511, 

521, 602, 758. 
Gaunt V. Hill, 191, 048, 714. 
Gaussen v. Morton, 14, 31. 
Gauther v. Atkinson, 30. 
Gay V. Mitchell, 48. 
Geary v. Physic, 725, 769, 771. 
Geddis v. Leeson, 526. 
Geekie v. Monk, 93. 
Gehegan v. Young, 97. 
Gelstron v. Sigisnmnd, 845. 
George v. Bank of England, 799. 
Georgia Co. v. Castleberry, 208. 
Geraltney v. Wheeler, 407. 
Gerish v. Chartier, 207, 231. 
German v. Machin, 832, 846. 
Getchell v. Jewett, 003, 704, 765. 
Gett V. Bickell, 787. 
Gibbins u. North Eastern Metropoli- 
tan Asylum District, 080, 732. 
Gibbons v. Bell, 422. 
Gibbs V. Benjamin, 557, 558, 568, 571, 
621, 6.39, 041. 

V. Blanchard, 156, 103, 245. 

V. Rumsey, 806. 
Gibson v. Holland, 649, 652, 669, 674, 

695, 704. 
Gie V. Rider, 113, 116, 117, 122. 
Gigas V. Cochran, 085. 
Gilbert v. Bulkley, 92, 411, 412. 

V. Sykes, 409, 470, 484. 
Gilchrist v. Herbert, 329. 
Giles V. Simonds, 19, 22, 30, 351, 355, 
359, 361, 363. 

V. Spencer, 121. 
Giimian v. Snow, 204. 



XXIV 



TABLE OF CASES. 



Gill V. Bicknell, 723, 726, 780, 781. 

V. Herrick, 210, 263. 

.;. Hewitt, 720, 726. 
Gillanders v. Lord Eossmore, 400. 
Gillespie v. Battle, 435, 766. 
Gillett V. Burr, 408. 

V. Maynard, 428. 
Gillighan v. Boardman, 61, 156, 171, 

178. 
Oilman v. Hill, 510, 523, 526, 541, 562, 

566, 570, 602. 
Gilmore v. Wilson, 33. 
Giraud ,;. Richmond, 466, 472, 474, 

500, 736. 
Girgins v. Van Gorger, 412. 
Gist V. Eubank, 876. 
Givens v. Calder, 824. 
Gladsden v. Lance, 466. 
Glaister ;;. Hewer, 812. 
Glass V. Hulbert, 65, 824, 827, 828. 
Gleason v. Briggs, 195, 214. 

V. Drew, 507. 
Glen V. Whitaker, 558, 643. 
Glengal v. Barnard, 778. 
Glenn v. Lehman, 164, 217. " 
Glover v. Coles, 373, 392. 

V. Halkett, 178. 
Glyn, ex parte, 444. 
Glynn v. George, 32. 
Goar V. Cockridge, 428. 
Goddard v. Binney, 538, 547, 548, 549, 

550, 554, 555. 
Godden v. Pierson, 222, 878. 
Godet V- Cowdry, 655. 
Godfrey v. Moser, 252. 
Godts V. Base, 626, 629. 
Godwin v. Francis, 771, 788. 
Goelet V. Farley, 262. 
Goetz V. Foss, 245. 
GofE V. Kilts, 25. 

V. Obertuffer, 19. 

V. Sims, 288. 
Gold V. Phillips, 151, 161, 209, 210, 

234. 
Goldicutt V. Townsend, 323, 329, 336. 
Goldshede v. Swan, 180, 749. 
Gooch V. Holmes, 395, 503. 
Good V. Curtis, 570, 577. 
Goodall V. Skelton, 518. 
Gooderham v. Dash, 534. 
Goodhue v. Barnwell, 419, 420. 
Goodman v. Chase, 176, 207, 214, 275. 

V. Griffiths, 660, 679, 715, 737, 746. 
Goodnow V. Gilbert, 183. 
Goodrich v. Dustin, 421. 



Goodrich v. Johnson, 465. 

V. Nichols, 189. 
Goodspeed v. Fuller, 100, 295, 296. 
Goodtitle v. Duke of Chandos, 133. 

V. Herbert, 47, 48, 55. 
Goodwin v. Bond, 181, 266. 

V. Fielding, 669. 

V. Gilbert, 350, 436. 

V. Lyon, 846. 

V. May, 624. 
Goom V. Afflalo, 789, 790, 792, 793. 
Gordon ;;. Gordon, 422. 

V. Martin, 211. 

V. Sims, 726, 729, 781. 

V. Trevelyan, 61, 718. 
Gore V. Wright, 96, 102, 126, 130, 134, 

135. 
Gorham v. Fisher, 550, 562, 570. 
Goring v. Goring, 141, 146. 
Gorman v. Boddy, 572, 601, 606. 
Gorrie v. Woodley, 771. 
Gorton v. Dyson, 148. 
Gosbell V. Archer, 428, 696, 699, 769, 

771, 782, 786. 
Gosling V. Gosling, 810. 
Goss V. Lord Nugent, 305, 745, 747, 

748, 754, 757. 
Gothard v. Flynn, 442. 
Gottsschalk v. Wittes, 498. 
Gough V. Crane,- 325. 

V. Dennis, 306. 
Gould V. Mansfield, 414, 415. 
Goweu 0. Klous, 680, 683, 688, 690, 

745. 
Gower v. Stuart, 234. 
Grace v. Dennison, 684, 843. 
Graff V. Fitch, 360, 369. 
Grafton v. Armitage, 529, 530, 534, 
535, 536. 

V. Cummings, 648, 649, 688, 723. 
Grafton Bank v. Woodward, 754. 
Graham v. Call, 843, 844. 

V. Fretwell, 677, 783, 786. 

V. Musson, 655, 677, 691, 778, 779, 
782, 783, 784, 785, 786. 

V. O'Neill, 206, 222. 

V. Thers, 826. 

V. Wichels, 102, 105, 128, 133. 
Grant v. Campbell, 191. 

V. Fletcher, 790, 792, 794, 796. 

V. Grant, 799. 

V. Levan, 672. 

V. Naylor, 671, 690. 

V. Shaw, 231. 
Gratz V. Catlln, 457. 



TABLE OF CASES. 



XXV 



Graves v. Dyer, 408. 

u. Graves, 407. 

V. Weld, 879, 392. 
Gray v. Convillon, 421. 

V. Davis, 570, 584, 639. 

V. Gray, 429. 

V. Hill, 428, 436. 

V. Stanion, 101, 117. 
Grayson v. Richards, 92. 
Great Western Railway Co. v. Cripps, 

872. 
Greaves, in re, 305. 

Green v. Armstrong, 352, 353, 358, 359, 
369, 372. 

V. Bank of England, 807. 

V. Brookins, 292. 

V. Cresswell, 192, 266, 274, 287, 
288, 291, 292, 293. 

u. Disbrow, 165, 166. 

V. Finin, 827. 

V. Green, 432. 

V. Hart, 439. 

t7. Ingram, 445. 

V. Low, 871. 

V. Merriam, 571, 621, 630, 631. 

V. N. C. R. R. Co., 383, 431. 

V. Randall, 235. 

V. Saddllngton, 425. 

o. Vardiman, 351, 403, 408. 
Greene v. Cramer, 703, 713. 

V. Harris, 466, 469, 470, 480, 482, 
483. 
Greenlee v. Greenlee, 835, 846. 
Greer v. Greer, 429. 
Gregg V. Hamilton, 828. 

V. Patterson, 830. 
Gregory v. Gleed, 210. 

V. Mighell, 826, 828, 834, 850. 

V. Williams, 143, 197. 

V. Wilson, 840, 849. 
Gregson v. Ruck, 790, 794, 796. 
Greider's Appeal, 83. 
Grey v. Berry, 421. 

V. Gary, 630. 

V. Grey, 810, 814, 815, 816. 
Gridley v. Capen, 263. 
Griffin v. Coffey, 438. 

V. Derby, 156, 220. 

V. Rembert, 666, 670, 688, 690, 764. 
Griffith V. Hodges, 99, 104, 107. 

0. Jenkins, 400. 

V. Sheffield, 143. 

V. Young, 304, 350, 424. 
Griffiths V. Puleston, 353, 391. 
Grimes v. Butts, 418. 



Grimes i'. Van Vechten, 432, 614. 
Grimman v. Legge, 90, 102, 104, 106, 

134. 
Grimoldby v. Wells, 591, 596, 604. 
Griswold v. Griswold, 214. 
Groat V. Gile, 520, 568. 
u. Story, 057, 713. 
Groover v. Warfield, 677. 
Groves o. Buck, 374, 413, 415, 527, 

529, 532. 
V. Grooves, 49, 801, 808. 
Grubb V. Bayard, 17. 
Grlindy v. Grundy, 409. 
Guerard v. Daudelet, 467. 
Guishaber v. Hairman, 175. 
Gull V. Lindsay, 256, 268. 
Gulliver v. Gulliver, 336. 
Gully V. Grubbs, 494. 
Gonnels v. Stewart, 195, 211, 214. 
Gunter v. Halsey, 823, 854, 856. 
Gupton V. Gupton, 826. 
Gumsey v. Rogers, 236. 
Guyn V. McAuley, 827. 
Gwins V. Calder, 875. 
Gwynn v. McCauley, 874. 
Gybson v. Searle, 113, 115, 116, 119, 

121, 122. 
Gye, in re, 454. 



H. 



Hacker v. Gentry, 875. 
Hackett v. Reynolds, 442. 
Hackleman v. Miller, 140. 
Haddeson Gas Co. v. Haslcwood, 668. 
Hagan v. Domestic S. M. Co., 659, 

663. 
Hagar v. King, 395. 
Hagey v. Detweiler, 421. 
Haggerty v. Johnson, 156, 195, 214. 
Haigh, ex parte, 442. 

V. Brooks, 179, 180, 749. 

t,. Kaye, 801, 853. 
Hairston v. Jaudon, 827. 
Hakes v. Hotchkiss, 243, 658. 
Halbut V. Forest City, 350. 
Halifax, ex parte, 452. 
Hall V. Betty, 709. 

V. Boyd, 6. 

V. Burgess, 102, 103, 127, 134. 

V. Chaffee, 19, 30, 33, 35, 36. 

a. Hall, 422, 854, 875, 878. 

V. McDuff, 413, 442. 

V. Myers, 56, 58. 

V. Robinson, 234, 2.52. 



XXVI 



TABLE OF CASES. 



Hall V. Eodgers, 174, 206 

V. Rowley, 473. 

V. Seabright, 26. 

V. Soule, 158, 432. 

V. Wood, 155, 194, 219, 233. 

V. "Woodin, 263. 
Halleck v. Guy, 457, 460. 
Hallen v. Runder, 351, 353, 377, 378, 

379, 386, 392, 402. 
Hallenback v. Cochran, 577. 
Halsa D. Halsa, 61, 686. 
Halstead v. Francis, 199. 
Halterline v. Rice, 567. 
Ham V. Goodrich, 405, 824, 832. 

V. Van Orden, 570, 571, 576, 577, 
597. 
Hamerton v. Stead, 49, 93, 102, 103, 

117, 120, 125, 126. 
Hamilton v. Incledon, 144, 

V. McDonnell, 369. 

V. Terry, 143, 438, 707. 

V. "Windolf, 22, 26. 
Hamlyn Buck, in re, 447. 
Hammer v. McEldowney, 844, 845. 
Hammersley v. De Biel, 316, 322, 323, 
324, 325, 327j 329, 830, 331, 
334, 337, 730, 772. 
Hampton v. Paulin, 208. 

V. Spencer, 803. 
Hanchett v. "Whitney, 53, 56. 
Hand v. Grant, 727. 
Handcoek v. Austin, 18. 
Hander v. Hander, 415. 
Hanford v. Higgins, 233. 
Hanham v. Sherman, 95, 100. 
Hankey v. Vernon, 443. 
Hanlon v. Wilson, 828. 
Hanson v. Armitage, 558, 585, 615, 
643. 

V. Barnes, 723, 729. 
Harden v. Hays, 428. 
Harder v. Harder, 839. 
Hardesty «. Jones, 494. 

V. Richardson, 845. 
Hardman v. Bradley, 217. 
Hare v. Celey, 27. 

V. Sherwood, 852, 862. 
Hargraves v. Cooke, 61. 
Hargreaves v. Parsons, 197, 198, 200, 

201, 206, 213. 
Harkins v. Baker, 626, 627. 
Harland v. Brawley, 100. 
Harraan v. Anderson, 627, 628, 639. 

V. Reeve, 184, 528, 602. 
Harnor v. Groves, 585, 737, 



Harper v. Charlesworth, 43. 

V. Harper, 469. 

V. Miller, 877. 

V. Spainhour, 443. 
Harrell v. Milner, 360, 361. 
Harrington v. Rich, 153, 173, 214, 215, 

264. 
Harris v. Bell, 830. 

u. Crenshaw, 826. 

V. Frink, 48, 429, 430. 

K. Huntback,158,196,207,289,304. 

V. Knickerbocker, 854, 875. 

<;. Porter, 463, 468, 473, 485. 

V. Sawtelle, 290. 

V. Tunbridge, 752. 

V. Wing, 117. 

V. Young, 215, 222. 
Harrison, ex parte, 445. 

u. Blackburn, 73, 82. 

V. Cage, 311. 

V. Harrison, 458, 839, 874. 

V. Jackson, 782. 

V. Sawtel, 198, 235, 289, 295. 
Harriston v. Jordan, 432. 
Harrop v. Cooke, 132. 
Hartr. Bush, 615, 641. 

V. Carroll, 362, 649. 

V. Hammett, 681, 750. 

^. McClellan, 824. 

V. Mills, 601. 

u. Nash, 524. 

V. Sattley, 615. 

V. Tallmadge, 306. 

V. Woods, 726, 780, 787. 
Hartley v. Varner, 184, 290. 

V. Wharton, 739, 752. 
Hartnell v. Yeilding, 684. 
Harvey v. Grabham, 354, 391, 743, 745, 
747, 754. 

V. Stevens, 688, 690, 693, 780, 787. 
Harwood v. Goodright, 415. 
Hasbrouck v. Tappen, 111. 
Haskins v. Warren, 752. 
Hassinger v. Newman, 298. 
Hatch V. Bayley, 627. 

V. Hatch, 91. 

V. Lincoln, 627, 631. 
Hatcher v. Hatcher, 846. 
Hatton V. Gray, 663, 765. 
Haudlette v. Tallman, 566. 
HaufE V. Howard, 423. 
Haugh V. Blythe, 494. 
Haughabaugh v. Honald, 417. 
Haughton v. Morton, 701. 
Hausman v. Nye, 614, 621, 641. 



TABLE OF CASES. 



XXVll 



Haux i>. Seat, 19, 80. 
Hayen ;;. Adams, 438. 
Haverly v. Merian, 204, 216. 
Havland v. Bromley, 96. 
Hawes v. Armstrong, 179. 

a. Torster, 789, 790, 793, 796. 

t,. Martin, 195. 

V. Smith, 144. 

V. Watson, 621. 
Hawkes v. Saunders, 138, 148. 
Hawkins v. Baker, 779. 

... Chase, 656, 663, 738, 744, 772, 
778, 782. 

V. Gardiner, 799. 

V. Holmes, 768, 771, 773, 823, 832. 
Hawley v. Keeler, 521, 571. 

V. Moody, 349, 431, 435. 
Haycroft v. Creasey, 306. 
Hayden v. Dunets, 638. 

I . Weldon, 204. 
Hayes v. Kindersley, 816. 

V. Skidmore, 411. 
Hayler v. Atwood, 235. 

V. Cummings, 57, 63. 
Haynes v. Burham, 263. 

c. Nice, 185. 
Hayes v. Richardson, 35. 
Hayter v. Tucker, 393. 
Hayton v. Benson, 78. 
Haywood v. Cope, 60, 687, 848. 
Hazard v. Day, 648, 702, 703, 714. 
Hazeltine c. Rice, 534. 
Hazen v. Barnett, 419. 

V. Bearden, 165, 216. 
Hazleton v. Putnam, 10, 400. 
Hazlett V. Hazlett, 362. 
Head ;;. Baldrey, 184. 
Headrick v. Wisehart, 160, 195, 209. 
Healey v. Tenant, 575. 
Heard v. Pilley, 778, 782, 809. 
Hearing v. Dettinan, 266. 
Heam, ex parte, 447. 
Heame v. Chadbourne, 473, 474. 
Heath v. Heath, 469. 

V. Randall, 360, 401, 624. 
Heathcote, ex parte, 453. 
Heavilon v. Hearilon, 352, 404. 
Hebbard v. Whitney, 434. 
' Heermance v. Taylor, 561. 
Heilbutt V. Hickson, 603, 604. . 
Heinekey v. Earle, 572. 
Heffield v. Meadows, 180. 
Heflin v. Bingham, 43. 
Hegeman v. McArthur, 100, 104. 
Helm V. Logan, 162. 



Helms V. Kearns, 160, 209. 
Ilelshaw r. Langloy, 771. 
Hemenway v. Bassett, 439. 
Henderson v. Barnewall, 726, 787. 

V. Hudson, 186, 422, 423. 
Hendrick v. Lindsey, 235. 
Hendricks v. Mosby, 409. 

V. Robinson, 182, 217. 
Henry, in re, 449. 

V. Henry, 315. 
Hepburn v. McDowell, 22. 
Hepworth v. Hepworth, 811, 812, 816. 
Herbert v. Fowls, 138, 143. 
Hermance v. Vernay, 27. 
Herrell v. Sizeland, 47, 49. 
Herrin v. Butters, 463, 473, 474, 476, 

477, 481, 485. 
Herring v. Hoppock, 624. 

V. Willard, 624. 
Hersey v. Giblett, 61. 
Herzog v. Herzog, 427. 
Heseltine v. Leary, 97. 

... Siggers, 394, 503. 
Hesseltino v. Seaver, 83. 
Hetfield v. Central R. R. Co., 9, 20, 21. 

V. Dow, 155, 103, 216, 219, 262. 
Heth V. Woolridge, 409. 
Hew V. Jones, 48. 

Hewes v. Jordan, 557, 559, 560, 570, 
578, 587, 590, 593, 621, 641. 

V. Taylor, 723. 
Hewett, in re, 449. 

V. Isham, 43. 
Hewlins v. Shippam, 5, 6, 9, 10, 22. 
Heyman v. Neale, 789, 791, 794. 
Heys V. Astley, 857. 
Heyward v. Barnes, 732. 
Heywood v. Cope, 844. 

V. Styles, 166. 
Heyworth v. Knight, 790, 794. 
Hibblewhite v. McMorine, 393. 
Hibhert v. Aylott, 828, 836. 
Hickman v. Haynes, 745, 749, 758, 759, 

760, 761. 
Hicks V. Critcher, 234, 252. 
Hidden v. Jordan, 493. 
Hiem v. Mill, 452. 
Higdon V. Thomas, 772. 
Higgins V. Andrews, 27. 

V. Murray, 554. 

V. Senior!! 753, 779. 
Higginson v. Clowes, 456, 865. 
Highmore r. Primrose, 425. 
Hight V. Ripley, 545, 546, 550. 
Hildyard, in re, 444, 448, 453. 



XXVlll 



TABLE OF CASES. 



Hill V. Heller, 558, 601. 

u. Hooper, 463, 471, 491, 500. 

V. Jamieson, 480, 497. 

V. Lord, 7. 

V. Raymond, 155, 203, 219, 262. 

V. Robinson, 104. 

u. Rowe, 681. 

V. Tupper, 15, 18. 

V. "Wells, 221. 
Hilraart v. Christian, 412. 
Hilton V. Giraud, 393. 

V. Dinsmore, 153, 206, 240, 266, 
276, 277. 
Hilts V. Scully, 223. 
Himrod Furnace Co. v. Cleveland R.R. 

Co., 650, 754, 764. 
Hinchcliff v. Hinman, 412. 
Hinckley v. Arey, 788. 

V. Southgate, 473, 476, 481, 485. 
Hinde v. Whitehouse, 573, 647, 654, 

709, 720, 739, 780, 781, 789. 
Hindman v. Langford, 152, 175, 228, 

267. 
Hine v. Robbins, 92, 412. 
Hinman v. Booth, 412. 
Hirchborn v. Stewart, 605. 
Hitchcock V. Lukens, 247. 
Hitckins v. Shaller, 14, 39. 
Hite V. Wells, 223, 241. 
Hoad V, Grace, 180. 
Hoadley v. McLaine, 655, 680, 752, 

760. 
Hoare v. Hindley, 500. 
Hobbs V. Wetherwax, 354, 359, 369, 

410. 
Hobson V. Cowley, 103, 127, 305. 
Hoby V. Roebuck, 68, 350, 399, 495. 
Hockley v. Bantock, 450. 
Hodges V. Hall, 154, 211, 223. 

V. Howard, 61, 656, 714. 

V. Richmond Mfg. Co., 470, 480, 
482. 

V. Strong, 497. 
Hodgkins v. Henney, 260. 

V. Jackson, 199. 

V. Kearney, 155. 
Hodgkinson v. Wyatt, 449. 
Hodgson V. Anderson, 202, 206, 207, 
285, 286. 

V. Davies, 791, 795. 

V. Hutchinson, 190, 334. 

V. Johnson, 184, 398, 424. 

V. Le Bret, 365, 366, 597, 600, 617, 
619, 771, 778. 

V. Lee, 621, 643. 



Hodgsons v. Jeffries, 14. 
Hodson V. Staple, 132. 
Hoffman v. Fett, 827. 
Hogarth v. Phillips, 336. 
Hogg V. Snaith, 862. 

V. Wilkins, 414. 
Holbrook v. Armstrong, 490, 494. 

V. Tirrell, 91, 413. 
Holden v. Hearn, 451. 
Holderbaugh v. Turpin, 140. 
Holding V. Barton, 855. 
Holland v. Eyre, 732. 

V. Hoyt, 779. 
HoUingshead v. McKenzie, 854, 878. 
Hollingworth v. Napier, 633. 

V. Stennett, 48, 50. 
HoUis V. Edwards, 832. 

V. Pool, 51. 
Holloway v. Hampton, 471, 473, 494, 

500. 
Holman v. Bank, 647. 
Holmes v. Evans, 684, 685, 846. 

V. Holmes, 414, 836. 

V. Hoskins, 576, 577, 578, 621, 635. 

/;. Johnston, 647, 751. 

V. Knights, 275, 290, 292, 295. 

V. Mackrell, 773. 

V. Mitchell, 177, 178, 737. 

V. Tremper, 27. 

V. Trout, 412. 
Holthausen, ex parte, 446. 
Horaans v. Lombard, 203, 207, 219. 
Home V. Batehelder, 352. 

V. Booth, 653. 
Homes v. Martin, 208. 
Homfray v. Fothergill, 857. 
Honeyman v. Marryat, 731, 735, 844. 
Hood V. Bowman, 832. 

V. Lord Barrington, 692. 
Hooker v. Knabe, 621, 641. 
Hooper, ex parte, 442, 449, 450, 823. 
Hopkins v. Carr, 160, 195, 208. 

V. Richardson, 247. 

V. Roberts, 820. 
Hopper V. Stephens, 624. - 
Hoppock V. Wilson, 162. 
Horn V. Bray, 291, 292, 293. 

V. Ludington, 824. 
Horsey v. Graham, 397, 751. 
Horsfall ;;. Garnett, 734. 

V. Hey, 351, 402. 

V. Hodges, 743. 
Horton v. McCarty, 663, 704, 713, 723, 

735, 780. 
Hosford V. Carter, 413. 



TABLE OF CASES. 



XXIX 



Hotchkiss V. Ladd, 493, 875. 
Houdletto I). T.allman, 576, 576. 
Houghtaling v. Ball, 576. 

V. Houghtaling, 34, 400. 
Houghton, ex parte, 806. 

V. Houghton, 466, 469, 470, 480, 
484. 
Houlditch V. Milne, 208, 216, 255, 257, 

259. 
Houser ik Lament, 158, 854. 
Houston V. Laffee, 8, 16, 20, 21, 22, 
28, 35, 36, 38. 

c. Matthews, 421. 

V. Sneed, 421. 
How t'. Barker, 638. 

V. Kimball, 171. 
Howard v. Borden, 576, 577. 

V. Brown, 405. 

V. Burgen, 466, 467, 469. 

I. Coshaw, 198, 201. 

< . Easton, 351, 402, 411. 

V. Gresham, 439. 

V. Priest, 423. 

(7. Shaw, 48. 
Howe V. Batchelder, 360, 368, 506. 

^. Deming, 686. 

V. Hall, 835, 839, 842. 

V. Hayward, 518, 519. 

V. Howe, 806. 

V. Palmer, 396, 504, 585, 618, 621, 
633, 642. 

V. Rogers, 836. 

u. Searing, 35. 

V. Wilder, 413. 
Howes V. Ball, 623, 624. 

V. Hall, 26. 

1-. Martin, 296. 
Howland v. Aitch, 302. 

V. Blake, 439. 
Hubbard v. Marshall, 649. 
Huber v. Ely, 175, 267. 

V. Sleiner, 305. 
Hubert v. Moreau, 771. 

V. Treherne, 774, 776. 

V. Turner, 773, 774. 
Hubon V. Parks, 198. 
Huddlestone v. Briscoe, 730, 844, 856. 

V. Johnson, 103. 
Hudson V. Weir, 503, 566. 
Huff V. McCauley, 6, 15, 20, 28, 36, 
359, 362, 383. 

V. Shepherd, 845. 
Huffman v. Ackley, 158, 874. 

V. Stark, 5. 
Hughes V. Moore, 348, 413, 414. 



Hughes V. Morris, 825. 

V. Parker, 61. 

I'. Robotham, 87. 

V. Stubbs, 799, 800. 
Hugus I). Walker, 846. 
Hull V. Babcock, 26. 

J . Brown, 160. 

I'. Wadsworth, 51, 58. 

i: Wood, 48, 49, 52, 104. 
Humble v. Hamilton, 429. 

V. Mitchell, 393, 394, 503. 
Humphrey v. Dale, 783. 
Humphries ;;. Home, 865. 

I). Humphries, 47, 54. 
Hunt V. Allgood, 62, 66. 

V. Hecht, 563, 576, 590, 603, 615. 

V. Hughes, 176. 

V. Maynard, 438. 

V. Wimbledon &e., 826. 
Hunter v. Giddings, 663. 

V. Murray, 554. 

V. Randall, 308, 875. 

u. Seton, 663. 

V. Wetsell, 521, 522. 

V. Wright, 627, 641. 
Huntington ;;. Harvey, 174, 266, 296. 

V. Wellington, 229. 
Huntress v. Patten, 156, 178. 
Hupport I'. Morrison, 25. 
Hurford v. Carpenter, 443. 
Hurley i;. Brown, 682, 683, 684, 717, 

742, 750, 751, 846, 860. 
Hurley v. Blackford, 685. 
Hurper v. Laney, 848. 
Hurry v. Mangles, 617. 
Hussey v. Horner Payne, 716. 

«. Thornton, 024. 
Hutchins v. Lee, 798. 

V. Martin, 85, 89, 116, 119, 122. 
Hutchinson v. Bowker, 730. 

V. Hutchinson, 467, 469, 470, 480, 
483. 

V. Tatham, 753. 
Ifutton V. Padgett, 61. 

V. Williams, 457, 460, 726. 
Hyde v. Cooper, 824. 

V. Johnson, 771. 

V. Moakes, 128. 

V. Wrench, 731. 



Ide V. Stanton, 647, 649, 654, 655, 678, 
709, 712. 



XXX 



TABLE OF CASES. 



lUsley V. Stubbs, 644. 
Inge V. Birmmgham, Wolverhampton 
& Stour Valley Railway Co., 
702. 
IngersoU v. Baker, 205. 
Ingles V. Patterson, 827. 
Ingram v. Dowdle, 457, 461. 
Inman v. Stamp, 18, 45, 303, 348, 398. 
Ireland v. Jackson, 523. 

0. Rattle, 417. 
Iron Cliff's Co. o. Buhl, 568. 
Irvin V. Thompson, 44, 45. 
Irvine v. Stone, 185. 
Irwin V. Hubbard, 437. 
Israel v. Douglas, 286. 
Ithel V. Potter, 768, 771. 
Ive's Case, 116. 
Ives V. Gilbert, 482. 

V. Hazard, 647, 656, 663, 678. 

V. Sams, 85, 89, 116, 119, 122. 
Ivory V. Murphy, 666, 764. 
Izard V. Izard, 337. 

V. Middleton, 466, 469. 



J. 

Jack V. McKee, 405. 

V. Morrison, 163, 194. 
Jacklin v. Cartwright, 66. 
Jackson & Sharp Co. v. Philadelphia 

&c. R. Co., 401. 
Jackson, in re, 395. 

u. Anderson, 92. 

V. Babcock, 10, 401. 

V. Brodt, 47, 53, 418. 

V. Bryan, 54. 

V. Bull, 457. 

V. Cator, 866. 

V. Covert, 206, 537. 

V. Elsworth, 79. 

V. Evans, 397. 

«. Gardner, 89, 102. 

V. Harder, 418. 

u. Kingsley, 48. 

V. Lowe, 654, 655, 701, 709, 710, 
712, 741. 

V. McLeod, 50. 

V. Oglander, 694, 708, 743, 767, 
844, 857. 

V. Page, 92. 

V. Parkhurst, 50. 

u. Pierce, 434. 

V. Rayner, 162. 

V. Rogers, 48. 



Jackson v. Sheldon, 412. 

V. Titus, 670, 716. 

V. Van Dusen, 771. 

0. Vosburgh, 418. 

V. Watts, 607, 621. 

V. Wilsey, 51. 
Jacob V. Kirk, 654, 688, 691, 693, 709, 

771. 
Jacobs V. Latour, 632. 

V. R. R. Co., 832. 
James v. Bydder, 448. 

V. Muir, 679. 

V. Pope, 105. 

V. Rice, 448, 450. 

V. Williams, 179, 182. 
Jameson v. Stein, 329. 
Jamieson v. Millemann, 9, 33, 400. 
Jamison v. Dimock, 822. 
Janes v. Palmer, 61. 
Janvrin v. Maxwell, 621, 630, 631, 632. 
Jarmain v. Algar, 274. 
Jarvis v. Dutcher, 442. 

V. Wilkins, 182. 
Jay V. Rider, 116, 117. 
Jeans v. Cooke, 807, 816. 
Jeffcot V. N. B. Oil Co., 738. 
Jeffers v. Jeffers, 412. 
Jefferson Co. v. Hogle, 216, 222. 
Jeffrey v. Walton, 771. 
Jeffreys v. Small, 423. 
Jelks V. Barrett, 762. 
Jenkens v. Hogg, 458, 460, 726, 729, 

781. 
Jenkin Cent. 256, case 49, 82. 
Jenkins v. Green, 60, 687. 

V. Harrison, 684, 705, 742. 

V. Hiles, 868. 

V. Reynolds, 182, 496. 
Jenkinson v. Pepys, 864, 869. 
Jenks V. Edwards, 5. 

u. White, 407, 423. 
Jeuness v. Mt. Hope Iron Co., 653, 
663, 713, 737, 738. 

V. Wendell, 510, 511, 512. 
Jennings ;:. Crider, 172, 240. 

I'. Flanagan, 520. 

■,. Webster, 198. 
Jepherson v. Hunt, 220, 221. 
Jerdein v. BrigM, 817, 877. 
Jervis v. Berridge, 737, 853. 

V. Smith, 854. 
Jeston V. Key, 322. 
Jewel V. Ricker, 425. 
Jewett V. Warren, 626, 631. 
Jilson «. Gilbert, 469. 



TABLE OF CASES. 



XXXI 



John V. Jenkins, 108, 117, 121. 

V. Sabbatis, 419. 
Johnasson v. Bonhote, 855. 
Johns V. Johns, 406. 
Johnson v. Bowden, 828. 

V. Buck, 664, 688, 704, 709, 721, 
739, 741, 779, 781, 783. 

u. Cuttle, 557, 571, 587, 596, 597, 
613, 614, 615, 621, 641. 

V. Dimock, 827. 

V. Dodge, 778, 782. 

V. Dodgson, 615, 641, 674, 740, 
773, 775, 776, 784, 875. 

V. Gilbert, 198, 265, 298, 299. 

V. Glancy, 826, 835, 839. 

V. Granger, 751. 

V. Hanson, 435. 

V. Hart, 439. 

V. Hunt, 567. 

V. Johnson, 843, 846. 

.,. Kellogg, 357, 654, 662,684, 709. 

V. Knapp, 160, 198, 209, 246, 290. 

V. McGruder, 778, 839. 

V. Morris, 162. 

V. Mulry, 726. 

V. Noonan, 156, 174. 

V. Ronald, 647, 716. 

V. Roylton, 752. 

c. Skillman, 10, 400. 

V. Trinity Church Society, 675. 

V. Watson, 494. 

V. Whitchcott, 146, 146. 

V. "Wilson, 417. 
Johnston v. Huddlestone, 84, 85, 94, 
103, 106, 108, 126, 131. 

». Johnston, 826. 

V. NichoUs, 175, 179. 
Jolley V. Walker, 221. 
Jones, ex parte, 462. 

V. Ashburnham, 143. 

V. Cooper, 202. 

V. Flint, 352, 353, 354, 356, 360, 
383, 387. 

V. Hardestry, 198. 

V. Hay, 427. 

V. Jones, 48. 

V. Letcher, 292. 

V. Lock, 799, 800. • 

V. McMichael, 399, 423. 

V. Mechanics' Bank, 570, 578, 614. 

„. Neale, 91. 

„. Palmer, 173, 298. 

V. Peterman, 826. 

V. Reynolds, 62. 

V. Robinson, 199. 



Jones V. Shay, 47, 48. 

V. Shorter, 290, 292, 295. 

V. Smith, 420. 

V. Victoria Graving Dock Co., 
649, 760. 

u. Walker, 174, 265, 266, 296. 

V. Williams, 456, 702. 
Jordan r. Deaton, 844. 

V. James, 637. 

V. Jordan, 92. 

r. Miller, 469, 470. 

V. Korton, 588, 609, 730. 

V. Sawkins, 862. 
Jorden v. Money, 316, 331, 332, 333. 
Joslyn V. CoUinson, 171. 
Joyce V. Adams, 520. 

V. Swann, 680. 
Joynes v. Statham, 852, 868, 859, 863. 
Julison V. Jandon, 429. 
Jungerman v. Bovee, 108. 
Justice V. Lang, 661, 663, 666, 764. 
Justin V. Tallman, 233. 



Kabley v, Worcester Gas Light Co., 

437. 
Kain v. Old, 679. 
Kaitling v. Parkin, 739. 
Kauffman v. Walker, 457, 458. 
Kay V. Crook, 328. 

.,. Curd, 656, 678, 846, 875. 

V. Pennsylvania R. R. Co., 24. 
Kealey v. Tennant, 597. 
Kean v. McKinsey, 173. 
Kearsing v. Killian, 412. 
Keate v. Temple, 166, 168, 216, 217. 
Keats V. Hewer, 815. 
Keech v. Hall, 80. 
Keeler v. Tatnall, 422, 429. 
Keister v. Miller, 83. 
Keiwert v. Meyers, 613, 621 
Kelley v. Allen, 409. 

V. Stanberry, 414. 

V. Terrell, 473, 485, 486, 497. 
Kellogg V. Clark, 471. 

V. Wetherhead, 543. 
Kelly V. Waite, 61. 

V. Webster, 126, 348, 350, 353, 
397, 425. 
Kelsey v. Hibbs, 261. 
Kemble v. Dresser, 428. 
Kemeys v. Proctor, 780. 
Kempson v. Boyle, 760, 792. 



xxxu 



TABLE OF CASES. 



Kennaway v. Tj-eleavan, 176, 191. 
Kennedy v. Lee, 654, 703, 715, 730, 

736, 846. 
Kensington, ex parte, 442, 443, 448, 451, 
454. 

V. Phillips, 847. 
Kent V. Huskinson, 583. 

V. Kent, 468, 470, 481, 485, 487, 498. 
Kenworthy v. Schofield, 646, 653, 720, 

739, 780, 781. 
Kenyon v. Nichols, 6. 
Kerr v. Connell, 355, 371. 
Kersliaw v. Ogdeu, 563. 

V. Whittaker, 173. 
KesBel V. Alhestis, 395. 
Kettle V. St. John, 118. 
Keys V. Williams, 450. 
Keyson v. School District, 351, 402. 
Keyton v. Crawford, 409. 
Kibble v. Gough, 591, 592. 
Klbby V. Chetwood, 876. 
Kidder v. Barr, 824. 

V. Hunt, 428, 429, 434, 481, 491. 
Killian v. Ashley, 173. 
Kilmore r. Hewlett, 352, 356, 359, 369, 

383, 386, 544. 
Kilpin V. Kilpin, 800, 811. 
Kimball v. Comstock, 308. 

V. Newell, 156. 

V. Yates, 9, 15, 22, 33, 35. 
Kine v. Balfe, 826, 829, 835, 878. 
King V. Brown, 405, 429, 430, 491, 492. 

V. Cole, 180. 

V. Crocheran, 92. 

V. Denison, 805. 

V. Despard, 154, 223, 260. 

V. Edmunston, 184. 

V. Gunnison, 456, 461. 

V. Hanna, 469, 484. 

V. Janvrin, 638. 

V. Jarman, 627, 637, 638, 639. 

V. Newton, 26. 

V. Rickman, 684, 846. 

V. Summit, 301, 304. 

V. Thom, 148. 

V. Upton, ^43. 

V. Welcome, 429, 435, 490. 

V. Wilson, 173, 273. 

V. Wood, 682, 686. 
Kingdon v. Bridges, 810. 
King's Leasehold Estates, in re, 63, 70. 
Kingsley i'. Balcom, 160. 

V. Holbrook, 352, 360, 368, 369, 
372, 387, 403, 506. 
Kinloch v. Brown, 155, 217, 219, 262. 



Kinloch v. Savage, 678. 
ICinsey v. Winnock, 105. 
Kinzie v. Penrose, 874. 
Kirby v. Johnson, 537, 621, 641. 
Kirkham v. Marter, 183, 273. 
ICirksey v. Kirksey, 854. 
Kirtland v. Ponsett, 48. 
Kirwan v. Birchell, 331. 
Kleeman v. Collins, 473, 474, 486. 
Klinitz V. Surry, 572, 573, 574. 
Kneeland v. Fuller, 429. 
Knibs V. Jones, 758. 
linight K. Barber, 393. 
V. Bennett, 52. 
V. Crockford, 772, 775. 
V. Dunlop, 602. 
V. Mann, 558, 561, 565, 569, 570, 

595, 607, 621, 631. 
V. N. E. Worsted Co., 377. 
Knowles v. Michel, 425, 436, 496. 
Knowlman v. Bluett, 429, 467, 469. 
Knox V. Harlason, 383. 
V. King, 656, 723, 739. 
V. Nutt, 155, 262. 
Koplitz V. Gustavus, 66. 
Korf V. Lull, 843. 
Kramer v. Arthurs, 422. 
Krank v. Nichols, 97, 98. 
Kratz V. Stocke, 159. 
Kronheim v. Johnson, 654, 772. 
Krudler v. Ellison, 613. 
Krutz V. Stewart, 154, 260, 263. 
Kurtz V. Adams, 155, 219, 262. 

V. Cummings, 656, 739. 
Kutzmeyer v. Ennis, 198. 



L. 

m 

Lackington v. Atlicrton, 627, 628, 639. 
Lacon v. Allen, 442, 454. 

V. Mertms, 823, 826, 856. 
Lacy V. Arnett, 35. 

V. McNeile, 207, 285. 
Ladd V. ICing, 758. 

V. Smith, 100, 102. 

V. Tobey, 247. 
Lady Thynne v. Earl of Glengall, 316, 

767, 843. 
Laidler v. Burlinson, 588. 
Laidlow V. Hatch, 233. 
Laing v. Lee, 240. 

Laird v. Birkenhead Railway Co., 849. 
Lake v. Phillips, 862. 
Lamar v. McNamee, 82, 83, 96. 



TABLE OF CASES. 



XXXlll 



Lamb v. Crafts, 186, 547. 
Lambert v. McDonnell, 78. 

c. Norris, 03. 
Lampkins v. Hoos, 512. 
Lamplugh r. Lamplugh, 814, 815. 
Lampman v. Schilks, G. 
Lampson v. Heartt, 260. 
V. Hobart, 155. 
i-. Swift, 156. 
Lamson v. Patch, 639. 

u. Ward, 413. 
Lancaster Canal Co., ex parte, 445. 

in re, 393. 
Lancaster v. De Trafford, 60. 
Landas v. HolUngshead, 100. 
Lane, ex parte, 215, 286. 

V. Burghart, 207, 214, 275. 
V. Dighton, 808. 
V. Miller, 19, 28, 36. 
V. Shackford, 415, 433, 491, 506, 
824. 
Lang V. Henry, 61, 473, 486, 647, 662. 
Langdon v. Hughes, 215. 
Langflelde v. Hodges, 798. 
Langford i-. Preeman, 876. 

V. Tyler, 515, 519. 
Langstaff v. Nicholson, 719. 
Langston, ex parte, 447, 451. 
Langton v. Casrleton, 489. 
Lanterman v. Williams, 419. 
Lanz V. McLaughlin, 649, 666, 824. 
Lapham ;;. Whipple, 312, 482, 484, 

485, 500. 
Larimer v. Kelley, 470, 483. 
Larned v. Hudson, 47, 48. 
Larson i;.Wyman,155,156,216,218,254. 
Lassence v. Tiemey, 314, 322, 323, 324. 
Latham v. Atwood, 381, 392. 
Laung V. French, 155. 
Laurie i'. Schofield, 180. 
Lavender v. Blackstone, 321, 337. 
Layer v. Fielder, 328, 329. 
Lavery v. Turley, 305, 425. 
Laverty v. Mason, 872. 
Lawle V. Lapham, 877. 
Lawnsley v. Sunwall, 231. 
Lawrence v. Brown, 110. 
o. Chase, 414, 874, 876. 
V. Cook, 311, 312, 498. 
V. Ervington, 369. 
V. Faux, 104, 126, 133. 
V. Fox, 199, 232, 233, 235, 

251, 278, 280. 
V. Gallagher, 788. 
V. Lawrence, 92. 



Lawrence d. Smith, 3.59, 309. 
r. Stratton, 413. 
,■. Taylor, 778. 

I. Woods, 500. 
Lawrenceson v. Butler, 766. 
Lawson v. Laude, 8G4. 

v. Springstcin, 210. 
Laythoarp v. Bryant, 647, 663, 666, 

668, 709, 730, 704, 765, 766. 
Lea .;. Barber, 184, 186. 
Leago !'. Deane, 426. 
Lear v. Chotcau, 411, 874, 876. 
Leather Cloth Co. v. Hieronimus, 652, 

710, 749, 760, 761. 
Leathes, ex parte, 453. 

in re, 453. 
Leavitt v. Pratt, 438. 
Ledford v. FaiTell, 414. 
Lee V. Fontaine, 240. 

V. Gaskell, 363, 379. 

V. Griffin, 529, 530, 531, 534, 537, 
540, 541, 542, 5.32. 

V. Hemmingway, 843. 

0. Hernandez, 49. 

V. Hills, 648, 649, 689, 714, 737. 

V. McLeod, 16, 35. 

V. Muggeridge, 146. 

V. Newman, 233. 

II. Risdon, 402, 404. 

i). Smith, 48, 52, 56, 67. 
Leech v. Leech, 89. 
Leed v. Leed, 523, 526. 
Leeds v. Burrows, 843. 
Lefevre v. Lefevre, 22. 
Legal V. Miller, 864. 
Legg V. StrudwicK, 56. 
Leinan v. Smart, 402. 
Leisherness v. Berry, 637. 
Leland v. Creyon, 194, 216, 218. 
Lemau v. Whitley, 810. 
Le Mayne v. Stanley, 772. 
Lemmon v. Box, 176, 267. 
Lenfer v. Henke, 422. 
Leonard v. Davis, 626, 638. 

V. Mason, 231. 

V. Vredenburgh, 156, 171, 172, 
176, 177, 232, 250, 265. 
Lent V. Paddleford, 764. 
Lemed v. Wannemacher, 58, 60, 648, 
649, 660, 654, 678, 702, 705, 
706, 709, 724, 734, 739, 742. 
Leroux v. Brown, 150, 305, 457, 486, 

491, 652, 669. 
Lesley v. Randolph, 63. 

V. Kosson, 410. 



XXXIV 



TABLE OF CASES. 



Leslie v. Tompson, 867. 
Lester v. Bowman; 247, 290. 

u. Foxcraft, 819, 829, 845, 

v. Kinne, 845. 

V. McDowell, 566. 
Leven v. Smith, 621. 
Levison v. Stix, 487. 
Levy t>. Green, 601. 
Lewellen v. Overton, 421. 
Lewin v. Stewart, 877. 
Lewis V. Lane, 807. 

V. Reichy, 844, 845. 

V. Wells, 720. 

V. Wilson, 474. 
Lexington v. Clark, 184, 186, 229. 
Lexley v. Heath, .329. 
Libeau v. Libeau, 92. 
Lieber v. Levy, 17.S, 266. 
Liggins V. Inge, 11, 26, 37. 
Lightfoot r. Herring, 870. 
Lillywhite r. Devereux, 576, 585, 626. 
Lily V. Green, 56. 
Linan v. Smart, 407. 
Lincoln v. Crandell, 723. 

(,-. Erie Preserving Co., 689. 

V. Wright, 801, 827, 836, 852, 855. 
Lindlcy v. Tibbals, 58. 
Linden, in re, 452. 
Lindsay v. Lynch, 65, 684, 830, 846, 858. 

V. Springer, 421. 
Lindsley v. Coates, 415, 506. 
Lindus v. Bradwell, 753. 
Lines ji. Smith, 171. 
Lingan v. Henderson, 874. 
Linley v. Taylor, 393. 
Linn Boyd Tobacco Warehouse Co. 

V. Terrill, 781. 
Linecott ti. Mclntire, 314, 468, 476, 

479, 480, 484. 
Linton v. Butz, 027. 
Lippincott v. Ashfield, 233, 241, 252. 
Lisk V. Sherman, 405, 420, 489. 
Lister v. Hodson, 799. 
Litcher v. Crosby, 824. 
Little V. Wilson, 480, 485, 486. 
Littledale, ex parte, 444, 445. 
Littlejohn, ex parte, 186. 
Liverpool Borough Bank v. Eccles, 

667, 731, 734, 765. 
Liversidge v. Broadbent, 286. 
Livingston v. Potts, 103, 108, 110. 

I). Tremper, 171. 
Llewellyn v. Earl of Jersey, 710. 
Lloyd, ex parte, 444, 454. 

V. Attwood, 450, 451. 



Lloyd V. Conover, 419. 
V. Gregory, 88, 117. 

... Langford, 84, 122, 124. 

V. Lee, 146. 

V. Lloyd, 806, 868. 

V. Passingham, 132. 

u. Pughe, 810. 

„. Read, 807, 811, 815, 816. 

V. Spillet, 799, 805, 810. 

V. Wright, 561, 614, 642. 
Lobb V. Stanley, 739, 752, 773, 775. 
Lobdell V. Lobdell, 846. 
Lockerson v. Stilwell, 843. 
Lockett V. Nocklin, 738. 
Lockhart v. Gier, 33. 
Lockwood V. Barnes, 427, 431, 434, 
466, 484, 485, 491, 498. 

V. Lockwood, 51. 
LofEus V. Maw, 329, 331, 334. 
Logan V. Anderson, 108. 

V. Barr, 83. 

V. Le Mesuvier, 520. 
London & Birmingham Railway Co. 

V. Winter, 786, 867. 
London Loan and Discount Co. v. 

Drake, 78, 79. 
Long V. Buchanan, 20. 

V. Duncan, 845, 848. 

V. Hartwell, 782. 

('. Henry, 153. 

t.. Millar, 697, 704, 705, 725, 739. 

V. Rodman, 140. 
Long's Appeal, 418. 
Longfellow v. Williams, 669. 
Longley v. Longley, 806. 
Loomer v. Dawson, 60, 796. 
Loomis V. Newhall, 247, 289. 

V. Spencer, 796. 
Loonie v. Hogan, 254. 
Lord V. Davison, 214. 

V. Hill, 8. 

V. Lord, 457. 
Lord Bolton v. Tomlin, 4, 68. 

Desart v. Goddard, 838. 

Falmouth v. Thomas, 397. 

Glengall v. Barnard, 781. 

Gordon v. Marquis of Hertford, 
867. 

Irnham v. Child, 862, 869. 

Middleton v. Wilson, 718. 

Ormond v. Anderson, 766, 846. 

Portmore v. Morris, 862. 

Stuart V. L. & N. W. R. Co., 846. 

Townshend v. Bishop of Norwich 
767. 



TABLE OF CASES. 



XXXV 



Losee v. WiUiams, 298. 

Lounsbury v. Snyder, 58, 110. 

Love V. Camp, 872. 

Love's Case, 152, 269. 

Low V. Carter, 812. 

Lowber v. Connit, 649, 663, 764. 

Lower K. Weaver, 826. 

V. "Winters, 351, 359, 369, 402, 411, 
600. 
Lowry v. Buffington, 828. 

o. Lord Dufferin, 831. 

V. Mehaffy, 663, 764. 
Lowther v. Troy, 117. 
Luark v. Malone, 154, 260, 263. 
Lucas V. Chamberlain, 290, 292, 295. 

V. Dorrien, 451, 628, 639. 

V. James, 733, 735, 769. 

V. Lucas, 799. 

V. Payne, 240, 241, 247. 

V. Williams, 147. 
Luce V. Carley, 6. 
Luckett V. Williams, 878. 
Luck's Appeal, 443. 
Lucy V. Bundy, 429, 624. 

V. Mouflet, 581, 588, 604. 
Luders v. Anstey, 317. 
Ludlow V. Cooper, 422, 423. 
Luer V. Zeile, 204. 
Lyde v. Barnard, 307. 
Lyman v. Lyman, 407. 

u. Robinson, 702, 703. 
Lynch v. Lynch, 83, 92, 124, 126, 129, 

130. 
Lynes v. Hayden, 844, 845, 846. 
Lyon V. Culbertson, 752. 

V. King, 466, 467, 484. 

V. Eeed, 83, 90, 93, 95, 96, 97, 98, 
104, 111, 116, 119, 120, 128, 
129, 131, 133. 
Lysaght v. Walker, 176. 



M. 

Maberley v. Sheppard, 567, 588, 619, 

621, 625. 
McAllister v. Montgomery, 423. 
McAlvey v. Noble, 173. 
McAskie V. McCay, 329, 331. 
McAuley v. Carter, 843. 
McBlain v. Cross, 771, 788. 
McBride v. Whitehead, 624. 
McCabe v. Fitzpatrick, 407. 
McCaffie v. Eadcliffe, 156, 194, 215. 
McCampbell v. McCampbell, 435. 



McCarger i;. Rood, 65, 828. 
McCarthy v. Knapp, 559. 

V. Kyle, 050. 

V. Oliver, 354, 869. 
McCartney v. Hubbell, 247. 
McClellan v. Sanford, 494. 
McClintock's Appeal, 359, 362, 363, 

368. 
McClintosh v. Laing, 845. 
McClung V. Kelley, 640. 
McComb V. Wright, 726, 781. 
McConnell v. Brillhart, 703. 
McCormick v. Drummett, 406. 

V. Grogan, 821. 

V. Hadden, 638. 
McCorney v. Stanley, 173. 
McCoy V. Williams, 493, 878. 
McCrary v. Madden, 154, 231, 240. 
McCrea v. Purmont, 663, 764. 
McCreary v. Van Hook, 198. 
McCue V. Johnston, 846. 

V. Smith, 424, 492. 
McDaniels v. Lapham, 439. 
Macdonald v. Longbottom, 681, 751. 
McDonnell v. Dodge, 155. 

V. McKay, 369. 

V. Pope, 127, 128, 131. 
McDowell V. Chambers, 769. 

V. Hewett, 567. 

V. Simpson, 51, 66. 
McElroy v. Buck, 647, 659, 663, 678, 
703. 

V. Ludlum, 478. 
McEwan v. Ortman, 437. 
McFadden v. Jenkyns, 799. 
McFarland v. Farmer, 624. 
McFarson's Appeal, 647, 663, 678. 
McGee v. Gibson, 48, 49. 
McGibbeny v. Burmaster, 829. 
McGlynn v. Brack, 102. 

V. Maynz, 843. 
McGowen v. AVest, 189, 766, 854. 
McGregor v. Brown, 359, 360, 369. 
McGuire v. Stevens, 845. 
Melver ;•. Richardson, 190. 
Mack V. Bragg, 491. 

V. Briggs, 479. 
McKay v. Rutherford, 500. 
McKee v. Phillips, 824. 
McKeenan v. Thissel, 246. 
MacKellar v. Sigler, 98. 
McKenzie v. Farrell, 82, 118. 

V. Jackson, 206, 240, 241. 

V. Lexington, 79, 83. 
McKibbin v. Brown, 844. 



XXXVl 



TABLE OF CASES. 



McKinney v. Guilter, 171, 173. 

V. McCloskey, 465. 

V. Reader, 83. 

V. Whiting, 307, 308. 
McKnight v. Dunlop, 559, 560. 
McNight V. Katcliff, 23. 
MacKubbin v. Clarkson, 414. 
McLaren v. Hutchinson, 172, 240, 246. 
McLarney v. Pettigrew, 8. 
Maclean v. Dunn, 779, 782, 786, 795. 
McLean v. NicoU, 653, 660, 695. 
McLees v. Hale, 484, 485. 
McLenden v. Frost, 203. 
McLeod V. Jones, 29. 
MoMahon v. McMahon, 420. 

V. N. Y. & Erie R. E. Co., 843. 
McMillan v. Bentley, 669. 

V. Bull's Head Bank, 288. 
McMillen v. Terrell, 769. 
McMuUen v. Helberg, 701, 737. 

V. Riley, 186. 
McMurray v. Spicer, 681, 682, 684, 846. 
McNamara v. Seaton, 421. 
McNeal v. Emerson, 29, 360. 
McNeil V. Jones, 846. 
McNew V. Toby, 436. 
McPherson v. Cox, 497. 

V. Meek, 288. 

u. Seguine, 419. 
Macrory v. Scott, 268. 
McWhorter v. McMahon, 778, 782. 
Macy V. Childress, 292. 
Maddison v. Alderson, 405. 
Maddox v. McQueen, 844. 
Magaw V. Lambert, 95. 
Magennis v. MacCiiUough, 89, 120. 
Maggs V. Ames, 156, 275. 
Magruder v. Gage, 641. 
Maguire v. Dodd, 800. 
Mahana v. Blunt, 835. 
Mahon v. Baker, 835, 836. 
Malain v. Ammon, 427. 
Malins v. Brown, 826. 
Mallett V. Bateman, 190, 205, 287. 
Mallory v. Gillett, 233, 244, 250, 254, 
.259, 260, 261, 280. 

V. Griffiths, 278. 

V. Stodder, 92, 413. 
Mallows V. May, 117, 119, 121, 124. 
Malone v. Keener, 161, 209, 210, 299, 

301. 
Manchester v. Doddridge, 48. 
Mandeville v. Welch, 442. 
Mann v. Blanchard, 308. 

V. Lovejoy, 52. 



Mann v. Williams, 621. 
Mannier v, Myers, 6. 
Manning v. Weston, 515. 
Manser v. Back, 861, 869. 
Mapes V. Stanley, 173. 
Mapp V. Elcock, 805. 
Marble v. Marble, 414. 
March v. Attorney General, 393. 
Marcy v. Crawford, 289, 294. 

V. Darling, 22, 26. 

V. Marcy, 419, 463, 485, 495. 
Mariott v. Turner, 805. 
Markham r. Stanford, 46. 
Marley v. Noblett, 470, 483, 497. 
Marquat v. Marquat, 437. 
Marquese v. Caldwell, 650, 764. 
Marquis of Camden v. Batterbury, 47, 
62. 

of Townshend v. Stangroom, 859, 
860, 863, 864, 869. 
Marsh v. Bellew, 749, 762. 

V. Gould, 294. 

V. Hyde, 559, 569, 602, 607, 615. 

V. Rouse, 570, 621, 630. 
Marshall v. Burtonshaw, 143. 

V. CoUett, 871. 

V. Crutwell, 813. 

V. Ferguson, 352, 384, 506. 

V. Fisk, 413. 

V. Green, 353, 354, 355, 357, 361, 
363, 364, 367, 368, 369, 370, 
371, 383, 384, 386, 387, 575, 
584, 587, 630, 632. 

«. Lynn, 736, 743, 748, 754, 755, 
760. 

.;. Perry, 752. 
Marston v. Baldwin, 624. 

V. Gale, 8, 15, 34, 35. 
Martin v. Black, 173. 

u. Holley, 844. 

V. Hurlbut, 566. 

v. Kemp, 56. 

V. McCord, 839. 

V. Mitchell, 663, 668, 735, 764, 766. 

V. Mowlin, 439. 

V. Pycroft, 862, 867. 

V. Reid, 634. 

V. Smith, 67. 

I,. Watts, 56. 

V. Wharton, 422. 
Marvin v. Marvin, 487. 

V. Wallis, 616, 620,, 630, 631, 634. 
Mason v. Bridge, 843. 

V. Decker, 663, 713, 764. 

V. Hall, 175, 267. 



TABLE OF CASES. 



XXXVll 



Mason v. Hill, 6. 
ii. Treadway, 82. 
V. Whitbeck Co., 589. 

0. "Wilson, 234, 240. 
Massell ti. Cooke, 894. 
Massey v. Holland, 410. 

V. Johnson, 414. 
Masterman, ex parte, 444. 
Masters v. Marriott, 157. 
Mathers v. Carter, 199, 240. 
Matson v. Wharam, 202, 203. 
Matteson v. Schofield, 845. 
Matthews t;. Lobenor, 100. 

V. Milton, 155, 203. 

V. Sawell, 96, 97, 102, 128. 
Matthieson Refining Co. v. McMahon, 

523, 640. 
Mattice v. Allen, 523, 526. 
Mattock V. Fry, 352, 384. 
Mauck V. Melton, 406. 
Maugliam v. Ridley, 447. 
Maul V. Rider, 420. 
Maule V. Bucknell, 261, 310. 
Maunsell v. White, 328, 331. 
Mavor v. Pyne, 468, 478, 491, 497, 644. 
Maxwell t. Briggs, 624. 

V. Brown, 557, 558, 571, 593, 614, 
621, 641, 642, 643. 

„. Haynes, 160, 198, 209, 277. 

V. Montacute, 851. 
May V. May, 801. 

V. Nat. Bank of Malone, 246, 248. 

D. Ward, 548, 714, 737, 744. 
Maydwell v. Carroll, 415, 506. 
Mayer v. Adrian, 654, 709. 
Mayfield v. Wadsley, 186, 354, 377, 
382, 383, 391, 392, 397, 424, 
436. 
Meach v. Stone, 875. 
Mead v. Case, 480, 539, 542. 

V. Keys, 195. 

V. Merchants' Bank, 224. 

V. Nuges, 214. 

V. Parker, 659, 682, 684, 742, 750, 
751. 
Meador v. Meador, 443. 
Meadows v. Meadows, 726, 781. 
Means ;;. Carr, 723. 

V. Williamson, 630, 631. 
Mears v. Waples, 752. 
Mease v. Wagner, 156, 161, 289, 304. 
Mechanics' &c. Bank v. Farmers' &c. 

Bank, 621. 
Meehelen v. Wallace, 184, 186, 349, 
353, 397, 398. 



Medbury v. Watson, 306, 307. 
Medina v. Poison, 48. 
Medley, in re, 444, 445. 
Medlin ti. Steele, 419. 
Meech v. Ensign, 23^ 239. 

V. Smith, 153, 175, 207. 
Meincke v. Falk, 547, 549, 550, 551. 
Mellor V. Watkins, 35, 42, 78. 
Mercein v. Andrus, 259. 
Merchant v. Chapman, 641. 
Meredith v. Meigh, 584, 591, 615, 629, 
641. 

V. Naish, 433. 

V. Short, 152, 208, 270. 
Meres v. Ansell, 649. 
Meriden Brittania Co. v. Zingsen, 234, 
Merrill v. Englesby, 156, 220, 240. 

0. Goodwin, 25. 
Merrit v. Green, 235. 

V. Clason, 725, 769. 
Merton v. Dean, 714. 
Masser v. Woodman, 512, 562. 
Mestaer v. Gillespie, 862. 
Metcalf V. Putnam, 409. 
Meyer v. Evereth, 649. 

V. Hartman, 209, 224. 
Meynell i-. Surtees, 735, 736, 834, 835. 
Micklethwait v. Nightingale, 806. 
Middlebrook v. Bromley, 855. 
Middlesex Co. ti. Osgood, 877. 
Middleton v. Brewer, 305." 
Mignan v. Parry, 3.3G. 
Milcheson v. Hewson, 137. 
Milcote V. Kile, 245. 
Mildmay v. Hungerford, 871. 
Miles V. Miles, 416. 
Milks V. Rich, 298, 299, 300. 
Millard v. Cooke, 550. 

1. Harvey, 832, 835. 

Miller v. Auburn &c. R. E. Co., 21, 
35. 
... Baker, 404. 
V. Brown, 35. 
V. Campbell, 844, 846. 
u. Cook, 173. 
i,. Cotton, 844, 875, 878. 
V. Fitzgibbons, 543, 550. 
V. Hower, 492, 826. 
V. Long, 156, 174. 
V. McGlann, 421. 
V. Niehaus, 155, 204. 
V. Roberts, 407, 410, 494. 
V. State, 23, 506. 
V. Stevens, 681. 
V. Tobie, 428, 432, 839. 



XXXVUl 



TABLE OP CASES. 



Miller v. Upton, 876. 
Millin !,■. Fawdry, 28. 
Mills V. Auriol, 104. 

V. Brown, 290, 292, 295. 

V. Hunt, 510, 511. 

V. Kuykendall, 140. 
Milnes v. Gery, 717, 843. 
Mims V. Lockett, 839. 
Minard v. Mead, 779. 
Minet, ex parte, 175, 176. 
Minns v. Morse, 414, 854. 
Minturn v. Bayliss, 843, 846. 
Miranville v. Silverthorne, 411. 
Mitchell V. Bush, 351, 403. 

V. Griffin, 160, 209, 254, 267. 

V. Lapage, 795. 

V. McLean, 639. 

V. McNab, 432. 
Mitchinson v. Hewson, 305. 
Mixer v. Howarth, 534, 538, 547, 550, 

551, 554. 
Mizzell V. Burnett, 649, 765. 
Moale V. Buchanan, 739. 
Mobile & Girard E. Co. v. Jones, 298, 

299. 
Mobile &c. Ins. Co. v. McMillan, 186. 
Mockett V. Ames, 180. 
Moderwell v. MuUison, 423. 
Moffat V. Green, 566. 
Mollett V. Brayne, 94, 96, 98, 102, 106, 
12T. 

V. Robinson, 753. 

u. "Wackerbarth, 678. 
Monck V. Geekie, 56. 
Money v. Darling, 26. 

V. Jorden, 333. 
Monro v. Taylor, 681, 687, 743, 750, 

848. 
Montacute v. Maxwell, 316, 318, 321, 

322, 334, 337. 
Montague v. Garrett, 494. 

V. Hayes, 702. 
Montal V. Lyons, 65. 
Montefiori v. Montefiori, 332. 
Montgomery v. Edwards, 874. 
Montlock V. Buller, 778. 
Moody V. Nichols, 420. 

v. Smith, 296, 429. 
Moore, in re, 453. 

V. Bixby, 570, 577. 

«. Campbell, 305, 743, 748, 749, 
795. 

V. Edwards, 857, 878. 

V. Eox, 312, 314, 466, 468, 479, 
485, 500. 



Moore v. Higbee, 832. 

V. Hart, 317. 

V. Kerr, 418, 419. 

V. Love, 574. 

V. Moore, 800. 

V. Mountcastle, 703. 

V. Scriven, 832. 

V. Small, 362, 427, 827, 846. 

V. Stovall, 235. 
Moorecrof t v. Dowding, -803. 
Moorehouse v. Colvin, 331. 

V. Crangle, 193, 194. 
Mordecai v. Gadsden, 210. 
Moreland v. Le Masters, 839. 

V. Myall, 506. 
Morgan v. Bergen, 796. 

V. Elam, 92, 412, 4lS. 

V. Griffith, 351, 423. 

V. Holford, 680, 707. 

V. Milman, 716, 831, 843. 

V. Overman Silver Miu. Co., 407. 

V. Pike, 766. 

V. Smith, 100. 

V. Sykes, 717. 
Morin v. Murtz, 198, 666, 764, 839. 
Morley v. Boothby, 175, 231. 
Morphett v. Jones, 64, 65, 826, 827, 

833, 835, 837, 841, 846. 
Morrill v. Colehour, 422. 

V. Mackman, 31. 
Morris v. Glyn, 393. 

V. Harris, 827. 

0. Niles, 51. 
Morrison v. Baker, 204, 290. 

V. Chadwick, 118, 123. 

V. Hogue, 234. 

V. Pery, 836. 

V. Surman, 772. 

V. Tumour, 771, 772. 
Morse v. Brackett, 752. 

V. Chisholm, 559. 

V. Copeland, 13, 20, 401. 

V. Mass. Nat. Bank, 262. 

u. Merest, 852. 

V. National Bank, 231. 
Morten v. Marshall, 192. 
Mortimer v. Davies, 807. 

V. Orchard, 829, 839, 845, 848. 
Mortlock V. Buller, 778. 
Morton v. Dean, 654, 705, 709, 720, 
721, 739. 

V. Tewart, 803. 

V. Tibbetts, 558, 565, 584, 587, 
588, 590, 591, 592, 593, 597, 
603, 606, 621, 643. 



TABLE OF CASES. 



XXXIX 



Moseley v. Taylor, 156, 195, 214. 
Moses V. Norton, 172, 194, 216. 
Moshier v. Kitchell, 169, 217. 
Moss, ex parte, 443. 

t;. Atkinson, 669. 

V. Culrer, 416, 827. 
Mott V. Hurd, 408. 
Moulton V. Faught, 28, 36, 38. 
Mountfort, ex parte, 442, 443. 
Mountjoy's Case, 17. 
Mount Olivet Cemetery v., Shubert, 

161, 209, 211. 
Mountstephen v. Lakeman, 156, 183, 

213, 220. 
Mowbrays. Cunningham, 202. 
Moxey v. Bigwood, 870, 871. 
Moye V. Tappan, 22. 
Moystyn v. Fabrigas, 305. 
Mozley v. Tinkler, 191, 668. 
Muckey v. Howenstine, 554. 
MuUaly v. Holden, 876. 
Mullet V. Halfpenny, 332. 
Mumford v. Gething, 681, 751. 

V. Whitney, 21, 22, 30, 359, 369, 
400. 
Murama v. Mumma, 814. 
Mundy v. Joliffe, 835, 836, 837, 839, 
840, 841, 842, 848, 850. 

V. Ross, 162. 
Munsello v. Loree, 845. 
Murdock v. Anderson, 684, 685. 
Murless v. Franklin, 810, 815, 816. 
Murphy v. Boese, 785, 786. 

V. Merry, 162. 

V. O'Sullivan, 467. 

1-. Renkert, 234. 
Murray v. Bridges, 124. 

V. Cherrington, 54. 

V. Gilbert, 371. 

V. Jayne, 826. 

V. Shaw, 97, 103, 104. 
Murrell v. Milward, 85, 103, 118. 
Muse V. Carr, 781. 
Mushat V. Brevard, 424. 
Musick V. Musick, 153. 
Mussel V. Cook, 503. 
Musselman v. Storer, 758. 
Mussey v. Fessenden, 727. 
Mutual Benefit Ins. Co. v. Brown, 

45. 
Myer v. Griffin, 216, 218. 
Myers v. Forbes, 844, 845. 

V. Morse, 151, 153, 874, 875. 

V. Perigal, 393. 

;;. Watson, 862. 



N. 



Nab V. Nab, 799, 803. 
Nason v. Grant, 413. 
Natehbolt v. Porter, 106. 
Natchez v. Vandervelde, 407, 418. 
Nat. Bank of Australasia v. Cherry, 

442, 448. 
Neal V. Bellamy, 222. 

V. Viney, 184. 
Neale v. Neale, 323, 828, 850. 
Neary v. Bostwick, 216. 
Negley v. Jeffers, 758. 
Nelson v. Boynton, 155, 156, 173, 244, 
264, 266. 

V. Dubois, 220. 

u. First Nat. Bank of Chicago, 231. 

V. Forgey, 414. 

V. Hardy, 155, 211, 219, 246, 290. 

t. Nelson, 20, 351, 363. 

V. Serle, 143. 
Nesbitt V. Barry, 520. 
Nesham v. Selby, 653, 718. 
Nettleship, ex parte, 447, 451. 
Nettleton v. Sickes, 13, 28, 351, 358, 

361, 363, 382, 401. 
Neville v. Wilkinson, 332. 
New, in re, 444, 448. 
New Brunswick Lumber Co. v. Kirk, 

371. 
N. Y. Central Ins. Co. u. Nat. Prot. 

Ins. Co., 612. 
Newbald v. Sadler, 26. 
Newberry v. Wall, 656, 689, 788, 790, 

796. 
Newbury v. Armstrong, 176. 
Newby v. Rogers, 677, 764. 
Newcomb v. Rayner, 360, 377. 
Newell V. Ingraham, 194, 195, 214. 

V. Newell, 415, 506. 

... Radford, 180, 690, 694, 750, 
773. 
Newport v. Spivey, 191. 
Newton v. Eronson, 782. 

V. Preston, 808. 

V. Swazey, 839, 845, 854, 874. 
Niagara Falls Ins. Co. i\ Greene, 469. 
Nichol V. Redley, 457, 727, 729. 
Nicholls V. Plume, 575, 584, 606, 625. 
Nichols V. Allen, 01. 

V. Cooper, 409. 

V. Johnson, 655, 656, 684, 688, 689, 
724. 

V. Lyth, 421. 

u. Weaver, 311, 312. 



xl 



TABLE OP CASES. 



Nichols u. "Williams, 843. 

Nicholson v. Bower, 561, 572, 614, 615. 

V. Mulligan, 814. 
Nickells v. Atherstone, 82, 93, 96, 103, 

118, 120, 122, 126, 131. 
Nixon V. Vanhise, 210. 
Noakes v. Morej', 519. 
Noble V. "Ward, 305, 743, 747, 754, 758. 
Noel V. Hart, 230. 
Nones v. Homer, 473, 485, 486. 
Norman v. Phillips, 576, 603, 606, 614, 

615, 641. 
Norris v. Blair, 647, 678, 781. 

V. Cooke, 787. 

V. Graham, 156, 163, 194. 

v. Jackson, 829, 839, 849. 

V. Spencer, 207. 

V. "Wilkinson, 447, 450. 
North V. Forest, 395, 503. 

V. Robinson, 198, 246. 
Northam v. Bowden, 13. 
Northen v. Carnegie, 805. 
Northfleet v. Southall, 848. 
Northrop v. Boone, 828. 
Norton v. EUam, 147. 

V, Gale, 843. 

B. Huxley, 306. 

V. Preston, 434. 

V. Seymour, 769. 

V. Simonds, 758. 

B.Webb, 411. 
Noyes v. Humphries, 186, 196, 211, 214, 

217, 218, 266. 
Nunn II. Fabian, 65, 837, 839, 849. 
Nurse v. Lord Seymour, 867. 
Nutting V. Dickinson, 407, 425, 652. 



O. 

Oakes, ex parte, 454. 

V. Moore, 843. 
Oakman v. Rogers, 648, 714. 
Oakington v. Richey, 360, 640. 
Oble V. Dittlesfield, 145. 
O'Connor v. Spaight, 414. 
Odell V. Montrose, 414. 

V. Morin, 843. 

V. Mulry, 285. 
O'Donnell v. Lehman, 654, 663, 709, 
71.3, 725, 738, 781. 

V. Smith, 231. 
OfEord V. Davies, 176, 191. 
Ogbourne, in re, 463. 
Ogden, in re, 444, 



Ogden V. Rowe, 101. 

Ogilvie V. Foljambe, 60, 653, 681, 682, 

684, 703, 725, 730, 772, 776. 
Ogle V. Earl Vane, 749, 758, 759, 761. 
O'Hara v. O'Neill, 803. 
O'Herlihy v. Hedges, 825. 
Ohio V. Baum, 844. 
Old Colony R. R. Co. v. Evans, 649, 

661, 663, 765. 
Oldershaw v. King, 175, 179. 
Oldham w. Litchford, 852. 
Oliphant v. Patterson, 208. 
Oliver, in re, 452. 

Olmstead v. Greenly, 152, 219, 228, 
234, 254. 

V. Niles, 348, 360, 368, 372. 
Olyphant v. Baker, 620. 
Omerod v. Hardman, 736, 868. 
Onderdonk v. Lord, 411. 
O'Neil V. Cram, 647. 

V. Martin, 822. 

V. N. Y. Mining Co., 560. 
Ontario Bank v. Root, 876. 
Orcutt V. Nelson, 641. 
O'Reilly v. Thompson, 826. 
Organ v. Stewart, 520, 526. 
Ormond v. Anderson, 663. 
Orne v. Cook, 717. 
O'Rourke v. Perceval, 766. 
Orr V. Hadley, 421. 
Orrell v. Coppock, 195, 206, 209. 
Orrett, ex parte, 453. 
Orth V. Jennings, 412. 
Osborne v. Endicott, 874. 

u. Phelps, 688, 689. 
Otis V. Hazeltine, 717. 
Ott V. Garland, 435. 
Ottenhouse v. Burleson, 839. 
Outwater v. Dodge, 568, 609, 643. 
Owen V. Field, 8, 9, 15, 19, 30, 36. 

o. Legh, 373, 392. 

V. Thomas, 669, 682, 684, 765. 
Owens V. Lewis, 19, 362, 356, 359, 360, 

361, 363. 
Owings V. Baldwin, 827, 846. 
Oxford V. Provan, 860. 



Pace V. Marsh, 179. 

Packard v. Dunsmore, 584, 639. 

t. Richardson, 61. 
Packet Co. v. Sickles, 467, 482. 
Page V. Ellsworth, 104. 



TABLE OF CASES. 



xli 



Page V. Leapingwell, 805, 806. 

V. Monks, 186, 425. 
Pain u. Coombs, 696, 827, 828, 837, 
849, 855. 

V. Smith, 450. 
Paine v. Fulton, 621, 526. 
Palbrook v. Lawes, 398, 428. 
Palmer v. Anderson, 421. 

V. Blain, 293. 

V. Edwards, 74. 

V. Haggard, 204. 

V. Marquetti R. R. Co., 60, 491. 
Palmerton v. Huxford, 250. 
Paris V. Strong, 463, 497. 
Parke v. Leewright, 659, 824. 
Parker v. Barker, 438. 

V. Benton, 239, 282. 

V. Bodley, 647, 714. 

V. Heaton, 195, 214, 824. 

V. Kane, 91, 412. 

V. Eedfield, 26. 

V. Schenck, 542. 

V. Siple, 469. 

V. Smith, 766, 771, 825, 842, 843, 
856. 

V. Staniland, 353, 355, 360, 375, 
376, 379, 383, 386. 

V. Steward, 519. 

V. Stones, 799. 

V. Tainter, 429, 431, 656, 714. 

K. Taswell, 63, 687, 844, 847, 866. 

V. Walker, 54. 

V. Wallis, 575, 577, 582, 584, 585, 
606. 

V. "Wells, 824. 

V. Wise, 286. 
Parkhurst v. Van Cortlandt, 58, 647, 

659, 839, 845, 848. 
Parkins v. Moravia, 286. 
Parks V. Francis, 465, 500. 

u. Hazlerig, 44. 
Parmenter v. Webber, 74, 75. 
Parris v. Allen, 117. 
Parrish v. Koons, 663. 
Parsons v. Loucks, 542, 545, 550. 

V. Smith, 351, 358, 360, 363. 
V. Walter, 203, 206. 
Parteriche v. Powlet, 736, 862. 
Parton v. Crafts, 649, 726, 790, 793, 796. 
Pasley v. Freeman, 306. 
Passaic Manuf. Co. u, HofEman, 530, 

544, 545. 
Patchin v. Swift, 61. 
Patrick v. Ashcroft, 874. 
V. Colerick, 23, 27, 43. 



Patrick v. Horton, 844. 
Patridge v. Wilsey, 550. 
Patten v. Gurney, 306. 
Patterson v. Cunningham, 189, 348. 

V. Murphy, 799. 

V. Stoddard, 48. 

V. Ware, 493, 854, 874. 

c Yeaton, 413. 
Patterson's Appeal, 359, 362, 372. 
Patton V. McClure, 434, 624. 
Paul V. Gunn, 424, 428. 
Payne v. Baldwin, 216, 219, 254. 
• V. Cave, 728, 782. 

V. Johnson, 305. 

V. Mortimer, 331. 

V. Wilson, 175, 243. 
Peabody v. Harvey, 174, 194, 209, 266, 
296. 

V. Speyers, 60, 395, 654, 673, 709. 
Peacher's Case, 808. 
Peacock v. Harris, 425. 
Pearce v. Watts, 846, 847. 
Pearse, ex parte, 454. 

in re, 444, 445. 

and Prothero, ex parte, 450. 
Pearson v. Dawson, 027. 

V. Henry, 137, 138, 139, 305. 
Peate v. Dicken, 186. 
Peck V. Thompson, 156, 220, 297. 
Peckham v. Barber, 828. 

w. Faria, 203, 206. 

V. Taylor, 799. 
Peek V. N. Staf. R. Co., 649, 709, 734, 

739, 741. 
Peltier v. Collins, 656, 685, 796. 
Pember v. Mathers, 863. 
Pembroke v. Thorpe, 823. 
Tenfold v. Bouch, 806. 
Penhallow v. Dwight, 377. 
Pennell v. Pentz, 216, 219. 
Penniman v. Hartshorn, 661, 666, 764, 

772. 
Pennington v. Tanniere, 48, 56. 
Pennock v. Dialogue, 312. 
Penruddock v. Newman, 82. 
Penton v. Robert, 404. 
Pentreguinea Coal Co., in re, 494, 495. 
People V. Beebe, 395. 

V. Haynes, 558, 643. 

V. May, 308. 

V. Rector, 308. 

V. Rickert, 48, 51, 58, 110. 

V. Utlca Ins. Co., 308. 
People's Bank v. Gridley, 637. 
Percival v. Blake, 605. 



xlii 



TABLE 01" CASES. 



Perkins v. Clay, 467, 494, 495, 498. 

V. Goodman, 161. 

V. Hitchcock, 247. 

V. Littlefleld, 198, 201. 

V. Perkins, 83. 

o. Pitts, 417. 

t>. Spring, 206, 290, 295. 
Perrine v. Leachman, 349, 876. 
Perry, ex parte, 452. 

V. Fitzhowe, 7, 8. 

V. Swasey, 232. 
Perryn v. Allen, 117. 
Personette v. Pryme, 422. 
Persse v. Persse, 850. 
Fetch V. Tutin, 353, 388. 
Peter v. Compton, 314, 468, 470, 473, 
482, 495, 497. 

V. Kendall, 101, 107, 134. 
Peters v. Barnes, 82, 83. 

V. Newkirk, 843. 

V. Westborough, 314, 465, 466, 
468, 476, 481, 483. 
Pettingill v. Merrill, 554. 
Pettit V. Braden, 169, 204, 205, 217. 
Petty-!;. Evans, 27. 
PfeifCer v. Adler, 185, 278, 279. 
Pharmaceutical Society v. London &c. 

Assoc, 308. 
Phelps V. Cutter, 602. 

0. Hendrickson, 507. 

o. Seely, 749, 762. 
Phene' v. Popplewell, 98, 106. 
Philbrook v. Belknap, 433. 
Philhmore v. Barry, 655, 771, 773, 779. 
Phillips V. Bateman, 176. 

V. BistoUi, 572, 578, 581, 587, 621. 

u. Edwards, 823, 834. 

V. Gray, 161, 209, 211. 

o. Hummell, 631. 

V. Leavitt, 438. 

V. Ocmulgee Mills, 523, 559, 578, 
640, 704. 

V. Phillips, 6. 

V. Thompson, 402, 846. 
Philpot V. Briant, 138, 173. 
Phipps v. Child, 856, 870. 

V. McFarlane, 480, 550. 

V. Sculthorpe, 96, 102, 128. 
Picard v. Sears, 97, 333. 
Pickering v. Appleby, 394. 
Pier V. Carr, 100. 

Pierce v. Corf, 654, 709, 726, 739, 741, 
787. 

V. Goddard, 440. 

u. Woodard, 186. 



Pierrepont v. Barnard, 353, 359, 360,401 . 
Pierson v. Cincin. &c. Canal Co., 16. 
Piggott V. Stratton, 77, 78, 333. 
Pike V. Balch, 781. 

V. Brown, 183, 198, 235, 277, 350, 
437. 

c. Eyre, 78. 

V. Pay, 681, 750. 

V. Irvin, 231. 
Pillans V. Van Mierop, 173, 175, 231. 
Pilling V. Armitage, 845. 
Pinchon v. Shilcott, 425. 
Pinckney v. Hagadorn, 722. 
Pindall v. Trevor, 826. 
Pinkham v. Mattox, 559, 575, 621, 624. 
Pinnell's Case, 395, 515. 
Pinney v. Pinney, 494. 
Piper V. Buckner, 418. 
Pipkin V. James, 684, 686. 
Piser V. Stearns, 624. 
Pistor V. Cater, 50, 67. 
Pitcairn v. Ogbourne, 321, 864. 
Pitcher v. Hennessey, 657, 714. 

V. Wilson, 463. 
Pitkin V. Long Island R. Co., 475, 489. 

w.Noyes, 373, 382, 388, 385, 530, 541. 
Pitman v. Poor, 28, .30, 38. 

V. Woodbury, 766. 
Pitt V. Bridgewater, 145, 146. 
Pitts V. Beckett, 737, 746, 788. 
Pleasant v. Benson, 77. 
Pleasants v. Pendleton, 637. 
Plevins v. Downing, 745, 749, 758, 759, 

761. 
Plimpton V. Curtiss, 484, 497. 
Plummer v. Breckman, 432. 

V. Lyman, 260, 276. 
Poland V. O'Connor, 827. 
Pole V. Pole, 814, 816. 
Polhemrs v. Heilman, 752. 
Polhemus v. Hodson, 419. 
Pollard, ex parte, 446. 

V. Barnes, 6. 
Pollock V. Stacy, 74, 75. 
Poole V. Odling, 812. 
Pooley, ex pai-te, 445. 
Poor V. Oakman, 30, 359, 360, 361. 
Poorman v. Kilgore, 832. 
Pope V. Andrews, 191. 
Pople V. Garland, 54. 
Porry v. Allen, 121. 
Porter v. Gordon, 51. 

V. Hill, 417, 419. 

u. Langhorn, 155, 176, 211. 

V. Perkins, 419. 



TABLE OF CASES. 



xliii 



Potkin's Case, 56. 
Pott, ex parte, 454. 
Potter V. Brown, 292. 

V. Duffield, 088, 690, 693, 725, 

V. Jacobs, 645, 822, 827. 

V. Potter, 850. 
Potts 17. Whitehead, 843. 
Poulter V. Killingbeck, 354, 436. 
Poultney v. Holmes, 74, 348, 397. 

V. Ross, 217, 218. 
Powell, ex parte, 456. 

V. Dillon, 730. 

V. Divelt, 677. 

V. Graham, 148. 

V. Jessop, 393, 503. 

V. Lovegrove, 828. 

17. Rich, 360, 369. 

V. Smith, 872. 

V. Thomas, 830. 
Powers V. Fowler, 179, 182, 708, 736. 
Powys V. Mansfield, 811. 
Poyntz !-. Fortune, 63. 
Prankard v. Prankard, 806. 
Prater v. Miller, 844. 
Prather v. Vineyard, 231, 240. 
Pratt V. Chase, 574. 

V. Humphrey ,138,173,174,201,297. 

V. Ogden, 8. 
Pray v. Clark, 845. 

V. Mitchell, 395. 
Preble v. Baldwin, 198, 407, 425. 
Preece k. Corrie, 75. 
Prentice v. Wilkinson, 100, 151, 156, 

211, 233, 304. 
Prentiss v. Warne, 100. 
Presbyterian Soc. of Greene Farm v. 

Staples, 160, 209. 
Prescott V. Locke, 529, 530, 541, 557, 

571. 
Preston v. Young, 278. 
Price V. Assheton, 846. 

V. Durin, 721, 723. 

17. Dyer, 747, 859, 868. 

V. Griffiths, 61, 687, 709, 739, 847. 

</. Jones, 624. 

17. Lea, 510, 600, 601. 

V. Ley, 862. 

,;. Leyburn, 350, 425. 

V. Richardson, 181. 

V. Salusbury, 833. 

V. Trusdale, 233. 

17. Weaver, 876. 
Prime v. Koehler, 262. 
Primer v. Donald, 402. 
Prince v. Case, 15, 22, 25, 30, 40. 



Prince v. Koehler, 235. 

Prindle v. Anderson, 51. 

Pringle v. Sturgeon, 419. 

Printup V. Mitchell, 846. 

Pritchard v. Dodd, 2(3. 

Probasco v. Johnson, 443. 

Proctor V. Jones, 597, 598, 633. 

Prole V. Soady, 331. 

Propert r. Parker, 773. 

Proprietors of Upper Locks v. Abbott, 

194, 206. 
Proprietors &c. v. Prescott, 421. 
Prosser v. Allen, 216. 
Providence Christ. Union v. Elliott, 

437. 
Pryee v. Bury, 444, 446. 
Puckett V. Bates, 194. 

V. Read, 638. 
Pugh 17. Chesseldine, 781. 

17. Good, 492, 826. 
Pugsley V. Aiken, 51. 
Pulsifer v. Waterman, 822. 
Purcell !7. Miner, 824. 
Purinton v. N. 111. R. R. Co., 845, 846. 
Purner v. Piercy, 351, 354, 360, 362, 

363, 383, 384, 386, 387, 388. 
Putman v. Haggard, 61. 
Putnam v. Farnham, 243, 244, 299. 

V. Lamphier, 624. 

V. Tilleston, 641. 

V. Tuttle, 358. 
Putney v. Day, 352, .360, 368, 372. 
Puttman v. Haltey, 845. 
Pye, ex parte, 803. 

in re, 453. 
Pyke V. Williams, 826. 
Pym 17. Blackburn, 852, 858. 

V. Campbell, 746. 



Q. 

Queen v. Merriam, 620. 
Quin V. Hanford, 204, 209, 231, 309. 
Quintard v. Bacon, 584, 607, 614, 641. 
17. De Wolf, 214, 223. 



R. 

Rabberman v. Wisekamp, 209, 302. 
Raberg v. Peyton, 231. 
Rabsuhl v. Lack, 493, 874. 
Raffensburger i\ CuUison, 95, 758. 
Raffles i7. Wichelhaus, 749. 



xliv 



TABLE OP CASES. 



Ragland v. "Wynn, 153, 297. 
R. R. Co. V. McLaughlin, 2L 
Railway Co. v. Winter, 867. 
Rainbolt v. East, 314. 
Rains w. Story, 217. 
Raikes v. Todd, 182. 
Rake v. Pope, 494. 
Ramsbottom v. Gosden, 860, 867. 
Ramsden v. Dyson, 8.33, 834, 840. 
Rand v. Mather, 151, 186, 186, 187, 221, 

223. 
Randall v. Howard, 876. 

V. Morgan, 328, 334, 337. 

0. Rich, 95, 97, 100. 

V. Turner, 498, 499. 
Rankin v. Say, 65. 

V. Simpson, 824, 846. • 
Rann v. Hughes, 138, 173, 858, 874. 
Rappalye v. Adee, 576, 597, 630. 

V. Mackie, 566, 568. 
Raritan &e. Co. u. Veghte, 16. 
Ratcliffe i'. Barnard, 455, 456. 
Rathbun v. Ratlibun, 621. 
Raubitschek v. Blank, 417. 
Rawdon v. Dodge, 414. 
Rawlings v. Turner, 45. 

u. Walker, 115. 
Rayner v. Grote, 602. 
Raynor v. Timerson, 421. 

V. Wilson, 92, 412. 
Read v. Ladd, 155, 194, 203, 262. 

V. Lamb, 491, 652, 875. 

V. Nash, 152, 220, 272, 273, 274, 
289. 

V. Ridotit, 96. 
Reade v. Livingston, 320, 337. 
Reader v. Ifingham, 198, 202, 287, 288, 
291. 

V. Sayne, 58. 
Redding v. Wilkes, 316, 322, 823. 
Reddington v. Reddington, 814, 815. 
Redhead v. Cator, 700. 
Redpath v. Roberts, 96, 107. 
Reech v. Kennegal, 137, 141, 146, 852. 
Reed v. Evans, 61. 

V. Earr, 421. 

V. Holcombe, 175, 198, 235, 264, 
292. 

V. McGrew, 411, 

V. Reed, 826. 

V. Upton, 624. 
Rees V. Williams, 132. 
Reese v. Reese, 844, 845, 846. 
Reeve v. Bird, 96, 98, 102, 127. 
Reeves v. Harris, 624. 



Reg. V. Lord, 485. 

;,. Morrish, 14. 
Reid V. Kenworthy, 648. 
Reinbolt v. East, 186. 
Reinheimer v. Carter, 495. 
Remick v. Sandford, 557, 570, 575, 580, 
593, 596, 609, 663, 737, 738, 744. 
Remington v. Palmer, 425. 
Rennick v. Kearn, 15, 400. 
Reuss V. Picksley, 60, 652, 664, 666, 

734, 765. 
Reuteh v. Long, 537, 550. 
Rex V. Banbury, 102, 126. 

V. Chawton, 56. 

V. CoUett, 47. 

V. Eilloughby, 49. 

V. Geddington, 9. 

V. Hagworthingham, 9. 

V. Herndon-on-the-Hill, 9, 22, 28. 

I'. Jobling, 47. 

0. Longnor, 45. 

V. Portington, 802. 

V. Standon, 9, 30. 

c. Stow Bardolph, 128. 

V. Warblington, 9. 
Raynaut v. Porter, 49. 
Reynolds v. Dunkirk &e. R. R. Co.,662. 

V. Hewitt, 416. 

V. Johnstone, 826. 

V. Prosser, 145. 

V. Waring, 846. 
Rhea v. Sheward, 27. 
Rhine v. Robinson, 420. 
Rhoades v. Castner, 647, 704, 744, 764. 
Rhodes v. Prick, 420, 826. 

u. Leeds, 156, 211, 215, 219. 

V. McKean, 165. 

V. Otis, 8. 

V. Rhodes, 469, 825, 848. 

V. Starr, 189, 433, 765. 

V. Thwaites, 598. 
Rice V. Barry, 160, 195, 208. 

c. Carter, 199. 

■-. Manley, 159. 

V. Peet, 189. 

u. Rawlings, 778. 

V. Roberts, 408, 411. 
Rich V. Bolton, 47, 48, 52, 53. 

V. Jackson, 858, 866. 

V. Zeilsdorf, 358. 
Richard v. DeWolf, 156. 
Richards v. Allen, 427, 432. 

V. Borrett, 443. 

V. Porter, 701, 702, 710, 711, 712, 
732, 739, 741. 



TABLE OF CASES. 



xlv 



Richards v. Richards, 413, 414, 415, 
876. 

V. Sims, 438, 439. 
Richardson, ex parte, 444. 

in re, 444. 

V. Anthony, 23, 27. 

V. Cooper, 758. 

I'. Dunn, 605. 

V. Eyton, 846. 

V. Gifford, 48, 50, 66, 68. 

V. Jones, 459. 

V. Langridge, 47, 49, 52, 53. 

V. Pierce, 466, 467, 469, 470, 484. 

V. Richardson, 27, 162. 

V. Rohbins, 154, 262. 

V. Savage, 56. 

V. Smith, 843. 

V. Squires, 559. 

V. Williams, 248, 276. 
Richman i'. Baldwin, 419. 
Richmond i: Poote, 827, 832, 833. 
Ricliter v. Irwin, 408. 
Rickard v. Moore, 592. 
Rickards v. Cunningham, 15, 878. 
Ricker v. Kelly, 15, 22, 26, 28, 35, 36, 

400. 
Riddle v. Backus, 466, 469, 483. 

V. Brown, 411. 

</. Emerson, 798. 

V. Varnum, 566. 
Rideout v. Bristow, 147. 
Rider v. Kelley, 571. 

V. Kidder, 806, 807, 810. 
Ridge, in re, 452. 
Ridgeley v. Stillwell, 51. 
Ridgway v. Bowman, 657, 714. 

V. Horton, 697. 

V. Ingram, 654, 704, 709, 720, 721, 
739, 861. 

V. "Wharton, 649, 653, 680, 704, 
705, 709, 719, 730, 733, 742, 
857. 
Ridley v. Ridley, 468, 469. 
Rieder v. Machin, 639. 
Riggs V. Bell, 48, 50, 56. 

V. Magruder, .395, 503. 
Right V. Beard, 48. 

V. Cuthcll, 95, 129. 
Riley v'. Famsworth, 720, 724, 738, 
843. 

V. Riley, 314. 

V. Williams, 406, 656, 714. 
Ripon V. Norton, 143. 
Rishton v. Whatmore, 654, 709, 739, 
741. 



Roach V. Damson, 27. 
Roberts i\ Croft, 455, 456. 

t'. Roberts, 799. 

V. Robertson, 832. 
■ V. Rockbottom Co., 463, 467, 468, 
483, 484, 498. 

c. Rose, 22, 

V. Tucker, 465, 485, 494, 648, 714. 

7.. Tunnell, 464. 

V. Vaughan, 542, 543. 
Robinson v. Ainge, 393. 

V. Garth, 726, 729. 

f. Gilman, 198, 229, 245. 

r. Lane, 156, 214. 

V. Page, 868. 

c. Tipton, 876. 

V. Uhl, 15. 
Robson V. Collins, 867. 

f. Harwell, 184. 

II. Jones, 26. 
Roche V. Chaplin, 156, 289, 304. 
Rochester v. Whitehouse, 843. 
Rockford &c. R. R. Co. v. Shunick, 

44. 
Rockwell V. Hobby, 442,443. 
Rodgers v. Jones, 558, 570, 608, 609, 
010, 012, 621. 

V. Phillips, 570, 577, 615, 641. 
Rodwell V. Phillips, 352, 353, 357, 360, 

376, 383, 385, 387, 388. 
Roe V. Abp. of York, 89, 120, 123, 124. 

V. Conway, 106. 

t,. Haugh, 141, 286. 

V. Lewis, 47, 52, 53. 
Roffey V. Henderson, 31. 
Rogers u. Brightman, 466, 479, 480, 
497. 

V. Collier, 154. 

... Gould, 609. 

V. Hadley, 746, 750. 

o. Harvey, 396. 

V. Hull Dock Co., 65. 

V. Rogers, 195, 211, 412, 805. 

V. Saunders, 663, 765. 

(>. Waters, 209. 
Roget i: Merritt, 661, 663. 
RoUason v. Leon, 62, 63. 
RoUison V. Hope, 161, 209, 211. 
Rondeau v. Wyatt, 527, 529, 532, 533, 

542. 
Root V. Lord, 624. 
Roots V. Lord Dormer, 512. 
Roper V. Radcliffe, 805. 
Ropes V. Lane, 640. 
Rose V. Cunynghame, 669, 682. 



xlvi 



TABLE OF CASES. 



Bose V. Johnson, 162. 
V. O'Linu, 184. 
V. "Watson, 826, 862. 
Kosenpaugh v. Vredenburgh, 428, 

429. 
Rosenthal v. Preeburger, 835. 
Eosa V. Baker, 686, 846. 

V. Welch, 506, 557, 602. 
Rossiter v. Miller, 653, 692, 714, 725, 

748, 781. 
Eothery v. Curry, 273. 
Eounnel v, Wingate, 601. 
Eoutledge v. Grant, 731, 735. 
Rowan v. Lytle, 83, 110. 
Rowe V. Osborne, 790, 794. 

V. Leeds, 857, 875. 

V. Whittier, 151, 209, 277, 297. 
Rowland v. Bull, 230. 

V. Rourke, 298 
Eowton V. Rowton, 839, 846. 
Rucker, in re, 451. 

V. Abell, 427. 

V Cammeyer, 778, 782, 788. 
Ruckle V. Barbour, 457, 461. 
Ruffey V. Henderson, 30, 42. 
Eugg V. Minett, 612. 
Ruggles V. Gatton, 157, 216, 218. 

v. Lawson, 413. 

V. Lesure, 21, 26. 
Ruhllng V. Hackett, 172, 240. 
Rummens v. Robbins, 731, 855. 
Eumsey v. LoreU, 306. 
Runde v. Runde, 160, 196, 198, 245. 
Rusker v. Abell, 435. 
Russel V. Haddock, 145. 

V. Russel, 441, 442. 
Russell V. Babcock, 160, 266, 276. 

V. Carrington, 568. 

V. Clarke, 306. 

.. Hubbard, 16, 28, 35, 36. 

V. Minor, 621. 

V. Moseley, 175. 

V. NicoU, 567. 

V. Richards, 360. 

V. Rowland, 413. 

„. Slade, 466, 468, 472, 479, 485, 
486, 488, 490. 
Russell's Policy Trusts, in re, 445. 
Rust II. Bennett, 308. 
Rutan V. Hinchman, 429, 506. 
Rutenberg v. Main, 778, 782. 
Ryall V. Ryall, 803, 808. 
Ryan, in re, 843. 

V. Hall, 663, 738, 744. 

V. Salt, 762. 



Ryan v. Tomlinson, 424. 

V. Wilson, 822. 
Ryass v. Wheeler, 418. 
Eyley v. Hicks, 45, 46. 



S. 



Sackett v. Spencer, 827. 
Sadler v. Hawkes, 173. 
Safford, ex paHe, 631. 
V. Ames, 362. 
b. Annis, 383, 386. 
V. McDonough, 557, 570, 609, 612, 
621, 630, 631. 
Sage V. McGuire, 846. 

V. Wilcox, 61, 173, 183, 436. 
Sainsbury v. Matthews, 354, 356, 356, 

375, 377, 383, 386. 
St. John V. Griffith, 722. 
St. Vincent Orph. Asy. v. Troy, 10. 
Sale V. Darrah, 559, 560, 779. 

V. Lambert, 688, 690, 692, 725. 
Sales V. Hickman, 844. 
Salmon Falls Mfg Co. v. Goddard, 
680, 689, 706, 737, 739, 772, 
774, 779. 
Salter v. WooUams, 11, 629. 
Sampson v. Hobart, 224. 

0. Swift, 220. 
Sams V. Tripp, 661, 663. 
Samuda v. Lawford, 847. 
Sanborn v. Chamberlin, 650, 703, 717, 
876. 
V. Flagler, 61, 666, 734, 771, 776. 
„. Merrill, 160, 220, 295. 
V. Nockin, 860. 
Sanders v. Gillespie, 292. 
Sanderson v. Graves, 186,425, 747, 754. 
Sands v. Soden, 329. 

V. Thompson, 414, 826. 
Sansum v. Butter, 321. 
Sargent v. Metcalf, 624. 
Sari V. Bourdillon, 646, 688, 690, 693, 

695, 719, 739, 773. 
Satterthwaite v. Ensley, 337. 
Saunders v. Cramer, 316, 328. 
V. Kastenbine, 476, 497. 
... Topp, 560, 575, 598, 607. 
0. Wakefield, 173, 176, 496, 653. 
Saunderson v. Cockermouth Railway 
Co., 846. 
V. Jackson, 655, 656, 671, 700, 703, 
716, 740, 743, 770, 773, 774, 
775, 776. 



TABLE OF CASES. 



xlvii 



Savage v. Canning, 897, 425. 

V. Carroll, 835, 830, 845, 848. 

V. Foster, 839. 
Savile v. ICinnaird, 731. 
Sawyer v. Nichols, 576. 

V. Ware, 506. 
Say V. Stoddard, 55. 
Sayre v. Hughes, 811, 812. 
Scales V. Maude, 799. 
Scanlan v. Geddes, 659, 681, 682, 684, 

742, 750, 751. 
Scarlett v. Stein, 654, 709. 
Scarritt w. St. John's M. E. Church, 751. 
Scawin v. Scawin, 815. 
Schafer v. Farmers' Bank, 654, 709. 
Schaffer v. Fithian, 412. 
Scheibler, in re, 446. 
Sehiefflin v. Carpenter, 82, 97, 110, 124, 

492. 
Schneider v. Norris, 770, 771, 773, 775, 
776. 

V. Westerman, 554. 
Schoenfield v. Brown, 284. 
Scholes V. Hampson, 212. 
School District No. 3 v. McLoon, 839. 
Schriver v. Eckenrode, 408. 
Schultz V. Bradley, 758. 
Schutt V. Large, 92, 412. 
Schuyler v. Leggett, 48, 51, 56, 58, 110. 

V. Smith, 58. 
Scoggini;.Blackwell,466,485,486,489. 

V. Slater, 349, 351, 402, 403. 
Scoggins V. Heard, 466. 
Seorell v. Boxall, 353, 374, 385, 388. 
Scott V. Anderson, 633. 

V. Bush, 432. 

V. Eastern Co. Eailway Co., 528, 
598, 600, 602. 

V. McFarlaud, 414. 

V. Stevens, 145. 

V. Thomas, 154, 260, 267. 

V. White, 155, 260. 
Scotten V. Brown, 348. 
Scroope v. Scroope, 814. 
Scudder v. Wade, 217, 218. 
Sculthorp V. Burgess, 809. 
Seago V. Deane, 399. 
Seagood v. Meale, 317, 670, 687, 691, 

715, 825, 826. 
Seaman v. Asehermann, 64. 

V. Hasbrouck, 160, 172, 209. 

V. Price, 207, 220, 350, 425. 

V. Whitney, 240. 
Searight v. Payne, 209, 263. 
Searle v. Keeves, 629. 



Sears v. Brink, 156. 

r. Smith, 5, 45. 
Seecrist i'. Twitty, 729. 
Seegoe v. Perley, 371. 
Seidensparger v. Spear, 15. 
Selby V. Selby, 768, 771. 
Selden v. Del. & Hud. Can. Co., 15, 19, 

22, 35. 
Self V. Cordell, 494, 498. 
Sellack v. Harris, 852. 
Sellick V. Adams, 421. 
Semmes v. Worthington, 824, 845. 
Semple v. Pink, 14G, 179. 
Senior v. Butt, 305. 
Serle v. Waterworth, 143, 147. 
Seton V. Slade, 663, 728, 764, 765. 
Sewall V. Fitch, 542. 

V. Quincy, 765. 
Seward v. Mitchell, 408, 409. 
Seymour v. Bennett, 428, 429. 

V. Davis, 510, 543, 553. 
Shadwell v. Shadwell, 316. 
Shales v. Shales, 815. 
Shanks y. Klien, 423. 
Shannon v. Bradstroet, 687, 751. 
Shardland v. Cotterill, 704, 725. 
Sharman v. Brandt, 779, 783. 
Sharp V. Emmet, 230. 

i,. Rhiel, 473, 488. 
Shaver v. Adams, 195, 214. 
Shaw V. Finney, 647, 788. 

V. Foster, 447. 

V. Jakeman, 321, 337. 

V. Nudd, 782. 

c. Shaw, 431, 433. 

V. Woodcock, 304, 424. 
Sheffield Canal Co. v. Sheffield & Eoth- 

erham E. Co., 735. 
Union Banking Co, ex parte, 453. 
Shelbume v. Inchiquin, 866. 
Shejhame v. Ashbaugh, 826. 
Shelley, in re, 445. 
Shelton v. Livius, 657, 658. 
Shepard v. Rinks, 418. 
Shepheard v. Walker, 836, 837. 
Shepherd v. Bevin, 839, 846. 

V. Hodsman, 46. 

V. Pressey, 562, 570, 576, 593, 597, 
614, 642. 

V. Shepherd, 827, 846. 

V. Titley, 449. 
Sherburne v. Fuller, 348, 413, 428, 481. 

V. Shaw, 655, 656, 688. 
Sherman v. Champ. Trans. Co., 466, 
469, 479. 



xlviii 



TABLE OF CASES. 



Sherry v. Picken, 302, 386. 
Shied y. Stamps, 656, 678, 724. 
Shields v. Middleton, 209, 231. 
Shilliber v. Jarvis, 826, 828. 
Shindler v. Houston, 570, 571, 577, 

621, 632. 
Shipley v. Patton, 471, 473. 
Shippey v. Derrison, 650, 655, 768. 
Shireman v. Jackson, 624. 
Shirley v. Ayres, 412. 

V. Shirley, 666, 764. 
Shitz V. DiefEenbach, 443. 
Shoemaker v. King, 195, 211, 214. 
Shooftstall V. Adams, 656. 
Shook V. Vanmater, 229, 292. 
Short V. Spackman, 792, 796. 

V. Staats, 311. 

V. Woodward, 350, 401. 
Shortrede v. Cheek, 178, 179, 181, 681, 

751. 
Shotwell V. Sedam, 422. 
Shreve v. Grimes, 427, 428. 
Shropshire v. Brown, 846. 
Shultze V. Coon, 649. 
Slmrtleff v. Willard, 637. 
Shute V. Dorr, 427, 429, 474. 
Sian V. Pigott, 259. 
Sidmouth v. Sidmouth, 807, 815. 
Sidney v. Stevenson, 443. 
Sidwell V. Evans, 243. 
Sievewright v. Archibald, 648, 649, 

750, 789, 790, 792, 793, 794. 
Sigerson v. Barker, 638. 
Silsbee v. Ingalls, 140. 
Silsby V. Allen, 51, 53. 

V. Trotter, 17, 30. 
Simmonds v. Cottin, 458, 461. 

^. Humble, 575, 584, 626. 
Simmons v. Hill, 839. 

v. Simmons, 323, 349, 399. 

V. Spruill, 684. 

V. Swift, 377, 563. 
Simms v. Killian, 413, 415. 
Simon v. Motivos or Metivier, 727, 

728, 788, 789. 
Simouds v. Fisher, 574. 
Simons v. Steele, 156, 705. 
Simpkin u. Ashhurst, 50. 
Simpkins v. Rogers, 15. 
Simpson v. Breckenridge, 685. 

V. Crumdick, 575, 593, 596. 

V. Hall, 304. 

V. Nance, 241, 292. 

V. Penton, 212, 216, 218. 
Sims V. Hutchins, 414, 432, 433. 



Sims V. McEwen, 429. 
Simson v. Brown, 236. 
Sinclair v. Bradly, 223. 

V. Richardson, 155, 207, 216. 
Singstack v. Harding, 726. 
Sites V. Keller, 824. 
Skelton v. Brewster, 234. 

V. Cole, 691, 692, 694, 705, 708, 
742, 768. 
Sketehley, in re, 445. 
Skett V. Whitmore, 798. 
Skidmore v. Bradford, 331, 814. 
Skinner v. Conant, 155, 164, 204. 

V. McDowall, 713, 844, 857. 
Slack V. Sharp, 134. 
Slater v. Smith, 659, 682, 684. 

685, 750, 765. 
Slingerland v. Morse, 154, 208, 259, 269. 
Sloan Saw Mill &c. Co. v. Guttshall, 

602, 631. 
Slocum V. Branch, 104. 

V. Seymour, 352, 358, 369. 
Slone V. Whiting, 114. 
Small V. Owings, 875. 

V. Quincy, 658, 663, 738, 744. 

V. Schaeffer, 175, 261, 267. 
Smalley v. Greene, 466, 467, 470. 
Smart v. Harding, 398, 411, 412, 425. 

V. Jones, 397, 400. 

V. Sandars, 14. 
Smith, ex parte, 444, 448, 453, 454. 

V. American Institute, 7. ' 

u. Arnold, 457, 400, 655, 678, 680, 
723, 729, 739, 781, 783. 

V. Baker, 806. 

o. Bennett, 6. 

V. Benson, 360. 

V. Bradley, 482. 

V. Bryan, 363, 368, 383, 386, 403. 

V. Burnham, 413, 415. 

V. Conlon, 485, 487. 

V. Coustant, 447. 

V. Cramer, 290. 

V. Crandall, 65. 

V. Dallas, 656. 

V. Devlin, 83. 

V. Easton, 267. 

V. Eah, 162, 877. 

V. Finch, 173, 175. 

V. Goulding, 349, 400. 

V. Gowdy, 734, 745. 

V. Green, 337. 

V. Houston, 48. 

V. Hudson, 572, 603, 606,607,615, 
616, 641. 



TABLE OF CASES. 



xlix 



Smith V. Hyde, 178, 216. 

V. Jenks, 440. 

V. Jones, 648, 656, 699, V04, 726. 

V. Kenny, 185. 

V. Lambs, 412. 

V. Lovell, 106, 134, 135. 

V. Male, 60. 

V. Mapleback, 73, 74, 76, 81, 82, 
122, 124. 

V. Mason, 609. 

1 . Matthews, 802, 803. 

V. Milliken, 573. 

V. Miner, 104. 

a. Montgomery, 205. 

V. Neale, 469, 495, 667, 733, 734. 

V. Nevins, 97, 104. 

I. N. Y. Cent. K. K. Co., 359,369, 
539, 544. 

( . Pendergast, 97. 

V. Price, 404. 

r. Rogers, 174, 297. 

V. Roots, 578. 

r. Rudhall, 212. 

v. Sayward, 198, 235, 260, 292. 

... Scott, 22. 

c. Smith, 399, 428, 764, 824, 832. 

V. Stephens, 162. 

c. Surman, 354, 355, 356, 364, 365, 
366, 374, 377, 383, 534, 540, 
588, 603, 619, 621, 653, 710, 
712, 732, 741. 

V. Tarleton, 423. 

V. Tombs, 398. 

(-•. Turner, 836. 

V. Ward, 752, 815. 

V. Watson, 669. 

V. Westall, 468, 469, 496. 

V. Wheeler, 97, 98. 
Smith's Leading Case, 50. 
Smithwick v. Shepherd, 138. 
Snead v. Green, 855. 
Sneed v. Bradley, 158, 854. 
Snelgrow v. Bailey, 441. 
Snelling v. Hall, 752. 

V. Lord Huntingfield, 472, 474, 488. 

V. Thomas, 859, 868. 
Snow V. Warner, 609, 614, 615, 641. 
Snowden v. Wilson, 8, 15, 19. 
Snyder v. Middleton, 100. 
Soaraes v. Spencer, 779. 
Soar V. Foster, 807, 810, 811. 
Soggins V. Heard, 479, 485. 
Soles V. Hickman, 647, 678, 714. 
Somerby v. Buntin, 395, 467, 483, 503. 
Somersets. Coal Co. n. Harcourt, 835. 



Soprani < . Skurro, 668. 
Souch V. Strawbridjjc, 425, 429, 466, 
467, 408, 473, 477, 483, 492, 
495, 668. 
Soule V. Albce, 196, 198, 295. 
South V. Toomey, 1G2. 
Southern Life Ins. Co. v. Cole, 396, 

844. 
Southwell V. Brcezeley, 498. 
Southworth v. Sebring, 638. 
Spadam v. Reed, 196. 
Spangler v. Danforth, 685. 
Spann v. Baltzell, 175, 267. 
Spark V. Heslop, 297. 
Sparling v. Parker, 393. 
Spaulding v. Andrews, 231. 
Spear v. Orendorf, 836, 837. 
Spencer v. Cone, 548, 551. 

u. Hale, 558, 609, 615, 624, 643. 

V. Halstead, 463, 497. 

I . McGowen, 27. 
Spencer's Appeal, 362. 
Spicer v. Cooper, 739, 752. 

u. Spicer, 336, 337. 
Spooner v. Dunn, 154, 260, 290. 
Sporle V. Whayman, 446. 
Sprague v. Blake, 521, 550, 560. 
Springfield v. Miller, 420. 
Springstein v Schemerhorn, 76. 
Spurgeon v. Collier, 335, 336. 
Spurrier v. Fitzgerald, 854, 877. 
Squire v. Whipple, 474, 485, 486. 
Staats V. Howlett, 198, 293. 
Stackpole r. Arnold, 779. 
Stadt V. Lill, 181. 
Stafford v. Lick, 656, 724. 
Stamers v. Preston, 47. 
Stamfil V. Hickes, 56. 
Stamper v. Griffin, 48. 
Stanbaugh v. Yeates, 377. 
Stanbury v. Matthews, 355, 356, 386. 
Standley v. Miles, 210. 
Standi V. Hine, 154, 240, 247 
Stanley v. Baldwin, 362. 

V. Dowdeswell, 733. 

r. Hendricks, 234, 240, 252, 254. 

u. Koehler, 101. 
Stansfield v. Johnson, 726, 727, 778. 
Stanton v. Miller, 843, 844. 
Stanway v. Rock, 48. 
Stariha v. Greenwood, 240. 
Stark V. Cannady, 415, 417. 

o. Raney, 294. 

V. Wilson, 407. 
Starr v. Earle, 2.36. 



1 



TABLE OP CASES. 



State V. Shinn, 164. 

Bank v. Mattler, 252. 
Stead V. Dawber, 743, 748, 754, 757. 

V. Liddard, 176, 653, 702. 
Stearns v. Hall, 758. 

V. Hubbard, 878. 

V. Janes, 6. 
Stebbins v. Smith, 138, 139. 
Stedman v. Mcintosh, 54. 
Steel )). Fife, 671. 

V. Payne, 64. 

V. Steel, 412, 413. 

V. Towns, 155, 194. 
Steele v. Haddock, 749. 

V. Hoe, 180, 181. 
Stephens v. Pell, 270. 

u. Santee, 543, 568. 

p. Squire, 195, 208, 228, 272. 

V. Stephens, 13, 19, 20, 34. 

V. Venables, 334. 
Sterling v. Baldwin, 352, 359, 368, 369. 

V. Bostwick, 358. 

u. Warden, 42. 
Stern v. Drinker, 174, 260, 272. 
Steyens, ex parte, 445. 

in re, 446. 

V. Cooper, 749. 

V. Houghtaling, 568. 

V. Stewart, 615. 
Stewart, ex parte, 445. 

V, Aston, 90. 

V. Campbell, 154, 244, 259, 266. 

V. Doughty, 360, 506. 

V. Eddowes, 739, 753, 764, 766. 

V. Garvin, 729. 

o. Hinkle, 259. 

V. L. & N. W. R. Co., 684, 687. 

V. McGuin, 173. 

V. Munford. 97. 

V. Stewart, 826. 
Stileman v. Ashdown, 814. 
Stiles V. Curtis, 420. 
Stilwell V. Otis, 223. 
Stirling v. Warden, 23, 24. 
Stobie V. Dills, 104. 
Stockbridge Iron Works v. Hudson 

Iron Co., 15, 17. 
.Stocker v. Partridge, 654, 709. 
Stocking V. Sage, 151, 160, 292. 
Stockley v. Stockley, 839. 
Stockport Water Works Co. v. Potter, 

18. 
Stoddard v. Graham, 161, 211. 

V. Hart, 437. 

V. Tuck, 882, 846. 



Stoddert v. Vestry of Port Tobacco, 61. 
Stokeley v. Butler, 370. 
Stokes V. Appomattox Co., 6. 

V. Moore, 61, 749, 768, 773, 774, 
823. 
Stone V. Browning, 562, 570, 676, 580, 
595, 597, 621, 641. 

V. Crocker, 431. 

V. Dennison, 424, 491, 492, 662. 

V. Hooker, 293. 

V. Peacock, 566. 

V. Stone, 815. 

V. Symmes, 156, 195, 211, 214, 264. 

u. Walker; 155. 

V. Whiting, 96, 97, 102, 103, 126. 
Stoops V. Smith, 657, 681, 714, 750. 
Storr V. Scott, 218. 
Story V. Menzies, 161, 210. 
Stowell i\ Robinson, 745. 
Strabecker v. Cohen, 231. 
Stranks v. St. John, 62. 
Stratford v. Bosworth, 714, 730, 844. 
Stratton v. Petitt, 62. 
Streht V. D'Evens, 464. 
Strong V. Crosby, 48, 51, 56, 63, 66. 

V. Dodds, 641, 642. 

„. Doyle, 377. 
Stuart V. Baker, 418. 

V. Smith, 399. 
Stubbs V. Lund, 644. 

V. Sargon, 806. 
Suggett V. Casson, 485, 494. 
SuUivant v. Commissioners &c., 28, 35. 
Summers v. Cook, 369. 
Surcome ;;. Penniger, 323, 334, 839. 
Sutcliffe V. Atlantic Mills, 487. 
Suter V. Pullin, 550. 
Sutherland v. Briggs, 836, 839, 840. 
Sutton V. Moore, 457. 

V. Rowley, 405. 

V. Sears, 411. 
Suydam v. Clark, 790, 796. 
Swain v. Seamans, 758. 
Swaisland v. Dearsley, 870. 
Swan V. Nesmith, 302. 
Swann v. Phillips, 307. 
Swanzey v. Moore, 491. 
Swatman v. Ambler, 766. 
Sweeney v. Miller, 420. 
Sweet V. Lee, 465, 659, 739, 750, 771. 

V. Shumway, 681, 750. 
Sweeting v. Asplin, 207, 231. 
Sweetman v. Parker, 209. 
Swepson v. Johnson, 872. 
Swift V. GifEord, 752. 



TABLE OF CASES. 



Swift V. Heath, 113. 

u. Pierce, 155, 163, 216, 218, 219, 
262. 

V. Swift, 471, 499. 
Swift's Iron &c. Co. «. Dewey, 752. 

V. U. S. 752. 
Switzer v. Skiles, 854. 
Sword V. Keith, 469. 
Syburn v. Slade, 132. 
Syers v. Jonas, 737. 
Sykes v. Dixon, 496, 669. 
Sykes's Trusts, in re, 800. 
Syler i-. Eckhart, 839. 
Symes v. Huntley, 714. 
Symmons v. Want, 191. 
Symonds v. Ball, 728. 
Symondson v. Tweed, 846. 



Taggard v. Roosevelt, 51, 63, 486. 
Taintor v. Brockway, 414. 
Talbot V. Bowen, 778, 874. 

V. Whipple, 103, 104. 
Taliaferro v. Ratton, 412. 

V. Roff, 173. 
Talley v. Greene, 469. 
Tallman v. Franklin, 58, 654, 684, 704, 

705, 720, 722, 724, 739, 846. 
Talmadge v. Rens. & Sar. R. R. Co., 

469, 489. 
Talman v. Rochester City Bank, 224, 
267. 

V. Sparhawk, 421. 
Talver v. West, 572, 673, 574. 
Tanner v. Moore, 181. 

V. Scovell, 595. 

V. Smart, 696. 

V. Valentine, 14, 19, 39. 
Tansley v. Turner, 630. 
Taplin v. Florence, 9, 14. 
Tapp V. Lee, 306. 
Tappin v. Lomas, 415. 
Tarbell v. Stevens, 160, 310. 
Tarling v. O'Riandorn, 601. 
Tarlton v. Vietes, 854, 874, 875. 
Tarr v. Northey, 160, 198. 
Tarte v. Darby, 93, 101. 
Tate V. Greenlee, 456, 461. 
Tatham u. Piatt, 846. 
Tatlock V. Harris, 276, 286. 
Tatterson v. Suffolk Manuf. Co., 492. 
Tatum V. Brooker, 827, 828. 
Taunton v. Pepler, 44. 



Tawney v. Crowthcr, 650, 654, 671, 707, 

709, 716, 844. 
Taylor v. Beech, 323, 334, 716, 822, 
875, 878. 

V. Caldwell, 14, 15, 17. 

V. Chapman, 102, 126. 

c. Dening, 771. 

V. Dobbins, 772. 

V. Drake, 153, 156, 194, 219, 262. 

V. Hilary, 207, 208, 212, 285. 

V. Linley, 393. 

V. Merrill, 778. 

V. Mueller, 576, 577, 687, 593,604. 

V. Portington, 735, 844, 847. 

V. Pratt, 61. 

V. Preston, 160, 209, 301. 

V. Richardson, 637, 638. 

V. Riggs, 658, 714. 

V. Taylor, 288, 815. 

V. Wakefield, 608. 

V. Waters, 6, 28. 
Teal V. Auty, 354, 385, 387, 403, 436, 

496. 
Tempest v. Fitzgerald, 618, 620, 621, 
634. 

V. Kilner, 393, 394, 803. 
Temple v. Johnson, 824. 
Templeton v. Bascom, 153, 173, 174, 

297. 
Tennay v. Prince, 171. 
Tepper v. Nicholls, 396. 
Terry v. Wheeler, 567. 
Thacher v. Rockwell, 205, 233, 290. 
Thayer v. Gallup, 233. 

u. Luce, 649, 654, 663, 688, 705, 
709, 742, 764. 

V. McEwen, 189. 

V. Reeder, 874. 

u. Rock, 186. 
Therasson v. McSpeedon, 161, 211. 
Therne v. Fuller, 143. 
Thiebaud v. Vevay, 58. 
Thomas, ex parte, 792. 

V. Blackman, 654, 703, 730, 823. 

V. Brown, 688, 690. 

V. Cook, 96, 97, 98, 102, 104, 113, 
114, 115, 120, 126, 128, 129, 
130, 131, 197, 198, 199, 287, 
288, 291, 292. 

V. Croft, 173. 

V. Delphy, 153, 266. 

V. Dering, 680. 

V. Dickinson, 426, 489, 492. 

u. Dodge, 247. 

V. Fredricks, 7. 



lii 



TABLE OP OASES. 



Thomas v. Hammond, 497, 876. 

o. Nelson, 100. 

V. Packer, 57, 62, 67. 

V. Serrell, 11. 

!;. Trustees, 457. 

V. "Williams, 175, 184, 186, 270, 
487. 
.Thompson v. Alger, 521, 559. 

V. Blanchard, 156, 220. 

u. Bond, 273. 

V. Davenport, 753. 

V. Elliott, 414. 

V. Gardiner, 789, 790. , 

V. Gordon, 466, 468, 469, 470, 477. 

V. Gould, 428. 

V. Jameson, 878. 

V. Kelly, 721. 

u. Ladd, 878. 

V. Leach, 76, 84. 

V. Maberly, 489. 

v. Maceroni, 599. 

V. Mason, 435. 

V. Percival, 286. 

V. Pettitt, 440. 

V. Todd, 824. 

V. Wilson, 94, 96, 102. 
Thorn v. Woolcombe, 76. 
Thombury v. Berill, 731, 736, 767. 
Thorndike v. Barrett, 420. 
Thornton v. Charles, 789, 790, 792, 
793. 

V. Henry, 839, 874. 

,;. Kelley, 688, 690. 

V. Kempster, 711, 766, 790, 792, 
794. 

V. Meux, 789, 790, 792, 793, 794. 

V. Vaughan, 874. 
Thorp, in re, 792. 

V. Keokuk Coal Co., 235. 
Thorpe v. Owen, 799. 
Thouvenin v. Lea, 351, 402, 466. 
Threadgill v. McLendon, 234, 240, 

252, 254. 
Thre'r v. Barton, 86. 
Thruxton v. Attorney General, 798. 
Thurber v. Dwyer, 56. 
Thurston v. James, 240. 
Thwaits v. Curl, 175, 216. 
Thj-nn v. Thynn, 862. 
Tibbett v. Morton, 575. 
Tibbetts v. Flanders, 198. 

u. Tibbetts, 422. 
Tibbs V. Barker, 839. 
Tice V. Freeman, 861. 
Tidey v. MoUett, 62, 63. 



Tiernan v. Gibney, 843. 

u. Granger, 500. 
Tiemey v. Wood, 803. 
Tileston v. Nettieton, 176, 194, 216. 
Till, in re, 454. 
Tilston V. Clarke, 146. 
Tilt V. Stratton, 51. 
Tilton V. Tilton, 826, 845, 854. 
Tindall v. Touchberry, 259, 290. 
Tinney v. Tinney, 862. 
Tippets V. Walker, 393. 
Tisdale v Harris, 395, 503, 733. 

V. Morgan, 209. 
Todd I). Tobey, 175, 267. 
Tomes v. Chamberlain, 48. 
Tomkius v. Smith, 153, 211. 
Tomkinson v. Staight, 615. 
Tomlinson v. Gill, 143, 152, 154, 175, 
275, 289. 

V. Miller, 782. 
Tooker v. Smith, 47, 66, 70. 
Toole V. Medlicott, 829, 839, 846. 
Toplady v. Sealey, 28. 
Toplie V. Grane, 289. 
Toppin !;. Lomas, 396, 413, 414. 
Torriano v. Young, 77, 78. 
Towers o. Osborne, 527, 529, 532, 533, 

534, 542. 
Townley v. Sumrall, 156. 
Townsend v. Albens, 100. 

V. Corning, 722. 

V. Dawson, 419. 

u. Drakeford, 726, 789, 793. 

V. Hargreaves, 560, 569, 607, 615, 
621, 626, 651, 669. 

17. Hawkins, 845. 

V. Long, 232, 301. 

V. Westacott, 812. 
Toulmin v. Hedley, 604. 
Tourret v. Cripps, 776. 
Tracy v. Tracy, 828. 
Train v. Gold, 294. 
Trammell v. Trammell, 30, 414. 
Traphagen v. Burt, 423. 
Trapnall v. Brown, 875. 
Travis v. Allen, 174. 
Tregonwell v. Sydenham, 805, 806. 
Trent v. Hunt, 128. 
Tress .,. Savage, 45, 46, 48, 52, 56, 57, 

66, 69, 70. 
Trevor v. Wood, 648. 
Trewinian v. Howell, 141, 146. • 
Trice v. Pratt, 457, 460. 
Tripp V. Armitage, 504. 
Trobridge v. Wetherbee, 423. 



TABLE OF CASES. 



liii 



Trotman v. Flesher, 831. 
Troxell v. Lehigh &c. Coal Co., 35. 
Trueman v. Loder, 753, 789, 792. 
TruU V. Granger, 45. 

V. Skinner, 413. 
Truox V. Slater, 395. 
Trustees v. Brook. F. Ins. Co., 469, 
480, 485. 

V. Flint, 204, 209, 309. 
Tucker v. Adams, 48. 

V. Burrow, 811, 815. 
Tufts V. Plym. Gold Min. Co., 652, 669, 

675. 
TuU V. David, 721. 
Tunbridge v. 'Wetherbee, 186. 
Turner v. Baker, 421. 

V. Hardy, 100, 129. 

V. Hubbell, 174, 266, 283, 296. 

V. Mariatt, 436. 

V. Phillips, 220. 

V. Stanton, 9, 39. 
Turton v. Burky, 216. 
Tuttle V. Sweet, 463, 472, 486, 497, 661. 
Tuxworth V. Moore, 620, 627. 
Tweddle v. Atkinson, 199. 
Twiss V. George, 845. 
Tyers v. Rosedale Iron Co., 758, 760, 

761. 
Tyler v. Strange, 641. 

V. Strong, 568. 

V. Webb, 444. 



U. 



TJhler v. Farm. Nat. Bank, 210, 222. 
Ulen V. Kittredge, 778. 
XJllman v. Meyer, 311, 648. 
Underbill , . Allen, 824. 

V. Gibson, 165, 229. 

V. Williams, 839. 
Underwood v. Campbell, 61. 

V. Lovelace, 182, 283. 
Ungley v. Ungley, 324, 826. 
Union Bank of Manchester, ex parte, 

445. 
United States Bank v. Southard, 210. 
United States Reflector Co. v. Rush- 
ton, 566. 
Unity Joint Stock Mutual Banking 

Association v. King, 444. 
Updike V. Ten Broeck, 467, 469, 470, 

483. 
Upton V. Archer, 45. 

u. Townsend, 46. 



Upton V. Vail, 306. 

Urquhart r. Brayton, 160, 199, 2^2, 
235. 



Valpy V. Gibson, 655, 680. 

"Van V. Corfe, 868. 

Van Alstine v. Wimple, 189. 

Van Bruck r. Peyser, 306. 

Vance v. Vance, 812, 814. 

Vandenbergh v. Spooner,647, 689, 694. 

Vanderbeck v. Hendry, 24. 

Van Deusen v. Young, 42. 

Van Dyne v. Vreeland, 493. 

Van Kenren v. McLaughlin, 414. 

Vanmeter"!;. McFaddin, 443. 

Van Ness v. Packard, 22. 

Van Rensselaer's Heirs c. Penniman, 
108, 109. 

Van Slyck v. Pulver, 174, 260, 272. 

Van Syckel v. Dalrymple, 749. 

Van Valkenburgh v. Croffut, 425. 

Van Woert v. Albany &c. R. E. Co., 
470, 483, 497, 559. 

Varden Seth Sam u. Luckpathy Roy- 
gee Lallah, 446. 

Varley v. Shirley, 063. 

Vasburgh v. Teator, 421. 

Vaughan v. Cravens, 435. 

V. Hancock, 184, 186, 349, 353, 
397, 399. 

Vaupell V. Woodward, 854, 874. 

Vawter v. Griffin, 395, 603. 

Veghte V. Earitan Power Co., 20, 21. 

Verlander v. Codd, 713, 730. 

Vice V. Anson, 396. 

Vickers v. Vickers, 718, 843. 

Viele V. Goss, 306. 

V. Osgood, 348, 422, 772. 

Vincent v. Germond, 521, 559, 620, 
631, 638. 

Vining v. Gilbreth, 639. 

Virden v. Ellsworth, 171. 

Vogel V. Melms, 198, 233, 235, 292. 

Vorebeck v. Roe, 358, 359, 369. 

Vouillon V. States, 866, 867, 713. 

Vroman v. Turner, 236. 



W. 

Waddington v. Bristow, 353, 355, 360, 

373, 383, 388. 
Wade V. Nebern, 773. 



liv 



TABLE OP CASES. 



Wadmore v. Dear, 396. 
Waggoner v. Gray, 195, 211, 266. 
Wagner v. Hallock, 204. 
Wagnor v. Clay, 208. 
Wain V. Warlters, 61, 176, 496. 
Wainwright v. Straw, 161, 163. 
Wait V. Baker, 641. 

V. Wait, 234, 240, 254. 
Wake V. Harrop, 715, 753. 
Wakefield v. Greenwood, 172, 231. 

V. Eoss, 420. 
Walden v. Mu'rdock, 597. 
Waldo V. Simonson, 174, 267. 
Waldron v. Jacob, 751. 
Wales V. Mellen, 411, 412. 
Walford v. Gray, 328. 
Walker v. Bartlett, 393. 

«. Constable, 727, 780, 781. 

V. Giles, 54. 

V. Godg, 128. 

V. Herring, 422, 720, 726, 727. 

... Hill, 160, 216, 218, 270." 

u. Johnson, 497, 498. 

V. Metr. Ins. Co., 469. 

o. Milne, 393. 

V. Norton, 156, 160, 220, 295. 

V. Nussey, 523, 560. 

V. Penniman, 233. 

u. Kichards, 103, 155, 157, 163, 
194, 217, 218, 219, 876. • 

V. Richardson, 90, 91, 97, 102, 113, 
115, 127, 132, 133, 262. 

V. Rostron, 231. 

V. Sherman, 173. 

V. Taylor, 144, 208, 270. 

V. Walker, 773, 832, 852, 863. 
Wallace v. Brown, 65, 846. 

u. McCuUough, 44. 

V. Worthen, 161. 
Waller v. Hendon, 727. 
Wallis V. Harrison, 6, 22, 28, 30, 81. 

V. Littel, 858. 
Walls V. Atcheson, 96, 100, 101, 102, 

127, 134. 
Walrath v. Ingles, 526. 

■0. Richie, 506, 526. 
Walsh V. Barton, 688, 723. 

V. Kattenburgh, 876. 
Walter v. Post, 8. 
Walters v. Morgan, 414, 878. 
Walther v. Merrell, 262. 
Walton V. Dodson, 670, 691. 
Wankeford v. Fotherley, 317, 336, 716. 
Warbitton v. Savage, 640. 
Ward V. Ely, 171. 



Ward V. Kirkman, 666. 

«. Lumley, 91. 
Warden v. Jones, 314, 322, 323, 325, 

326, 328, .335, 337. 
Wardle v. Oakley, 451. 
Ware v. Adams, 156, 171, 178. 

V. Cumberledge, 393. 

V. Stephenson, 155, 219, 262, 266. 
Warfield v. Dorsey, 457, 458, 461. 
Waring v. Ayres, 684, 846. 
Warlow V. Harrison, 782. 
Warman ti. Seaman, 809. 
Warner, ex parte, 444. 

V. Fountain, 421. 

V. WUlington, 60, 61, 667, 692, 
695, 708, 733, 734. 
Warren v. Barker, 306. 

V. Batchelder, 232. 

V. Dickson, 493, 874. 

V. Fearnside, 48. 

V. Leland, 352, 359, 360, 368, 372, 
403. 

V. Milliken, 627. 

V. Smith, 214. 

V. Wheeler, 663, 738, 744. 
Wartman v. Breed, 576. 
Warwick v. Bruce, 354, 355, 356, 360, 
378, 383, 386. 

V. Groshalz, 151, 216, 223. 

V. Slade, 796. 
Washburn v. Burrows, 354, 356, 384. 

</. Fletcher, 751, 762. 

V. Washburn, 782. 
Washington i'. Ogden, 412. 
Washington Ice Co. v. Webster, 654, 

663, 709, 713, 734, 738. 
Waterman v. Meigs, 537, 547, 688, 703. 
Waters v. Tompkins, 625. 
Watkins v. Gilkerson, 405. 

V. Peck, 6. 

V. Perkins, 166, 207. 

V. Rush, 384, 387, 428. 

y. Rymill, 657. 

I). Sands, 234. 

V. Vince, 219, 779. 
Watrous v. Chalker, 424, 494. 
Watson V. Brightwell, 405, 410. 

V. Hayes, 805. 

V. Jacobs, 156, 195, 214. 

V. Keely, 419. 

V. McLaren, 173. 

V. Mahan, 826, 836. 

V. Marston, 871. 

V. Parker, 259. 

V. Randall, 156, 214. 



TABLE OF CASES. 



Iv 



Watson V. Spratley, 393, 394, 503. 

.,. Turner, 228. 

V. Violett, 457, 460. 

V. Wand, 67. 

(.-. Watson, 405. 
Watt V. Evans, 824. 

V. Maydewell, 117. 
Watts, in re, 444. 

I. Ainsworth, 60, 734. 

V. Friend, 354, 385, 512, 513. 
Waugh V. Mitchell, 423. 
Waul V. Kirkman, 678, 764. 
Weaver v. Jones, 48. 
Webb V. Paternoster, 5, 26, 27. , 

V. Russell, 86. 
Webber v. Lee, 7. 
Webb's Policy, in re, 445. 
Webster v. Anderson, 630, 631, 632. 

i,. Cecil, 865, 

V. Ela, 688, 690. 

V. Gray, 825. 

V. ZeiUey, 386, 404, 521, 543, 553, 
650. 
Weddall v. Capes, 73, 82, 84, 85, 102, 

103, 108, 121. 
Wedderburne v. Carr, 728. 
Weed V. Clark, 210. 

V. Terry, 420. 
Weekly v. Weekly, 393. 
Weeks v. Burton, 306. 

V. Wright, 714. 
Wegg V. Drake, 567. 
Weir V. Hill, 434, 495. 
Welborn v. Seecrist, 873. 
Welch V. Kenney, 160, 195, 209. 

V. Marvin, 163. 
Weldon v. Porter, 61. 
Welford v. Beazley, 669, 715, 768, 771. 
Wells V. Bannister, 26, 428. 

V. Brown, 254. 

V. Cowles, 393. 

V. Day, 511, 512. 

V. Horton, 314, 468, 469, 484. 

V. Hunt, 512. 

V. Ifingston-upon-HuU, 349, 400. 

V. Prince, 307, 308. 

V. Eenway, 306. 

V. Stratton, 423, 826. 

0. Thompson, 284. 
Welsh !•. Bayard, 828, 832. 

V. Welsh, 428. 

V. Usher, 442. 
Wentz V. Durhaven, 439. 
West V. Bolton, 624. 

V. Flanagan, 835. 



West V. O'Hara, 233. 

V. Wilcox, 306. 
West Jersey &c. R. H. Co. v. Trenton 

&c. R. R. Co., 654. 
West Va. Oil Co. v. Vinal, 821. 
Western v. Russell, 713, 705, 772, 773. 
Western Union Tel. Co. v. Chicago &c. 

R. R. Co., 066, 703, 764. 
Westervelt v. Matheson, 086. 
Westfall V. Parsons, 201, 234, 493. 
Westhead v. Sproson, 173, 181. 
Weston V. Bird, 870. 
Wetherbee v. Potter, 423, 425. 
Wetherell, ex parte, 442, 454. 

V. Langston, 766. 
Wethers v. Larrabee, 48. 
Wetmore v. White, 839. 
Weyer v. Beach, 252. 
Weyland v. Crichfield, 155, 211, 219. 
Whaley v. Bagenal, 670, 708, 714, 823. 

u. Dawson, 417. 
Wharton v. Stautenbaugh, 822, 826. 

V. Walker, 286. 
Wheelden v. Lowell, 27. 
Wheeler v. Collier, 144, 691. 

V. D'Esterre, 829, 839, 847. 

V. Frankenthal, 703. 

V. Reynolds, 10. 
Whelan v. Sullivan, 659, 081, 751, 845. 
Whipple V. Foot, 360, 377. 

V. Thayer, 620. 
Whitbeck v. Whitbeek, 407, 425. 
Whitbread, ex parte, 442, 448, 451. 

„. Brockhurst, 823, 832, 878. 

V. Jordan, 444, 454. 
Whitchurch v. Bevis, 823, 852, 856, 

857, 877, 878. 
Whiteomb v. Kephart, 160. 
White V. Bailey, 412. 

V. Bradshaw, 684. 

V. Coombs, 414. 

V. Crew, 781. 

v. Elwell, -26. 

V. Foster, 358, 361. 

V. Frost, 351, 363, 383, 384, 506. 

V. Fuller, 752. 

u. Hanchett, 484, 614. 

e. Herman, 684, 080, 846. 

V. Knapp, 508. 

V. Maynard, 5, 18, 398. 

o. Motley, 683, 084. 

V. Proctor, 726, 780, 781. 

... Smith, 498. 

V. Solomonsky, 156, 195, 211, 214. 

V. Watkins, 656, 826. 



Ivi 



TABLE OP CASES. 



White V. White, 422. 

o. Wieland, 428, 431, 478. 

V. Wiltshire, 27. 

V. Woodward, 176. 
White's Ex'rs v. White, 288. 
Whitehead v. ClifEord, 96, 98, 100, 106, 

134. 
Whitfield V. Potter, 260. 
Whiting V. Butler, 411, 413. 

V. Gould, 649, 877. 
Whitley v. Gough, 117, 121. 
Whitman v. Bryant, 156, 163, 194, 263. 
Whitmarsh v. Walker, 30, 851, 355, 
358, 359, 363, 377, 383, 384, 
404. 
Whitney v. Butler, 415. 

!>. Holmes, 421. 

V. Meyers, 96, 97, 108, 124. 

V. Swett, 51. 
Whittaker v. Cawthorne, 9. 
Whittemore v. Gibbs, 395, 411, 503. 
Whitwell V. Wyer, 621, 660. 
Whitworth v. Gaugain, 448. 
Whoon V. Drizzle, 47. 
Wickham v. Wickham, 303. 
Wiegander v. Copeland, 423. 
Wierner v. Whipple, 649, 769, 796. 
Wiggins V. Keizer, 466, 469. 
Wigglesworth v. Dallison, 752. 
Wightman v. Caldwell, 638. 
Wigley V. Ashton, 148. 
Wilber v. Paine, 824. 
Wilcox Silver Plate Co. v. Green, 609, 

615. 
Wild V. Came, 630, 631. 

V. Nichols, 198. 
Wilde V. Cantillon, 50. 

V. Fox, 835, 837. 
Wildes V. Dudlow, 160, 287, 288, 291. 
Wiley V. Bradley, 361, 404. 

V. Christ, 91. 

V. Eoberts, 664, 709. 
Wilford V. Beazeley, 670. 
Wilhelm v. Hardman, 469, 480, 483. 
Wilke V. Willce, 412. 
Wilkes V. Ferris, 639. 
Wilkins v. Irvine, 14. 
Wilkinson v. Evans, 652, 654, 695, 702, 
709, 710. 

V. Wilkinson, 65, 839. 
Wilks V. Davis, 718, 843. 
WiUets V. Van Alst, 457. 
Williams, ex -parte, 167, 163. 

V. Ackerman, 66. 

V. Bacon, 649, 653, 688, 723, 789. 



Williams «. Bemis, 428, 435, 478. 

V. Brynes, 670, 690, 691. 

V. Burgess, 607, 615. 

V. Christie, 723. 

V. Coade, 806. 

V. Corbett, 155, 219, 233. 

V. Devian, 48. 

V. Evans, 576, 626, 835, 889, 840, 
842. 

u. Hill, 437. 

V. Jones, 15, 488. 

V. Jordan, 664, 688, 690, 709. 

V. Kershaw, 806. 
.V. Lake, 60, 61, 688, 691, 737. 

V. Landman, 836, 837. 

17. Leper, 138, 153, 154, 208, 289, 
257, 269, 270, 283, 803, 874. 

V. Little, 161, 209, 210. 

V. Morris, 6, 23, 653, 654, 655, 678, 
706, 709. 

V. Robinson, 648, 656, 662, 663, 
713, 714, 737, 738, 743, 746, 
758, 764, 765. 

V. Rogers, 233. 

V. Sawyer, 76, 81, 87, 118. 

V. Spring, 171. 

V. Tucker, 650. 

u. Wheeler, 305, 467. 

V. Williams, 327, 786, 766, 815, 
850. 

V. Wood, 306. 
Williamson v. Wootton, 719. 
Willis, in re, 230. 

V. Newham, 626. 

V. Willis, 808. 
Willoughby, in re, 315. 
Wills V. Brown, 196. 

V. Stradling, 826, 829, 832, 835, 
838, 889. 
Wilmer v. Farres, 832. 
Wilmington &c. E. R. Co. v. Battle, 28, 

36, 87. 
Wilson V. Bevans, 198, 224, 246. 

V. Chalfant, 16, 19, 20, 35. 

V. Clark, 427. 

V. Coupland, 285, 286. 

V. Dent, 803. 

V. Hart, 760. 

V. Hill, 412. 

V. Hudson, 421. 

V. Marshall, 426. 

V. Martin, 464, 474, 486, 497. 

V. Pig, 124. 

V. Sewell, 117, 123. 

V. Vilas, 20. 



TABLE OP CASES. 



Ivii 



Wilson c. West Hartlep. R. Co., 839, 

849. 
Wilston V. Pilkney, 83. 
Wilton V. Harwood, 822, 839. 
Winberry v. Koonce, 411. 
Winch 0. Winchester, 861. 
Winckworth v. Mills, 229, 291, 296. 
Winfield v. Potter, 229, 240. 
Wing V. Hall, 19. 

V. Harris, 117. 
Wingate v. Dale, 846. 
Winn V. Albert, 337, 878. 

V. Bull, 648, 714. 
Winter v. Brocklewell, 5, 11, 26, 31. 

V. Lord Anson, 444. 
Winton v. Pinken6y, 124. 
Wise V. Charlton, 452. 
Wiseman v. Lucksinger, 10, 400, 401. 
Wiswell V. Lofft, 827, 845. 
Withers v. Larrabee, 51, 100. 

o. Withers, 798, 806. 
Witt V. Mayor &c. of N. Y., 57, 66. 
Woadly v. Coventry, 639. 
Wolfe V. Frost, 21, 35, 400, 408. 

V. Sharp, 456, 461, 729. 
Wolfenden v. Wilson, 530. 
Wolff V. Koppel, 152, 161, 207, 208, 

209, 211, 302, 303. 
WoUaston v. Hakewill, 75. 
Wood V. Benson, 184, 186, 487. 

V. Bridgely, 60. 

V. Corcoran, 214. 

V. Cox, 805. 

V. Davis, 647, 663. 

V. Edes, 31, 34. 

v. Farmere, 362, 827. 

V. Fleet, 418. 

V. Jones, 824. 

V. Lake, 4, 5, 26, 27, 28. 

V. Leadbitter, 5, 6, 11, 21, 400, 401. 

V. Manly, 5, 12, 30, 42 

V. Mann, 459. 

^. Midgeley, 654, 709, 719, 731, 
844, 853, 855. 

V. Partridge, 103. 

V. Patch, 204. 

V. Priestner, 178. 

V. Savage, 337. 

o. Scarth, 682, 707, 725, 860, 855. 

V. Shultis, 352, 428, 429. 

V. Thomby, 832. 

a. Walbridge, 82. 

V. Wheelock, 299. 
Woodard v. Lindley, 76. 
Woodbridge Union v.Whien Union, 62. 



Woodbury v. Parshloy, 20, 36. 
Woodcock V. North, 105, 127, 133. 
Woodford v. Patterson, 480, 506. 
WoodhuU V. Longstreet, 419. 
Woodley v. Coventry, 628. 
Woods V. M'Gee, 640. 

I). Wallace, 437. 
Woodward v. Aston, 116, 122. 
V. Pickett, 174. 

V. Seeley, 22, 35, 36, 41, 400. 

V. Wilcox, 154. 
Wooley V. Gregory, 103. 
WooUam v. Hearn, 736, 862. 
Wooster v. Sage, 507, 508. 
Wootley V. Gregory, 90. 
Worden v. Sharp, 425. 
Work V. Cowhick, 654, 705, 709, 742. 
Workman v. Guthrie, 835. 
Worrall v. Munn, 764, 778, 782. 
Worters, in re, 454. 
Worthen v. Dow, 526. 
Worthy v. Jones, 466, 467, 484. 
Wray v. Steele, 807. 
Wright, ex parte, 443, 444, 460. 

V. Cobb, 647. 

V. Dannah, 779, 780, 783. 

V. DeGraff, 422. 

t. Freeman, 35. 

V. O'Brien, 543. 

V. Percival, 588. 

v. Stavert, 349, 398, 399. 

V. Stewart, 5. 

V. Weeks, 649, 656, 659. 

o. Wright, 844, 845. 

V. Verney, 294. 
Wyatt V. Stagg, 82. 
Wykoff V. WykofE, 830. 
Wylde V. Radford, 456. 
Wylie V. Kelley, 571, 576. 
Wyman v. Goodrich, 299, 302. 

u. Gray, 162, 209. 

V. Smith, 240, 246. 
Wyndham v. Way, 404. 
Wynn v. Garland, 875. 

V. Wood, 240. 
Wynne v. Hughes, 175. 



Yale V. Edgerton, 156, 214,282.. 

V, Seeley, 630. 
Yarborough v. Avant, 419. 
Yates V. Martin, 414. 
Yeakle v. Jacob, 30, 359, 362. 



Iviii 



TABLE OP CASES. 



Yerby v. Grigeby, 772, 778. 
Young V. Austin, 874. 

V. Blaisdell, 621. 

V. Duke, 5, 45. 

V. French, 196, 254, 260, 282. 

V. Frost, 420. 

V. Peachy, 809. 
Youngs V. Shough, 162. 
Yourt V. Hopkins, 782, 876. 



Z. 

Zabel V. Schroder, 494. * 
Zabriskie v. Smith, 306. 
Zaehrisson v. Poppe, 626, 632, 769, 779. 
Zeikafosse v. Hullick, 351, 403. 
Zeringue v. Williams, 409. 
Zouch V. Parsons, 88, 123. 
Zwinger v. Samuda, 585. 



STATUTE OF FRAUDS. 



STATUTE OP FRAUDS. 

29 Car. H. c. 3. 

Section 1. All leases, estates, interests of freehold, or terms of years, 
or any unoertain interest, of, in, to, or out of any messuages, manors, 
lands, tenements, or hereditaments, made or created by livery and seizin 
only, or by parol, and not put into writing and signed by the parties so 
making or creating the same, or their agents thereunto lawfully author- 
ized by writing, shall have the force and effect of leases or estates at will 
only, and shall not, either in law or equity, be deemed or taken to have 
any other or greater force or effect ; any consideration for making the 
same to the contrary notwithstanding. 

Sec. 2. All leases not exceeding the term of three years from the 
making thereof, whereupon the rent reserved to the landlord during such 
term shall amount unto two-third parts, at least, of the full improved 
value of the thing demised. 



STATUTE OF FMIJDS. 



CHAPTER I. 

PAKOL LEASES. — LICENSES. 

BSCTIOir. 

1. What is an Uncertain Interest in Lands. 

2. Effect of Statute as to Lessor's Eemedies. 

3. Easements only Created by Deed. — Licenses. 

4. Sporting Licenses. 

5. Freehold Interest. 

6. Parol License, when Revocable. 

7. License coupled with Interest in Land, What is. 

8. Distinction between License and a Lease. 

9. How far a License Protects. 

10. Instances of Irrevocable Licenses. 

11. License Eevoked by Conveyance, etc. 

12. Reasonable Notice of Revocation Required. 

13. Injunction to Restrain Interference with License. 

14. Parol Agreement for Sale may Operate as License, When. 

15. Signature not Necessary in Case of a Deed. 

16. Appointment of Agent. 

17. Term Commences from Time of Agreement. 

18. Statute does not Apply to Tolls or Equitable Estates. 

19. Entry under Void Lease, Effect of. 

20. How a Tenancy at Will is Created. 

21. Rule in Doldge v. Bowers. 

22. How Tenancy from Year to Year may be Created. 

23. Implied Tenancy from Year to Year. 

24. Rebuttal of Presumption. 

25. Void Lease may Enure as Agreement to Lease. 

26. Specific Performance. 

27. Terms of Occupancy Regulated by Parol Lease. 

28. Rule in Tooker v. Smith. 

29. Covenants in Farming Lease. 

30. Covenant to Paint. 

31. Proviso of Re-entry. 

32. Rent Paid in Advance. 

33. Parol Lease may be Special in its Term. 

34. Collateral Agreements. 

35. Determination of Term under Void Lease. 

36. Tenancy Determined at End of, without Notice. 



4 STATUTE OP PEATJDS. [CHAP. I. 

Section 1. what is an TTnoertain Interest in Lands. — The 
words " all leases, estates, interests of freehold, or terms of 
years, or any uncertain interest, etc.," extend only to interests 
which are uncertain as to duration.^ Collecting the meaning 
of the first by aid of the language and terms of the second 
section, and the exceptions therein contained, it seems that 
the leases so meant to be yacated by the first section, must 
be understood as leases of the like kind with those in the 
second section, but which convey a larger interest to the 
party than for the sum therein named, and such also as are 
made under a rent reserved thereupon.^ 

In Georgia,^ Maryland,* and South Carolina,^ the statute, 
so far as it is applicable to the sale or demise of lands, is 
identical with that of 29 Car. II. Cap. 3, as stated supra. 
But in • all the other States and Territories of this country, 
while the principle upon which this statute rests is adopted, 
yet substantive differences exist, both as to its language 
and in its application, and the amount of rent to be paid 
does not have any effect in determining the validity of the 
lease. In Alabama, Arkansas, California, Colorado, Connec- 
ticut, Dakota, Delaware, Illinois, Iowa, Kansas, Kentucky, 
Michigan, Minnesota, Mississippi, Montana, Nebraska, Nevada, 
New Jersey, New York, Oregon, Rhode Island, Tennessee, 
Texas, Utah, Virginia, West Virginia, Wisconsin, and Wy- 
oming, parol leases for a longer term than one year are 
invalid, while in Florida two years, and in Indiana and 
New Jersey three years is the term limited, while in Maine, 
Massachusetts, Missouri, New Hampshire, Pennsylvania, and 
Vermont parol leases have no effect to create other than 

1 "Wood V. Lake, Say, 3. The first whether with or without rent, or any 

section seems to be co-extensive with interest uncertain in point of duration, 

the fourth, and consequently every must, it would seem, equally fall with- 

interest which is within the fourth in the provision of the first section, 

section is equally within the first, un- and cannot be sustained unless it 

less it comes within the saving of the comes within the saving in the second, 

second. Sugd. V. & P. 14th ed. 122. Sugd. V. & P. 14th ed. 122 ; Crosby 

' Crosby v. Wadsworth, 6 East, v. Wadsworth, ante ; Lord Bolton u. 

602, per Lokd Ellenbokough. If an Tomlin, 5 Ad. & El. 856. See also 

estate of whatever value should be Cooch v. Goodman, 2 Q. B,, for the 

conveyed to a purchaser by livery extent of the second section, in con- 

of seizin without writing, the act would nection with the first, 
avoid the estate, although the pur- ' See Appendix, " Georgia.'' 
chaser has paid his money. An actual * See Appendix, " Maryland." 

lease for any given number of years, ^ See Appendix, " South Carolina." 



SEC. 3.] PAEOL LEASES. 5 

estates at will, and practically this is tlie case in North 
Carolina and Ohio. 

Sec. 2. Effect of Statute as to Lessor's Remedies. — The 
effect of the statute, so far as it applies to parol leases 
not exceeding the period named therein, is that the leases 
are valid, and that whatever remedy can be had upon them 
in their character of leases may be resorted to ; but in Eng- 
land, under the fourth section, it has been held that no 
right is conferred to sue the lessee for damages for not 
taking possession. Thus, in Edge v. Stafford,^ it was held 
that a parol agreement to take furnished lodgings for " two 
or three years " amounted to a lease, and gave the lessor a 
right to whatever remedy he could have in the character of a 
lease ; but that inasmuch as the contract was for " an interest 
in lands " within the fourth section, the tenant was not liable 
in an action for not taking possession. But the current of 
authority in this country, so far as this question has been 
under review, is opposed to this rule, and it is held that the 
right to rent under a parol lease for the statutory period, is 
good from its inception, and will support an action for rent 
from that period, whether the lessee goes into possession or 
not? But this must be understood as the rule in those 
instances only where the lease takes effect from the time 
when it was made, or in those States where it is held, as is 
the case in New York,^ Colorado,* and Indiana,^ that a parol 
lease to commence infuturo vests a present interest in the term. 

Sec. 3. Basements can only be Created by Deed. — An ease- 
ment, like aU other incorporeal hereditament affecting land, 
can only be created or transferred by deed. AU such here- 
ditaments he in grant and not in livery, and pass by mere 
delivery of the deed.® Thus, in Hewlins v. Shippam,'' the 

1 1 C. & J. 391. 6 Wood V. Leadbitter, 13 M. & W. 

2 Huffman u. Stark, 31 Ind. 474 ; 842 ; 14 L. J. Ex. 161 ; per Alderson, 
Yfliing V. Dake, 6 N. Y. 463 ; White v. B., overruling on this point, Wood t;. 
Maynard, 111 Mass. 250. So also see Lake, Say, 3 ; Webb v. Paternoster, 
Coe V. Clay, 5 Bing. 440; Jenks v. Palm. 71; 2 Roll. 152; Poph. 151; 
Edwards, 11 Exchq. 775, and Wright Winter v. Brocklewell, 8 East, 308 ; 
V. Stewart, 5 Ad. & El. 856. Tayler v. Waters, 2 Marsh, 551 ; 7 

' Young V. Dake, ante. Taunt. 384 ; Wood v. Manly, 3 Per. & 

4 Sears v. Smith, 3 Col. 287. D. 5; 11 Ad. & El. 34. 

6 Huffman v. Stark, ante. ' 5 B. & C. 221. In Collins Co. v. 



6 STATUTE OP FEAXTDS. [CHAP. I. 

action was for stopping up a drain leading from the plain- 
tiff's premises, through the defendant's yard; the plaintiff 
■was non-suited, on the ground that the right to have the 
drain pass through the defendant's yard was an interest in 
the defendant's land, and under the statute, there being 
nothing in writing to create the right, but its foundation 
resting in parol, was a right at will only ; and the Court of 
King's Bench held that the non-suit was right.^ In Crocker 
V. Cowper^ the facts were similar to those in Hewlins v. 
Shippam, except that upon the construction of the license it 
appeared to have been made for a term of years ; but that 
distinction was not taken, -and the court said that, "with 
regard to the question of license, the case of Hewlins v. Ship- 
pam is decisive to show that an easement like this cannot be 
conferred except by deed."^ In Wood v. Leadbitter* the 
whole of the authdrities on the subject were most fully dis- 
cussed. There the action was trespass for assault and false 
imprisonment. The facts were as follows: — Lord Eglin- 
toun was steward of the Doncaster races : tickets of admis- 
sion to the grand stand were issued with his sanction, and 
sold for a guinea each, entitling the holders to come into the 
stand and the enclosure round it during the races ; the plain- 
tiff bought one of the tickets, and was in the enclosure during 
the races ; the defendant, by the order of Lord Eglintoun, 

Marcy, 25 Conn. 239, a license to erect liams, 10 Penn. St. 126 ; or by an im- 

upon the land of another a permanent plied grant as a right necessarily inci- 

addition to a building, of a substantial dent to the thing granted. Braksley 

character, was held to amount to a v. Sharp, 9 N. J. Eq. 9 ; 10 id. 206 ; 

grant of an interest in lands, within Lampman v. Schilks, 21 N. Y. 505 ; 

the statute of frauds ; and in Hall v. Kenyon v. Nichols, 1 E. I. 412 ; Phil- 

Boyd, 14 Ga. 1, it was held that a parol lips v. Phillips, 48 Penn. St. 178 ; and 

license to build a bridge on another's in no case can such rights be created 

land does not confer a right to re- by, or exist in, parol. Huff v. McCau- 

build. Easements are created only ley, 53 Penn. St. 206. 
by deed. Euhr <i. Dean, 26 Mo. 116; i See the judgment of Batlet, J., 

or presumed grant by long user, and see Bryan v. Whistler, 8 B. & C. 

Stearns v. Janes, 12 Allen (Mass.) 288; 2 Man. & Ry. 318; Bradley v. 

582; Pollard u. Barnes, 2 Cush. (Mass.) Gill, 1 Lut. 69; Barlow v. Rhodes, 1 

191 ; Carlisle v. Cooper, 19 N. Y. Eq. Cr. & M. 439 ; Mason v. HUl, 5 B. & 

372 ; Luce v. Carley, 24 Wend. (N. Y.) Aid. 1 ; 2 Ner. & M. 747. 
451; Watkins v. Peck, 13 N. H. 360; 21 c. M. & R. 418. 

Mannier v. Myers, 4 B. Mon. (Ky.) s Xni see Bridges v. Blanchard, 1 

514; Stokes •;;. Appomattox Co. 3 Ad. & El. 536; Wallisw. Harrison, 4 M. 

Leigh (Va.) 318; Smith v. Bennett, &W. 538; Williams w. Morris, 8 M. & 

1 Jones (N. C.) L. 372 ; Biddle v. Ash, W. 488. 

2 Ashm. (Penn.) 211 ; Esling v. Wil- 1 13 M. & W. 838 ; 14 L. J. Ex. 161. 



SEC. 4.J 



PAROL LEASES. 



desired the plaintiff to leave the enclosure, and on his refusing 
to do so, ejected him, but did not return the guinea. It was 
held that this was an easement which could only have been 
created h^ deed. A somewhat similar doctrine was adopted 
in a Massachusetts case,^ in which it was held that the sale of 
a ticket of admission to a concert only amounts to a revocable 
license to the purchaser to enter the building in which it is 
given, and to attend the performance ; and if revoked before 
the performance has commenced, and before he has taken the 
seat to which the ticket entitles him, and he remains therein 
after notice of the revocation, and refuses to depart upon 
request, he becomes a trespasser and may be removed by the 
use of so much force as is necessary for that purpose, and that 
his only remedy therefor is by action upon his contract.^ 

Sec. 4. Sporting Licenses. — A license to shoot or fish for 
a term amounts to a demise of an incorporeal hereditament 
and can only be created by deed.^ But a license to do an act 



1 BurtonK.Scherffjl Allen (Mass.) 
133. 

^ In Smith v. American Institute, 
7 Daly (N. Y. C. P.) 526, it was held 
that an exhibitor at a fair, who has 
paid a license-fee for space in the 
exhibition building, is liable to be 
ejected, together with her goods, if 
she persists in advertising the goods 
exhibited by an indecent circular; 
where it is expressly provided, as a, 
condition of admission, that the man- 
agers reserVe the right to refuse ad- 
mission to any exhibitor whom they 
may consider an improper person, and 
also exclude any articles they may 
deem objectionable. Indeed, where a 
license is given upon a condition, there 
can be no question but that the licensee 
must conform to the condition, in 
order to make the license operative as 
a protection against liability for acts 
done in pursuance of it. Dempsey v. 
Kipp, 62 Barb. (N. Y.) 311 ; and there 
can be no question but that certain 
conditions may be implied which have 
the same force as express conditions 
would have. 

3 Bird u. Higginson, 6 Ad. & El. 
824; Thomas v. Fredricks, 10 Q. B. 775; 



Bayley v. M. of Conyngham, 15 Ir. 
C. L. R. 406; Perry v. Mtzhowc, 8 
Q. B. 757 ; Hiil „. Lord, 48 Me. 83. 
In Webber v. Lee, 45 L. P. n. s. 591, 
an action was brought to recover 
damages for the breach of an agree- 
ment to share a shooting, and to pay 
ilOO and one fourth of the expenses. 
The defence denied the agreement, 
and alleged that there was no memo- 
randum in writing witliin the meaning 
of the statute of frauds. At the trial 
it appeared that the plaintiff was the 
lessee of 500 acres of shooting, and 
he advertised for a gentleman to 
share the shooting and the shooting- 
lodge with him. The advertisement, 
after describing the shooting, went on 
to say that the "lessee requires a 
genial sporting companion to join 
him on equal terms, paying £200 for 
his half -share of shooting, and receiv- 
ing half of total of game killed." 
The plaintiff afterward wrote to the 
defendant » letter in the following 
terms : " I now write to say that if 
you think a half-share would be more 
than you could manage, I should be 
very pleased to give you half of the 
share I retain for ;. yself, i". ■"'"^ 



8 STATUTE OF PEATJDS. [CHAP. I. 

on the land of another, if not an easement, or involving an 
interest in real estate, may be given by parol,^ and under this 
rule, it has been held that a license to insert beams in the 
wall of a house, is not an interest in lands which must be in 
writing,^ and the same has also been held as to a parol license 
to float spars and timber on a stream ; ^ and in aU instances it 
may be said that a parol license to enter upon the premises 
of another for any purpose, which has been executed, affords a 
complete defence to the licensee against an action for doing 
such act, although, under the statute of frauds, it was void, 
and if executed after it had been revoked, would have made 
the licensee a trespasser.* 

Sec. 5. Freehold Interest running with Inheritance. — A 

grant of a freehold interest running with the inheritance 
cannot bind a stranger to the grantor unless the grant was 
by deed.^ Thus, the owner of land sold the standing wood 
thereon, with a license to the purchaser to enter upon the 
land and remove it within a certain time. But, before the 
license was acted upon, he conveyed the premises to a third 
person who knew of the license, and it was held that the 
license was revoked by the conveyance, and could not be 
enforced against the purchaser of the land, notwithstand- 
ing his knowledge of the facts,® the rule being that a parol 

from the 1st September to the 1st to use the land, for it conveys an 
February, shooting with equal liberty interest in the land coupled with a 
with myself, and a quarter of the participation in the profits, and so is 
total game killed. . . . The shooting within the statute of frauds, and 
days could "he arranged to suit our ought to be in writing ; and that judg- 
convenience." It was afterwards ment must be for the defendant, 
agreed between the plaintiff and de- i Snowden v. Wilas, 19 Ind. 10. 
fendant, by word of mouth, that the ^ McLarney v. Pettigrew, 3 E. D. S. 
defendant should take half of the (N. Y. C. P.) 111. 
plaintiff's share and one fourth of ^ Rhodes v. Otis, 33 Ala. 578. 
the game killed. Subsequently, the * Pratt v. Ogden, 34 N. Y. 20 ; Mar- 
defendant refused to carry out this ston v. Gale, 24 N. H. 176 ; Walter v. 
agreement. The jury found a verdict Post, 6 Duer. (N. Y.) 363; Arrington 
for the plaintiff for £40. But the v. Larrabee, 10 Cush. (Mass.) 512; 
verdict was set aside, the court hold- Houston v. Laffee, 46 N. H. 505; Carl- 
ing that an agreement which entitles ton v. Reddington, 21 id. 291 ; Owen 
one party to it on the payment of w. Field, 12 Allen (Mass.) 457. 
money to go upon the land of the » Perry v. Fishowe, 8 Q. B. 757 ; 
other party and exercise sporting Lord v. Hill, 48 Me. 83. 
rights and take away a proportion of ^ Drake v. Wells, 11 Allen (Mass.) 
the game killed to his own use, is 141. 
more than a mere revocable license 



SEC. 6.] PAROL LEASES. ■ 9 

license to do an act upon another's land is revoked either 
by the death of the licensor or the conveyance of the i^rem- 
ises by him,^ and neither the knowledge by the executor of 
the licensor or his grantee, of the fact that such license had 
been given, will save it from the operation of this rule.^ 

Sec. 6. Parol License, when Revocable. — A mere parol 
license, not coupled with an interest in the land, is revocable 
at any time, although it has been executed, and the licensee 
has, in acting upon it, been put to expense. Thus, where the 
lord of the manor granted a license to build a cottage on the 
waste, and the license had been executed, and the cottage 
inhabited by the licensee. Lord Ellenbokottgh said : " A 
license is not a grant, but may be recalled immediately, and so 
might this license the day after it was granted." ^ So where 
the plaintiff, on the faith of a parol agreement, for valuable 
consideration made a channel for water on the defendant's 
land, but no conveyance of the land was made to the plain- 
tiff; it was held that the defendant was entitled to revoke the 
license.* In a Massachusetts case ^ it was held that an oral 
license, given by the owner of land, to lay an aqueduct across 
his land, is revocable, and that, after its revocation, the owner 
of the land was justified in cutting it off, and that a court of 
equity would not restrain him from so doing. In Rhode 
Island^ a parol license to the owners and occupants of one 
farm, in perpetuity, to pass and repass with their servants, 
horses, carts, carriages, etc., in a way prescribed, over an 
adjoining farm, given by the owner of the latter farm, was 
held to be, at law, revocable at his pleasure, notwithstand- 

1 Eggleston v. N. Y. &c. K. R. Co., Duer. (N. Y.) 255; Kimball v. Yates, 

35Barb. (N.Y.)162; Carter w. Harlan, 14 111. 464; Clute v. Carr, 20 Wis. 

6 Md. 20; Whittaker v. Canthome, 3 531 ; Turner v. Stanton, 42 Mich. 506; 

Dev. (N. C.) L. 389. Druse v. Wheeler, 22 Mich. 439. 

" Drake v. Wells, ante. * Pentiman v. Smith, 4 East, 107. 

8 Eex V. The Inhabitants of Hem- And see Cocker v. Cowper, 1 C. M. & 

don-on-the-Hill, 4 M. & Sel. 565. See E. 418 ; Hewlins v. Shippam, 5 B. & 

also Kex t). Inhabitants of Geddington, C. 221; 7 D. & R 783; Bryan v. 

2 B. & C. 129 ; Rex v. Inhabitants of Whistler, 8 B. & C. 288 ; 2 M. & R. 

Hagworthingham, 1 B. & C. 634 ; Rex 318 ; Adams v. Andrews, 15 Q. B. 

V. Warblington, 1 T. R. 241 ; Rex v. 284 ; Taplin v. Florence, 10 C. B. 744. 
Inhabitants of Standon, 2 M. & Sel. ^ Owens v. Field, 12 Allen (Mass.) 

461 ; Duinneen v. Rich, 22 Wis. 550 ; 457. 

Hetfield v. Central R. R. Co., 29 N. J. « Foster v. Browning, 4 R. I. 47. 

L. 571; Jamieson i/. Milleman, 3 



10 STATUTE OF FRAUDS. [CHAP. 1. 

ing the licensee had, upon the faith of it, made expenditures 
of money and labor in building the prescribed way. Nor is 
a license rendered irrevocable by the circumstance that it is 
in -writing and under seaP or predicated upon a considera- 
tion.2 Thus, in the case last cited, the parties owned adjoin- 
ing lots in the city of Syracuse. The defendant had a private 
drain connecting with the public sewer in another street. In 
consideration of seven dollars he gave the plaintiff a writing 
stating that the money was for the right to drain through 
his premises, and in pursuance of it the plaintiff built a plank 
drain connecting with the defendant's, and of the same size. 
After more than twenty years the plaintiff substituted a tile 
drain of greater capacity, which caused an overflow into the 
defendant's cellar. The defendant then cut the connection 
and refused the plaintiff access to the premises to repair the 
drain. The court held that an action would not lie against 
the defendant therefor, as the license granted by him Aras 
revocable at any time, notwithstanding it had been enjoyed 
for more than the prescriptive period, and was in writing 
predicated upon a consideration and executed.^ Of course, 
an occupancy under a license can never ripen into a title 
however long continued, because, as in the case of an ordinary 
tenancy, the occupancy is in subservience to and recognition 
of the title of the licensor,* and such an occupancy has none 
of the elements requisite to create a prescriptive right. 

Sec. 7. License coupled with Interest in Land Irrevocable. — 
A parol license, coupled with an interest in the land, is, 

1 Jacksont).Babcock,4John. (N. Y.) was not precluded from revoking such 
418; Wiseman w. Lucksinger, 84 N. Y. license, and that the ease did not 
31 ; 38 Am. Eep. 479. show such an agreement, as would 

2 Wiseman v. Lucksinger, ante ; warrant a court of equity in decree- 
Hewlins v. Shippam, 5 B. & C. 221. ing a specific performance in Wlieeler 
In Johnson v. Skillman, 29 Minn., 95; v. Reynolds, 66 N. Y. 227 ; Hazelton 
43 Am. Rep. 192, it was held that, v. Putnam, 3 Pin. (Wis.) 107; Wise- 
where a person had orally promised • man v. Lucksinger, ante ; Bankart v. 
others that, if they would erect a good Tennant, L. R. 10 Eq. 141. 

custom mill at a certain point on their " Bahcock v. Utter, 1 Abb. (N. Y.) 

own land, he would give them the App. Dee. 27; St. Vincent Orphan 

privilege of flowing his land so long Asylum v. Troy, 76 N. Y. 108 ; 32 

as they would maintain the mill ; in Am. Rep. 286. 

pursuance of which, and induced partly * Wiseman v. Lucksinger, ante; 

by such promise, such persons at large St Vincent's Orphan Asylum v. Troy, 

expense erected said mill, the licensor ante. 



SKC. 7.] PAROL LEASES. 11 

however, irrevocable, when it has been executed and the 
right extinguished. Thus, in Liggins v. Inge,' the plaintiflFs' 
father, who was entitled to a flow of water to his mill 
over the defendants' land, by a parol license, allowed the de- 
fendants to cut down and lower a bank, and erect a weir 
upon their own land, the effect of which was to divert the 
water required for the working of the plaintiffs' mill into 
another channel ; it was held that the plaintiffs could not 
maintain an action against the defendants for continuing the 
weir.2 But, where it is sought to couple with a hcense a 
parol grant of an interest in land, the attempted grant being 
void, the transaction remains a mere license. Thus, in 
Wood V. Leadbitter,^ Aldeeson, B., said : " It may be 
convenient to consider the nature of a license, and what 
are its legal incidents. And, for this purpose, we can- 
not do better than refer to Lokd C. J. Vatjghan's elabo- 
rate judgment in the case of Thomas v. Surrell, as it appears 
in his reports. The question there was, as to the right of 
the Crown to dispense with certain statutes regulating the 
sale of wine, and to license the Vintners' Company to do cer- 
tain acts, notwithstanding those statutes. In the course of 
his judgment the Chief Justice says:* 'A dispensation or 
license properly passeth no interest, nor alters or transfers 
property ,in anything, but only makes an action lawful, which, 
without it, had been unlawful. As a license to go beyond 
the seas, to hunt in a man's park, to come into his house, are 
only actions, which, without license, had been unlawful. 
But a license to hunt in a man's park, and carry away the 
deer killed to his own use ; to cut down a tree in a man's 
ground, and to carry it away the next day after to his own 
use, are licenses as to the acts of hunting and cutting down 
the tree, but as to the carrying away of the deer killed and 
tree cut down, they are grants. So, to license a man to eat 
my meat, or to fire the wood in my chimney to warm him 
by, as to the actions of eating, firing my wood, or warming 
him, they are licenses; but it is consequent, necessarily to 

1 7 Bing. 682 ; 5 M. & P. 712. & Gr. 657 ; Davies v. Marshall, 10 C. 

2 And see "Winter v. Brocklewell, 8 B. (N. S.) 697. 

East, 308 ; Blood v. Keller, 11 Ir. C. » 13 M. & W. 844 ; 14 L. J. Ex. 161 ; 

L. K. 124 ; Salter v. WooUams, 2 Man. the facts of which are stated ante. 

* Vaugh. 351. 



12 STATUTE OF FKATTDS. [CHAP. I. 

those actions, that my property may be destroyed in the meat 
eaten, and in the wood burnt. So, as in some cases, by con- 
sequent and not directly, and as its effect, a dispensation or 
license may destroy and alter property.' Now attending to 
this passage, in conjunction with the title ' License ' in 
Brook's Abridgment, from which, and particularly from 
paragraph 15, it appears that a license is in its nature revoc- 
able, we have before us the whole principle of the law on 
this subject. A mere license is revocable : but that which is 
called a license is often something more than a license; it 
often comprises or is connected with a grant, and then the 
party who has given it cannot in general revoke it, so as to 
defeat his grant to which it was incident. It may further be 
observed, that a license under seal (provided it be a mere 
license) is as revocable as a license by parol ; and, on the 
other hand, a license by parol, coupled with a grant, is as 
irrevocable as a license by deed, provided only that the grant 
is of a nature capable of being made by parol.^ But where 
there is a license by parol, coupled with a parol grant, or 
pretended grant, of something which is incapable of being 
granted otherwise than by deed, there the license is a mere 
license ; it is not an incident to a valid grant, and it is there- 
fore revocable. Thus, a license by A to hunt in his park, 
whether given by deed or by parol, is revocable ; it merely 
renders the act of hunting lawful, which, without the license, 
would have been unlawful. If the license be, as put by 
Chief Justice Vaughan, a license not only to hunt, but 
also to take away the deer, ,when killed, to his own use, this 
is in truth a grant of the deer, with a license annexed to 
come on the land ; and supposing the grant of the deer to be 
good, then the license would be irrevocable by the party who 
had given it : he would be estopped from defeating his own 
grant, or act in the nature of a grant. But suppose the case 
of a parol license to come on my lands, and there to make a 
water-course, to flow on the land of the licensee. In such a 
case there is no valid grant of the water-course, and the 
license remains a mere license, and therefore capable of being 
revoked. On the other hand, if such a license were granted 

1 See also "Wood v. Manley, 11 Ad. & El. 34; Peltham v. Cartwright 5 
Bing. (N. C.) 569. 



SEC. 7.J PAKOL LEASES. 13 

by deed, then the question would be on the construction of 
the deed, whether it amounted to a grant of the water-course; 
and if it did, then the license would be irrevocable." A 
license is always revocable where the act licensed to be done 
is to be done upon the land of the licensor, and if granted by 
deed, would amount to an easement ^ for the reason that a 
freehold interest in lands can only be created or conveyed by 
deed, and an easement, as we have already seen, can only be 
created by deed or prescription.^ 

A license to dig for tin, and to dispose of the tin so ob- 
tained, was held to be irrevocable, on account of its carrying 
an interest in the ore.* An executed license cannot be re- 
voked as to the part executed, nor, where the license has 
been in part executed, so as to convert the interest of the 
licensee from an interest in lands into an interest in per- 
sonal-property, can the license be revoked so as to prevent 
the licensee from obtaining possession of such personal prop- 
erty. Thus, a license to enter upon the lands of the licensor 
and cut and carry away standing timber thereon, may be re- 
voked at any time before any of the timber is cut.* But if 
an entry is made under the license, and any portion of the 
timber cut, before the license is revoked, it cannot be revoked 
as to the timber cut, so as to prevent the licensee from enter- 
ing, within a reasonable time, to take it away. Thus, where 
parties entered into an oral contract that the defendant 
should cut certain trees upon the plaintiff's land, peel them, 
and take the bark to his own use, and pay therefor a certain 
price per cord, and in pursuance of the contract the defend- 
ant entered upon the land, cut the trees and peeled them, it 
was held that the plaintiff could not revoke the license nor 
prevent the defendant from taking away the bark, and that 
his entry upon the land for the purpose of taking and carry- 
ing away the bark, after he had been forbidden to do so, 
was not a trespass, but a lawful and justifiable act.^ An 
authority coupled with an interest is irrevocable. That is 

1 Morse w.Copeland, 2 Gray (Mass.) ' Doe u. Wood, 2 B. & Aid. 738; 
302. and see Northam v. Bowden, 11 Exchq. 

2 Morse v. Copeland, ante ; Cook v. 70 ; 24 L. J. Ex. 237. 
Stearns, 11 Mass. 533 ; Cobb v. Eisher, * Drake v. Wells, ante. 

121 Mass. 169 ; Stevens v. Stevens, 11 ^ Nettleton o. Sikes, 8 Met. (Mass.) 
Met. (Mass.) 251. 134. 



14 



STATUTE OF FRAUDS. 



[chap. I. 



to say, where an agreement is entered into on a sufficient 
consideratibn, whereby an authority is given for the purpose 
of securing some benefit to the donee of the authority, such 
an authority is irrevocable.-' 

Sec. 8. Distinction bet-ween a Iiicense and a Lease. — No 
contract, whether by parol or in writing, can operate as a 
lease, even though words of demise are used therein, if it is 
evident that such was not the intention.^ A lease for any 
term, whether long or short, is a contract for the exclusive 
possession of land,^ while a contract which merely gives to an- 
other the right to use premises for a specific purpose, the owner 
of the premises, or the party giving the right, still retaining the 



1 Smart v. Sandars, 6 C. B. 917 ; 
Taplin v. Florence, 10 C. B. 744; 
Gaussen v. Morton, 10 B. '&. C. 731. 

2 Taylor v. Caldwell, 3 B. & S. 826. 
In Cook V. Stearns, 11 Mass. 533, 
Pakker, C.J., pointed out the dis- 
tinction between a license and a lease 
as follows: "A license is technically 
an authority to do some one act, or 
series of acts, on the land of another 
without passing any estate in the land, 
such as a license to hunt in another's 
land, or to cut down a certain number 
of trees. These are held to be re- 
vocable while executing, unless a 
definite time is fixed, but irrevocable 
when executed. Such licenses to do 
a particular act, but passing no estate, 
may be pleaded without deed. But 
licenses which, in their nature, amount 
to granting an estate for ever so short 
u time, are not good without deed, 
and are considered as leases, and 
must be pleaded as such." The dis- 
tinction is obvious. Licenses to do 
a particular act do not, in any de- 
gree, trench upon the policy of the 
law which requires that bargains re- 
specting the title or interest in real 
estates shall be by deed or in -writing. 
They amount to nothing more than an 
excuse for the act which would otherwise 
be a trespass. But a permanent right 
to hold another's land for a particular 
purpose, and to enter upon it at all 
times without his consent, is an im- 
portant interest which ought not to 



pass without writing, and is the very 
object provided for by our statute." 
Among the class of acts which can- 
not be licensed by parol, is the right 
to flood the land of another, either by 
drippings from the roof of a building 
or otherwise : Tanner v. Valentine, 
75 111. 624; or to dig ditches upon 
another's land for the purposes of 
drainage or otherwise : Hitchens v. 
Shaller, 32 Mich. 496 ; but in Hodg- 
son u. Jeffries, 52 Ind. 834, such a 
license, when executed, was held to 
be irrevocable. But see Estes o. 
China, 56 Me. 407, where a parol 
permit to connect with a public 
drain was held to be revocable. A 
parol license to use running water 
is not valid unless in writing : Allen 
V. Fiske, 42 Vt. 462 ; nor is a verbal 
permission to erect buildings upon 
another's land: Druse v. Wheeler, 
22 Mich. 439; or to construct a 
road over another's premises : Demp- 
sey V. Kipp, 62 Barb. (N. Y.) 311. 
In Ohio it has been held that a writ- 
ten license, without seal and unac- 
knowledged, tg enter upon and im- 
bed water pipes in the land of another, 
with privilege to enter and repair 
them, creates no interest in nor en- 
cumbrance upon the land such as 
will disable the owner thereof from 
making a good and sufficient deed 
conveying a good title thereto. Wil- 
kins V. Irvine, 33 Ohio St. 138. 
8 Eeg V. Morrish, 32 L. J. 245. 



SEC. 8.] 



PABOL LEASES. 



15 



possession and control of the premises, corners no right in the 
land, and is not a lease, but only a license,^ and for the reason 
that no interest in the land is conferred, is not within the stat- 
ute of frauds, and may be given by parol. But, where the 
privilege granted is of such a character as to carry with it an 
interest in the land, it is a lease, and within the statute, and 
must be in writing executed as provided by the statute, or it 
has no validity,^ except as to acts already done under it, and 
may be revoked at any time by the owner of the land.^ The 



1 Taylor v. Caldwell, ante; Funk 
V. Haldeman, 53 Penn. St. 229 ; Stock- 
bridge Iron Works v. Hudson Iron Co., 
107 Mass. 290 ; Coleman v. Foster, 1 
H. & "W. 37 ; Williams .,. Jones, 3 H. 
& C. 256 ; Hill v. Tupper, 2 id. 121 ; 
Cornish v. Stubbs, 39 L. J. C. P. 
206, and is a personal privilege, and 
cannot be assigned or transferred to 
another. Foot v. N. H. &c. R. R. Co., 
23 Conn. 214 ; Dark v. Johnston, 55 
Penn. St. 154 ; Cahill u. Bigelow, 18 
Kck. (Mass.) 869; Robison v. Uhl, 
6 Neb. 328 ; Rickards v. Cunningliam, 
Neb. S. C. 1880 ; Carter v. Harlan, 6 
Md. 29 ; Cook v. Stearns, 11 Mass. 113 ; 
Amsinck v. Am. Ins. Co., 129 id. 185; 
Prince v. Case, 10 Conn. 375 ; Seiden- 
sparger v. Spear, 17 Me. 123 ; Chica- 
go Dock Co. V. Kinzie, 49 111. 289 ; 
Simpkins v. Rogers, 15 111. 397, and 
is only binding as to third persons 
when it has been so far executed as 
to create an equity of which they had 
notice at the time of the conveyance 
to them. Wilson v. Chalfant, 15 Ohio, 
247; Ricker v. Kelly, 1 Me. 117; Re- 
nick V. Kearn, 14 S. & R. (Penn.) 
267. 

2 Selden v. Del. &e. Canal Co., 29 
N. T. 634; Brown v. Woodworth, 5 
Barb. (N. Y.) 550. 

8 Huff u. McCauley, 53 Penn. St. 
206; Marston v. Gale, 24 N. H. 176; 
Kimball v. Yates, 14 111. 464 ; Dodge 
V. McClintock, 47 N. H. 383; Owen v. 
Field, 12 Allen (Mass.) 457; Houston 
V. Laffee, 46 N. H. 505; Carlton v. 
Eedington, 21 id. 291. But the rule 
relative to revocation is not uniform, 
and in some of the States it is held, 
that a license granted upon a con- 



sideration is not revocable. Wilson 
V. Chalfant, 15 Ohio, 248; Snowden 
V. Vilas. While in others it is held, 
that the circumstance that a con- 
sideration is agreed upon does not 
render such a, contract irrevocable 
when it gives an interest in lands. 
Huff V. McCauley, ante. Where 
valuable improvements have been 
made upon land under a license, as 
where a railroad has been built, 
buildings erected, etc., it is held, in 
Pennsylvania, not to be within the 
statute of frauds, and irrevocable. 
Cumberland &c. R. R. Co. v. McLa- 
nahan, 59 Penn. St. 33; Davis v. 
Sander,, 10 Phila. (Penn.) 113. In 
New Jersey, after a license has been 
executed by the outlay of large sums 
of money or the erection of substan- 
tial improvements, — although such 
license is inoperative at law, — a court 
of equity will enjoin its revocation, 
even though the license is not express. 
The rule in that State may be stated 
as follows: When the enjoyment of 
improvements of a permanent nature, 
erected by a person upon his own 
land, depends upon a right affecting 
the land of another proprietor whose 
consent is necessary to the exercise 
of such right, if the giving of such 
consent is expressly proved, or neces- 
sarily implied from the circumstances, 
and the improvements were made in 
good faith, upon the strength thereof, 
equity will not permit advantage to 
be taken of the form of the consent, — 
although the same was not in accord- 
ance with the strict mode of the com- 
mon law, or was within the statute of 
frauds, — but will, upon proper bill 



16 



STATUTE OF FEAUDS. 



[chap. I. 



distinction between a mere license and a lease is more forcibly- 
illustrated by the circumstance, that a license given by a land- 
owner does not prevent him from giving a similar right to 



filed, enjoin the licensor from accom- 
plishing his fraud and protect the 
right of the licensee. Raritan &c. 
Co. u. Veghte, 21 N. J. Eq. 463. 
And the doctrine of estoppel in such 
cases is also applied in Ohio and where 
a land owner permitted a canal com- 
pany to construct and use, as a high- 
way, a canal through his lands, — al- 
though the use had been for but a 
few years, — it was held, that he 
was thereby estopped from enforcing 
his claim to the possession of the land. 
Pierson v. Cincinnati &e. Canal Co., 
2 Dis. (Ohio) 100. And the same rule 
is adopted in Georgia, and equity will 
treat the license as an agreement to 
convey the right, and will decree its 
specific performance where the licen- 
see has made large expenditures in 
pursuance of it. Cook v. Prigden, 
45 Ga. 331. In Illinois, where the 
owner of a, lot of ground contem- 
plated the erection of a frame build- 
ing thereon, the owner of a brick 
house on the line of an adjacent lot 
proposed to him that if he would 
build of brick he might use the brick 
wall of the house for the purpose of 
attaching thereto the proposed new 
building, and the proposition was ac- 
cepted, and the new house was built 
of brick, and attached to the wall of 
the other building, as suggested. It 
was held : 1. That the license to use 
and attach to the wall, after the ex- 
penditure of money in the erection of 
the new building, as induced by the 
permission, was irrevocable. 2. That 
the subsequent grantee of the party to 
whom the license was given succeeded 
to his equitable rights in respect there- 
to. 3. That the party granting the li- 
cense being estopped from its revoca- 
tion, the estoppel embraced privies as 
well as parties, and precluded all who 
claim under the person originally 
barred. 4. That the execution of the 
parol permission supplied the place 
of a writing, and took the case out 
of the statute of frauds, Russell 



V. Hubbard, 59 111. 335. In Nevada, 
it is held that a parol license to 
erect a dam upon the licensor's land, 
for the purpose of running a mill, is 
held to become irrevocable when the 
licensee has expended money, by erect- 
ing the mill, etc., upon the faith of the 
license, and his continued enjoyment 
will be protected in equity. Lee v. Mc- 
Leod, 12 Nev. 280. In Missouri, in 
Boone v. Stover, 66 Mo. 430, it was 
held that an instrument in writing, 
under seal, granting permission to 
mine on a certain lot, so long as the 
grantees do regular mining work on 
the lot, is a license and a grant of an 
incorporeal hereditament, which is not 
revocable except for breaches thereof 
by the grantee, and contains, in effect, 
a covenant on the part of the grantor 
that the grantee, in respect to his min- 
ing privileges, shall be free from the 
interruptions or claims of others, and 
such an instrument is not a lease, for 
the reason that it does not pass such 
an estate in possession on the land as 
would entitle the grantee to maintain 
ejectment. In'an Indiana case, in a 
suit to recover real estate, the answer 
alleged that defendant, a railroad com- 
pany, had expended large sums in 
building a track upon the land, under 
a parol license from plaintiff, with an 
agreement that the damages to the 
land would thereafter be settled, and 
that plaintiff had knowledge of what 
defendant had done, it was held, on 
demurrer, that the answer was suffi- 
cient, and that it was not necessary 
to allege to what officer or agent of 
the company such license was given. 
Buchanan v. Logansport, C^a^vfo^ds- 
ville &o. Ry. Co., 71 Ind. 265. In 
these States as well as in others, where 
this principle is applied, a, court of 
equity will enforce a parol license 
in all cases where it has been ex- 
ecuted i BO that, if it had been a con- 
tract for the sale of lands, it would 
be enforced on the ground of part 
performance, 



SEC. 8.J PAHOL LEASES. 17 

others, if it does not interfere with the exercise of the right con- 
ferred upon previous licensees. Thus, in a New Jersey case,^ 
it was held that a contract simply giving the right to take ore 
from a mine, no interest or estate being granted, merely con- 
ferred a license under which the licensee acquired no right to 
the ore until *he separates it from the freehold, and that, unless 
so specially expressed, it did not confer an exclusive privi- 
lege ; and the general rule may be said to be that a license 
to dig and take ore is never exclusive of the licensor unless 
expressed in such words as clearly show that such was the 
intention of the parties, and the same right may be given to 
other parties.^ In the case last cited, such a license was held 
to be like a grant of common sans nombre, which never 
excludes the grantor from enjoying the common with his 
grantee. LoED Ellenboeottgh, in a more modern case,^ 
gave his assent to this doctrine, and declared that " a liberty 
reserved of digging coals could not give the person reserving 
it the exclusive right to them. No case can be named," said 
he, " where one who has only a liberty for digging for coals 
in another's soil, has an exclusive right to the coals so as to 
enable him to maintain trover against the owner of the estate, 
for coals received by him." A similar doctrine was held in 
the United States Supreme Court.* In that case, the license 
gave the licensee the right to dig and carry away all the iron 
ore to be found in certain designated lands. The court held 
that this did not amount to a grant of the ore, but merely 
authorized the hcensee to take away so much as he might 
dig. The word " all " was held to show merely the extent of 
his license as to quantity, that is, that he was entitled to dig 
all the iron ore there was in the land, and that he acquired 
no title to any of the ore, until he had separated it from the 
freehold. This principle is illustrated in cases where a license 
to occupy buildings is given. Thus, in an English case,^ 
where a hall was to be let for four nights at £100 a day, for 



1 Silsby V. Trotter, 29 N. J. Eq. (TJ. S.) 81. See also to the same effect 
228. See also Carr o. Benson, L. K. Eunk v. Haldeman, 53 Penn. St. 229; 
3 Ch. App. 524. Stockbridge Iron Co. v. Hudson Iron 

2 Mountjoy's Case, And. 307. Co., 107 Mass. 290; Carr v. Benson, 
8 Chetham v. "WilUamson, 4 East, L. R. 3 Ch. App. 524. 

469. ' ' Taylor c. Caldwell, 3 B. & S. 

4 Grubb V. Bayard, 2 "Wall, Jr. 826. 



18 STATUTE OF FEAUDS. [CHAP. I. 

the purpose of giving four concerts, and day and niglit/^fe8, 
it was held that this amounted to a mere license only, and 
was not a demise, because it was evident that the owner was 
not to part with the possession of the premises during the 
four days. In another case,i A paid B twelve shillings a 
week for permission to put his loom machines in a room in 
B's factory, and for ingress and egress for himself and work- 
men, for the purpose of inspecting and working the machines, 
and for the steam-power to run them, which was furnished 
by B ; and it was held that this did not amount to a lease 
to A of any part of the room, and that the relation of land- 
lord and tenant was not thereby created, but only that of 
licensor and licensee. Nor does the relation of landlord and 
tenant arise under a contract for board and lodging, even 
though a particular room is assigned to the lodger, as in such 
a case the general possession, care, and control of the build- 
ing remains in the person who lets the lodger into posses- 
sion.2 But where the contract is such as to divest the land- 
lord of all possession or right to the possession or control of 
certain specified rooms, it amounts to a lease and is within 
the statute.^ It has been held that a grant by a riparian 
proprietor to a person, of a right to take water from a natural 
stream, on which his land abuts, is a mere license in gross, 
and that the licensee has no such interest as will enable him 
to maintain an action against a wrong-doer.* But, while this 
is true of a license which does not confer an interest in the 

^ Handcock v. Austin, 14 C. B. n. maintain an action against a stranger 

s. 429. who disturbed liis right by putting 

2 White V. Maynard, 111 Mass. and using pleasure boats upon the 

250 ; and in this case an oral contract canal, and letting them for hire. See 

by the keeper of a boarding-house to also Bird v. Gt. Eastern R. K. Co., 19 

provide a man and his wife with board C. B. N. s. 268, where a similar doctrine 

for six months, and with three speci- was held in reference to a license to 

fied rooms, was held not to be a lease, hunt and shoot game on certain lands, 

or within the statute of frauds. But see Freeman v. Underwood, 66 

8 Inman v. Stamp, ante; Edge v. Me. 229, where it was held that an 

Strafford, ante. instrument from the owner of land to 

* Stockport Water "Works Co. v. a licensee, granting him all the timber. 

Potter, 3 H. & C. 300. In Hill v. grass, and berries that may be found 

Tupper, 2 id. 121, it was held that the or grown upon the land for a term of 

grant by deed by a canal company to years, and giving him possession for 

a person of the exclusive right to the purpose of managing and enjoy- 

put pleasure boats on their canal, ing the property granted, is valid be- 

did not confer upon the grantor such tween the parties, and entitles the 

an interest as would enable him to licensee to sue in his own name for 



SEC. a] 



PAROL LEASES. 



19 



lands, yet, when the license is coupled with an interest, so that 
it is assignable, the rule is otherwise,^ and such an interest 
cannot be conferred by parol? and where it is attempted, it is 
void, and revocable at any time at the will of the licensor,^ 
and under this head are included a license to cut and carry 
away standing wood or timber ; * to erect partition fences ; ^ 
to pass over another's land with teams, etc., in perpetuity ; ^ 
to flow another's land by means of a dam or otherwise ; ^ or 
to erect a building on the licensor's land ; ^ but acts done in 
pursuance of such license are justified thereby, but not acts 
done after, revocation, whether the revocation is by the act 
of the parties, or operation of law.^ But in some of the 
States it is held that a parol license may become operative 
by way of estoppel, so as to become irrevocable where it has 
been executed, and its execution involved a large expendi- 
ture of money, which was made with the knowledge or tacit 
assent of the licensor ; i" while in others it is held that a parol 



any of the productions of the land 
unlawfully taken therefrom during his 
term by strangers. 

1 GofEi;. Obertuffer, 3 Phila. (Penn.) 
71. 

2 Foot V. N. H. &c. U. R. Co., 23 
Conn. 214; Collins Co. v. Marcy, 25 
id. 238. 

8 Tanner v. Valentine, 75 111. 624; 
Brown v. Wadsworth, 5 Barb. (N. Y.) 
550; Selden v. Del. & Hud. Canal Co., 
29 N. Y. 634 ; Stevens v. Stevens, 11 
Met. (Mass.) 201. 

* Giles V. Simonds, 15 Gray (Mass.) 
441 ; Drake v. Wells, 11 Allen (Mass.) 
141 ; Dodge v. McClintock, 47 N. H. 383. 

6 Haux V. Seat, 26 Mo. 178. 

^ Foster v. Browning, 4 R. I. 47. 

' Hall I,. Chaffee, 13 Vt. 150; 
Clute V. Carr, 20 "Wis. 531; Foot v. 
R. R. Co., ante. 

* Arrington v. Larrabee, 10 Cush. 
(Mass.) 512 ; Collins Co. w. Marcy, ante. 

8 Foot u. N. H. R. R. Co., ante; 
Cayuga R. R..Co. o. Niles, 13 Hun 
(N. Y.) 170. If, after a license is re- 
voked, the licensee goes on and makes 
erections upon the land, such erections 
become a part of the land and be- 
long to the owner thereof. Druse 
V. Wheeler, 26 Mich. 189. A license, 



in effect, is an excuse for an act which 
would otherwise be a trespass. Owon 
V. Lewis, 46 Ind. 489. And acts done 
in pursuance thereof are considered 
the same as though done by the 
licensor, and enure to the benefit of 
the party holding a title under which 
the licensor took possession. Wing 
V. Hall, 47 Vt. 182. But in Indiana it 
is held that the license must be spe- 
cially pleaded, and cannot be given in 
evidence under the general issue. 
Chase v. Long, 44 Ind. 427. 

10 Lane v. Miller, 27 Ind. 584; 
Fuhr V. Dean, 26 Mo. 116; Snowden 
V. Wilson, 19 Ind. 10 ; Tanner v. Val- 
entine, 75 111. 624. In Wilson v. Chal- 
fant, 15 Ohio, 248, it was held that 
one who enters under a parol license, 
given for a consideration, and erects a 
fixture, may maintain trespass against 
the owner of the land if he interferes 
with it ; but this doctrine is not gener- 
ally recognized ; and in Owen v. Field, 
12 Allen (Mass.) 457, it was held that 
a license to lay an aqueduct across 
the licensor's lands might be revoked 
any time even after the aqueduct was 
laid, and that no liability attaches 
against the licensor for cutting it off, 
after its revocation. 



20 STATUTE OF PEATTDS. [CHAP. I. 

license, whicli is executed, cannot be revoked without' first 
reimbursing the licensee for all expenditures made in pursu- 
ance of such license ; ^ and in others, if it is founded upon a 
consideration ; " and in others, if it is coupled with an inter- 
est in personal property.^ But the rule established by the 
better class of cases, may be said to be, that a parol license to 
do an act upon the land of another which amounts to an ease- 
ment therein, is void under the statute of frauds, and while 
affording a justification for acts done in pursuance thereof 
before it is revoked, may, at law, be revoked at the will of 
the licensor, without reimbursing the licensee for any expen- 
ditures made in executing it;* and that the licensee, after 
the license is revoked, is liable to the licensor for all dama- 
ges Avhich result from a continuance of the thing licensed.^ 

Sec. 9. Ho-w far a License Protects. What may be done 

under. — In those cases where assent has been given to one 
by another to do a certain act upon his land, the natural and 
probable consequences of which are to produce a certain 
result, and the person to whom assent is given goes on and 
expends money on the strength of the assent and makes 
erections of a permanent character; while the assent does 
not give anj- interest in the land, and at law is revocable at 
any time, even though given for a consideration,^ yet, a court 
of equity, in a proper case, will enforce it as an agreement 
to give the right, and particularly where its revocation would 
operate as a fraud upon the licensee, or would be productive 
of great hardship, will restrain its revocation.'^ But even at 
law, a license is a full defence for all acts done under it, 

1 Woodbury v. Parshley, 7 N. H. diversion of water upon his lands 
237. erected by the defendants under a 

2 Wilson V. Vilas, 19 Ind. 10 ; Wil- license from the plaintiff's grantor, as 
son V. Chalfant, ante. the license was revoked by the con- 

" Long V. Buchanan, 27 Md. 502; veyance and ceased to be operative 

Claflin V. Carpenter, 4 Met. (Mass.) from that time. See also Cobb v. 

580 ; Nelson v. Nelson, Gray (Mass.) Fisher, 121 Mass. 169, where the same 

385. rule was adopted under a similar state 

* Cook V. Stearns, 11 Mass. 533; of facts. 

Morse v. Copeland, 2 Gray (Mass.) s Huff v. McCauley, 53 Penn. St. 

302 ; Stevens u. Stevens, 11 Met. 206 ; Houston v. Lailee, 46 N. H. 505 ; 

(Mass.) 251. Hetfield v. R. E. Co., 29 N. J. L. 571. 

6 Poot V. N. H. &c. R. R. Co., ante ' Veghte v. The Raritan &c. Co., 

In this case the defendant was held 19 N. J. Eq. 142 ; Brown v. Bowen, 30 

liable for injuries resulting from the N. Y. 543 ; Wood on Nuisances, 347. 



SEC. 9.] 



PAEOL LEASES. 



21 



within the scope of the license before its revocation, but not 
after.i But the license must not be exceeded, and in order 



1 Wolfe V. Frost, 4 Sandf. (N. Y.) 
Ch. 72; R. R. Co. v. McLaughlin, 59 
Penn. St. 23 ; Cook v. Prigdon, 45 Ga. 
331 ; Houston v. Laffee, 46 N. H. 508 ; 
Bridges V. Purcell, 1 Dev. & B. <N. C.) 
462; Mumford v. Whitney, 15 Wend. 
(N. Y.) 379. As to the effect of a 
license from one to do an act upon 
the land of another, at law the case 
of Hetfleld v. The Central R. R. Co., 
29 N. J. L. 571, is in point. In that 
case, the charter of the defendant 
authorized them to enter upon and 
take the lands req^uired for their road, 
but directed that they should not enter 
without the consent of the owner. 
The defendant entered upon the plain- 
tifE's lands by his consent, but did not 
take any conveyance from him, in the 
manner required by law, in order to 
give them right or title. The court 
held that this consent did not dis- 
pense with the necessity of a deed or 
conveyance of the land or right, in 
the form required by law. That it 
was not a consent that was intended 
to confer a title, and was revocable. 
In Wood V. Leadbitter, 13 M. & W. 
837, the question as to the effect of a 
license arose in an action of assault 
and battery. The evidence disclosed 
that the plaintiff purchased a ticket 
for the sum of one guinea, which en- 
titled him to admission to the grand 
stand. That the Earl of Ellington 
was one of the stewards of the races, 
and that the tickets were issued by 
the stewards, but were not signed by 
Lord Ellington. That under this 
ticket the plaintiff entered the ground 
on one of the race days, when the 
defendant, who was a policeman, under 
the directions of Lord Ellington, who 
first ordered him to leave, upon his 
refusing to do so committed the as- 
sault complained of, using no more 
force than was necessary for that pur- 
pose. Upon the trial the judge di- 
rected the jury that, assuming the 
ticket to have been sold to the plain- 
tiff under the sanction of Lord Elling- 
ton, it still was lawful for Lord Elling- 



ton, without returning the guinea, to 
order the plaintiff to quit the enclo- 
sure, and that after a reasonable time 
had elapsed, if he failed to leave, then 
the plaintiff was not on the ground 
by the leave and license of Lord Ell- 
ington, and the defendant would be 
justified in removing him under his 
orders, and this ruling was sustained 
in Exchequer. In Miller v. The Au- 
burn &c. R. R. Co., 6 Hill (N. Y.) 
61, which was a case somewhat simi- 
lar to that of Hetfield v. The Central 
E. R. Co., before referred to, the de- 
fendants erected their railroad ifith 
an embankment upon Garden Street 
in Auburn, interrupting the plaintiff's 
access to his premises, in 1839, and 
maintained it until 1842, when this 
suit was brought. The defendants 
offered to prove that the embankment 
was raised under a parol license from 
the plaintiff, but the proof was ex- 
cluded by the court, and the case was 
heard in the supreme court upon the 
question of the admissibility of that 
evidence. Cowen, J., among other 
things, said : " If what the defendants 
in this case proposed to show was 
true, viz., that the plaintiff verbally 
authorized the making of the railway, 
while the authority remained, their 
acts were not wrongful. License is 
defined to be a power or authority. 
So long as the license was not coun- 
termanded, the defendants were act- 
ing in the plaintiff's own right." In 
this case the court uphold a license 
as a defence until it is revoked, and 
hold that it must be revoked before 
an action can be brought ; but in 
Veghte V. The Raritan Power Co., 
ante, the court held that the bringing 
of the action is a revocation of itself, 
and all that is necessary. But the 
former would seem to be the better 
rule, and the one generally adopted. 
The following authorities will be 
found applicable upon the question 
of the effect of a license : Ex parte 
Coburn, 1 Cow. (N. Y.) 570; Cook v. 
Stearns, 11 Mass. 533; Ruggles v. 



22 



STATUTE OF FKAUDS. 



[chap. I. 



to operate as a defence at law for an act done in pursuance 
of it, it must be shown that it covers the very act, for the 
recovery of damages for the doing of which action is brought, 
and if the license does not embrace the act to the full extent, 
liability will attach for all such excess. Thus, if an action 
is brought for an injury resulting from the flooding of land 
by a dam erected by the defendant, it is not enough to show 
that the plaintiff assented to or licensed the erection of the 
dam, unless it appears that he could then have known or rea- 
sonably foreseen that his land would be injured by the dam in 
the manner complained of.^ If the dam itself is so erected as 



Lesure, 24 Pick. (Mass.) 190; Prince 
Ki ^ase, 10 Conn. 375 ; Kex v. Hern- 
don-on-the-hill, 4 M. & S. 565 ; Penti- 
man v. Smith, 4 East, 107 ; Hewlins v. 
Shipman, 5 B. & C. 222; Bryan o. 
"Whistler, 8 id. 288 ; Cocker v. Cowper, 
1 C. M. & E. 418 ; Wallis v. Harrison, 
4 M. & W. 538. It has been held in 
some of the cases that the effect of a 
license executed, as, for instance, to 
enter upon land to erect- a house or 
dam, and followed by user, is to give 
the licensee a right to personal prop- 
erty upon the land of the grantor, 
and although revocable at will, yet 
the licensee can enter for its removal, 
although not to maintain or use the 
property there. That the license is 
irrevocable as to the right to remove 
the property. Barnes v. Barnes, 6 
Vt. 388; Prince v. Case, ante; Van 
Ness V. Packard, 2 Pet. (U. S.) 143; 
Cary.w. Ins. Co., 10 Pick. (Mass.) 540; 
Marcy v. Darling, 8 id. 283. There 
are a class of cafces, however, particu- 
larly in Pennsylvania, where it is held 
that where acts have been done, in 
pursuance of a license and relying 
upon it, the license operates as an 
equi'..able estoppel, and the licensor 
will be estopped from revoking it, to 
the injury of the licensee, so long as 
the license is not exceeded. But that 
for all excess of use an action may be 
maintained. Bridge Co. v. Bragg, 11 
N. H. 102 ; Lefevre v. Lefevre, 4 S. & 
E. (Penn.) 241; Ricker v. Kelly, 1 
Me. 117 ; Hepburn v. McDowell, 
17 S. & E. (Penn.) 383; Cook u. 



Prigdon, 45 Ga. 331; 12 Am. E. 582; 
Houston V. Laffee, 46 N. H. 608. In 
Selden v. Del. & Hud. Canal Co., 29 
N. Y. 634, where defendants entered 
upon the lands of plaintiff by parol 
license from him, and enlarged the 
same, it was held that the license 
operated as a defence to all that had 
been done under it, but would not jus- 
tify a maintenance of the same after 
the license is revoked. The same was 
also held in Mumford v. Whitney, 15 
Wend. (N. Y.) 380; Foot v. N. H. &c. 
Co., 23 Conn. 214; Eggleston v. N. Y. 
& H. R. R. R. Co., 35 Barb. ( N. Y. Sup. 
Ct.) 162. In Woodard v. Seeley, 11 
111. 157, it was held that a, license by 
deed or parol is always revocable, 
unless coupled vrith an interest and 
executed, and that then it is irrevoc- 
able. In Kimball v. Yates, 14 111. 
464, it was held that a parol license 
to cross a man's farm is revocable at 
any time, a.t the will of the licensor. 
See also Roberts v. Rose, L. R. 1 
Exchq. 82. 

1 Bell V. EUiott, 5 Blackf. (Ind.) 
113. In any event, if a license is 
given under a misapprehension of the 
effects of its exercise, it may at once 
be revoked. Brown v. Bowen, 30 N. 
Y. 619; Smith v. Scott, 1 Kerr (N. B.) 
1; Allen v. Fiske, 42 Vt. 462; Eaton 
V. Winne, 20 Mich. 156 ; Hamilton v. 
Wudolf, 36 Md. 301; Dempsey v. 
Kipp, 62 Barb. (N. Y.) 311 ; Eustis v. 
Chiner, 56 Me. 407 ; Preeman v. Had- 
ley, 33 N. J. L. 523 ; Giles v. Simonds, 
16 Gray (Mass.) 401 ; Moye v. Tappan, 



SEC. 9.J PAROL LEASES. 23 

to produce damage to the lands of supra-riparian owners, it 
is a nuisance, and parties injured thereby are not estopped 
from a recovery for injuries therefor upon the ground of 
acquiescence in its construction, MwZess it could reasonably 
have bee7i ascertained or foreseen at the time of its erection that 
it would produce the ill-results complained of. In this respect 
it stands precisely upon the same ground as any other nui- 
sance, and the rule in reference to acquiescence therein, and 
estoppel by reason of acquiescence, is that, where a person 
acquiesces in the erection or maintenance of anything that is 
a nuisance per se, or that he might reasonably have foreseen 
would become a nuisance, a court of equity will not interfere 
by injunction to relieve him from the effects thereof, but his 
remedy at law remains unless he has bound himself by grant 
or license sufficient in law to bar an action, or unless the 
party maintaining the nuisance has acquired a prescriptive 
right to maintain it. The law presumes that when a man 
assents to the doing of an act, he only assents to its being so 
done as not to injure him?- But, while a license must not be 
exceeded, yet it carries with it all the incidents necessary to 
its exercise.^ Thus, a license to take stone from the licen- 



23 Cal. 306 ; Drake v. "Wells, 11 Allen Morris, 8 M. & "W. 488 ; Patrick v. 

(Mass.) 141; Miller v. State, 39 Ind. Colerick, Sid. 435; Anthony «. Haney, 

267 ; Druse v. Wheeler, 22 Micji. 439 ; 8 Bing. 180. And it is apprehended 

Dodge 0. McClintock, 47 N. H. 383. that this rule prevails, wherever the 

1 Bankhardt v. Hougliton, 27 Beav. property of one is upon the premises 
425, is a very full and acceptable of another without the fault of the 
authority upon this point, and, except owner of the property, and under such 
that the case is a, very long one, circumstances that the owner of the 
it would be given here. See also premises has no claim or lien thereon, 
McKnight v. Eatcliff, 44 Penn. St. legal or equitable, the owner may, if 
159, where it was held that, though he can do so peaceably, doing as little 
the plaintiffs, who were in the mining damage as possible, enter and take it 
business, permitted the defendants in away. Stirling u. "Warden, 51 N. H. 
the same business to operate through 217. In the case of Richardson v. 
their gangway, yet that this permission Anthony, 12 Vt. 273, the defendant's 
would not justify the defendants in cattle were found by him upon the 
filling up the plaintiff's shaft with plaintiff's land. How they came there 
■vraXer. was not shown, but it was admitted 

2 A license to enter upon premises they had been in the plaintiff's pos- 
may sometimes be implied, as, when session a year, and the plaintiff for- 
the owner or occupant of the premises bade the defendant to enter his land 
has taken and keeps the property of to take them away. The defendant, 
another there, there is an implied against the protest of the plaintiff, 
license to the owner of the property entered upon the land and drove 
to enter and take it. "Williams u. them away, the plaintiff offering no 



24 



STATUTE OP FEAITDS. 



[chap. I. 



sor's land, carries with it the right to enter with teams to 
draw them away, the right to be exercised carefully.^ And 



1 Clark V. Vt. Central E. R. Co., 
28 Vt. 103. A licensee of land ia 
liable to the licensor for all damages 
arising from such a use of the prem- 
ises — e.g., the yarding of sheep 
affected with " the scab " — as makes 
the soil communicate an infectious 
disease to the property of the licensor, 
the latter being ignorant of the dan- 
ger thereof. Eaton v. Winne, 20 
Mich. 156. It is well settled that the 
mere permission to pass over lands 
which are dangerous, either naturally 
or by reason of the use which is made 
of them, imposes no duty or obliga- 
tion upon the owner of such lands, 
except to refrain from acts which are 
wilfully injurious or knowingly in the 
nature of a trap, and except, also, 
where there are hidden dangers, the 



concealment of which would be in 
the natiire of a fraud. He who en- 
joys the permission or passive license 
is only relieved from the responsi- 
bility of being a trespasser, and must 
assume all the ordinary risk attached 
to the nature of the place, or the 
business carried on there. Vander- 
beck V. Hendry, 34 N. J. L. 467. A 
railroad left a large lot, traversed by 
sidings, open for the convenient access 
of the public in loading and unload- 
ing lumber. It also suffered the pub- 
lic to use its track to pass and repass 
from one side of the city to another. 
It was held that the license created the 
duty on the part of the company to 
use their track so as not to endanger 
personal safety. Kay v. Pennsylvania 
R. R. Co., 65 Penn. St. 269. 



physical resistance. The court held 
that the defendant was justified in his 
entry for that purpose, and that an 
action of trespass would not lie against 
him therefor. Williams, J., in de- 
livering the opinion of the court, said : 
" The time during which the cattle re- 
mained in the plaintiff's possession is 
of no importance. The manner in 
which they came there would be. 
The right of the owner of personal 
property to enter on the premises of 
another to reclaim property, may de- 
pend upon the manner in which pos- 
session was obtained. It appears to 
be well established that if one man 
takes the goods of another, and puts 
them on liis own land, the owner may 
enter and take them. ... In the 
absence of any evidence as to how the 
heifers in question came into the en- 
closure of the plaintiff, when it may 
be as well presumed that they came 
there with his consent, and without 
any neglect on the part of the defend- 
ant, as the contrary, and when the 
evidence , discloses that he detained 
them under a wrongful claim, we con- 
sider that the defendant was justified 
in entering the enclosure to take his 



own property." Bennett, J., dissented 
from the opinion of the court, but 
his dissent was predicated upon the 
ground that the cattle had remained 
so long in the plaintiff's possession as 
to invest him with a quasi property 
therein, of which he could not be 
divested in such a summary manner. 
But the opinion of the court has many 
authorities -in its support, and is 
predicated upon principles of natural 
justice. In Allen v. Peland, 10 B. 
Mon. (Ivy.) 306, it was held that where 
ope has property upon the premises 
of another, he may, if he can do so 
peaceably, enter and take it. In 
Stirling v. Warden, 51 N. H. 217, 12 
Am. Rep. 80, the plaintiff had for- 
merly been postmaster, and used a, 
part of his house for a post-office. 
Another person having been appointed 
postmaster, the defendant by such 
new appointee was appointed deputy 
postmaster, and was directed by him 
to go to the plaintiff's house and 
bring away the property there belong- 
ing to the government. The plaintiff 
resisted the taking of the property, 
and the defendant reasonably repelled 
his assault and took away the proper- 



SEC. 9.] 



PAROL LEASES. 



25 



a license to take wood from certain premises carries with it 
the right to enter to cut and draw it away ; ^ and a license to 
cultivate land carries with it as an incident, the right to enter 
and remove the crops.^ A license to "inhabit or enjoy " cer- 

1 Clark V. Vt. &c. R. R. Co., 28 Vt. » Com v. Rigney, 4 Allen (Mass.) 
103; DriscoU v. Marshall, 15 Gray 416; Cornish w. Stubbs, 39 L. J. C. P. 
(Mass.) 62. 206. 



ty. The court held that an action of 
trespass would not lie therefor. But 
see Hupport i. Morrison, 27 Miss. 
365, where it was held that unless 
property belonging to one is in the 
wrongful possession of another, he 
will not be justified in going upon liis 
premises to take it away, unless he 
can do so peaceably, and will not be 
justified even in repelling an assault 
made upon him by the owner of the 
estate, unless it is excessive. In 
Gardner u. Rowland, 2 Ired. (N. C.) 
247, a similar doctrine was held, ex- 
cept that in that case the defendant 
was held liable because he let down 
the fence to drive his hogs out of the 
plaintiff's premises, instead of driving 
them through the gap in the fence 
through which they entered, or, to use 
the language of the court, "because 
he let down the fence, instead of 
driving them through a gap or g?ite, 
when there is one." In Adams v. 
Mclvinney, Addis. 258, it was held 
that if J S, who ought to keep up a 
fence between a close of his and a 
close of J N, suffer the same to be 
out of repair, and the beast of J N go 
through the fence into the close of 
J S, trespass does not lie, and J S may 
pursue his cattle and drive them back 
on to his own close, because tlie dam- 
age happens from the fault of J N. 
In Merrill v. Goodwin, 1 Root (Conn.) 
209, the defendant entered upon the 
plaintiff's premises and cut a tree in 
which he had found a swarm of bees. 
It did not appear that the bees es- 
caped from his hive, and the court 
held him a trespasser ; but the court 
plainly intimated that, if the bees had 
escaped from the defendant's hive, be 
would have been justified in doing all 
that was necessary to reclaim his bees. 



But, while bees so escaping from a 
hive may be reclaimed by the owner, 
if they can be identified, yet the 
owner of the bees cannot enter upon 
the premises of another and cut the 
tree in which they are, without sub- 
jecting himself to an action of tres- 
pass, and liability to the extent of the 
actual damages to the soil and tree. 
But if a third person cuts the tree, 
the owner of the bees may maintain 
trespass therefor. Goffi v. Kilts, 15 
Wend. (N. Y.) 550. If they can be 
reclaimed without doing actual injury, 
as if they are on the fence or on a 
bush, quere f In Barnes v. Barnes, 6 
"Vt. 388, the defendant erected a house 
upon premises owned by the plaintiff 
under a license. This license was 
subsequently revoked, and the de- 
fendant, within a reasonable time 
after the revocation of the license, 
entered upon the premises and took 
down the house and removed the 
materials. The court held that the 
defendant was not liable in trespass 
therefor. But in such cases, where 
an erection is made under a license, 
the licensee must remove the house 
within a reasonable time after the 
license is revoked. In Prince v. Case, 
10 Conn. 375, it appeared that the 
owner of land gave to a person a 
license to erect a dwelling-house upon 
his land, for his own use. The 
licensee subsequently conveyed the 
house to the plaintiff in error. After 
the death of the licensee, the grantor 
of the licensor brought ejectment 
against the grantee of the licensee, and 
recovered therein. After the lapse 
of more than a year after his recovery 
and possession in the action of eject- 
ment, the grantor of the licensor took 
down the house, but did not remove 



STATUTE OF FRAUDS. 



[chap. I. 



tain premises when the right is exclusive, amounts to a lease, 
and should be pleaded as such.^ But this is not so where 
the license does not amount to an exclusive right, as a right 



1 Hall V. Seabright, 1 Mod. 14; 
Anon., 3 Salk. 223. If a license is 
specially pleaded as a defence to an 
action of trespass, parol evidence of 
such license is admissible to bar the 
plaintiff's right, but where the general 
issue is pleaded, evidence of such li- 
cense is only admissible in mitigation 

the materials. In an action of tres- 
pass for taking down tlie house, it 
was held that no recovery could be 
had, as the owner of the house had 
had a reasonable time in which to 
remove it, and having failed to do so, 
the defendant was justified in talcing 
it down. Parker v. Kedfield, 10 
Conn. 497; Baldwin v. Breed, 16 id. 
63; Branch v. Doane, 17 id. 409; 
Curtis u. Hoyt, 19 id. 106. Such 
a license is personal, and ceases 
when the house is conveyed. Hull v. 
Babcock, 4 Johns. (N. Y.) 418; The 
Bong V. Newton, Bridg. 115; Howes 
V. Hall, 7 B. & C 481. A house 
erected under a license is personal 
property, and remains the property of 
him who places it upon the land. 
Eickerw. Kelley, 1 Me. 117; TVells 
V. Bannister, 4 Mass. 514 ; Curry v. 
Com. Ins, Co., 10 Pick. (Mass.) 
540; Marcy v.- Darling, 8 id. 283; 
Ashman v. Williams, 8 Pick. (Mass.) 
402. In "Webb u. Paternoster, Palm. 
71, a license to place a stack of 
hay upon another's land was held not 
to be countermandable until after a 
reasonable time had elapsed. See 
White V. Elwell, 48 Me. 360. In Win- 
ter V. Brockwell, 8 East, 308, a license 
to erect a skylight was held not re- 
vocable after the skylight was erected, 
without placing the licensee in statu 
quo. See Wood v. Lake, Saycr, 3 ; 
Liggins V. Inge, 7 Bing. 682. But if 
a person wrongfully places his prop- 
erty upon the premises of another, he 
has no right to enter to remove it. 
Thus, in Newbald n. Sadler, 9 Barb. 
(N. Y.) 57, the defendant's servant 



of damages. Hamilton v. Windolf, 
36 Md. 301. But it must be specially 
pleaded in trespass quaere clausum and 
cannot be given in evidence under the 
general issue. Ruggles v. Lesure, 24 
Pick. (Mass.) 187; Crabs v. Eetick, 7 
Blackf. (Ind.) 373 ; Pritehard B.Dodd, 
5 B. & Aid. 089. 

drove his team upon the plaintiff's 
premises, and upon his return found 
the fence put up, and the plaintiff for- 
bade him from taking it down. The 
servant went and informed the defen- 
dant, and he entered the plaintiff's 
premises, and against the protests and 
actual resistance of the plaintiff, re- 
moved his team, assaulting the plain- 
tiff in order to accomplish his pur- 
pose! In an action of assault and 
battery therefor, the defendant justi- 
fied upon the ground that he entered 
the plaintiff's premises to remove liis 
property, etc., and that he used no 
more force than was necessary to 
accomplish his purpose. The court 
held that he was not justified in mak- 
ing the assault, or even in the removal 
of his property under the circum- 
stances disclosed by the pleadings and 
evidence. But in Eobson v. Jones, 2 
Bailey (S. C.) 4, it was held that 
where one has peaceabli/ entered the 
premises of another, an action of tres- 
pass will not lie against him for forc- 
ing his way out by breaking a gate 
which has been closed and locked by 
the owner of the land, with a view to 
detaining the property of the person 
entering. But this must be under- 
stood as applying only to an entry 
made upon lands of another under 
a license, express or implied. If the 
original entry was unlawful, the break- 
ing out would be unlawful, and liabil- 
ity would attach for all damages that 
, resulted from the trespass. The mere 
fact that an entry is peaceable, does 
not render it lawful, if it was made 
without authority, express or implied, 



SEC. 9.] 



PAROL LEASES. 



27 



to sow,i to stack hay ,2 or to hunt upon lands.^ A license, in 
order to be efficacious, must be granted by a person having 
authority to do so, as it can never extend beyond the inter- 
est which the licensor has.* 



1 Hare v. Celey, Cro. Eliz. 143. 

2 Webb V. Taternoster, Palm. 771 ; 
Wood V. Lake, Say. 3. 

' Anon., 3 Salk. 223. 



* Petty V. Evans, 2 Brownl. 40; 
Richardson v. Richardson, 9 Gray 
(Mass.) 213; Gilbert on Tenure, 
333. 



or without a justifiable cause. See 
also Bro. Tresp. pi. 186, and Wliite v. 
Wiltshire, Cro. Jac. 555. The mere 
fact that a person's property is upon 
the premises of another, does not ren- 
der an entry to take it away lawful. 
If the property is there by his own 
wrong, or if the title thereto is in dis- 
pute, or if he cannot take it away 
peaceably, he must resort to his rem- 
edy at law to recover it. Roach v. 
Damson, 2 Humph. (Tenn.) 425 ; Chase 
V. Jefferson, 1 Houst. (Del.) 257. In 
Blake v. Jerome, 14 Johns. (N. Y.) 
406, the defendant entered the plain- 
tiff's close against the will of the 
plaintiff, and took therefrom a mare 
and colt, wliich he claimed as his 
property, and to which the plaintiff 
also claimed title. The court held 
that under the circumstances of the 
case, the defendant was a trespasser. 
In Hermance u. Vernay, 6 Johns. (N. 
Y. ) 4, the defendant sold certain prem- 
ises, reserving by parol a certain bark- 
mill standing upon the premises. He 
entered the premises after the sale, 
and removed the bark-mill. Without 
deciding the question as to whether 
the bark-mill was in point of fact a 
fixture, the court held that, under the 
circumstances, he was a trespasser, 
and liable for a wrongful entry. In 
Holmes v. Tremper, 20 Johns. (N, Y.) 
29, the defendant had been a tenant 
of certain premises of the plaintiff, 
on which he had erected a cider-mill 
and press. After the tenancy had 
expired, and after Ms removal from 
the premises, he entered and took 
away the cider-mill and press. The 
court held him a trespasser, upon the 
ground that the property should have 



been removed during his tenancy, and 
having been left there by his own 
wrong, he was not justified in entering 
to take it away. In Chambers v. 
Bedell, 2 W. & S. (Penn.) 225, the 
court expressly held that where the 
goods of another had been wrongfully 
taken from him, and placed upon the 
premises of the taker, the owner of 
the goods might enter upon the prem- 
ises of the taker and remove it, with- 
out being liable even to nominal dam- 
ages therefor. This case follows the 
doctrine of Chapman a. Thumble- 
thorpe, Cro. Eliz. 329, in which it was 
held that if J S drives the beast 
of J N into the close of J S, or if 
it has been driven thereinto by a 
stranger, with the consent of J S (and 
this consent may be implied — see 
Richardson v. Anthony, 12 Vt. 273), 
J N may lawfully go thereinto to take 
it away, because J S was himself the 
first wrong-doer. Patrick v. Coleriek, 
3 M. & W. 484 ; Rhea v. Sheward, 2 
id. 424 ; Spencer v. McGowen, 13 
Wend. (N. Y.) 256. So, if the goods 
of one have been stolen and put upon 
the premises of another, the owner 
may lawfully enter to take them 
away. Higgins v. Andrews, 2 Rolle's 
Rep. 55. So, if a person has fraudu- 
lently obtained the property of an- 
other, the owner may enter upon the 
premises of the person who has it in 
his possession, if he can do so peace- 
ably, to take it away. As if A, by 
means of fraud, obtains a horse from 
B, B upon discovery of the fraud 
may go upon A's land to take the 
horse away, if he can do so without 
a breach of the peace. Wheelden v. 
Lowell, 50 Me. 503; Spencer v. Mc- 



28 



STATUTE OF FEATTDS. 



[chap. I. 



SsCi 10. Instances in which License is Irrevocable. — There 
are few instances in which a parol license to do acts upon, the 
land of another is not revocable. In some of the States, as 
we have seen,^ it is held that a parol license which is executed, 



I Ante, § 9 and notes. See also Bus- 
sell V. Hubbard, 59 111. 335; Ricker 
V. Kelley, 1 Me. 117; Androscoggin 
Bridge Co. v. Bragg, 11 N. H. ; SuUiran 
V. Commrs. &c., 3 Ohio, 89 ; Huff v. 
McCauley, 53 Penn. St. 206; Cum- 
berland Valley R. R. Co. v. McLanar 
ban, 59 id. 23 ; Lane v. Miller, 27 Ind. 
534; Cook v. Prigdon, 45 Ga. 331; 
Williamstown .&c. R. R. Co. v. Battle, 
66 N. C. , 540. In New Hampshire 
and Maine the doctrine of the cases 
cited has been virtually repudiated by 

Gowen, 13 "Wend. (N. Y.) 257. So, if 
a, man who is assaulted by another, 
and in danger of liis life, enters the 
premises of another, trespass will not 
lie, "because the doing of this — it 
being necessary for the preservation 
of his life— is lawful." 37 H. 6, 37 
pi. 26. So, if "A enters the premises 
of B to succor the beast of B, which 
is I in danger, an action does not lie, 
because, as the loss to B if his beast 
had died would be irremediable, the 
doing of this is lawful. But if A go 
into the close of B to prevent the 
beast of B from being stolen, or to 
prevent his corn from being consumed 
by hogs, an action would lie, for the 
loss, if either of these things had 
happened, would not have been irre- 
mediable." Bro. Tresp. pi. 215. So, 
too, if a tree belonging to A is blown 
down, and falls upon the land of B, 
A may lawfully go upon the land of 
B to remove it, for , the tree did not 
fall there by any fault of A : Bro. 
Tresp. pi. 215; but if A cuts a tree 
upon his land, and it falls upon the 
land of B, this is a trespass of itself, 
and he may not lawfully enter to re- 
move it, for the tree is there by his 
fault, and might have been avoided, 
lb. In Millin v. Fawdry, Latch. 120, 
it was held that if the fruit of a tree 
standing upon the land of a person 
falls upon the land of another, the 



later decisions of the court in those 
States. Dodge v. McClintock, 47 N. H. 
383 ; Pitman v. Poor, 38 Me. 237 ; Moul- 
ton V. Faught, 41 id. 298 ; Houston v. 
LafEee, 46 N. H. 505 ; and in England 
the doctrine of Wood v. Lake, Sayer, 
3; Taylor v. Waters, 7 Taunt. 374, 
holding a quite similar doctrine, has 
been repudiated. Wallis v. Harrison, 
4 M. & W. 538; Bryan v. Whistler, 
8 B. & C. 288; Bird v. Higginson, 6 
Ad. & El. 824; Rex v. Hemdon, 4 M. 
& S. 565. 

owner of the tree may lawfully enter 
to get the fruit, because the falling of 
the fruit there was not by the fault of 
the owner of the tree. So in Toplady 
V. Sealey, 2 Roll. Abr. 568, it was held 
that where one is looking for cattle 
which he has lost, he may lawfully go 
upon a, footpath over the lands of 
another, but if he goes outside the 
path, trespass lies. See Bac. Abr. 
Trespass F. In Millin t,. Fawdry, 
Latch. 120, it was held not to be tres- 
pass for one to drive cattle belonging 
to another from his own lands upon 
the land of the owner of the cattle. 
So, too, in the same case it was held 
that trespass would not lie, even if 
the cattle were chased out " with a 
little dog," and the dog, notwithstand- 
ing the master's endeavor, afterwards 
chases the beasts into the owner's en- 
closure, for the chasing of them out 
of the close was lawful, and it is not 
in his power to prevent them from 
being chased into the cattle-owner's 
enclosure. But otherwise, if a stranger 
chases the cattle out ; for, by doing 
this, although the owner of the land 
on which the cattle are trespassing is 
apparently benefited, yet by his act 
the owner is deprived of his right to 
distrain the beast. Bro. Tresp. pi. 
, 421 ; Kelw. 46 B. ; Bac. Abr. Trespass 
F. In Nettleton v. Sikes, 8 Met. 
(Mass.) 84, the defendant cut down 



SEC, 10.] PAROL LEASES. 29 

and has involved the expenditure of large sums of money, is not 
revocable, upon the ground that the party giving it is estopped 
from revoking it. But this doctrine seems to us to be in 
defiance of the statute, and to operate as a complete abroga- 
tion of its salutary provision in respect to the transfer of 
interests in land, and is an instance of judicial legislation 
which is wholly unwarranted. If a person, in view of the 
statute in this regard, of which he is presumed to have knowl- 
edge, sees fit to go on and make extensive and permanent 
improvements upon the lands of another, without first invest- 
ing liimself with a legal right to enjoy them, it is difficult to 
see upon what ground a court of equity should interfere to 
protect him against the consequences of his folly, or why the 
owner of the land who has merely c6nsented to such erec- 
tions or improvements should have his estate thus burdened 
with a permanent easement, and be equitably estopped 
from revoking this authority, and ridding his premises of a 
burden which the statute provides shall only be imposed in a 
certain mode. In the words of a distinguished judge,^ rela- 
tive to the force of a parol license to erect a building upon 
lands, " if a parol license, even when carried into effect, wiU 
give the builder a right to continue the house so long as it 

1 Swift, J., in Benedict v. Benedict, 5 Day (Conn.) 458. 

and peeled trees upon the plaintiffs implied license to enter and take it 
land, under a valid agreement that lie away; and in the caso of JIcLcod u. 
should hare the hark for his services. Jones, ante, where tlie defendant was 
He entered upon the plaintiff's prem- the mortgagee of chattels in the pos- 
ises and removed the bark. The session of the plaintiff, it was held 
plaintiff brought an action of tres- that no such license could be implied 
pass against him therefor, but the when the goods were locked up in the 
court held that the action would not mortgagor's house, and an entry could 
lie, as the bark at one?, upon being not be had without breaking in. The 
taken from the trees, became the prop- rule in reference to the sale of the 
erty of the defendant, and that he property lying or being upon the prem- 
might lawfully enter to take it away ; ises of another at the time of sale 
and the doctrine of this case has been would seem to be that when there is 
reafiBrmed by the courts of that State an absolute sale of property which 
in several later cases. McNeal v. the purchaser is to remove, which at 
Emerson, 15 Gray (Mass.) 384; Drake the time of sale is upon the premises 
w."W"ells,ll Allen (Mass.) 141; McLeod of the vendor, there is an implied 
V. Jones, 105 Mass. 403. But the doc- license to enter to remove the prop- 
trine of these cases rests upon the erty. In any event, if the entry is 
ground that, where there is an abso- made peaceably, and in doing so no 
lute sale of property which is lying special damage is sustained, no action 
upon the vendor's land, there is an will lie therefor. 



30 STATUTE 0¥ FRAUDS. [CHAP. I. 

shall last, and to maintain ejectment for it, then real estate 
may be transferred by parol, -which is directly contrary to 
the statute." It is now well settled in England,^ and by the 
better class of cases in this country,^ that a parol license 
which confers any interest in land is invalid, and is revocar 
ble at any time whether executed or not, at the will of the 
licensor, and that, after such revocation, whether by notice 
from the licensor, or a conveyance of the estate by him, or 
his death, the only right remaining in the licensee is that of 
entering upon the land within a reasonable time thereafter, 
to remove his erections.* But a license to do an act upon 
another's land, which confers no estate or interest in the 
land, but which is coupled with an interest in chattels 
thereon, as, when the owner sells chattels which are situated 
upon the land, an irrevocable license to enter and take the 
same is implied, if not expressly given.* Thus, where A sold 
to B certain corn to be put in a crib on A's land, B to take 
it away at his pleasure, it was held that the license was 
coupled with an interest and was irrevocable.^ So where a 
person has erected a house,^ cut timber,^ or dug ore,* upon 
another's land, while the license may be revoked so as to 
prevent further use of, or severance from, the land, yet it 
cannot be so revoked as to prevent an entry within a reason- 
able time for the removal of the house, or th^ ore, or the 
timber, which has already been severed ; and the same rule 
prevails where property has been deposited upon another's 
land by his permission.® But it wiU be seen that the license 

1 Fentiman v. Smith, 4 East, 107; 178; Poster v. Browning, 4 K. I. 47; 
Wallis V. Harrison, ante ; Rex v. Stan- Hall v. Chaffee, 13 Vt. 150. 

don, 2 M. & S. 461 ; Ruffey v. Hen- » Prince v. Case, 10 Conn. ; Collins 

derson, 21 L. J. Q. B. 49. Co. «. Marcy, ante ; Arrington v. Lar- 

2 Cook V. Stearns, 11 Mass. 533; ahee, 10 Cush. (Mass.) 512. 
Duineen v. Rich, 22 Wis. 550 ; Mum- * Cook v. Stearns, ante. 

ford V Whitney, 15 Wend. (N. Y.) » Addison w. Dark, 1 Gill (Md.) 221. 

380; Collins Co. v. Marcy, 25 Conn. « Prince v. Case, ante; Arrington 

239; Trammell v. Trammell, 11 Rich. u. Larabee, ante. 

(S. C.) 471 ; Gauther a. Atkinson, 35 ^ (jUeg „. Simonds, 15 Gray (Mass.) 

Wis. 48 ; Pitman v. Poor, 38 Me. 237 ; 441. 

Carter v. Harlan, Md. 20 ; Owen v. 8 Silsby v. Trotter, ante. 

Field, ante ; Bridges v. Purcell, ID. ^ Poor v. Oakman, 104 Mass. 309 ; 

&. B. (K C.) L. 492; Deslage v. Erskineti.Plummor, 7 Me.457; AVhit- 

Pearce, 38 Mo. 588; Clute v. Clute, marsh v. Walker, 1 Met. (Mass.) 313; 

20 Wis. 531 ; Yeakle «. Jacobs, 33 Wood v. Manley, 11 Ad. & El. 34. 

Penn. St. 376 ; Haux v. Seat, 26 Mo. 



SEC. 11.] PAKOL LEASES. 31 

■which exists in this class of cases is one which is implied by- 
law, as an incident to the act licensed, and exists, even 
though its exercise is prohibited or forbidden by the owner 
of the land, and whether or not he has ever, by words, 
authorized it. So too, a parol license given by the owner of 
a dominant estate to the owner of a servient estate, to do an 
act which interferes with or destroys his easement therein, 
the license, after it is executed, is irrevocable, upon the 
ground that, while an easement cannot be created except by 
deed or prescription, yet it may be surrendered in whole or 
in part without deed, and consequently such a license is 
not within the statute,^ and the granting of the license is 
treated as an abandonment of the easement to the extent of 
the act licensed. But, of course, the circumstances attendant 
upon the granting of the license may be considered in deter- 
mining whether or not an abandonment of the easement was 
intended.^ So too, a license to do an act upon another's land 
for which a stated compensation is paid, as where parol per- 
mission is given to another to flow his lands by means of a 
dam, for a regular rent, which is done for several years, while 
the license might have been revocable during the first year, 
yet by permitting the act to go on for a longer period, and 
receiving rent therefor, the license grows into a parol lease 
for an indefinite time, and thereby creates a tenancy from 
year to year which can only be terminated by the requisite 
notice.^ 

Sec. 11. License Revoked by Conveyance. — If the grantor 
of a parol license conveys the land to a third party, the 
license is determined at once, without notice, to the licensee 
of the transfer,* and from that time the licensee becomes 
liable to the grantor for all damages resulting from the exer- 
cise of acts done in pursuance of such license. Thus, in a 
Massachusetts case,^ it was held that a writing, not under 
seal, purporting to convey the right to flow lands, and to 

1 Curtis V. Noonan, 10 Allen (Mass.) » Morrill v. Mackman, 24 Mich. 279. 
406; Dyer w.Sanford, 9 Met. (Mass.) * Wallis v. Harrison, 4 M. & AV. 
406 ; "Winter v. Brockwell, 8 East, 538 ; Roffey v. Henderson, 17 Q. B. 
308 ; Davies v. Marshall, 10 C. B. 574 ; Coleman ;■. Foster, 1 II. & N. 37 ; 
N. S. 97. Gaussen v. Morton, 10 B. & C. 731. 

2 Wood V. Edes, 2 Allen (Mass. ) 578. '> Cobb v. Pisher, 121 Mass. 169. 



32 STATUTE OF PEATIDS. [CHAP. I. 

release all claims for damages therefor, does not bind the land 
nor estop a subsequent grantee thereof from recoyering 
damages from the flowing of the land subsequent to the 
conveyance. In a Connecticut case,^ in an action for divert- 
ing the water of a canal upon the plaintiff's lands, it appeared 
that the diversion was of the waters of what formerly con- 
stituted part of the Farmington canal, and the injury- proved, 
was effected by a brick culvert, erected in February, 1848, 
running under the raiboad of the New Haven and Northamp- 
ton company, and the turnpike of the Cheshire turnpike com- 
pany, no part of which was constructed on the plaintiff's 
land. The defendants offered evidence to prove, and claimed 
that they had proved, that the culvert was a permanent and 
expensive structure, about seventy feet in length, and of 
about six feet span, erected and built by the New Haven and 
Northampton company, in the construction of their railroad, 
under their charter ; that it was erected and built by them, 
opposite to the plaintiff's premises, where it now remains, at 
the express solicitation and request of Uriah Foot, the then 
owner of the premises, who desired to have the same there 
placed, for the irrigation of his adjacent land; that he co- 
operated and assisted in the erection of the culvert, and 
agreed with the company, for himself and his heirs, forever,- 
to take care of the waters so diverted, and to guarantee the 
company against damage therefrom ; and that the company 
would have diverted the water at a point above the plain- 
tiff's land where, as they claimed, they had acquired a right 
to discharge waters, but for such request and agreement. 

The defendants insisted, that, if the facts were as claimed 
by them, they were not, any of them, liable to the plaintiff 
in damages for the necessary, natural, and foreseen effects, 
resulting from- the erection of the culvert, and requested the 
court to charge the jury, in conformity to such claim. 

The plaintiff claimed that, as the requests and agreements 
of Uriah Foot, claimed by the defendants, rested solely on 
parol evidence, they constituted a mere parol license which 
was revoked by his death,^ and also by express notice to that 

1 Toot u. N. H. &c. R. R. Co., 23 Ian, 6 Md. 20 ; Chandler v. Spear, 22 
Conn. 214. Vt. 388. If a definite term is fixed 

2 Eggleston v. N. Y. &c. R. R. Co., upon, the license expires at the end 
35 Barb. (N. Y.) 162; Carter o. Har- of the term without notice, Glyim 



SEC. ll.J PAEOL LEASES. 83 

effect, by the plaintiff, personally, to each of the defendants, 
since liis father's decease ; and that he was entitled to recover, 
from each of the defendants, whatever damages had accrued 
to him, by means of the diversion, since the revocation. The 
plaintiff requested the court to charge the jury in accord- 
ance with his claims. The court did not charge the jury as 
requested by the plaintiff, but did, fro forma, charge them 
in conformity to the claims of the defendants. This ruling 
was held to be erroneous, and the plaintiff under the facts 
stated was held to be entitled to recover upon the ground 
that the license was void under the statute of frauds, 
because it was not in writing, and was revocable by the 
plaintiff's grantor at any time, and was in fact revoked by 
the conveyance to the plaintiff, or by his notice to that effect 
after he acquired the title, and that the license could only be 
set up to excuse damages arising while it was unrevoked.^ 
In paSsing upon this question. Stores, J., said : — 

"The plaintiff, having an absolute and unrestricted con- 
veyance of his land from the former owner, has presump- 
tively a full and unqualified dominion over it, subject to no 
servitude or easement in favor of any other person. The 
act, therefore, committed by the defendants, in turning the 
water of the canal upon it, was an invasion of the plaintiff's 
rights, unless it was justified by the facts put in evidence by 
the defendants, upon whom the burden of establishing such 
justification rests. The facts found by the jury, and on 
which the defendants rely, are these. The company built 
the culvert on land adjoining the land of the plaintiff, at the 
verbal request of Uriah Foot, who then owned the adjoining 
land, and by whom it was subsequently sold and conveyed 
to the plaintiff. The said Uriah desired that the said culvert 
should be so located, for the irrigation of his own land, and 
actually cooperated and assisted in building it; verbally 
agreeing with the defendants for himself and his heirs for- 
ever, to dispose of the water which should be diverted upon 
his land, and to guarantee the defendants against any damage 

u. George, 20 N. H. 114 ; and the com- ^ Jamieson v. Milliman, 3 Bucr 

mencement of an action for damages (N. Y.) 255; Kimball v. Yates, 14 
operates as a revocation, Lockhart v. 111. 464; Hall «. Chaffee, 10 Vt. 150; 
Gier, 54 "Wis. 133. Dodge v. McClintock, 47 N. H. 383 ; 

Gilmore v. AVilson, 53 Penn. St. 194. 



34 STATUTE OF PEAUDS. [CHAP. I. 

therefrom. The company would have diverted the water at 
a point above the land of said Uriah, and where they had a 
right to discharge it, but for the said request and agreements 
of the plaintiff's grantor. On the other hand, it was found, 
for the plaintiff, that, after he became the owner of the land, 
and also after the death of Uriah Foot, he revoked the license 
conferred by his grantor, giving an express notice to that 
effect to all the defendants. 

" These facts furnished ample proof of a license from Uriah 
Foot, to the defendants, to construct the culvert and to 
overflow his land ; and as this license was never revoked by 
him during his ownership, it constituted a justification for 
the diversion of the water for that period. We are as clearly 
of opinion, however, that the effect of the license, or agree- 
ment referred to, inasmuch as it was by parol, was not to 
convey to the defendants an}'' estate or interest in the land 
which it was contemplated to overflow. The righl? per- 
petually to divert water upon that land, as claimed by the 
defendants, would be an incorporeal hereditament, and there- 
fore an estate or interest in it ; and such a right, the license, 
proved by the defendants, would be ineffectual to convey.-' 
To hold the contrary would be a direct abrogation of the 
statute of frauds, which requires all contracts for 'the sale 
of lands, tenements, or hereditaments, or of any interest in 
or concerning them,' to be in writing. The privilege, there- 
fore, conferred on the defendants by the parol request and 
agreement of Uriah Foot, is rendered to a mere license, 
although, in its terms, it was a more extended grant. The 
authorities on this point are uniform. 

" It is equally well settled, that a mere license, which is only 
an authority or power to do particular acts, uncoupled with 
an interest in the subject of those acts (serving simply to 
justify such acts, while leaving the estate, and aU the inci- 
dents of ownership, in the proprietor of the land), is, in its 
nature, revocable. If it were not revocable, it would transfer 
to the licensee an interest in the land ; it would have the 



1 Brown v. Woodworth, 5 Barb. Ian, 6 Md. 20; "Wood m. Edes, 2 Allen 

(N. Y.) 550; Houghtating v. Hough- (Mass.) 578; Curtis v. Noonau, 10 id. 

tating, 5 id. 379; Stevens v. Stevens, 406; Dyer u.Sandford, 9 Met. (Mass.) 

11 Met. (Mass.) 251; Carter v. Har- 395; Marston w. Gale, 24 N. H. 176. 



SEC. 11.] 



PAROL LEASES. 



35 



effect o£ a grant.^ We consider it also to be now an estab- 
lished principle of the common law, although some ancient 
cases may seem to conflict with it, that Avhen the right to do 
acts upon the land of another is of such a nature as to 
require to be created by a grant, in order to be primarily 
indefeasible, a mere license to do such acts does not become 
irrevocable, because it has been executed by the licensee ; 
although such execution may have been attended with 
expenditure of money or labor, and although, also, the 
termination of said license may cause the loss of such ex- 
penditure.2 



1 Duineen v. Eich, 22 Wis. 550; 
Kimball v. Yates, 14 111. 464 ; Howe 
V. Searing, 6 Bos. (ST.Y.) 684; Clute 
V. Carr, 20 Wis. 531 ; Marston v. Gale, 
24 N. H. 176 ; Houx v. Seat, 26 Mo. 
178; Owen v. Field, 12 Allen (Mass.) 
457 ; Selden v. Del. &c. Canal Co., 29 
N. Y. 634; Dodge v. McClintoek, 47 
N. H. 383; Troxell v. Lehigh &c. 
Coal Co., 42 Penu. St. 513; Hall v. 
Chaffee, 13 Vt. 150; Foster v. Brown- 
ing, 4 R. I. 47 ; Houston v. Laffee, 46 
N. H. 505 ; Carter v. Harlan, 6 Ind. 20. 
' The rule as stated is adopted in 
most of the States. Woodward v. 
Seelej, 11 lU. 157 ; Wolfe v. Frost, 2 
Sandf. (N. Y.) 72 ; Desloge v. Pearce, 
38 Mo. 588; Cook u. Steams, 11 Mass. 
533 ; Houston v. LafEee, 46 N. H. 505 ; 
Foster v. Browning, 4 R. I. 47. But 
in Maine, Clement v. Durgin, 5 Me. 9 ; 
Nevada, Lee v. McLeod, 12 Nev. 280; 
Pennsylvania, Lacy v. Arnett, 33 Penn. 
St. 169 ; Indiana, Buchanan v. Logans- 
port &c. R. E. Co., 71 Ind. 265 ; lUi- 
nois, Russell v. Hubbard, 59 HI. 335 ; 
and Ohio, Wilson v. Chalfant, 15 Ohio, 
248 ; MiUer v. Brown, 33 Ohio St. 547, 
executed licenses, involving the out- 
lay of considerable money, have been 
held irrevocable upon the ground that 
the party granting the license is es- 
topped from revoking it. But this 
doctrine is hardly sustainable, and is 
clearly opposed to the intent, if not to 
the language of the statute of frauds ; 
and it can hardly be said that a person 
who has been so imprudent as to build 
expensive works upon another's land, 



or which will impose a burden thereon, 
without first taking the precaution to 
procure such person's consent in writ- 
ing, is entitled to any exception in 
his favor either at law or in equity : 
Woodward v. Seeley, 11 111. 157. In 
Benedict v. Benedict, 5 Day (Conn.) 
468, SwiPT, J., in speaking of the re- 
vocability of a license to make per- 
manent erections upon another's land, 
said : " If a parol license, even when 
carried into effect, will give the builder 
a right to continue the house so long 
as it shall last, and to maintain eject- 
ment for it, then real estate may be 
transferred by parol, which is directly 
contrary to the statute." Fryer v. 
Wame, 29 Wis. 511 ; Clute v. Carr, 20 
id. 531; Miller v. Auburn &c. R. R. 
Co., 6 Hill (N. Y.) 61 ; Wright v. Free- 
man, 5 H. & J. (Md.) 467; Hays v. 
Richardson, 1 G. & J. (Md.) 366; Mel- 
lor c. Watkins, L. R. 9 Q. B. 400. 
In some of the cases, however, in 
total disregard of the statute and its 
obvious purpose, the courts have held 
that wljere a license is given to make 
permanent improvements or erections 
upon another's land, the license be- 
comes irrevocable upon the ground of 
estoppel : Ricker v. Kelly, 1 Me. 117 ; 
Russell V. Hubbard, 59 111. 335 ; Sulli- 
vant V. Commissioners, &c., 3 Ohio, 
89 ; Androscoggin Bridge Co. v. Bragg, 
11 N. H. 109 ; Clement v. Durgin, 5 
Me. 9. In other cases it is held that 
a license under such circumstances 
cannot be revoked without paying or 
offering to pay the expenses incurred 



36 - STATUTE OP FKATJDS. [CHAP. I. 

" Nor do we think that the revocability of the license depends 
at all upon the circumstance that the acts authorized by the 
plaintiff's grantor were to be done, if considered only in 
respect to their immediate or direct effect, upon land not 
owned by him, so long as the necessary and inevitable con- 
sequence of those acts would be an exercise, on the part of 
the defendants, of a right in the land of the grantor himself, 
and to restrict the dominion of the latter over it: a right 
which, if made indefeasible by a grant, would burden the 
land with a perpetual easement. In fact, the privilege con- 
ferred on the defendants was, in form, a license to build the 
culvert on the defendants' own land, but in substance a right 
to overflow the land of the licensor himself. To construct a 
culvert on land adjoining his own, and really already under 
the defendants' control, by virtue of their charter, was an 
act, which, independently of its tendency to cause an over- 
flow upon the land of the grantor, the defendants had an 
unquestionable right to do without his sanction, and \^hich, 
in this view of the matter, was not done by virtue of his 
authority. What required his license was, that the company, 
might, by means of the culvert, turn water upon his land ; 
and this diversion was the subject of the license rather than 
the mere construction of the culvert. The permission to 
build the culvert, which would necessarily cause the diversion 
of the water, Avas really a permission so to divert the water, 
and to affect the rights of the licensor in his own land. "We 
cannot see why such a license should not be revocable in the 
same manner, as if the acts authorized to be done were done 
on the premises of the licensor, consequently producing the 
same effect there. '^ 

by the licensee in its execution : Cle- Wilmington &c. R. E. Co. v. Battle, 66- 

ment v. Durgin, ante ; Addison v. N. C. 540 ; as in Illinois, Woodward v. 

Hack, 2 Gill. (Md.) 221; Lane v. Mil- Seeley, 11 111. 157; Russell ... Hub- 

ler, 27 Ind. 534. In Pennsylvania, bard, 59 id. 335; New Hampshire, 

both at law and in equity, the courts Woodbury v. Parshley, 7 K II. 297 ; 

have taken an extreme ground in sup- Houston v. Laffee, 46 id. 505 ; and 

port of the rights of a licensee under Maine, Eioker u. Kelly, 1 Me. 117 ; 

a parol license, and take a ground not Moulton v. Paught, 41 Me. 298. In 

recognized elsewhei* : Huff v. Mc- the last two States the later cases 

Cauley, 53 Penn. St. 206; Cumber- sustain the doctrine stated in the 

land &c. E. E. Co. v. McLanahan, 59 text, while in Illinois the last named 

id. 23. And in several of the States case takes the extreme ground, 
the decisions will be found to be vas- ^ Dodge o. MoClintock, 47 N. H. 

cillating ; Cook v. Prigdon, 45 Ga. 831 ; 383 ; Hall v. Chaffee, 13 Vt. 150. 



SEC. 11.] PAEOL LEASES. 37 

"Reference has been made by the defendants to a few 
very peculiar cases, the most prominent of which is an 
English case,^ as sustaining some such distinction as has 
just been alluded to. The doctrine of the decisions is, 
that if one who has a privilege on the land of, aiiother 
permits that other to do acts, which are inconsistent with 
the enjoyment of the privilege, or tend to its destruction, 
such indulgence or license, if acted upon, or executed by the 
owner of the land, operates as an extinguishment or abandon- 
ment of the privilege. If these cases were correctly decided 
(about which we express no opinion), they have no applica- 
tion to the case now before us. It will be seen, on examina- 
tion, that the courts, so far from passing upon the question, 
whether an easement or interest in land can be acquired 
by parol license or agreement, executed or not executed, 
distinguish those cases from such as involve that issue. 
Besides, in the present case, Uriah Foot neither had, nor 
claimed, any privilege in the land on which the culvert was 
built, nor did he, by the terms of his license, deprive himself, 
or pretend to deprive himself, of any such privilege. On the 
contrary, the claim of the. defendants is, that an easement 
was conferred upon them, in the adjoining land of Uriah 
Foot, consisting in a perpetual right to divert water upon it. 

"We have not deemed it necessary to accompany our state- 
ment of priaciples with a particular citation of the authori- 
ties by which they are supported.^ We are aware that 
several decisions have been made in the courts of some of 
the United States in which greater effect is given to the cir- 
cumstance that a parol license to perform acts upon land has 
been executed by the licensee, especially where such execu- 
tion has involved the expenditure of money or labor, than 
the principles we have adopted would warrant. It is true 



^ Liggins V. Inge, 5 Bing. 682. would have decreed a specific perfor- 
2 Bridges u. Purcell, 1 D. & B. (N. mance of tlie contract, as to both par- 
C.) 493. Sec "Wilmington &c. R U. Co. ties ; and, moreover, the license was in 
V, Battle, 66 N. C. 540, in which it was writing. T\nien a license has been 
held that while a license under seal is executed under circumstances which 
as revocable as a license by parol, warrant it as being treated as an 
yet, that neither, when coupled with an agreement on the part of the licensor 
interest, or founded on a consideration, to give the right, a court of equity will 
are revocable. But in this case, the compel him to do so. Cook v. Prig- 
facts were such that a court of equity don, ante. 



38 STATUTE or PKAUDS. [CHAP. I. 

tliat some of those decisions go to the extent of holding that 
the license, after such execution, is irreyocable, and that 
thereby the licensee acquires an indefeasible and perpetual 
right to maintain, without disturbance, the condition in which 
he is placed by such execution. Those decisions were made 
in States where, as in Maine, Massachusetts, and New Hamp- 
shire,^ there are no courts of equity, with ordinary chancery 
jurisdiction, and where, therefore, it may have been deemed 
necessary, in order to administer substantial justice, that the 
strict principles of the common law should be modified by 
the distinctive principles of eqmty jurisprudence ; or where, 
as in Pennsylvania, courts ' possess the power of administering 
the principles of equity through the medium of legal forms.' 
With us, however, the administration of the two systems is 
kept distinct : so that, in considering the questions before us, 
we have been governed less by decisions in the States, to 
which allusion has just been made, than by cases adjudicated 
in other States of the Union, and in England, where courts 
administer purely the principles of common law, modified 
only, in certain instances having no relation to the subject 
now under discussion, by the incorporation of equitable prin- 
ciples, into the legal system. In the North Carolina case 
before referred to,^ it was held that one whose land is over- 
flowed by a mill-pond has a right to recover for the damages 
suffered thereby, notwithstanding that liis ancestor, by parol, 
expressly permitted the grantor of the defendant to erect the 
dam, and consequently to overflow the land ; that such per- 
mission, if set up as a grant of a perpetual right to over- 
flow the land (which would be an incorporeal heredita- 
ment) was void for want of a deed ; and that, if regarded as 
a mere license or authority, it was revocable and ceased with 
the life of the licensor. The eminent judge who delivered 
the opinion of the court reviewed with his usual ability and 
clearness the prominent authorities which might be sup- 
posed to favor the defendant, and discussed the general 

1 The early doctrine in New Hamp- Dodge t. McClintock, 47 id. 383 ; 

shire, holding that an executed license and the same also is the case in 

is not revocable, seems to be over- Maine : Pitman v. Poor, 38 Me. 237 ; 

ruled by later cases. Blaisdell w. Ports- Moulton u. Taught, 41 id. 298. 
mouth &c. K. E. Co., 61 N. H. 483 ; ^ Bridges u. Purcell, 1 D. & B. (N. 

Houston V. LafEee, 46 N. H. 505; C.) 493. 



SEC. 11. j PAROL LEASES. 39 

principles applicable to the case ; showing most satisfactorily, 
as we think, that none of them sustained the doctrine that 
such a license, although acted upon by the licensee, passed 
any interest or estate in the laud of the plaintiff, or was 
irrevocable. Unless there is distinction in principle between 
a license to turn back water upon another's land, by means 
of a dam below it, and a permission to overflow it by means 
of the diversion of a stream from above (which would hardly 
be claimed), the case just cited is strictly analogous to the 
present. 

" It results from the principles which we have thus adopted, 
that it was the right of the plaintiff's grantor, at any time 
during Hs ownership of the land, now belonging to the plain- 
tiff, and even after the erection of the culvert, to revoke the 
license under which the defendants were permitted to divert 
the water. It follows, as a matter of necessity, that the 
plaintiff, after his purchase, had an equal right to annul the 
license.-' 

" Much stress has been laid on the fact that Uriah Foot, in 
connection with request that the culvert should be built, 
and his agreement concerning it, actually cooperated and 
assisted in its construction. Now, whether that agreement 
would be enforced in a court of equity, on the ground of its 
execution, we are not here called upon to determine ; but at 
law, it cannot, existing only in parol, have any greater force, 
or stand on liigher ground than a mere license, notwithstand- 
ing its execution.^ If these acts of Uriah Foot were to be 
regarded as done independently of the defendants, and the 
erection of the culvert as his act, and not that of the defen- 
dants, the latter might indeed successfully urge that although 
the plaintiff might not be bound to allow the culvert to 
remain, the defendants would be exonerated from any obli- 
gation to remove it, and could not be treated as a trespasser 
on account of its continuance. But the facts proved will not 
allow us to regard the building of the culvert as the act of 

1 Dempsey v. Kipp, 62 Barb. (S. written license to perpetually flow 

Y.) 611. another's land is not a revocable li- 

^ Druse v. Wheeler, 22 Mich. 439 ; cense, hut an absolute sale on time, 

Tanner u. Valentine, 75 HI. 624; for credit. Fitch v. Constantine &c. 

Hitehins v. Shaller, 32 Mich. 496 ; Co., 44 id. 74. 
Turner i: Stanton, 42 id. 506. But a 



40 STATUTE OF FEAUDS. [CHAP. I. 

Uriah Foot. On the contrary, the finding shows that 'it 
was erected and built by the defendants in the construction 
of a railroad, under the charter ' of the principal defendants, 
to whom, of course, Uriah Foot's services were rendered; 
and that although the culvert was made at his request, his 
assistance was furnished in behalf of such principal defend- 
ants and not in his own. Indeed, if it was built ' under the 
charter,' it must have been built by those defendants, who 
were authorized to construct it for the accommodation of a 
railroad ; otherwise we must adopt the idea that Uriah Foot 
constructed it, without law or right; a supposition unwar- 
ranted by the proof and inconsistent with the defendants' 
claim. 

" But, whatever might be the rights of parties if the land in 
question still remained the property of Uriah Foot, the issue 
now presented is between the defendants and a hona fde 
purchaser of the land for a valuable consideration, without 
any notice, actual or constructive, of any previous agreements 
between the former owner and the railroad company. That 
such a purchaser is not affected by such an agreement, was set- 
tled by this court in an early case.^ To hold that such an 
agreement runs with the land and creates an easement upon 
it even in the hands of a hona fide purchaser, amounting to a 
permanent encumbrance, would be not only to invade the 
statute of frauds, but a violation of the most salutary policy 
of our recording system, and also in such cases as that now 
under review, of obvious principles of justice. On this point 
we give our renewed sanction to the views of this court, as 
expressed by Chief Justice "Williams, with his accus- 
tomed force and clearness, in the case just quoted ; views 
which are strongly confirmed by the case of Bridges v. Pux- 
cell et al, ante. In the latter, the ancestor of the plaintiff had 
given a license to the vendor of the defendant. The opinion 
of Judge Gaston, after showing that the pretended grant, for 
want of a deed, passed no interest in the land, and imposed 
no charge upon it, and could not prevent the plaintiff from 
succeeding to an unlimited and unshackled fee-simple therein, 
thus proceeds in respect to the privilege claimed : ' Regarded 
as a license, how does it enure to the benefit of the defend- 

1 Erince v. Case, 10 Conn. 375. 



SEC. 12.] PAHOL LEASES, 41 

ants ? If it passed as an appurtenance to the land, if partook 
of its nature ; it was more than an authority, it was a here- 
ditament. To hold that a permission, thus given, shall oper- 
ate for ever for the benefit of the grantee and his assigns 
against the grantor and his heirs, would be in effect to permit 
a fee-simple to pass under the name of an irrevocable license.^ 
Purchasers would never know what encumbrances were upon 
their lands, and instead of the solemn and deliberate instru- 
ments, which the law requires as the indispensable means of 
transferring freeholds, valuable landed interests would be 
made to depend wholly on the integrity, capacity, and recol- 
lection of witnesses.' 

" The defendants claim, lastly, that as the act of diverting 
the water upon the plaintiff's land was witHn the scope of the 
company's chartered powers, communicating the exercise of 
the right of eminent domain, nothing remained but to com- 
pensate the owner for the damages caused to him thereby, 
and that this had been done by an adjustment between the 
defendants and the owner. If the land had been lawfully 
condemned for the purposes of the company, no objection 
could be made to the validity of such an adjustment. But 
the powers of the defendants were acquired under a special 
grant, to be exercised only on special terms ; and it was 
necessary for the company, in order that there should be such 
a condemnation, to pursue the steps prescribed by their char- 
ter for that purpose. Those steps were not taken, and the 
land was not therefore subject to the powers claimed by the 
defendants. This ground of jurisdiction therefore fails." 

Sec. 12. Reasonable Notice of Revocation must be Given. — 
A licensee under a revocable license is entitled to reasonable 
notice of revocation and a reasonable time afterwards to 
remove his goods. The rule of law is, that a simple license, 
in order to be binding on the licensor, must be under seal ; 
but if it is not, the licensee is not a trespasser until the 
licensor revokes the license. Under a parol license the 
licensee has a right to a reasonable time to go off the land 
after it has been withdrawn, before he can be forcibly thrust 
off it ; and he could bring an action if he were thrust off 

1 Woodward v. Seeley, ante; Benedict v. Benedict, ante. 



42 STATTJTB OF FKAUDS. [CHAP. I. 

before such a reasonable time had elapsed.^ But, where a 
reasonable time has been given to the licensee to remove the 
erections made under the license, the licensor may resume 
the possession, and the licensee cannot enter to remove the 
property without rendering himself liable in trespass.^ But, 
where there is a license coupled with an interest, the licensee 
may enter within a reasonable time after its revocation and 
remove the property, and if resisted by the licensor, may use 
all the force necessary to secure the removal without render- 
ing himself liable to an action of trespass, either for the entry, 
or for an assault.^ 

Sec. 13. injunction to Restrain Interference ■with License. — 
Where, by a memorandum endorsed on a lease, it was pro- 
vided that the lessee should have the exclusive right of 
sporting and killing game over the demised and adjacent 
properties, and it was proved that the enjoyment of this 
privilege was an essential part of the consideration for taking 
the lease, the landlord was restrained by injunction from 
interfering with the tenant in the exercise of the right, until 
a lease under seal should be executed according to the agree- 
ment. It was doubted in this case whether the court would 
have interfered in case the agreement had been already 
entered into by an instrument under seal.* 

■Sec. 14. Parol Agreement for Sale may Operate as License 
to Sxcuse Trespass. — Although a deed is necessary to create 
an easement, yet a contract for the sale of an interest in 
lands without a note in writing may operate as a license, so 
as to excuse the entry of a purchaser on the land, but it 
cannot be made available in any way as a contract.^ So a 
parol demise of land, reserving to the landlord "all the 
hedges, trees, thorn bushes, fences, with lop and top," oper- 

1 Cornish v. Stubbs, L. R. 5 C. P. B. 49 ; Wood v. Manley, 11 Ad. & El. 
334 ; Mellor v. Watkins, L. E. 9 Q. B. 34. In Van Deusen v. Young, 29 N. 
400. Y. 9, a tenant for life agreed to sell, 

2 Druse v. Wheeler, 22 Mich. 439. and gave possession of the premises 
8 Sterling v. Warden, 51 N. H. 217. to his vendee. It was held that though 
* Frogley v. Lovelace, Johns, the contract could not operate as a 

(Eng.) 333. contract of sale, it did operate as a 

6 Carrington v. Roots, 2 M. & W. license to enter and occupy until such 
248 ; Eufley v. Henderson, 21 L. J. Q. license was revolted. 



SBC. 15.] PAEOL LEASES. 43 

ates as a license to enter the land for tlie purpose of cutting 
and carrying aAvay the trees ; but not as a grant or easement.^ 
A reservation of growing crops, standing trees, etc., in a deed 
of lands, is a reservation of the property named, and the title 
thereto does not pass to the grantee ; and although nothiug is 
said as to a right to enter to cut and remove the same, yet 
such a license is implied, and the grantor may, even by parol, 
sell such crops or timber to another and confer upon him the 
same right to enter and cut and take away the same, which 
he possesses. But, if no time is fixed within which the right 
is to be exercised, it is held that it must be exercised within 
a reasonable time, in view of the circumstances, and whether 
it was exercised within a reasonable time is a question for 
the jury. If entry is made after the lapse of a reasonable 
time, the person making the entry is liable as a trespasser, 
but a recovery against him can only be had for the damages 
resulting from the entry, and the value of the crops or 
timber constitute no part of the damages.^ The actual pos- 
session of Crown lands under a parol license from the Crown 
entitles the party in possession to maintain trespass against 
a wrong-doer.^ If a party take the goods of another, and 
place them upon his own land, the owner may enter that 
land for the purpose of retaking them, without making him- 
self liable in trespass.* A plea of leave and license to erect 
and maintain a wall upon a given spot is not supported by 
proof of license to erect only.^ It is sufficient for the plain- 
tiff in an action against a wrong-doer to allege possession, 
but such an allegation cannot be sustained without showing 
that the easement in respect of which the action is brought 
is held under a legal title.^ 

Sec. 15. Signature not Necessary in Case of a Deed. — It has 
been doubted whether a lease under seal for more than three 
years should not also be signed, but the better opinion seems 
to be that the statute does not apply to such instruments. 
Blackstone lays it down,^ that the statute has restored the 

1 Hewitt V. Isham, 7 Exoh. 77. ^ Alexander v. Bonnin, 6 Scott, 611 ; 

2 Heflin v. Bingham, 56 Ala. 566. 4 Bing. (N. C.) 799. 

8 Harper v. Charlesworth, 6 D. & " Eentiman v. Smith, 4 East, 109. 
E. 572, 4 B. & C. 574. ' " Comm." vol. u. 306. 

4 Patrick v. Colerick, 3 M. & W. 483. 



44 STATT7TE OP FRAUDS. [CHAP. I. 

old Saxon form of signing, and superadded it to sealing and 
delivery in case of a deed. Me. Pbbston, on the other hand,i 
treats this passage as a mistake from not attending to the 
words of the statute, and holds it clear that no signature is 
necessary in the case of a deed.^ In Cherry v. Heming,^ 
RoLFB, B., said : " I am strongly inclined to think that the 
statute does not extend to deeds, because its requirements 
■would be satisfied by the parties putting their mark to the 
writing. The object of the statute was to prevent matters 
of importance from resting on the frail testimony of memory 
alone. Before the Norman time, signature rendered the 
instrument authentic. Sealing was introduced because the 
people in general could not write. Then there arose a dis- 
tiaction between what was sealed and what was not sealed, 
and that went on until society became more advanced, when 
the statute ultimately said that certain instruments must be 
authenticated by signature. That means that such instru- 
ments are not to rest on parol testimony only, and it was 
not intended to touch those which were already authenticated 
by a ceremony of a higher nature than a signature or a mark," 
and Aldeeson, B., and Parke, B., expressed opinions to 
the same effect. 

Sec. 16. Appointment of Agent. — An agent to contract for 
the sale of land under the second section need not be au- 
thorized by writing.* In South Carolina,^ under the statute, 
it is held that the authority of the agent must be proved in 
writing, and that if the instrument is signed by an agent, 
even though the principal is present and assents thereto, that 
it is inoperative, and a similar doctrine is held in Illinois.^ 
But in England and in most of the States of tliis country, 
except where the statute specially provides that the author- 

1 Shep. Touch, fol. 57, n. 24. Roekford &c. E. E. Co. v. Shunick, 

2 Per Denman, J., in Cooch v. Good- 65 111. 223, contra. 

man, 2 G. & D. 159; 2 Q.B. 580; Ave- s 4 Ex. 631. See also Taunton v. 

line V. Whisson, 4 M. & Gr. 801 ; Ir- Pepler, 6 Madd. 166. 

gin V. Thompson, 4 Bibh (Ky.) 295; * Clinan v. Cooke, 1 Sch. & Lef. 31. 

Gardner v. Gardner, 5 Cush. (Mass.) ^ "Wallace v. McCullough, 1 Rich 

483; Parks v. Hazlerig, 7 Blackf. (S. C.) Eq. 426. 

(Ind.) 536. But see Wallace v. Mc- » Roekford &c. R. E. Co. u. Shun- 

CuUough, 1 Rich. (S. C.) Eq. 426; ick, 65 111. 233. But the statute in 

Illinois expressly so provides. 



SEC. 17.] PAEOL LEASES. 45 

ity shall be in writing,^ a lease or other instrument under 
seal signed by an agent in the presence of the principal is 
held to be the act of the principal,^ and a similar doctrine 
has been held in Kentuoky,^ and it would seem that this is 
generally the rule, particularly where, as should always be 
done, the agent signed the name of the principal instead of 
his own,* the ground upon which tliis note rests being that 
the execution thereof is the act of the principal and not of 
the attorney.^ But where a deed is executed by an agent in 
the name of the principal when he is not present, it is held 
to be invalid, where the agent acts only under oral author- 
ity.6 

Sec. 17. Term Commences from Time of Agreement. — Such 
lease for three years, of land, as wUl be good under the sec- 
ond section, must be for three years, to be computed from 
the time of the agreement,'^ and a lease, to commence at a 
future day, mil therefore not be within the statute.^ But 
if by the terms of the lease the term is to commence from a 
future day, it is within the statute, and void.^ But in New 
York,!" Colorado,^! and Indiana,^^ such leases are held to vest 
a present interest, and therefore not to be within the statute. 
Where a parol lease is for a longer term than that permitted 
by the statute, the fact that the rent is paid in advance for 
the whole term does not take the lease out of the statute. ^^ 
In Inman v. Stamp,^* Dajmpiee, J., said the practice had been 

1 As in Alabama, Arkansas, Cali- ' Eawlins v. Turner, 1 Ld. Raym. 
fomia, Dakota, Kansas, Michigan, 736. 

Missouri, Montana, Nebraska, Ne- ' Eawlins o. Turner, 1 Ld. Raym. 

vada, New Jersey, New York, Ohio, 736 ; Ryley v. Hicks, 1 Str. 651 ; Tress 

Oregon, Pennsylvania, Utah, Wiscon- v. Savage, 4 E. & B. 36; 18 Jur. 680; 

sin. New Hampshire, and Illinois. 23 L. J. Q. B. 339; Baker v. Reynolds, 

2 Gardner v. Gardner, 5 CusK. 2 Sel. N. P. 13th ed. 759. 

(Mass.) 483; Rex v. Longnor, 4 B. & ^ Inman v. Stamp, 1 Starkie, 12; 

Aid. 647 ; Ball v. Dunsterville, 4 T. R. Delano v. Montague, 4 Gush. (Mass.) 

313. • 42; Croswellw. Crane, 7Barb. (N.Y.) 

3 Irvin V. Thompson, 4 Bibb (Ky.) 191. 

295. 1° Besar v. Plues, 64 N. Y. 518; 

< Elwell V. Shaw, 16 Mass. 42; Young v. Duke, 5 id. 463; Trull v. 

Combe's Case, 9 Coke, 75 a. Granger, 8 id. 115. 

5 Mutual Benefit Ins. Co. v. Brown, " Sears v. Smith, 3 Col. 287. 
30 N. J. Eq. 193 ; Frost v. Deering, 12 Huffman v. Stark, 31 Ind. 474. 
21 Me. 156, 18 Brockway v. Tliomas, 36 Ark. 578. 

Bums a. Lynde, 6 Allen (Mass.). " B. R. Trin. 55 Geo. III. 
305 ; Upton v. Archer, 41 Cal. 85. 



46 STATUTE OP FEAUDS. [CHAP. I. 

with tlie foregoing case of Ryley v. Hicks, although he rather 
inclined to think that the second section of the statute, taken 
with section four, was confined to leases executed by posses- 
sion on which two-thirds of the improved rent had been 
paid.^ 

In England, by the Act 7 & 8 Vict. c. 76, which was only in 
force from the 31st December, 1844, to the 29th September, 
1845, it was enacted that no lease in writing of any freehold, 
aopyhold, or leasehold land should be valid unless the same 
should be made by deed, but that any agreement in writing 
to let any such lands should be valid and take effect as an 
agreement to execute a lease.^ By the Eeal Property Amend- 
ment Act, 1845^ (which is retrospective in its operation),* 
the above act was repealed, and it was enacted * that a lease 
required by law to be in writing, of any tenements or here- 
ditaments which might by law have been created without 
writing, made after the 1st of October, 1845, shall also be 
void at law unless made by deed. The efPect of a void 
demise under this statute is the same as that of a void 
demise under the statute of frauds, notwithstanding that 
the words of the statute are that it "shall be void at 
law." « 

Sec. 18. statute not to Apply to Tolls nor to Equitable Es- 
tates. — This statute does not apply to agreements for the 
lease of tolls of turnpike roads made under the statute,^ as 
these are valid if signed by the trustees, their clerk, or 
treasurer, notwithstanding they are not under seal.^ Nor 

1 Sel. N. p. 13th ed. p. 759, n. 7. If " See cases decided under this Act : 

a parol lease is made to hold from Burton v. Reevell, 16 M. & "W. 307; 

year to year during the pleasure of 16 L. J. Ex. 85; Doe o. MofEatt, 15 

the parties, this is adjudged to be a Q. B. 257 ; 19 L. J. Q. B. 438 ; Bird 

lease for only one year certain, and v. Defonvielle, 2 C. & K. 415 ; Arden 

every subsequent year is a new spring- v. Sullivan, 14 Q. B. 832. 

ing interest arising upon the first con- ^ 8 & 9 Vict. c. 106. 

tract, and parcel of it ; so that if the ' Upton v. Townsend, 17 C. B. 50. 

tenant should occupy ten years, still ' § 3. 

it is prospectively a lease for a year « Xress v. Savage, 4 E. & B. 36 ; 18 

certain, and therefore good within Jur. 680 ; 23 L. J. Q. B. 339. 

the execution of the statute ; though, ' 3 Geo. IV. c. 126, §§ 55, 57. 

as to the time past, it is considered ^ Shepherd v. Hodsman, 18 Q. B. 

as one entire and vahd lease for so 316 ; Markham v. Stanford, 14 C. B. 

many years as the tenant has enjoyed (N. S.) 380. 
it. Taylor on Evidence, 884; Rob- 
erts on Frauds, 241-244. 



SEC. 20.] PABOL LEASES. 47 

does tlie statute affect merely equitable estates ; it only refers 
to legal estates, and it is therefore necessary, in order to pass 
the legal estate on a transfer of mortgaged premises, that the 
document should be under seal, but where the equitable 
estate is to be dealt with, such an instrument of transfer 
need not be under seal.^ 

Sec. 19. Entry under Void Lease. — If a party enters into 
possession under a lease, Toid by reason of the statute, or 
un^er an agreement for a lease, he is, in the first instance, 
only tenant at will i^ and even if he has expended money in 
the improvement of the premises, that will not give Mm a 
term to hold till he is indemnified ; ^ but if he subsequently 
pays rent under the agreement, he becomes tenant from year 
to year.* The payment of rent must be understood to mean 
a payment with reference to a yearly holding, such as 
payment by the quarter or some other aliquot part of a 
year.^ 

Sec. 20. How a Tenancy at Will may be Created. — All 

leases for an uncertain period are prima facie leases at will,^ 
and a reservation of rent is not essential to uphold this spe- 
cies of tenancy.'' Consequently a person who occupies land 

1 Stamers v. Preston, 9 Ir. C. L. E. v. Shay, 60 Cal. 508; Koe v. Lewis, 
355. 2 "W. Bl. 1173; Lamed v. Hudson, 

2 Goodtitle v. Herbert, 4 T. R. 680 ; 60 N. Y. 102 ; Richardson v. Lang- 
Clayton V. Blakey, 8 T. R. 3 ; 2 Sm. ridge, 4 Taunt. 128. 

L. C. 7th ed. 102 ; Chapman v. Towner, ' Rex v. Jobling, 2 R. C. & M. 28 ; 

6 M. & "W. 100 ; Doidge v. Bowers, Rex v. Collett, R. & R. C. C. 498. An 

2 M. & W. 365 ; Berrey v. Lindley, entry under permission of the owner 

3 M. & Gr. 498 ; 4 s. c. (N. R.) 61 ; to take care of the premises : Jones v. 
Doe V. Wood, 14 M. & W. 687. Shay, ante ; Herrell v. Sizeland, 81 111. 

^ Richardson v. Langridge, 4 Taunt. 457 ; is a tenant at will. In Humphries 

128. V. Humphries, 3 Ired. (N. C.) L. 362, a 

* Doe V. Browne, 8 East, 165; Doe person who was let into possession 

V. Amey, 12 Ad. & El. 476 ; Berry v. without any agreement for rent, but 

Lindley, 3 M. & Gr. 498 ; Tooker v. with the understanding that he should 

Smith, 1 H. & N. 735 ; Doe v. Moffatt, leave whenever required, was held to 

15 Q. B. 257. be strictly a tenant at will, and en- 

' Braythwayte v. Hitchcock, 10 M. titled to the statutory notice to quit. 

& W. 497 ; Doe v. "Wood, 14 ib. 087 ; In Whoou o. Drizzle, 3 Dev. (N. C.) 

see also The Marquis of Camden v. L. 417, the defendant went into pos- 

Batterbury, 5 C. B. (N. S.) 808; 7 session under an agreement that he 

C. B. (N. S.) 864; Doe v. Watts, 7 should cultivate the land during his 

T. R. 85; Doe v. Cox, 17 L. J. Q. B. life, or as long as he pleased, but 

3 ; and see Doe v. Davies, 7 Exch. 89. without the power to sell his right, 

6 Rich V. Bolton, 46 Vt. 84 ; Jack- was held to create only a tenancy at 

son V. Brodt, 2 Cai. (N. Y.) 169 ; Jones will. 



48 



STATUTE OP FRAUDS. 



[chap. I. 



rent free, or by the naked pfermission of the owner ^ and, as 
is held in some of the States, as a mere squatter, disclaiming 
title in himself,^ or a person who holds under a void lease or 
deed,3 or under a contract to purchase,* or under a lease of 
premises till they are sold,^ or a person who remains in the 



1 Hull V. "Wood, 14 M. & W. 682 ; 
Larued o. Hudson, 60 N. Y. 502; 
Williams v. Devian, 31 Mo. IS ; Jones 
V. Shay, ante ; Doe o. Gardner, 12 C. 
B. 319 ; and the fact that a person 
pays rent does not change the char- 
acter of his tenancy, unless he pays it 
with reference to a yearly holding. Bars- 
tow V. Cox, 11 Q. B. 122 ; Eich v. Bol- 
ton, ante ; Braythwayte v. Hitchcock, 
10 M. & W. 497 ; Hull v. Wood, ante. 
A person who occupies as a servant, 
under the agreement to pay monthly 
rent, is a mere tenant at will, although 
the contract is for a year. McGee v. 
Gibson, 1 B. Mon. (Ivy.) 105. 

2 Stamper v. Griffin, 20 Ga. 312; 
Gay V. Mitchell, 34 id. 159 ; Smith v. 
Houston, 16 Ala. Ill; Wearer!). Jones, 
24 id. 420. 

8 Ezelle V. Parker, 41 Miss. 20; 
Cromelin v. Thiess, 31 Ala. 412 ; Gal- 
loway V. Herbert, 4 T. E. 680 ; War- 
ren V. Eeamside, 1 Wils. 1 76 ; Medina 
V. Poison, Holt. 47. In Tennessee, 
where a parol lease for two years is 
Toid, a tenant entering under it is 
held to be a tenant at will : Duke v. 
Harper, 6 Yerg. (Tenn.) 280; and in 
Maine, a parol lease at an annual rent 
creates a tenancy at will. Wethers 
V. Larabee, 48 Me. 570 ; Cole on Eject- 
ment, 456 1 but he holds, subject to 
the terms of the lease in all other 
respects, except as to duration of - the 
term. Eiggs v. Bell, 5 T. E. 471 ; Tress 
V. Savage, 4 E. & B. 36 ; Eichardson 
V. Gifford, 1 Ad. & El. 52 ; Penning- 
ton V. Taniere, 12 Q. B. 998 ; Lee i'. 
Smith, 9 Exch. 662 ; Arden v. Sullivan, 
14 Q. B. 832 ; but upon payment of 
rent, he becomes a tenant from year 
to year, under the terms of the void 
lease so far as they are applicable to, 
and not inconsistent with, a yearly 
tenancy. People v. Eickert, 8 Cow. 
(N. Y.) 226; Strong v. Crosby, 21 



Conn. 398; Schuyler v. Leggett, 2 
Cow. (N. Y.) 600. But see Jackson 
V. Eogers, 1 John. Cas. (K. Y.) 33, 
where a tenant who went into posses- 
sion under a void lease was held to 
be a mere trespasser, and not entitled 
under the statute to a notice to quit. 
Goodtitle o. Herbert, 4 T. E. 680; 
Denn v Eearnside, 1 Wils. 176. 

* Patterson v. Stoddard, 47 Me. 
355; Jones t. Jones, 2 Eich. (S. C.) 
542; Manchester v. Doddridge, 3 Q. 
B. 30 ; Stanway v. Eock, 4 M. & G. 
30; Howard v. Shaw, 8 M. & W. 118; 
Tucker v. Adams, 52 Ala. 254; Eight 
V. Beard, 13 East, 210 ; Carpenter v. 
United States, 6 Ct. of CI. (U. S.) 157 ; . 
17 Wall. (N. S.) 489; Harris v. Frink, 
2Lans. (N.Y.) 35; 49N.Y. 24; Kirtland 
V. Ponsett, 2 Taunt. 145; Ball v. CuUi- 
more, 5 Trwy. 753 ; Hew v. Jones, 13 
M. & W. 12 ; Doe v. Jackson, 5 B. & C. 
448; Tomes v. Chamberlain, 5 M. & 
W. 14. 

^ Braythwayte v. Hitchcock, 10 M. 
&W. 494; Emmons v. Scudder, 115 
Mass. 367; Jackson v. Kingsley, 17 
John. (N. Y.) 158; Dunn ^. Trustees, 
&c., 39 111. 578 ; Anderson v. Prindle, 
26 Wend. (N. Y.) 616; Hollingsworth 
u. Stennett, 2 Esp. 717. In Anderson 
V. Prindle, 23 Wend. (N. Y.) 616, it was 
held that a person who enters under a 
parol agreement for a lease, the rent 
to be paid monthly, and refuses to ac- 
cept the lease, becomes a tenant at will 
or by sufferance, and is liable to be 
ejected immediately; hut that, if the 
landlord accepts rent from him, he 
becomes entitled, under the statute, to 
notice to quit. If the parol agree- 
ment was for a term exceeding one 
year, and therefore void under the 
statute of frauds, it was held that the 
tenancy created by the acceptance of 
rent was from month to month, and 
that the tenant would be entitled to a 



SEC. 20.] PAKOL I.EASES. 49 

possession of premises after they are sold upon execution,i or 
a person who occupies under an agreement that he may remain 
as long as he is in the owner's employ,^ or until a certain con- 
tingency happens, are tenants at will. Thus, in a Massachu- 
setts case,* the tenant went into possession under an agreement 
that he might occupy " as long as he kept a good school " ; and 
the court held that this was a tenancy at will, with a condi- 
tional limitation not requiring entry or notice to terminate 
it, and that evidence that the tenant was deficient as a teacher 
in literary and scientific attainments was competent evidence 
of the happening of the contingency ; but that if the contin- 
gency did not happen, his right of occupancy continued, and 
the landlord had no right to expel him. Indeed, it may be 
stated generally, as the rule, that in all cases where a person 
enters into the possession of the premises of another by his 
permission, no definite term of occupancy binding upon the 
parties being agreed upon, he is a mere tenant at will, and 
this, too, irrespective of the question whether he occupies 
rent free or pays rent therefor.* A mere permission and 
occupancy under it is sufficient to create this species of ten- 
ancy,* and it may be created by express terms, or may arise 
by construction or implication of law. Thus, a lease of 
premises, whether in writing or by parol, " so long as the par- 
ties please," or at the lessor's "will and pleasure," is a lease 
at will ; ^ so a lease of premises reserving the new house, when- 

month-'s notice to quit. See also S. C. when I please, and you shall pay 

19 Wend. 391 ; Hammerton v. Stead, nothing for it," followed by occupancy 

3 B. & C. 483 ; Reynaut v. Porter, 7 under it, was held to create a tenancy 

Bing. 451. at will, and the relation of tenant so 

^ Lee V. Hernandez, 10 Tex. 137. strictly, that by residence under it for 

2 McGee v. Gibson, 1 B. Mon. (Ky.) forty days, the tenant acquired a set- 

105. tlement. In Groves v. Groves, 10 Q. 

8 Ashley K.Warren, 11 Gray (Mass.) B. 486, the defendant occupied the 

43. , premises in question by permission of 

* In Herrell v. Sizeland, 81 111. 457, the owner or lessee, for about forty- 
the defendant and his wife moved into four years, paying no rent therefor, 
a house by the owner's permission. He was held to have occupied as a 
and remained there, rent free, and tenant at will, and that he was pro- 
took care of him until his death, eluded from setting up an adverse 
They were held to be tenants at will, title in himself. 

In Rex V. Fillougby, 1 T. R. 458, it ^ See cases cited in the last note ; 

was held that a person occupying, also Hull v. Wood, 14 M. & W. 682. 
under a permission, given in those " Richardson d. Langridge, 4 Taunt, 

words, "I give you a lease to enjoy 128; Bartow v. Cox, 11 Q. B. 122. 
as long as I please, and to take again 



50 



STATUTE OF FRAUDS. 



[chap. I. 



ever the lessor chooses to occupy it, and at all other times to 
be used by the lessee, constitutes the lessee a tenant at wOl 
of such house.i A tenant who holds over pending a treaty 
for a renewal of the lease is a tenant at will, and if the 
renewal is not effected, may be ejected without demand or 
notice ; ^ but in some cases, under such circumstances, the 
person holding over has been held a tenant at sufferance.^ A 
tenant holding over after the expiration of his term is a mere 
tenant at will, or by sufferance ; but if the lessor accepts rent 
from him, his tenancy is thereby at once converted into a 
tenancy from year to year, upon the terms of the former 
demise, so far as they are applicable to his new relation.* 



1 Cudlip V. Randall, 3 Salk. 156. 

2 Hollingsworth v. Stennett, 2 Esp. 



717. 

s Simpkin v. Ashurst, 1 C. M. & E. 
261. 

* Jackson v. McLeod, 12 John. 
(N. Y,) 182; Wilde v. Cantillon, 1 
John. Cas. (N. Y.) 123; Jackson v. 
Parkhurst, 6 John. (N. Y.) 123; Clay- 
ton V. Blakeley, 8 T. R. 3. This ques- 
tion should not be lightly passed over, 
as it is one that has inyolved consid- 
erable conflict, and that even now is 
not satisfactorily settled in all the 
States. The difference, however, in 
the decisions of the courts, is refera- 
ble to the difference in the language 
of the section of the statute of frauds 
relative to parol demise. Under the 
statute 29 Car. 2, c. 393, it is provided 
that all leases by parol, for more than 
three years, shall have the effect of 
leases at will only; and in England, 
under this statute, it is held that, not- 
withstanding this statute, a person 
holding under a parol lease for a, 
longer term, as in one case under a 
parol lease for seven years, Rlgg v. 
Bell, 6 T. R. 471 ; 2 Smith's Leading 
Cas. 72, and paying rent, although 
not deriving an interest or estate 
commensurate in duration with that 
fixed in the lease, is nevertheless con- 
sidered as holding upon all the terms of 
the agreement so far as they are appli- 
cable to a tenancy from year to year. 
Richardson v. Gifford, 1 Ad. & El. 52 ; 
Beale v, Sanders, 3 Bing. (N. C.) 850; 



and in the cases last mentioned the 
tenant was held bound by the cove- 
nants to repair. In the case last cited 
the defendants had for several years 
occupied and paid rent, as assignees, 
under a void lease. The lease con- 
tained a warrant on the part of the 
lessees to keep the buildings and 
premises in repair. The court held 
that the assignees were liable to re- 
pair to the end of the term, but that 
their liability to repair under this im- 
plied assumpsit, ceased vrith the ter- 
mination of the term fixed in the 
lease. " Although the lease was void," 
said Park, J., "yet, as the defendants 
held the premises to the end of the 
term, and continued to pay the rent, 
they are liable to all the stipulations 
contained in the lease, in the same 
way as a tenant who holds upon the 
expiration of a void lease." This doc- 
trine was also held in Pistor v. Cator, 
9 M. & W. 315, in which the tenant 
entered into possession under an agree- 
ment for a lease as soon as the lord's 
license could be obtained, in which he 
was to covenant to repair. No lease 
was ever obtained, and no lease was 
ever made, yet he was held liable to 
repair so long as he occupied. In this 
case, however, it should be stated that 
the tenant occupied for the whole term 
agreed upon, and Abingek, C. B., says : 
" The defendant having occupied for 
the whole of the term agreed upon, 
and having had the full benefit which 
he could have enjoyed under the lease. 



SEC. 20.] 



PAROL LEASES. 



51 



In order to create a tenancy for an uncertain period into 
a tenancy from year to year there must be a reservation 



he cannot now say that the covenants 
are not binding, because the lease was 
not granted. In all these cases, the 
tenant had the benefit of the full 
term. If the landlord had evicted 
him before the full term expired, as 
he might have done, by giving proper 
notice to quit, a different question 
would have been presented, and possi- 
bly with II different result. In the 
case of such tenancies, the landlord 
may put an end to them at any time 
by notice to quit of the usual length. 
Chapman v. Towner, 6 M. & W. 100, 
but in any event it is put an end to 
by the determination of the term, 
without any notice to quit, and this is 
one of the peculiarities of this species 
of tenancy from year to year. Tilt v. 
Stratton, 4 Bing. 446; Berney v. 
Lindley, 3 M. & Gr. 511. The doc- 
trine of these cases as to the occu- 
pancy of a tenant, under a void lease 
being subject to the terms of the 
lease so far as they are applicable to 
the relation, is generally accepted by 
our courts. Lockwood v. Lockwood, 
22 Conn. 425 ; Strong v. Crosly, 21 id. 
398; Taggard v. Roosevelt, 2 E. D. S. 
(N. Y. C. P.) 100; People v. Rickert, 
8 Cow. (N. Y.) 227; Creech v. Crock- 
ett, 5 Cush. (Mass.) 133; Hollis o. 
Pool, 3 Met. (Mass.) 350; Schuyler v. 
Leggett, 2 Cow. (N. Y.) 660; Edwards 
V. Clemons, 24 "Wend. (N. Y.) 480; 
Prindle v. Anderson, 23 id. 616. But 
upon the point, that a tenant under a 
lease void under the statute of frauds, 
becomes a tenant from year to year 
upon payment of rent, there is a great 
diversity of doctrine, growing out of 
the difference in the language of the 
statute. In Massachusetts in several 
cases under the statute it is held that 
nothing more than a tenancy at will 
exists under parol leases, either for a 
certain or uncertain term, and that 
this tenancy cannot be enlarged into a 
tenancy from year to yeai^by entry 
and payment of rent. Ellis v. Paige, 
1 Pick. (Ma^s.) 45; Hollis v. Pool, 3 



Met. (Mass.) 161 ; Kelly v. "Waite, 12 
id. 300 ; Bingham v. Sprague, 10 Pick. 
(Mass.) 102; and a similar doctrine, 
under a similar statute, has been 
held in Maine. Davis v. Thomp- 
son, 13 Me. 214; Withers v. Lara^ 
bee, 48 id. 570, and in New Hamp- 
shire Whitney v. Swett, 12 id. 10, and 
in the latter State it is held that a 
tenancy shown by written receipts for 
rent, to be from year to year, or month 
to month, is but a lease at will. 
Whitney v. Swett, ante, and a similar 
doctrine is intimated in Cromelin v. 
Theis, 31 Ala. 411. But in most of 
the States the English doctrine pre- 
vails. Hull f. Wadsworth, 28 Vt. 10; 
Prindle v. Anderson, 19 Wend. (N. Y.) 
391, aff'd 23 id. 616 ; Jaqkson i-.Wilsey, 
9 John. (N. Y.) 267 ; Ridgeley v. Still- 
well, 28 Miss. 400 ; McDowell v. Simp- 
son, 3 Watts (Penn.) 135 ; Pugsley v. 
Aiken, 11 N.Y. 494; Porter v. Gordon, 
5Yerg. (Tenn.) 100; Drake u. Newton, 
3 N. J. L. Ill, and unless the language 
of the statute is such as to prevent 
such a construction, it would seem to 
be the better doctrine that, while in the 
first instance such holdings are merely 
as tenants at will, yet the estate is 
susceptible of being enlarged into a 
tenancy from year to year, and that 
this is done, whenever a yearly rent is 
reserved in the lease, when the tenant 
pays, and the landlord accepts the 
rent. Silsby v. AUen, 43 Vt. 172. In 
Morris i.. Niles, 12 Abb. Pr. (N. Y.) 
103, it was held that payment of a 
quarter's rent is evidence of a yearly 
tenancy at that rate. It seems that 
actual payment of the rent is not nec- 
essary, but in one case an admission 
by the tenant of a half year's rent in 
an account of the landlord was held 
suflBcient. Cox v. Burt, 5 Bing. 185 ; 
GosELEK, J., before whom the case 
was tried at the assizes, saying, " The 
admission was equivalent to the pay- 
ment of so much rent, and that the 
plaintiff thereby became tenant from 
year to year." See for English cases 



52 STATUTE OF rEATJDS. [CHAP. I. 

of annual rent, and unless there is such a reservation, the 
tenancy is prima facie only a tenancy at will.^ Thus, 
in an English case,^ the landlord let a shed to be used as 
a stable, for the dung that was made therein, as compensa- 
tion. No definite term was agreed upon, and the court held 
that the tenancy was merely one at will, because there was 
no reservation of rent referable to a year or any aliquot part 
thereof. And it seems that an impUed obligation to pay 
rent is not enough to convert a tenancy at will into a 
tenancy from year to year. Thus in a Vermont case,^ the 
defendant, by the parol permission of the plaintiff, went into 
possession of certain premises as tenant, without any agree- 
ment as to the terms of holding or the payment of rent, and 
continued in possession about fourteen years. He erected a 
barn on the premises and repaired the house. The plaintiff 
tried to settle with him, but could get nothing from him 
beyond the repairs, and it appeared that he refused to pay 
rent. The plaintiff brought an action to recover the posses- 
sion of the premises, giving no notice to quit. The defendant 
resisted the action upon the ground that his tenancy had 
ripened into a tenancy from year to year, and consequently 
that he was entitled to six months' notice to quit. But the 
court held that the tenancy was merely one at will, because 

holding that a tenant under a, void 12 Q. B. 998. But, as stated elsewhere, 

lease is a tenant from year to year, p. , note , this is only an inference 

Tress c. Savage, 4 E. & B. 36 ; Doe v. of law that cannot be raised against 

Calling, T. C. P. 933 ; Lee v. Smith, 9 the intention of the parties clearly ex- 

Exchq. 662; Davenish v. Mofiatt, 15 pressed, and it seems that it cannot 

Q. B. 257. Holding that a similar arise where the tenant fails to comply 

result ensues from an entry under an with conditions precedent established 

agreement for a lease, Bolton v. Tom- either by contract, usage, or law. Thus, 

lin, 5 Ad. & El. 856 ; Doe v. Smith, 1 in an Iowa case, Dubuque v. Miller, 

Man. & R. 137 ; Mann v. Lovejoy, Ky. 11 Iowa, 583, the tenant of a market- 

& Moo. 355 ; Bennett v. Ireland, E. B. stall, under lease for one year, from 

& E. 326 ; Knight v. Bennett, 3 Bing. the city, at the close of the lease, 

361 ; Chapman v. Towner, 6 M. & W. held over without complying with cer- 

100 ; Cox V. Burt, 5 Bing. 185 ; Brayth- tain terms as to the payment of rents 

wayte v. Hitchcock, 10 M. & W. 494 ; made by the city for such second 

Doe V. Amey, 12 Ad. & El. 476 ; al- year, and the court held that his ten- 

though the agreement is void, Knight ancy was only at wUl. 
V. Bennett, ante ; also that it arises i Roe v. Lewis, 2 "W. Bl. 1173 ; 

from implication of law by payment Chamberlain v. Dunham, 45 Vt. 50. 
of yearly rent. Braithwaite ». Hitch- ^ Richardson «. Langridge, 4 Taunt, 

cock, ante; Hull v. Wood, 14 M. & 128. 

W. 682 ; Tress v. Savage, ante ; Dav- ' Rich v. Bolton, 46 Vt. 84. 

enish v. MofEatt, ante ; Doe v. Taniere, 



SEC. 20.] PABOL LEASES. 58 

it lacked the essential element of annual rent, and that the 
fact that the repairs upon the premises were to be allowed 
upon the rent did not amount to a yearly payment of rent, 
but were merely payments in gross for the whole occupancy. 

In Vermont, under the statute, a parol lease, with a stipu- 
lation to pay an annual rent, is an " estate at will " only, but 
it has been held in several cases that the character of the 
tenancy may be changed, and become one from year to year 
by subsequent acts of the parties ; as, by entry into posses- 
sion by the tenant, and a payment by him, and an acceptance 
by the landlord of the rent stipulated to be paid, and con- 
tinuing in possession beyond the first year,i and this change 
is not wrmiffht by the length of time that the tenant holds and 
pays rent, but hy the fact that he enters and holds under a 
stipulation to pay annual rent, and pays accordingly.^ It has 
been held that an entry upon, and a continuance in, posses- 
sion of premises for several years under a parol agreement to 
support the owner, creates a tenancy from year to year, 
because the support furnished is treated as in the nature of 
yearly rent.^ 

It may be said that prima facie leases, indefinite as to the 
term, merely create a tenancy at will ; and only a reservation 
of annual rent converts them into leases from year to year.* 
It is not essential that there should be stipulation for the 
payment of rent in money, or of a certain amount, but there 
should be a reservation of some benefit or advantage that 
stands as yearly rent.^ A lease, indefinite as to terms, but 
reserving an annual rent payable quarterly, is held in Penn- 
sylvania to be a lease from year to year, and cannot be 
terminated except by regular notice to quit, and, if such 
notice is not given, and if the tenant commences a new year 
without any notice to quit having been given, the landlord 
cannot put him out until the end of the next year ; but for 
the second year the tenant must pay according to the terms 
of the lease,^ and the courts latterly are inclined to construe 

1 Barlow v. 'Wamwright, 22 Vt. 88 ; Lewis, 2 W. Bl. 1173 ; Jackson v. 
SUsby V. Allen, 43 Vt. 172; Hull v. Brodt, 2 Cai. (N. Y.) 169. 
Wadsworth, 28 Vt. 410. ^ Biohardson «. Langridge, 4 Taunt. 

2 Silsby V. Allen, 43 Vt. 172. 128. 

' Hanehett v. Whitney, 1 Vt. 311. ^ Lesley o. Bandolph, 4 Bawle 

4 Bich V. Bolton, 46 Vt. 84; Eoe v. (Penn.) 123. 



54 



STATUTE OF FEAUDS. 



[chap. I. 



all leases at will at an annual rent as leases from year to 
year.i But when tlie lease in terms creates only a tenancy 
at will, the fact that rent is reserved and paid in pursuance 
of such reservation does not change the character of the 
tenancy. The intention of the parties, if clearly expressed, 
will control. Thus, where a tenant entered under an agree- 
ment " to become tenant at the will and pleasure of " the 
landlord, "and at and after the rate of twenty-five pounds 
per annum, payable quarterly," the tenancy was held to be 
at will, and not from year to year, Lord Dbnman, C. J., 
said : " The courts are desirous to presume a tenancy from 
year to year where parties do not express a different intention, 
but here they have expressed it." ^ In another case,^ it was 



1 Pople V. Garland, 4 You. & C. 
394. In many of the States all parol 
leases merely create a tenancy at will, 
as in Massachusetts, Maine, Yermont, 
etc. 

2 Bartow v. Cox, 11 Q. B. 122. 
The reseryation of yearly rent is not 
inconsistent with a tenancy at will. 
Co. Litt. 556 ; Walker o. Giles, 6 C. 
B. 662. And where the terms of the 
lease are such as to show a clear in- 
tention to create a tenancy at will, 
the reseryation and payment of yearly 
rent, and an occupancy under it for a 
period of time, however long, will not 
change its character. Dixie v. Davis, 
7 Exchq. 89. The English courts are 
inclined to hold all tenancies for an 
indeterminate period, except where 
otherwise clearly provided, tenancies 
from year to year, where there is a 
reservation of annual rent, and even 
in some cases they have so held where 
there was no such reservation, but 
rent had been so paid. Parker v. 
Walker, 1 Wils. 25. And a similar 
doctrine was held in .Jackson v. Bryan, 
1 John. (N. Y.) 323, but this is only 
the case where there is nothing to 
indicate a contrary intention. When 
it is clearly the intention of the par- 
ties to create only an estate at will, 
their intention will be upheld, not- 
withstanding the reservation of an 
annual rent : Anderson v. Midland 



R. R. Co., 30 L. J. Q. B. 94 ; Stedman 
V. Mcintosh, 4 Ired. (N. C.) L. 291; 
Humphries v. Humphries, 3 id. 363. 
In a Massachusetts case it was held 
that a written lease of a. house at a 
certain rent per annum, payable "in 
monthly payments, otherwise pro 
rata," for a term to begin "when 
said house is suitable to be occupied " 
by the lessee, and undefined in dura- 
tion, except by a stipulation that if, 
after two years from the time when 
the lessee should move into the house, 
the lessor should wish to live there, 
he might do, so, and the lessee might 
then retain, if he should desire, certain 
rooms "for such a time as may be 
agreeable to us both," creates only a 
tenancy at will ; and parol evidence is 
inadmissible to give it a different con- 
struction. Murray v. Cherrington, 99 
Mass. 229. 

Where, by the terms of a written 
lease, the tenancy is to continue so 
long as the parties shall mutually 
agree, and either party may determine 
it on four days' notice — the rent to 
be paid monthly or semi-monthly, as 
may be most convenient — such rent- 
ing creates a tenancy at will ; and the 
lessee, in such case, acquires no 
certain indefeasible interest in the 
premises, which he can sell and trans- 
fer to another. Such tenancy will be 
determined, by implication of law. 



8 Walker v. Giles, 6 C. B. 662. 



SEC. 22.] PAROL LEASES. 55 

held that a clause in a mortgage that the mortgagors should 
become tenants to the mortgagees of the demised premises 
during their will, at a yearly rent, created only a tenancy at 
will.i 

Sec. 21. Rule in Doidge V. Bowers. — In Doidge V. Bowers,* 
three persons entered under a void lease ; payments of rent 
were made ; but, as it was riot shown that they were made 
with the assent of one of the three, it was held that as against 
her there was no evidence of a tenancy from year to year, she 
not having resided a year on the premises. Parke, B., said : 
" Under the original contract no demise could be created, but 
a mere tenancy at will. Then, in order to constitute a new 
tenancy, it must be shown that all three parties agreed to 
vary it by a new contract for a tenancy from year to year." * 

Sec. 22. How Tenancy from Year to Year may be Created. — 
A tenancy from year to year may be created by express agree- 
ment, even by parol. Thus, if premises are let, " from year 
to year," at a certain annual rent, and from a certain time, 
and the lessee enters into the possession, a tenancy from year 

upon the death either of the lessor or an indenture of mortgage, among 

lessee ; or by the desertion of the other things, contained a proyiso and 

premises by the lessee; or by the covenant by the mortgagee, that no 

sale and transfer of his possession to sale, or public notice, or advertise- 

another. Therefore, where during ment for any sale, should be made or 

such a tenancy the lessor died, having given, nor any means be taken for 

by will devised the premises ; and the obtaining possession, until the expira- 

lessee, a month afterwards, sublet a tion of twelve calendar months after 

portion of the premises to the plain- notice in writing of such intention 

tiff, without the consent of the de- should have been given to the 

visee ; and shortly thereafter removed mortgagor, as tenant at will to the 

wholly therefrom ; and the devisee mortgagee, on the payment of a cer- 

thereupon entered and removed doors tain yearly rent, by two equal half- 

and windows from a dwelling-house yearly payments. No livery of seizin 

situated on the demised premises, and was made to the mortgagor. It was 

in the occupancy of the plaintiff; held that the mortgagor was tenant 

without unnecessary interference vrith at will only, Pollock, C. B., re- 

the person or property of the plaintiff, marking, " there can be no doubt that 

and without a breach of the peace, a tenancy at will may be coupled 

such entry and acts of ownership were with a yearly rent." 
not tortious, and do not constitute a " 2 M. & W. 365. 
cause of action in favor of the plain- ° See also Denn v. Feamside, 1 

tiff against the devisee. Say v. Stod- Wils. 176 ; Goodtitle v. Herbert, 4 T. 

dard, 27 Ohio St. 478. R. 680. 
1 In Dixie v. Davis, 7 Exchq. 89, 



66 STATUTE OP PRATTDS. [CHAP. I. 

to year is created which the lessor may determine the first 
year by giving six months' notice to quit,^ and therefore is 
not within the statute of frauds. If a tenancy is created for 
one year certain, and after that from year to year, it is a lease 
for at least two years,^ and therefore is within the statute of 
frauds in all those States where a verbal lease is good for 
only one year. It is said that, if an annual rent is reserved 
and the term indefinite, a tenancy from year to year is 
created, although it is expressly agreed that the tenant shall 
quit at ten, twenty, or thirty days' notice, the tenancy differ- 
ing from an ordinary tenancy from year to year in no other 
respect than in the notice required for its termination.^ An 
entry under a lease for a term at the annual rent, void for 
any cause, and a payment of rent under it, creates a tenancy 
from year to year upon the terms of the lease except at its 
duration. Thus, in a New York case,* a parol demise was 
made for seven years which was void under the statute of 
frauds, but the tenant having entered into possession and 
paid rent under it, it was held that it inured as a tenancy 
from year to year, and that the lease regulated the terms of 
the tenancy.^ At the end of the term under a void lease, 
the tenancy ceases by efflux of time, without any notice to 
quit, although either party might have put an end thereto by 



1 Clark V. Smaridge, 7 Q. B. 957. * Schuyler v. Leggett, 2 Cow. 
Such a lease was formerly held to be (N. Y.) 660. 

A lease for at least two years. Agand ^ Xress v. Savage, 4 E &. B. 36 ; 

V, King, Cro. Eliz. 775; Legg v. Strud- Clayton v. Blakely, 8 T. R. 3; Thur- 

wick,2SaIk.414;CrackweU!J. Owerell, ber v. Dwyer, 10 R. I. 355; Strongs. 

Holt, 417 ; Stamfil v. Hickes, 2 Salk. Crosby, 21 Conn. 398 ; Martin v. 

413. And, according to some of the Watts, 7 T. E. 88 ; Beale v. Sanders, 

cases, a lease for three years. Pot- 3 Bing. (N. C.) 850; Eiggsv. Bell, 5 

kin's Case, 6 Coke, 35 6 ; Carstrike v. T. E. 471 ; Lee v. Smith, 6 Exchq. 

Mason, 2 Neb. 543. But the rule is 662; Doe v. CoUings, 7 C. B. 939; 

now well settled, as stated in the text. Pennington v. Taniere, 12 Q. B. 998; 

Lily V. Green, cited I Ld. Eaym. Richardson v. Savage, 4 E. & B. 36. 

708 ; Jacklin v, Cartwright, 4 Eagt, In Pennsylvania a tenancy at will is 

291; Eex v- Chawton, 1 Q. B. 247; treated as a tenancy from year to 

Birch «. Wright, 1 T. E. 378 ; Chad- year, the same notice being required 

bom V, Green, 9 Ad. & El. 38 ; Pox v. to terminate the tenancy, in either 

Nathans, 32 Conn. 348. case, Clark t. Smith, 25 Penn. St. 

2 Birch V. Wright, 1 T. R. 386; 137. And in Tennessee a tenant 
Hanchett v, Whitney, 1 Vt, 311 ; Hall under a, void lease is treated as a 
V. Myers, 43 Md. 581 ; Monck v. tenant at will, or from year to year, 
Geekie, 5 Q. B. 841. according to the circumstances. I>uke 

s Martin v. Kemp, 7 T. B, 85, v. Hooper, 6 Yerg. (Tenn.) 280. 



SEC. 22.] PAKOL LEASES. 67 

the requisite notice at the end of any previous year.i In a 
•New York case,^ a tenant who had leased premises for a year, 
took them for a second year on the expiration of the first 
year. It was claimed that the second lease was void because 
the officer granting it had no authority to do so. The court 
held that, if the second lease was void, the tenant should be 
regarded as holding over under the terms and conditions 
of the former lease, he became a tenant from year to year, 
and must give six months' notice to determine his tenancy ; 
and that if he should be regarded as having entered under 
the void lease, possession under it, and payment and accep- 
tance of rent would create a tenancy from quarter to quarter, 
not to be determined without three months' notice. Also, 
that a lessee for years whose term depends on a certainty, 
who holds over after the termination of the lease merely to 
remove his goods and chattels, none the less becomes a ten- 
ant from year to year by such holding over, because a tenant 
for years, whose term depends on a certainty, has no right to 
remain a reasonable time after his term expires for the pur- 
pose of removing his chattels ; and, in order to entitle a land- 
lord to regard a tenant under a demise for a year or more, as 
a tenant from year to year upon his holding over after the 
expiration of his term, it is not necessary that the holding 
over should be of such a character as to raise a presumption 
that the tenant intends to continue his occupancy. The mat- 
ter is one purely within the election of the landlord, atid the 
tenant has no option in that regard. The rule may be said 
to be well established, that although a parol lease for more 
than the period excepted from the statute is invalid, yet, if a 
person goes into possession under a parol lease for a longer 
period, he becomes a tenant from year to year upon the 
terms of such lease, and so continues as long as he remains 
in possession without any new or other agreement, and an 
occupancy by putting or leaving a portion of his property 
upon the premises is sufficient to establish his liability, 
although there is no personal occupancy. Thus,- in a New 
York case,^ the defendant went into possession of a dwelling 

' Tress v. Savage, ante ; Davenish " Witt v. Mayor &c. of New York, 

V. MofEatt, 15 Q. B. 257; Hayne v. 6 Robt. (N. T. Sup. Ct.) 441. 

" Cummlngs, 16 C. B. & S. 421 ; Thomas ' Dorr v. Barney, 12 Hun (N. Y.) 

V. Parker, 1 H. & N. 669. 259. 



58 STATUTE OF FRAUDS. [CHAP. I. 

house and brick-yard, under a parol lease for one year with 
the privilege of four years at his option, and continued in, 
personal possession for two years. It was held that, although 
the lease was void as to the four years, yet by the entry of 
the defendant and his holding over after the first year, he 
became a tenant from year to year subject to all the terms 
and conditions of the verbal lease, except as to the term.^ In 
that case the tenant went into possession in June, 1867, and 
in April, 1869, substantially told the plaintiff that he intended 
to leave at the end of that year, and at the end of the year 
he abandoned the house, and removed most of the brick, but he 
left a portion of them in a shed which he had erected upon 
the premises to protect the brick from the effects of the 
weather, and did not remove them until some time after- 
wards. The lease was never surrendered, nor did the plain- 
tiff ever give his assent to the brick and shed being left there. 
The court held that the fact that the brick and shed were 
left there by the defendant after the expiration of the second 
year operated as such a continuance of the occupancy as to 
enable the plaintiff to treat him as a tenant for another year. 
In the first instance, in order to give validity to a lease for 
a term longer than that excepted from the operation of the 
statute, it must be made conformedly to the requirements of 
the statute in the State where the premises lie. In most of 
the States, the provisions of the statute 29 Car. 2, c. 3, § 4, are 
practically adopted, and a writing signed by the lessor or 
some person by him authorized is sufficient ; and under this 
statute is held that the agreement and memorandum need not 
be contemporaneous,^ and any writing executed by the lessor 
which tends to establish a consummated agreement between 
them may be given in evidence as a memorandum, even 
though in order to apply it, evidence of conversations 
between them as to the subject-matter of the contract 
are necessary. Thus, in a Connecticut case,* the plaintiff, 

1 Schuyler v. Leggett, 2 Cow. (N. Conway v. Starkweather, 1 Den. (N. 

Y.) 660; Lonnsbury v. Snyder, 31 N. Y.) H3. 

Y. 514 ; Bright v. McOuat, 30 Ind. " Lerned v. "Wannemacher, 9 Allen 

521; Reader v. Sayne, 5 Hun (N. Y.) (Mass.) 416; Parkhurst v. Van Cort- 

564; Schuyler v. Smith, 51 N. Y. landt, 14 John. (N. Y.) 15; Tallman 

309; Thiehaud v. Vevay, 42 Ind. «. Franklin, 14 N. Y. 584. 

212 ; Hall v. Myers, 43 Md. 446 ; 8 Lindley v. Tibbals, 40 Conn. 522. 
People V. Riokert, 8 Cow. (N. Y.) 236; 



SEC. 22.] PAROL LEASES. 59 

being desirous of raising a crop of strawberries on a portion 
of the defendant's land, offered him one hundred dollars for 
the rent thereof ; but the defendant declined this offer, but 
offered to take a mowing-machine and horse-rake belonging 
to the plaintiff, which he valued at one hundred and ten 
dollars, for the use of the land. The parties separated with- 
out coming to any agreement. A few days afterwards, the 
plaintiff wrote to the defendant, asking him if he could have 
the land " on the terms proposed." The defendant replied, 
"Set your strawberries. Let me have mowing-machine and 
horse-rake." This was in May, 1868, and the plaintiff imme- 
diately went into possession of the land, set out his plants, 
and cultivated them during that spring and summer. By 
his letter, the plaintiff meant to offer one hundred dollars for 
the use of the land, but the defendant supposed he meant to 
offer the machine and rake. In July of the same year, the 
defendant sent for the machine and rake, and the defendant, 
supposing that he wished to buy them, delivered them to 
him. In the fall of the same year the plaintiff called for the 
pay for the mowing-machine and horse-rake, which the 
defendant refused, claiming that they had been received in 
compensation for the use of the land. In consequence of the 
difference thus existing between the parties as to the rental 
of the land, the defendant insisted that the plaintiff should 
have nothing more to do with the land, but he did not pay 
for the mowing-machine or rake, or offer to return the same. 
In the spring of 1866 the plaintiff sent his men to hoe and 
attend to the plants, and they were ordered off by the 
defendant. When the berries were ripe, the plaintiff again 
sent his men to gather them ; but, after picking a portion of 
them, they were again ordered off by the defendant, who 
went on and gathered the crop and disposed of it, claiming it 
as his own. The plaintiff thereupon brought an action of 
trespass (c[uare clauaum) against the defendant. The defend- 
ant insisted that, by reason of the misunderstanding between 
the parties, no contract existed between them, and that the 
plaintiff was not entitled to the berries which grew upon the 
land. The court, however, held otherwise, Fostek, J., say- 
ing : " There was a contract made ; the minds of the parties 
met so far as the use and occupation of the land was con- 



60 STATUTE OF I'EAXTDS. {CHAP. I. 

cerned. The plaintiff worked the land during the season, 
and it was not until the autumn that it was discovered that 
a misunderstanding existed as to the rent. Nor was the 
contract then annulled or revoked. The defendant still 
kept the machine and rake, and made no offer to pay for 
them. He had insisted that the plaintiff should not occupy 
the land, except on condition of giving these articles in con- 
sideration. The plaintiff did not afterwards demand them, 
nor demand pay for them, but insisted on occupying and did 
occupy the land the next spring. This we think was an 
assent to the defendants' terms, a tacit agreement on both 
sides, ' Set your strawberries,' is certainly a brief form for a 
lease, but in the surroundings of the case, we think such a 
memorandum signed by the party obviates any difficulty under 
the statute of frauds." 

It is not essential that the agreement or memorandum 
should be contained in a single paper, but a series of papers, 
as letters,! telegrams,^ and a letter or other document signed, 
may be used in connection with one not signed,^ but not in 
connection with one subsequently to be prepared;* and a 
written proposal, signed by the lessor, and accepted orally by 
the lessee, has been held sufficient ; ^ but a written proposal, 
signed by the lessee and accepted orally by the lessor, would 
not be sufficient.® The writing or writings, in whatever 
form they exist, must be complete, and contain all the 
elements essential to constitute a valid contract, without 
the aid of extrinsic evidence.'^ Thus, it must describe 
the premises with reasonable certainty,^ the duration of the 

1 Lemed v. 'Wannemacher, 9 Allen Clarke v. Puller, 16 C. B. N. S. 24 ; 
(Mass.) 416. Torster v. Rowlands, 7 H. & N. 103; 

2 Palmer v. Marquette &c. E. E. Watts v. Ainsworth, 6 L. P. N. S. 
Co., 32 Mich. 274. 252 ; Williams v. Lake, 2 E. & E. 349. 

' Loomer v. Dawson, Cheeves * Lancaster v. De Trafford, 31 L. J. 

(S. C.) 68 ; Buxton v. Eust, L. E. 7 Ch. 554. But the question as to what 

Exehq. 79. constitutes reasonable certainty in 

* Wood V. Bridgely, 5 De G. M. & this respect is one which depends 

Gr. 41. upon the circumstances of each case, 

' Banker v. Allen, 5 H. & N. 61 ; and if the memorandum contains 

Warner v. Willington, 3 Drew, 523 ; sufficient to form a basis from which 

Smith V. Male, 2 C. B. N. S. 67; the precise estate can be identified, 

Eeuss V. Picksley, L. E. 1 Exchq. 342. parol evidence is admissible to apply 

s Felthouse v. Bindley, 11 C. B. K. it. Ogilvie v. Poljambe, 3 Mer. 61 ; 

S. 869. Bleakley v. Smith, 11 Sim. 150; Hay- 

' Peabody v. Sayers, 56 N. Y. 230; wood .,. Cape, 25 Beav. 146; Jenkins 



SEC. 22.J 



PAROL LEASES. 



61 



term,^ the rent to be paid,^ the parties thereto,* and must be 
signed by the lessor or some person by him lawfully authorized 
for that purpose.* In all cases, the signature must he such as 
amounts to an acknowledgement hy the party that the agreement 
is his ; consequently, if it is not signed by him or his agent 
authorized as provided by the statute, although it is wholly 
in his handwriting, and his name appears in the body of the 
instrument, it is not sufficient to satisfy the statute,^ and 
the absence of his signature is treated as affording absolute 
evidence that the contract is incomplete.* But as to what 
constitutes a signing within the statute, see Chapter on 
" Memoeandums." 



V. Green, 27 Beav. 437; Deven v. 
Thomas, 3 My. &. K. 353; Price v. 
Griffiths, 1 De G. M. & G. 80; Dan- 
iels V. Davison, 16 Ves. 249. 

1 Hodges V. Howard, 5 R. I. 149; 
Fitzmaurice v. Bayley, 8 E. & B. 664 ; 
Blore V. Sutton, 3 Mer. 237 ; Clinan v. 
Cooke, 1 Sch. & Lef. 22; Hersey f. 
Glblett, 18 Beav. 174; Hughes v. 
Parker, 8 M. & A. 224 ; Clarke v. Ful- 
ler, 16 C. B. N. S. 24 ; Gordon v. Tre- 
valyan, 1 PricBj 64. 

2 Wain V. "Walters, 5 East, 10; 
Nichols V. Allen, 23 Minn. 542 ; Un- 
derwood u. Campbell, 14 N. H. 393 ; 
"Weldon v. Porter, 4 Houst. (Del.) 
236; Taylor v. Pratt, 3 Wis. 674; 
Hutton V. Padgett, 26 Md. 228 ; Castle 
V. Beardsley, 10 Hun (N. Y.) 343; 
Buckley v. Beardslee, 5 N. J. L. 570 ; 
Janes v. Palmer, 1 Doug. (Mich.) 
379 ; Hargraves v. Cooke, 15 Ga. 321 ; 
Putman v. Haggard, 78 HI. 607. But 
in many of the States the doctrine of 
Wain V. Walters is not accepted, and 
a memorandum in other respects suffi- 
cient is held to be operative, although 
the consideration is not stated there- 
in. GilUngham v. Boardman, 29 Me. 
79 ; Sage v. Wilcox, 6 Conn. 81 ; Halsa 
V. Halsa, 8 Mo. 303; Ashford v. Kob- 
inson, 8 Ired. (N. C.) L. 114; Patehin 
V. Swift, 21 Vt. 292 ; Keed v. Evans, 
17 Ohio, 128 ; Packard v. Richardson, 
17 Mass. 121. While in others the 
matter is now regulated by statute, 
and the question set at rest so far as 
the courts are concerned. In Massa- 



chusetts, Illinois, Indiana, Kentucky, 
Maine, Michigan, Nebraska, New Jer- 
sey, Virginia, and West Virginia, it is 
provided that the consideration need 
not be expressed in the memorandum 
but may be proved by any competent 
evidence. In Alabama, Minnesota, 
Montana, Nevada, New York, Oregon, 
and Wisconsin, the consideration 
must be contained in the memoran- 
dum, while in the other States no 
provision in this respect is made, and 
is therefore left subject to judicial 
construction. 

' Lang V. Henry, 54 N. H. 57; 
Champion v. Plummer, 5 E. & J. 87 ; 
Williams v. Lake, 2 E. & E. 349; 
Warner v. Willington, 3 Drew, 530. 

* Bailey v. Ogden, 3 John. (N. Y.) 
417; Sanborn v. Flagler, 9 Allen 
(Mass.) 474; Stoddert v. Vestry of 
Port Tobacco, 2 G. & J. (Md.) 227. 
In some of the States, the statute ex- 
pressly provides that the memoran- 
dum must be signed by the party to 
be charged. Or by some person by 
him authorized in writing, as in Ala^ 
bama, California, Kansas, Michigan, 
Minnesota, Missouri, Montana, Ne- 
braska, Nevada, New Hampshire, New 
Jersey, New York, Ohio, Oregon, 
Pennsylvania, Vermont, Utah, and 
Wisconsin, while in the others au- 
thority may be shown by the ordi- 
nary modes. 

5 Stokes V. Moore, 1 Cox, 219. 

" Bawdes v. Amherst, Prec. Ch. 
402. 



62 STATUTE OP FKAITDS. [CHAP. I, 

Sec. 23, implied Tenancy from Year to Year. — A tenancy 
from year to year may be implied from the circumstances 
under which the parties hold. Thus, where the defendants 
became the occupiers of land, and paid the year's rent in 
advance for many years, it was held, that, as ordinarily speak- 
ing an occupation of premises for more than a year, and 
payment and acceptance of rent created a tenancy from 
year to year, the inference to be drawn from the above facts 
was, that the defendants were tenants from year to year.^ 
And the presumption is the same against a corporation aggre- 
gate as against an ordinary person.^ So where a tenant holds 
over after the expiration of a term, on payment of rent he 
will become a tenant from year to year.^ 

Sec. 24. Rebuttal of Presumption. — It is open, either to 
the party receiving or paying rent, to show the circumstances 
under which the payment was made ; as, for instance, that 
the rent was received in ignorance of the death of a party 
upon whose life the premises were held ; in order to rebut 
the presumption of a tenancy from year to year.* A lease 
for a term, required by the statute of frauds to be in writ- 
ing, may be collected from correspondence which has passed 
between the lessor and lessee, and the lessor will be entitled 
to distrain for rent.^ 

1 Hunt V. AUgood, 10 C. B. (N. S.) next, upon the same terms and at the 

253. It has sometimes been thought same rate of rent, R to have the sale 

that if the intention of the parties of the mill, houses, land, etc." The 

was that an agreement for a lease court held that the agreement operated 

should take effect as a lease, it would as a present demise from the time it 

he Toid under the statute : Stratton v. was entered into, up to Lady Day, 

Petitt, 16 C. B. 420; but this doctrine and as an agreement for a lease from 

has been repudiated : Stranks v. St. that time for a term of three years, 

John, L. E. 2 C. P. 377 ; Tidey v. and consequently was not void under 

Mollett,16C.B. (KS.)298. InRoUa- the statute. 

son V. Leon, 7 H. & N. 77, an agree- 2 Doe v. Taniere, 12 Q. B. 998. 
ment was entered into as follows : " L o Thomas v. Packer, 1 H. & N. 669; 

agrees to let, and R agrees to take, Purnivall v. Grove, 8 C. B. (N. S.) 

the wood, mill site, etc., with the 496. 

houses and land adjoining, for the * Doe v. Crago, 6 C. B. 90 ; Wood- 
period of three years from Lady Day bridge Union v. "Whien Union, 18 Q. 
then next, at the rent of £120 per B. 269; The Marquis of Camden v. 
annum. A lease for the same to be Batterbury, 5 C. B. (N. S.) 808, 820; 
executed and signed as soon as possi- 7 C. B. (N. S.) 864. 
ble, subject to the permission of the * Chapman v. Bluck, 4 Bing. N. 
landlord of the mill, house, lands, etc., C. 187 ; Jones u. Reynolds, 1 Q. B. 
from this day, up to Lady Day then 506. 



SEC. 26.] PABOL LEASES. 63 

Sec. 25. Void Lease may Enure as an Agreement to Grant a 
Lease. — An instrument containing words of present demise 
which is void as a lease, may nevertheless enure as an agree- 
ment to grant a lease for the term mentioned. Thus in 
Burton v. Reevell,^ by a memorandum of agreement M agreed 
to let and B to take rooms in a house from a certain date, at 
a monthly rent of 36 s., to be paid every four weeks, and it 
was held that this was only an agreement to execute a lease, 
and was admissible in evidence. So in Bond v. E,osling,2 the 
plaintiff by an agreement not under seal agreed to let and 
the defendant to hire certain premises for seven years ; and 
it was further agreed that a good and sufBcient lease em- 
bodying the terms of the agreement should be prepared at 
the joint expense of the parties ; it was held in an action for 
not accepting a lease, that though the instrument was void 
as a lease under the statute it was good as an agreement.^ 

Sec. 26. Specific Performance. — An agreement containing 
words of present demise, which is void under the statute, 
may be decreed to be specifically performed.* Thus where 
A agreed in writing to let to B certain premises at a rent of 
£36 payable quarterly, and not to raise the rent or give B 
notice to quit so long as he continued to pay the rent when 
due ; and A (who had only a leasehold interest to expire in 
1881) also agreed verbally with B to let him remain in the 
premises for such term of years (not exceeding A's term 
therein) as B might desire to continue tenant thereof : it was 
held that B was not a mere tenant from year to year, but had 
a right to retain possession as long as his landlord's interest 
existed, and to enforce that right in equity.^ In a Connecti- 

1 16 M. & W. .307. 421 ; Bond v. Kosling, 1 B. & S. 371 ; 

2 1 B. & S. 371 ; 9 W. R. 746. Strong v. Crosby, 21 Conn. 398 ; 
= And see Doe v. MofEatt, 15 Q. B. Taggard v. Roosevelt, 2 E. D. S. 

257; Dniry v. Macnamara, 5 E. & B. (N. Y. C. P.) 100. 

612; 1 Jut. (N. S.) 1163; Tidey v. * Parker !^. Taswell, 2 De G. & J. 

MoUett, 16 C. B. (N. S.) 298 ; 12 "W. E. 559 ; Poyntz v. Fortune, 27 Beav. 393 ; 

802 ; Hayne v. Cummings, id. ; Parker Cowen v. Phillips, 33 Bear. 18 ; Fen- 

V. LasweU, 2 De. G. & J. 559 ; Cowen ner v. Hepburn, 2 Y. & C. C. C. 159 ; 

V. Phillips, 33 Beav. 18 ; and even at Crook o. Corporation of Seaford, L. 

law it may operate as a contract with R. 6 Ch. 551. 

respect to any stipulation therein : ^ In re King's Leasehold Estates, 

Eollason v. Leon, 7 H. & N. 73; L. R. 16 Eq. 521. 

Hayne v. Cummings, 16 C. B. (N. S.) 



64 STATUTE OF FKAUDS. [CHAP. I. 

cut oase,^ the defendant having a freehold estate in certain 
lands, entered into a parol agreement with the plaintiff in 
September, 1843, that he should erect upon his estate a sub- 
stantial brick store, and have it completed by April 1st then 
next, and that he would let the store to the plaintiff for the 
term of three years from that period for the yearly rent of 
five hundred dollars to be paid quarterly. In pursuance of 
the agreement, the defendant erected the store, and the 
plaintiff immediately took possession thereof, and occupied 
it for one year, paying the stipulated rent quarterly. Before 
the expiration of the year, the defendant gave the plaintiff 
notice to quit possession, and brought summary proceedings 
to get him out; thereupon the plaintiff brought a bill in 
equity to compel the defendant to give him a lease of the 
premises according to the agreement. The court held that 
although the agreement was within the statute of frauds, yet 
that there was such a past performance as warranted a court 
of equity in decreeing a specific performance of it, and that 
the circumstance, that the plaintiff caused to be drawn up 
and presented to the defendant for execution, a lease with 
unusual covenants, did not excuse him from executing a lease 
to the plaintiff with usual covenants.^ The rule may be said 
to be that a court of equity will decree a specific performance 
of an oral contract for a lease, notwithstanding the statute of 
frauds, in favor of either the landlord or the tenant, in cases 
where there has been such a past performance thereof by both 
parties, that to refuse it would work a fraud upon the party 
seeleing its specific execution.^ In a Wisconsin case,* the de- 
fendants orally agreed to take a lease of the plaintiffs' stores 
for five years, whereby the plaintiffs were induced to break 
off negotiations for leasing them to another party, and to in- 
cur expense in altering and adapting the stores to the de- 
fendants' use. The defendants entered into possession under 
this agreement, and occupied them and paid the rent for two 
years, and neglected to execute a written lease in accordance 
with the agreement tendered to them for that purpose by the 
plaintiffs on taking possession, and at the end of two years 

1 Eaton V. "Whitaker, 18 Conn. 222. erson v. Chrlsman, 28 Mo. 134; Aday 

'^ See also Morphett ■;. Jones, 1 v. Echols, 18 Ala. 353. 

Swanst. 172. * Seaman v. Aschermann, 51 Wis. 

1 Steel V. Payne, 42 Ga. 207 ; Dick- 678; 37 Am. Eep. 849. 



SBC. 27.] PAEOL LEASES. 65 

refused to execute the lease, or to occupy the stores or pay- 
rent. Upon a bill brought by the plaintiffs to compel an exe- 
cution of the lease by the defendants, its specific execution 
■was decreed.^ But in order to warrant the exercise of this 
power, the contract must be certain and complete, and clearly 
established by the proof, or admitted by the pleadings ; ^ and 
the proof must be full and complete, and such as leaves no 
reasonable doubt that an agreement was in fact made,* and 
that it has been partly performed.* For a full statement of 
the law relating to this subject, see Chapter on " SPEcrFic 
Perpormaijce." An agreement to let land at a yearly rent, 
determinable by six months' notice to quit (no term being 
me'ntioned), provided that in case A and B erected any build- 
ings upon the land, they were to have the privilege of re- 
moving them at any time diiring their occupation, or other- 
wise they were to be allowed a beneficial interest in the same 
to the amount of the sum expended in the erection of the 
buildings, such beneficial interest to extend over a period of 
twenty years ; that is to say, if A and B were required to 
give up possession of the piece of ground before the expira- 
tion of the term of twenty years, they were to be allowed 
one-twentieth part of the amount expended for each remain- 
ing year of the unexpired term of twenty years ; it was held 
that this agreement conferred on A and B such a beneficial 
interest in the land as constituted them owners within the 
interpretation clause of the Lands Clauses Act, 8 & 9 Vict. 
0. 18, and that therefore the company was not entitled to 
enter upon the land tUl it had satisfied A and B's claim as pro- 
vided by § 84.6 

Sec. 27. Terms of Occupancy Regulated by Parol Lease. — 
A lease, or an agreement for a lease, which is void as to the 

1 Ferry v. Pf elffer, 18 "Wis. 510. 482 ; Btmton v. Smith, 40 N. H. 352 ; 
See also, analogous in principle, Potter "Wallace v. Brown, 10 N. J. Eq. 308 ; 
V. Jacobs, 111 Mass. 32; Glass v. Hul- Montal v. Lyons, 8 Ti. Ch. 112; Mor- 



bert, 102 Mass. 24 ; 3 Am. Eep. 418 
Kankin v. Say, 2 De G. P. E. J. 65 
Nunn V. Pabian, L. E. 1 Ch. App. 35 



phett V. Jones, 1 Swanst. 172. 

3 Broughton v. GriflSn, 18 Gratt. 
("Va.) 184; Lindsay «. Lynch, 2 Sch. 



McCarger v. Rood, 47 Cal. 141 ; Dowell & Lef . 1. 
V. Dew, 1 y. & C. 356; Prance v. Daw- * Nunn v. Pabian, 35 L. J. Ch. 141. 
son, 14 Ves. Jr. 386. 6 Rogers v. Hull Dock Co., 12 W. 

2 "Wilkinson v. "Wilkinson, 1 Dessau R. 1101, afEd. 13 "W. R. 217 ; 11 L. T. 

(S. 0.) 201 ; Smith v. Crandall, 20 Md. (N. S.) 42 ; ib. 463. 



66 STATUTE OP FKAUDS. [CHAP.'l. 

duration of the lease, may still regulate the terms on which 
the tenancy subsists in other respects, as to the rent, the time 
o£ the year when the tenant is to quit, etc.,^ and this whether 
the agreement is void as not amounting to a lease,^ or whether 
the lease is void as not being duly executed under a power; ^ 
but the terms must not be at variance Avith the species of 
tenancy which the law under the circumstances creates.* In 
a "Wisconsin case,*^ the defendant attempted orally to lease 
premises for two years, at a specified sum for each year, 
"payable at such times during the term as the plaintiff 
should require." The defendant went into possession un- 
der the lease, and remained twenty months, paying the first 
year's rent, and also at the same rate until the next six 
months, and it was held that, although under the statute of 
frauds the lease was void, yet the defendant became a tenant 
from year to year on the terms of the parol lease. 

Sec. 28. Rule in Tooker v. Smith. — In Tooker v. Smith ^ 
an agreement for a lease contained a stipulation that the 
tenancy should continue until after two years' notice to quit 
had been given ; and it was held that it could not be implied 
that the stipulation as to the two years' notice to quit was 
one of the terms under which the tenant held. 

Sec. 29. Covenants in Farming Lease. — Where a party was 
let into possession, and paid rent, under an agreement for a 
future lease' for years, which was to contain a covenant 
against taking successive crops of corn, and a condition of 
re-entry for breach of covenants, it was held that he became 
a yearly tenant, subject to the above terms of conditions, and 

1 Doe V. Bell, 5 T. E. 471 ; 2 Sm. « Koplitz v. Gustavus, 48 "Wis. 48. 
L. C. 98; Doe v. Breach, 6 Esp. 106; See also to the same effect Williams 
Arden v. Sullivan, 4 Q. B. 832 ; Doe v. Ackerman, 8 Oregon, 405 ; Coan v. 
V. Moffatt, 15 Q. B. 257 ; Tress v. Sav- Mole, 39 Mich. 454; Craske v. Chris- 
age, 4 E. & B. 36 ; 18 Jur. 680 ; 23 L. tian Union PubUshing Co., 17 Him 
J. Q. B. 339. (N. y.) 819; Drake .,. Newton, 23 N. 

2 Eiehardson v. Gifford, 1 Ad. & El. J. L. Ill ; Cady v. Quarterman, 12 Ga. 
52. 386 ; Strong v. Croshy, 21 Conn. 398 ; 

" Beale v. Sanders, 3 Bing. (N. C.) McDowell v. Simpson, 3 Watts (Penn.) 

850 ; 5 Scott, 58. 129 ; Witt v. Mayor, &o., 6 Robt. (N. 

* Berrey v. Lindley, 3 M. & Gr. 514 ; Y. ) 441 . 
4 Sc. (N. E.) 61, per Maule, J.; Hunt « 1 H. & N. 732. 
V. AUgood, 10 C. B. (N. S.) 253; Ben- 
nett V. Ireland, E. B. & E. 326. 



SEC. 32.] PAROL LEASES. 67 

that ejectment might be brought upon successive crops of 
corn being taken.i In Pistor v. Cater ^ the tenant entered 
upon the land under an agreement for a lease as soon as the 
lord's license could be obtained, but no license ever was ob- 
tained. Lord Abikger said : " This is a contract which is 
to bind both parties, even if no lease be granted. ... No 
lease having been made, but the defendant having occupied 
for the whole of the term agreed upon, and having had the 
full benefit which he could have enjoyed under the lease, he 
cannot now say that the covenants are not binding." 

Sec. 30. Covenant to Faint. — By an agreement, not under 
seal, the plaintiff agreed to let to the defendant, and the de- 
fendant to take of the plaintiff, a house and premises for 
seven years, upon the terms (amongst others) that the de- 
fendant would in the last year of the term, paint, grain, and 
varnish the interior, and also whitewash and color. The 
defendant entered under the agreement, and occupied and 
paid rent during the whole period of seven years. In an 
action for not painting, etc., the interior, and whitewashing 
and coloring in the seventh year, it was held that the de- 
fendant must be taken to have occupied on the terms that, 
if he should continue to occupy during the whole period of 
seven years, he would do those things which were by the 
agreement to be done in the seventh year, and that he was 
therefore liable.^ 

Sec. 31. Proviso of Re-entry. — A proviso in a lease for re- 
entry on non-payment of rent is a condition which attaches 
to the yearly tenancy created by the tenant, holding over 
and paying rent after the expiration of the lease.* 

Sec. 32. Rent Paid in Advance. — In Lee V. Smith,^ A be- 
came tenant to the defendant of certain premises, under the 
terms of a written agreement (not under seal), for a term 
exceeding three years, the rent payable quarterly in advance. 
A occupied the premises for some time, and paid several 

1 Doeu.Amey, 12 Ad. &E1. 476; 4 * Thomas v. Packer, 1 H. & N. 
P. & D. 177. 669; Watson v. Wand, 8 Exch. 335. 

2 9 M. & W. 315. 6 9 Exch. 662. 

3 Martin v. Smith, L. E. 9 Ex. 50. 



68 ' STATUTE OF FEAUDS. [CHAP. I. 

quarters' rent, and the receipts given to him by the defend- 
ant's agent stated that such payment was in advance, al- 
though in fact A never paid the rent in advance. It was 
held, nevertheless, that although the agreement was void 
under the 8 & 9 Vict. c. 106, as not being under seal, still 
that the receipt taken was ample evidence of the tenancy 
being upon the terms of the rent being paid quarterly in 
advance. So tenants under a void agreement or void lease 
have been held liable to repair.^ 

Sec*. 33. Parol Lease may be Special in its Terms. — A parol 
demise, rendered valid by the second section of the statute 
of frauds, may contain the same special stipulations as a 
regular lease, and the stipulations may be proved by parol. 
In Lord Bolton v. Tomlin,^ at a letting of lands, the terms 
of letting were read from a printed paper, and a party pres- 
ent agreed to take certain premises from Lady Day then next, 
when the lease of the then tenant would expire. No writ- 
ing was signed by the parties or their agents, but there was 
at the foot of the printed paper a memorandum, also read 
over to the future tenant, stating that the parties had agreed 
to let and to take, subject to the printed terms, the name of 
the farm and the rent, and that the letting was for one year 
certain from Lady Day, and so from year to year till notice 
to quit. Some of the terms were special, having relation to 
husbandry. It was held that on the trial of an action by the 
landlord against the tenant for a breach. of them, the above- 
mentioned paper might be referred to, to refresh the memory 
of a witness as to such stipulations. 

Sec. 34. Collateral Agreements. — Where the lessee of a 
house and his partner in trade agreed to pay the lessor annu- 
ally, during the residue of the term, 10 per cent on the cost 
of new buildings, if the lessor would erect them ; it was held, 
first, that this agreement was not required by the statute to 
be in writing ; secondly, that though the partner quitted the 
premises, he was liable on this collateral agreement during 
the residue of the term.^ So where the defendant was ten- 

1 Richardson v. GifEord, 1 Ad. & El. 25 j^g^_ ^ jjl. 856 ; 1 N. & P. 247. 

52; Beale v. Sanders, 3 Bing. (N. C.) » Hoby v. Roebuck, 7 Taunt. 157; 

850 ; 5 Scott, 58. see also Crowley v. Vitty, 7 Exch. 319. 



SEC. 35.] PABOL LEASES. 69 

ant to the plaintiff of a house and bakehouse under a lease 
for twenty years, at the yearly rent of ^£50, and being desir- 
ous of some improvements in the house, proposed to the 
plaintiff to lay out £50 on such alterations, which the plain- 
tiff consented to do ; and the defendant thereupon agreed to 
pay him an increased rent of £5 a year during, the remain- 
der of the term, to commence from the quarter preceding the 
completion of the work, and a memorandum in writing was 
prepared to that effect, which the defendant refused to sign. 
The alterations were completed in November, 1827, at an 
expense of £55, and the defendant after Christmas, 1827, 
paid the increased rent for the first quarter, but afterwards 
refused to pay any more than the original rent. On an ac- 
tion of assumpsit^ brought to recover arrears of the increased 
rent, it was held, that the landlord having done the work 
might recover the arrears, and that the case did not fall 
within the statute, the additional sum, though called rent, 
being a mere matter of personal contract.^ 

Sec. 35. Determination of Term under Void Lease. — Where 
a tenancy from year to year by entry under an agreement for 
a lease, or a void lease, has been created, it can only be de- 
termined by six months' notice to quit, or by surrender in 
writing.^ Thus where A entered upon premises as tenant 
to B under an agreement, not binding under the statute, for 
five years and a half from Michaelmas, 1823, and m 1826 a 
negotiation was entered into for a term of seven years " from 
the expiration of the present term," at an increased rent, the 
landlord to make some alterations, which he did, but no 
lease was ever executed ; and at Michaelmas, 1829, a whole 
year's rent was paid at the increased rate, and payments were 
afterwards made on the same footing; it was held that a 
notice given on the 11th March, 1835, to quit at Michaelmas 
was a valid notice.^ If, however, the agreement provides 
that the tenant shall enter on a certain quarter-day and quit 
on another, the tenant holds under the terms of the lease in 
other respects, and the landlord can only put an end to the 

1 DoneUan v. Bead, 3 B. & Aid. 100 ; Tress v. Savage, 4 E. & B. 36 ; 18 
899. Jur. 680 ; 23 L. J. Q. B. 339. 

2 Chapman .-. Towner, 6 M. & W. * Berrey v. Lindley, 3M. & Gr. 498. 



70 STATUTE OP FRAUDS. [CHAP. I. 

tenancy on the particular quarter-day fixed by the agree- 
ment.^ But where the agreement provided that the lessor 
should not turn out the tenant so long as he paid the rent, 
it was held that the agreement either purported to be a lease 
for life, which would be void as not being creatable by parol ; 
oj, if it operated as a tenancy from year to year, was neces- 
sarily determinable by either party on giving the regular 
notice to quit.^ And the tenancy may be determined by the 
six months' notice to quit, even if the parol agreement is that 
two years' notice shall be given.^ 

Sec. 36. Tenancy determined at End of Term without No- 
tice. — If a tenant remains in possession until the end of the 
proposed term, he is not entitled to notice to quit, and may 
himself quit without notice.* And the fact that the void 
agreement provided that he might renew the tenancy upon 
terms, will not give him such an interest in the land as to 
entitle him to enforce renewal.* 

In Berrey v. Lindley,® Coltman, J., said : " A party who 
enters under an agreement void by the statute of frauds, 
becomes by that statute tenant at will to the owner, and the 
tenancy described in the statute as a tenancy at will has 
since been construed to enure as a tenancy from year to year. 
But such a tenant may quit without notice, and be ejected 
without notice, at the expiration of the period contemplated 
in the agreement." 

' Doe V. Bell, 5 T. E. 471 ; 2 Sm. » Tooker v. Smith, 1 H. & N. 732. 

L. C. 98 ; De Medina v. Poison, Holt, * Chapman v. Towner, 6 M. & W. 

N. P. 47. 100 ; Doe v. Stratton, 4 Bing. 446 ; 

2 Doe V. Browne, 8 East, 165 ; but Tress v. Savage, 4 E. & B. 36. 

see Browne v. Warner, 14 Yes. 156 ; 6 jjq^ „. MofEatt, 15 Q. B. 257. 

in re King's Leasehold Estates, L. E. » 3 m. & Gr. 512; 4 Sc. (N. E.) 

16 Eq. 521. 61. 



SURRENDER AND ASSIGNMENT. 

Section 3. No leases, estates, or interests, either of freehold or terms 
of years, or any uncertain interest of, in, to, or out of any messuages, 
manors, lands, tenements, or hereditaments, shall, at any time, be as- 
signed, granted, or surrendered, unless by deed or note in writing, 
signed by the party so assigning, granting, or surrendering the same, 
or their agents thereunto lawfully authorized by writing, or by act and 
operation of law. 



CHAPTER n. 

ASSIGNMENT AKD SUEKENDEE. 

SECTION, 

37. When Deed is not Eequired. 

38. Effect of the Statute. 

39. Tenancy from Year to Year not Assignable by Parol. 

40. Effect of Demise of Whole Term. 

41. Surrender, What is. 

42. Demise by Tenant from Year to Year. 

43. Lessee reserving Interest, not Good as a Surrender^ 

44. Kinds of Surrender. Operative Words of. 

45. Estate Created without Deed may be Surrendered without Deed. 

46. Effect of Surrender. 

47. Surrender on Condition Particular Estate may Revest. 

48. No Surrender to take Effect in Future. 

49. Surrender for the Purpose of Eenewal. 

50. Eequisites to Good Surrender. 

51. To whom Surrender must be made. 

52. Who may Surrender. 

53. At what Time a Surrender may be made. 

54. Cancelling Lease not Surrender. 

56. Nor Evidence of Surrender, unless Other Evidence. 

56. Definition of " Surrender by Act and Operation of Law." 

57. Cases to which these Words Applied. Estoppel. 

58. Disclaimer. 

59. Agreement to Pay Additional Eent. 

60. Agreement to Purchase. 

61. Determination of Tenancy from Year to Year. 

62. Ineffectual Notice to Quit. 

63. Surrender by Consent, and Acceptance of Possession. 

64. Presumption of Acceptance of Surrender ; when Rebutted. 

65. Landlord Taking Tenant as Servant. 

66. Surrender by Operation of Law. 

67. Effect of New Lease of a Part of Premises. 

68. Acceptance of a New Lease. 

69. New Lease need not be in Writing. 

70. Agreement for New Lease. 

71. New Lease to Begin Presently. 

72. What is a Sufficient New Lease. 

73. Term Taken in Execution. 

74. New Lease Voidable on Condition may be Surrender. 

75. New Lease Granted to Tliird Party. 

76. Commencement of New Tenancy Question of Fact. 

77. Surrender may be Presumed, Wben. 

78. Effect of Surrender on Rent Due and Accruing, 

79. How a Surrender should be Pleaded. 



SBC. 38.] ASSIGNMENT AND STIEEENDEK. 73 

Section 37. When Deed ia not Required. — When a deed is 
not required by this section, any instrument in writing, duly 
signed and expressing an immediate purpose of giving up 
the estate on the part of the tenant, if accepted by the land- 
lord, will be sufficient.^ In the several States of this coun- 
try in which provision is made as to the manner in which an 
assignment or surrender shall be made, considerable differ- 
ence exists as to the mode in which it may be made. In any 
of them, an assignment or surrender by deed, would be suffi- 
cient,^ and in many of them any writing signed by the party 
assigning or surrendering, or by his agent duly authorized in 
the mode provided in the statute, is sufficient, although not 
under seal,^ while in others no special provision is made as 
to the assignment or surrender of leases ; * but these matters 
are left subject to the general provisions of the statute relar 
tive to the sale or leasing of lands. 

Sec. 38. Effect of the Statute. — The effect of this section 
of the statute of frauds is, not to dispense with any evi- 
dence required by the common law, but to add to its provis- 
ions somewhat of security, by requiring a new and more 
permanent species of evidence. Wherever, therefore, at 
common law a deed was necessary, the same solemnity is 
still requisite under this act ; but with respect to lands and 

1 Fanner v. Rogers, 2 Wils. 26; New Jersey, Penneylrania, and Mis- 
Smith V. Mapleback, 1 T. E. 441; souri, "by deed or note in writing." 
Weddall t. Capes, 1 M. & W. 60; In Ohio no lease can be "assigned 
Harrison v. Blackburn, 17 0. B. N. S. or granted" except by deed or note 
679. in writing. In Oregon no interest in 

^ In Georgia, Maryland, and South real estate can be " created, trans- 
Carolina, the statute is identical with f erred, or declared " otherwise than 
the EngUsh statute in this respect, by operation of law or by a convey- 
In Florida, " by deeds signed, sealed, ance or other instrument in tvriting." 
and delivered in the presence of at In Vermont " no estate or interest in 
least two witnesses." land shall be assigned, granted, or sur- 

^ In Arkansas, by deed or notice in rendered unless by a writing signed, 

viriting. In Maine and Massachusetts, etc." 

" unless by a writing signed, etc.," or * This is the case in Alabama, 
by operation of law. In Michigan, California, Dakota, Connecticut, Del- 
Minnesota, Montana, Nebraska, Ne- aware, Illinois, Indiana, Iowa, Missis- 
vada, New York, Utah, Pennsylvania, sippi. North Carolina, Oregon, Ehode 
and Wisconsin, "unless by act or Island, Tennessee, Texas, Virginia, 
operation of law, or by deed or con- West Virginia, and Wyoming. In 
veyance in writing, etc." In New Kansas, a lease can only be assigned 
Hampshire, "except by writing." In by deed or note in writing. 



74 STATUTE OP FRAUDS. [CHAP. II. 

tenements in possession, which before the statute might have 
been surrendered by words only, some note in writing duly 
signed was by the statute rendered essential to a valid sur- 
render.i In several of the States, an exception is made in 
favor of leases for a period not exceeding the term for which 
parol leases may be made, and they may be assigned or sur-. 
rendered without deed or writing.^ 

Sec. 39. Tenancy from Year to Year cannot be Assigned by 
Parol. — A tenancy from year to year, created by parol, can- 
not be assigned by parol,^ and it appears that an agreement 
by a lessee for the transfer of his interest in a term (not 
exceeding three years) which, not being in writing, is invalid 
as an assignment by the statute, cannot operate as an. under- 
lease ; as it is difficult to say, that, because an agreement is 
by parol, and therefore cannot operate as an assignment, it 
is to be construed to give a less interest than the parties 
intended.* 

SeO. 40. Effect of Demise of Whole Term may be Lease in 
Certain Cases, or Assignment. — If, when the lessee demises 
the whole of his term to another, the parties intend to con- 
tract the relation of landlord and tenant, the transaction 
may, in certain cases, be supported as a lease, so as to allow 
the lessor to bring an action for use and occupation, for the 
whole of such term, although the lessee has given notice to 
quit before the expiration of the term, and has quitted 
accordingly,^ and although the lessor is unable to distrain 
for rent in arrear because of havLag no reversion.* In 
Poultney v. Holmes,^ a lease of all the lessor's interest was 
supported as a lease. This case was cited as valid, but dis- 
tinguished in Palmer v. Edwards,^ which decided that an 

1 Taylor on Evidence, 885; Eoberts decision in Poultney v. Holmes, 1 Str. 
on Frauds, 248. 405, was of very doubtful authority, 

2 As in Arkansas, California, Da- especially after the decision in Par- 
kota, Florida, Kansas, Michigan, Min- menter v. Webber, 8 Taunt. 593. 
nesota, Montana, Nebraska, Nevada, ^ Pollock v. Stacy, 9 Q. B. 1033. 
New York, Oregon, Vermont, Utah, ^ Parmenter v. "Webber, 8 Taunt. 
Wisconsin. 593 ; Smith v. Mapleback, 1 T. E. 441. 

8 Botting V. Martin, 1 Camp. 319. ' 1 Str. 405. 
* Barrett „. Rolph, 14 M. & W. » 1 Doug. 187 n. 
348. In this case it was said that the 



SEC. 40.] ASSIGNMENT AND STJUKENDEE. 75 

instrtiment expressed to be an assignment may operate as 
sucli, although rent is thereby reserved to the assignor. In 
Preece v. Corrie,^ the above doctrine was confirmed, and it 
was held that the lessee held of the lessor though there was 
no reversion. Pollock v. Stacy, however, can hardly be con- 
sidered of great authority, after the recent decision of the 
Court of Common Pleas in Beardman v. Wilson,^ where it 
was held that an under-lease of the whole term amounts to 
an assignment. In that case, Bovill, C. J., said: "As 
far back as the year 1818 it was held, in Parmenter v, Web- 
ber,* that where a lessee under-lets for the whole residue of 
the term, it amounts to an assignment, and it was there 
treated as established law. In a note to Shepherd's ' Touch- 
stone,' * the law is stated in the same way, and it is in accord- 
ance with the usual practice of conveyancers. In "WoUaston 
V. Hakewill,^ the same question again arose, the under-lease 
in that case being for a term exceeding that of the original 
lease, and after taking time to consider, Tindal, C. J., deliv- 
ering the judgment of the court, said : ' The only question 
therefore is, whether, if a lessee for ninety-nine years demises 
for a longer term, such demise operates in law as an assign- 
ment, and we entertain no doubt, but that for a very long 
period the law has been held that it has such operation and 
may be so treated in pleading.' I think the matter must be 
considered to be settled. No doubt the question was sought 
to be in some degree raised in Pollock v. Stacy, but there 
the action was brought for use and occupation, and it was 
not necessary that there should have been any actual demise 
or assignment. The only question was whether the person 
in occupation was liable to pay rent. There was no deed in 
that case which could act as an assignment, and the court 
say : ' The parties intended to contract the relation of land- 
lord and tenant. This they were at liberty to do by law, 
and we therefore carry their lawful intention into effect.' 
The case was decided on its special circumstances." ® 

1 5 Bing. 24. ^ ZM..& Gr. 297. 

•' L. R. 4 C. P. 57. 6 And see Cottee v. Richardson, 7 

« 8 Taunt. 593. Exch. 151. 

* P. 266, 8th ed. 



76 



STATUTE OF PKAUDS. 



[chap. n. 



Sec. 41. Definition of Surrender. — A surrender is "a yield- 
ing up of an estate for life or years, to liim that hath the 
immediate reversion or remainder, wherein the particular 
estate may merge or drown by mutual agreement between 
them."i "But having regard to strangers who were not 



1 Co. Litt. 337 b, Perk. § 584; 2 
Vent. 206; 4 Bac. Abr. 299; Burton 
V. Barclay, 5 M. & P. 785; 7 Bing. 
745; Thorn v. Woolcombe, 8 B. & Ad. 
586. A surrender differs from a re- 
lease in that it is the falling of a lees 
estate into a greater, while a release 
operates by the greater estate falling 
to the less. Williams v. Sawyer, 3 
B. & B. 70; Smith v. Mapleback, 1 
T. E. 441. In order to constitute a 
valid surrender the surrenderor must 
not only hare an estate in possession, 
but he must also be legally compe- 
tent and able to make a surrender 
that will quiet all rights in the line 
of his title, and it must be made to 
the owner, in his own right of the 
immediate reversion. 4 Bacon's Abr. 
§ 1, 213. In conformity with this 
rule it will be seen, and so it has been 
held, that an undertenant cannot sur- 
render the lease and estate to the 
original lessor, because the reversion is 
in the original tenant, and the estate 
must pass back to him, and from 
him to the landlord. Springstein v. 
Schemerhom, 12 John. (N. Y.) 357. 
Prima facie, a person who is not a 
party to the lease who is in posses- 
sion, he is presumed to be in as an 
assignee, but this presumption may 
be overcome by showing that he is 
in merely as an undertenant, and this 
presumption may be overcome by 
showing that the landlord procured • 
the surrender from the lessee, in 
which case such act operates as an 
admission that the lessee was tenant 
at the time of the surrender. Durand 
V. "Wyman, 2 Sandf. (N. Y. Sup. Ct.) 
597. If there is an intervening es- 
tatej there is no surrender, but in 
such cases it may opiate as a grant 
of the term. Agar v. Brown, 2 B. & 
B. 331. So, too, there must be a 
privity of estate between the surren- 



deror and the surrenderee, and the 
latter must have a higher and greater 
estate in the estate surrendered than 
the surrenderor, which exists in his 
own right, and not in the right of 
another or as joint tenant. Shep. 
Touch. 303; 2 Bl. Com. 336. But, 
see Shep. Touch. 308, where a contrary 
doctrine is advanced. Under this 
rule, if a lease is made by a husband 
and wife, of the wife's lands, a sur- 
render should be made to her. Wood- 
ard V. Lindley, 43 Ind. 433. But if 
the husband has a lease or estate for 
years, he alone, or he and his wife 
together, may surrender it; but if he 
has an estate for life in right of his 
wife, who is tenant in dower or other- 
wise, a surrender by the husband 
alone is good only during his life, 
and if the wife survives him, the es- 
tate reverts to her. Shep. Touch. 303. 
So, where a surrender is made to an 
agent who is not shown to have power 
to accept a surrender for his princi- 
pal, yet if the landlord subsequently, 
without returning the lease to the 
lessee, accepts rent from a person to 
whom the lessee had sublet the prem- 
ises, it has been held to be a valid 
surrender. Amory v. KanofEsky, 117 
Mass. 351. A surrender to an infant 
is good unless the presumption of his 
assent thereto is overcome by proof 
of dissent. Thompson v. Leach, 2 
Vint. 198. And generally it may be 
said that a surrender may be made 
to any person who is legally entitled 
to the immediate reversion, as to the 
lessor himself, or a person authorized 
by, or holding imder him ; but a sur- 
render made to one who has not a 
greater estate is not good. . 4 Bacon's 
Abr. tit. Leases, § 2. It should be 
remembered that a, person who is 
from any cause disabled from grant- 
ing the entire outstanding estate, is 



SEC. 42.] ASSIGNMENT AND STJBBBNDEE. 77 

parties or privies thereunto ; lest by a voluntary surrender 
they may receive prejudice touching any right or interest 
they had before the surrender, the estate surrendered hath 
in consideration of law a continuance,"^ and therefore, 
although a surrender of a life estate to the owner of the fee 
is as between the parties an extinguishment of the estate 
surrendered, yet it may have a continuance to uphold a prior 
interest derived under it,^ for there is no piivity of contract 
between the original lessor and the sub-lessee.' Thus, where 
the defendant held two plots of land, B and C, under a lease 
which contained a covenant to build the houses not less than 
thirty feet apart, the effect of which was to secure to the 
houses on plot B a sea-view over plot C, and H, having 
entered into a treaty with the defendant for the under-lease 
of plot B, made inquiries of the defendant as to what could 
be built on the land in front, to which the defendant replied 
that he (the defendant) could not build on C closer than 
thirty feet, as his lease did not allow it, and H after having 
inspected the original lease took an under-lease of plot B, 
contaiuing a covenant by the defendant that he, his execu- 
tors, administrators, and assigns, would observe the lessee's 
covenants in the original lease; and the defendant after- 
wards surrendered his lease to the ground landlord, took a 
new lease not containing the old restrictions, and commenced 
building on plot C in a way which would obstruct the sea- 
view from houses on plot B belonging to the plaintiff, who 
was the assignee of H ; it was held that the right of H under 
the defendant's covenants to observe the covenants in the 
original lease, was not affected by the surrender, and that 
the plaintiff was on that ground entitled to an injunction 
to restrain the defendant from buildiug in contravention 
of those covenants.* 

Sec. 42. Demise by Tenant from Year to Year. — Surrender 
by lease does not affect a sub-lessee. A demise by a tenant 

unable to surrender such estate, and i Co. Litt. 238 b ; Davenport's 

that a person who is disabled from Case, 8 Co. 145 b. 

taking by grant is disabled from tak- " Doe v. Pyke, 5 M. & S. 146. 

ing by surrender, rurnivall v. Grove, ^ Pleasant v. Benson, 14 East, 237 ; 

8C.B. (N.S.)403; Pleasant w. Benson, Torriano v. Young, 6 C. & P. 8. 

4 East, 234; Doe v. Pyke, 5 M. & S. * Piggott o. Stratton, 1 De G. P. 

154. & J. 33. 



78 STATUTE OF FEATJDS. [CHAP. II. 

from year to year to anotlier, also to hold from year to year, 
is a demise from year to year during the continuance of the 
original demise, although at the time of making the contract 
no such qualification is mentioned ; for, although the lessee 
might surrender, his estate would as to the under-lessee 
have continuance.^ It is well settled that the surrender of a 
lease wiU not affect or prejudice an under-lease previously 
granted,^ unless the sub-tenant expressly assents thereto and 
in effect attorns to him.^ Thus, in an English case,* at 
Michaelmas, 1851, A, the owner of two adjoining houses, 
Nos. 4 and 5, let No. 5 to A, as tenant from year to year. 
Defendant having become tenant to W of No. 4, A let him 
the cellars under No. 5, from year to year from Michaelmas, 
1861. There was in the front cellar a gas-meter communi- 
cating with the house No. 5, and it was a term of the letting 
that A should be allowed to go to the meter, if necessary, 
whenever defendant's premises were open. In July, 1871, it 
was agreed between A, W, and D, that A should give up pos- 
session of No. 6 to- W, and D became tenant from year to 
year to W from Michaelmas, 1871. Defendant was aware 
that No. 5 was given up by A and re-let to D, but no notice 
to quit the cellars was given to defendant. In March, 1872, 
D put up in the cellars a water-meter communicating with 
his house, without either objection or express permission of 
the defendant. Afterwards D surrendered his interest in 
favor of the plaintiff, and W let No. 6, expressly including 
the cellars, to the plaintiff for fourteen years, from the 24th 
of June, 18.72. The plaintiff entered into occupation, the 
cellars remaining occupied by the defendant, and plaintiff, 
without objection or permission of the defendant, put up more 
pipes and some bell-wires in the cellars. In July, 1872, the 
plaintiff demanded possession of the cellars, but the defend- 
ant refused to give them up without a proper notice to quit, 
and he retained possession till April, 1873. On the 10th of 



1 Pike V. Eyre, 9 B. & C. 909; 4 Torriano v. Yoiing, 6 C. & P. 8; Hay- 
Mann. & E. 661 ; Lambert v. McDon- ton v. Benson, 14 East, 237. 

nell, 15 It. C. L. E. 136 ; The London ^ Lambert v. McDonnell, 15 Ir. 

Discount Co. v. Drake, 6 C. B. (N. S.) C. L. 136. 

798. * Mellor v. Watkins, L. E. 9 Q. B. 

2 Piggott V. Stanton, 1 De G. P. & 400. 
J. 33; Beaden v. Pyke, 5 M. & S. 146; 



SEC. 42.] ASSIGNMENT AND STJEBENDER. 79 

January, 1873, the defendant cut off the plaintiff's water 
supply by hammering up the service pipe passing through 
the cellars, and cut the gas-pipes and bell-wires. The plain- 
tiff having brought an action for being kept out of possession 
of the cellars, and for the damages caused by the defendant's 
cutting the pipes, etc., it was held that the defendant was 
entitled to keep possession until a proper notice to quit had 
been given ; for that the voluntary surrender by A could not 
affect the interest of the defendant, his sub-lessee, and that 
plaintiff was entitled to damages for the. cutting of his pipes 
and wires; because a licensee, under a revocable license, 
was entitled to notice of revocation and a reasonable time 
afterward to remove his goods.^ Not only is a sub-tenant 
protected against a surrender by the lessee, but a mortgagee 
of his term is also protected therefrom, and even a mortgagee 
of the tenant's fixtures, it not being competent to the tenant 
to defeat his grant by a voluntary surrender subsequent to 
the grant.^ Thus, a party seized of a leasehold estate for 
life, subject to a covenant against waste, cannot defeat the 
rights of a mortgagee under a mortgage executed by hiinself, 
by a mere confession of waste to the landlord, and a surren- 
der of possession to him for a consequent forfeiture of the 
lease. As against such mortgagee, and indeed, even as 
between the landlord and tenant, a re-entry for the forfeit- 
ure, hy suit at law, is necessary to terminate the lease.* 

1 McKenzie v. Lexington, 4 Dana neglect or refuse to pay his rent after 
(Ky.) 129. a regular demand, or is guilty of ani/ 

2 The London &c. Loan and Dis- other breach of the condition of a re- 
count Co. 17. Drake, 6 C. B. N. S. 798. entry, the lease is only voidable, and, 

^ Allen V. Brown, 60 Barb. (N. Y.) therefore, not determined until the 

39. In this case Millek, P. J., said : lessor re-enters ; that is, brings an 

" There is no reported case in the ejectment for the forfeiture ; and this, 

books which holds that where there though the clause of the condition 

is a condition in a lease that a party should be that, for non-payment of 

shall not commit waste, that the lease rent, or the like, the lease shall cease 

becomes forfeited without a trial and and be void ; for it is a rule that 

a judgment at law in favor of the where an estate commences by liv- 

party claiming the forfeiture. There ery, it cannot be determined before 

is a difference between leases for lives entry.' 

and for years. In Woodf all's Land. " Applying the rule laid down, there 

and T., 271, it is said: 'In cases of can be no question that the plaintiff's 

conditions of re-entry, there is a dif- action cannot be maintained. The 

ference between leases for lives and authority quoted is cited in Jackson 

leases for years'... 'As to leases w. Elsworth, 20 John. (N. Y.) 180, and 

for lives, it is held that if the tenant there is no case referred to which 



80 



STATUTE OF PEATJDS. 



[chap. n. 



Where a lessor, in consideration of the payment of an annual 
sum during a term of years, grants certain priTileges to an 
under-tenant, which the mesne landlord was incapable of 
granting, a surrender to the latter will not affect the tenant's 
liability on his contract with the permanent lessor.^ 

Sec. 43. Lessee reserving Interest not Good Surrender. — If 

a lessee reserves to himself any part of the estate, it is not a 
good surrender, as if he grants all his term to the lessor 
except the last year, month, or day.^ 

A surrender does not operate as such unless it is accepted 
by the reversioner.^ 

Sec. 44. Surrenders are of Two Sorts. Proper Operative 
■Words. — A surrender, properly taken, is of two kinds. 



disturbs the doctrine there laid down. 
It must, therefore, be considered as 
decisive, and the question as res adjvn 
dicata. I am also inclined to think 
that a forfeiture and re-entry on ac- 
count of waste is a condition and not a 
limitation of an estate, and, therefore, 
waste of itself, without the institution 
of legal proceedings, does not termi- 
nate the estate. The condition does 
not defeat the estate, although it be 
broken, until entry by the grantor, or 
his heirs or representatives. The 
landlord may terminate the estate, if 
he chooses, by a proper proceeding, 
and take advantage of a breach of the 
condition. If he fails to do this, the 
estate continues the same as if there 
had been no breach of the condition, 
and the condition is waived. (2 Black. 
Com. 155; 4 Kent, 126, 127.) 

" There is another difficulty, I think, 
in the way of the plaintiff and this 
action. James J. Allen, the owner of 
the leasehold estate, having conveyed 
his interest in the same by way of 
mortgage, I am strongly inclioed to 
think that he could not make or exe- 
cute a valid surrender of the premises 
as against the mortgagee, and thus 
defeat him from holding under the 
mortgage. The mortgage purports 
to convey the premises to the mort- 
gagee, subject to be defeated upon 



the performance of the condition con- ' 
iained in the mortgage. The mort- 
gagor parts with an interest in the 
mortgaged premises, by the execution 
of the mortgage, and if he can sur- 
render the premises in despite of the 
obligations he has incurred, it would 
open the door to collusion and the 
grossest fraud and injustice. A s'ur- 
render is only a conveyance of the 
estate which the lessee has, and if it 
be subject to a mortgage, then the 
landlord can receive no greater estate 
than could be conveyed to any other 
person, and such as the tenant had, 
subject to the incumbrance thereon. 
There is eminent justice and equity 
in such a rule, and I can discover no 
good reason why it should not be ap- 
plied. The lease is executed with 
knowledge that the property may be 
incumbered by mortgage, and no 
rights are lost if the incumbrance ia 
recognized, without injury to the 
landlord, to prevent a forfeiture which 
must destroy the claim of the mort- 
gage, and which the law abhors. See 
Keech v. Hall, 1 Douglass, 21; 1 
Smith Leading Cases, 293." 

1 Doscher v. Shaw, 52 N.Y. 602. 

2 Com. Dig. tit. Surrender (H.) ; 
Bac. Abr. tit. Leases, § 3. 

8 Colles V. Evanson, 19 C. B. (N. S.) 
382, per Byles, J. 



SEC. 44.] ASSIGNMENT AND SUREENDEE. 81 

namely, a surrender in deed, or by express words, and a sur- 
render in law, wrought by consequent operation of law.i 
The proper operative words of a surrender are, " surrender 
and yield up." ^ But in an express surrender, it is not neces- 
sary to use the formal word "surrender" in the conveyance ; 
nor, indeed, is any particular form essential, but any words, 
whereby the intent and agreement of the parties to that end 
appear, are sufficient to work a surrender, and the law will 
direct the operation and construction of the words accord- 
ingly.^ If a lessee for life or years grants all his estate to 
bis lessor, that is a surrender.* Thus, in Farmer v. Rogers,^ 
A B by deed indented, mortgaged lands to C D for five hun- 
dred years, with a proviso for cesser on payment of £ 500 
and interest upon a certain day. This mortgage was set up 
as a defence to an action of ejectment, when the deed ap- 
peared to contain the following indorsement : " Received this 

day of March, 1738 (being after the day limited by the 

proviso), of A B so much money for all principal money and 
interest till this day ; and I do release the said A B, and dis- 
charge the within-mortgaged premises from the term of five 
hundred years." Signed by C D, the mortgagee. The indorse- 
ment was held to be a sufficient surrender of the terrii, the 
court observing that the words "release and discharge the 
term of five hundred years" were much stronger than words 
which, in many cases, had amounted to a surrender, ut res 
magis valeat quam pereat. So where a lease came into the 
hands of the original lessor by an agreement between him 
and the assignee of the original lessee, " that the lessor should 
leave the premises, as mentioned in the lease, and should pay 
a particular sum over and above the rent, annually, towards 
the good will already paid by such assignee," the agreement 
was held to operate as a surrender of the whole term, and 
the sum mentioned in the agreement was considered as a 
sum to be paid annually in gross.® The statute does not, 
except in Florida, make a deed essential to a surrender, the 
words being either " by deed or note in writing," or "by deed 

1 Co. Litt. 338 a. (N. C.) 564 ; 7 Scott, 690 ; and see 2 

2 Woodf. L. & T. 9th ed. 267. Boll. Abr. 497 (H.) pi. 1. 

» 1 Wms. Saund. 289, citing Wil- * 2 Roll. Abr. 497, pi. 15. 
liams V. Sawyer, 3 Brod. & B. 70 ; 6 ^2 Wils. 26, 27. 
Moore, 226 ; Doe v. Stagg, 5 Bing. « Smith v. Mapleback, 1 T. R. 441. 



82 



STATUTE OF FRAUDS. 



[GHAP. II. 



or conveyance in writing," signed, ete.,^ and any instrument 
in writing duly signed, and expressing an immediate purpose 
of giving up the estate on the part of the tenant, if accepted 
by the Jandlord, will be sufficient.^ Thus a written instru- 
ment in this form, " we hereby renounce and disclaim, and 
also surrender and yield up all right, etc.," a tenancy from year 
to year being in existence has been held to be a surrender 
and not a disclaimer.^ So a written request by a tenant to 
the landlord to re-let the premises to some other person, or 
even a parol agreement to surrender, if acted upon, amounts 
to a surrender by operation of law.* But a parol agreement 
between the landlord and a tenant for a term, that the land- 
lord shall make a new lease to a third person for the unex- 
pired term, and the tenant will surrender, does not operate 
as a surrender by operation of law, unless the new lease is 
executed, and passes on interest according to the intention of 
the parties, even though the tenant quit, and such third per- 
son enters and occupies for a time.* 



1 Peters v. Barnes, 16 Ind. 219. 

2 Shep. Touch. 306; Farmer v. 
Rogers/ 2 Wils. 26; Harrison v. 
Blackburn, 17 C. B. (N. S.) 679; 
Smith V. Mapleback, 1 T. R. 441; 
"Weddall v. Capes, 1 M. & W. 50. 
Any words indicative of an intention 
and desire to surrender will operate 
as a surrender. Weddall v. Capes, 
ante; Chamberlaine's Case, 4 Mod. 
151, as dedi or concessi Co. Litt. 301 ft, 
" the lessee doth discharge the prem- 
ises from the term." Earl v. Rogers, 
2 Wils. 26; Mason v. Treadway, 1 

' Lev. 145, " the lessee is content that 
the lessor shall have the land." Pen- 
ruddock V. Newman, 1 Leon, 279, have 
been held sufficient. An interesse ter- 
mini is no impediment to a surrender. 
Anon. 2 Dyer, 112 a, pi. 49 ; but a re- 
mainder is. Jenkin Cent. 256, case 49. 

5 Wyatt V. Stagg, 5 Bing. (N. C.) 
564. 

* NickeUs v. Atherstone, 10 Q. B. 
944. In Allen v. Devlin, G Bos. (N. Y.) 
1, it was hold that a parol agreement 
on a good consideration made in Jan- 
uary, 1858, for the surrender of the last 
year of the term ending in May, 1859, 



and duly performed by the tenant, was 
valid, and a good defence to an action 
for rent. In Lamar v. McNamee, 10 
G. & J. (Md.) 116, it was agreed by 
parol, between landlord and tenant, 
that the latter should give up his un- 
expired term in a lease and certain 
claims which he had for repairs done 
to the dismised premises, in consid- 
eration of which the landlord prom- 
ised to pay the tenant a certain sum 
of money, and the tenant actually sur- 
rendered on the same day, and the 
landlord took possession. It was held 
that the agreement, being immediately 
executed, was not void, and that the 
action by the tenant for the money 
was maintainable. "Wlien the tenant 
abandons the premises, and the land- 
lord, at the request of the surety, re- 
lets them on his account, such reletting 
does not amount to a surrender. Mc- 
Kenzie v. Farrell, 4 Bos. (K. Y.) 192. 

^ Soheifflin v. Carpenter, 15 Wend. 
(IS. Y.) 400. In Wood u. Walbridge, 
19 Barb. (N. Y.) 156, it appeared that 
in November, 1843, the plaintiff leased 
a house of B and C for the term of 
eight years, to commence April 1, 



SKC. 45.] ASSIGNJIENT AND SURRENDER. 



83 



Sec. 45. Estate Created 'v^ithout Deed may be Surrendered 
without Deed. — Where the estate may commence without 
deed, it may be surrendered without deed,i as for example, 
and estate for life of lands, which may be surrendered with- 
ovit deed, and without livery of seizin ; because it is but a 
yielding or a restoring of the estate again to him in the 
immediate reversion or remainder.^ But an estate for life 
or years of things which lie in grant whereof a particular 
estate cannot commence without deed, cannot be surrendered 
without deed.^ 



1844. In Eebruary, 1844, the house 
was destroyed hy fire, and the plain- 
tiff, who had been in possession, left 
the premises, and requested the les- 
sors to cancel the lease, insisting tliat 
tliere had been a previous verbal 
agreement to cancel tlie lease in case 
of destruction by fire. The lessors 
refused, and the premises were unoc- 
cupied the first quarter : then the les- 
sors entered. B conveyed his inter- 
est to C, who built thereon, and 
leased the same to defendants for 
three years. The plaintiff made no 
claim till November, 1846, when he 
brought ejectment against the de- 
fendant. Held, that the acts of the 
lessors must be taken to have been 
with the plaintiff's assent, and were 
inconsistent with the continuance of 
plaintiff's lease, which must be con- 
sidered as surrendered by operation 
of law. A parol agreement to sur- 
render, predicated on a good con- 
sideration, is binding on the tenant. 
Bogert V. Dean, 1 Daly (N. Y. C. P.) 
250. 

I Co. Litt. 338 a ; Farmer v. Rogers, 
2 Wils. 26; Lamar «. McNamee, 10 
G. & J. (Md.) 126; Rowan w. Little, 11 
"Wend. (N. Y.) 616 ; Peters v. Barnes, 
16 Ind. 210; Bailey v. Wells, 8 Wis. 
141. In Pennsylvania, it is held that 
a surrender need not in all cases be 
in writing : Keister v. Miller, 25 Penn. 
St. 481 ; Greider's Appeal, 5 id. 422 ; 
as where the lease is for less than four 
years. McKinney v. Reader, 7 Watts 
(Penn.) 123. Evidence of a parol 
agreement entered into contempora- 



neously with the making of the lease 
cannot be shown. Brady v. Peiper, 1 
Hilt. (N. Y. C. P.) 61. In Delaware, 
an agreement to accept the surrender 
of even a parol lease is required to be 
in writing. Logan v. Barr, 4 Harr. 
(Del.) 546. In Kentucky, a parol sur- 
render is good. MclCenzie v. Lexing- 
ton, 4 Dana (Ky.) 129. In Maine, a 
surrender must be by deed or writing. 
Hesseltine v. Seaver, 16 Me. 212. So 
in Vermont, Gen. Stat., p. 450, § 21 ; 
1 Wms. Saund. 236, note n., an unex- 
pired term of one year may be surren- 
dered by parol. Smith i . Devlin, 23 
N. Y. 363. At the common law be- 
fore the 29 Car. 2, ch. 3, corporeal 
hereditaments might be surrendered 
without either deed, writing, or livery. 
Lynch v. Lynch, 6 Ir. L. R. 131 ; Lyon 
V. Reed, 13 M. & W. 285; Co. Litt. 
336 a; Perkins v. Perkins, Cro. Eliz. 
269; Close v. McCuUough, Gilb. Eq. 
Rep. 235. And the circumstance that 
a lessee delivered up his lease to the 
lessor was a strong evidence of a sur- 
render in fact. Lyon v. Reed, 13 M. 
& W. 285. But a deed was indispen- 
sable to a surrender of incorporeal 
hereditament. 2 Piatt on Leases, 499 ; 
Co. Litt. 338 a ; Bennett's Case, 2 
Rolle, 20 ; Lyon v. Reed, ante ; Wood- 
fall's L. & T. 267. 

2 Co. Litt. 838 a; Wilston v. Pilk- 
ney, 1 Vent. 242 ; Cartwright v. Pink- 
ney, id. 272. 

8 Shep. Touch. 397 ; Co. Litt. 338 a ; 
Perkins v. Perkins, Cro. Eliz. 269; 
Lyon V. Reed, 13 M. & W. 310 ; 13 L. 
J. Ex. 377. 



84 STATUTE OB" FEAITDS. [CHAP. H. 

Sec. 46. Effect of Surrender. — A surrender immediately 
diverts the estate out of the surrenderor, and vests it in the 
surrenderee ; for this is a conveyance at common law, to the 
perfection of which no other act is requisite but the bare 
grant ; and though it be true that every grant is a contract, 
and there must be an actus contra actum, or a mutual con- 
sent ; yet that consent is impKed ; a gift imports a benefit, 
and an assumpsit to take a benefit may well be presumed, 
and there is the same reason why a surrender should vest the 
estate before notice or agreement, as why a grant of goods 
should vest a property, or sealing of a bond to another in 
his absence should be the obligee's bond immediately, with- 
out notice.^ 

Sec. 47. Surrender on Condition Particular Estate may Re- 
vest. — A surrender, like any other conveyance, may be made 
upon condition ; ^ and if the condition is broken, the particu- 
lar estate may be revested,^ whether the surrender be express 
or implied,* and the landlord's right to distrain will con- 
tinue. Thus, where a tenant from year to year entered into 
a conditional agreement with his landlord to surrender, 
which was never acted upon, it was held that there was no 
surrender.^ 

Sec. 48. No Surrender to take Effect In Puturo. — There 
cannot be a surrender of an estate in possession, to take 
effect in futuro? A lessee for years to begin presently can- 
not, until entry or waiver of the possession by the lessor, 
merge or drown the same by any express surrender, because 
until entry there is no reversion wherein the possession may 
drown ; but if the lessee enters and assigns his estate to an- 
other, such assignee before entry may surrender his estate to 
the lessor, because by the entry of the lessee the possession 

1 Thompson v. Leach, 2 Salk. 617. ^ Coupland v. Maynard, 12 East. 

2 Perk. § 624. 134; Johnston v. Huddlestone, 4 B. & 
8 Co. Litt. 218 h. C. 922 ; 7 D. & R. 411 ; Weddall w. 
4 Doe V. Poole, 11 Q. B. 716; 17 Capes, 1 M. & W. 50 ; Doe u. Milward, 

L. J. Q. B. 143 ; and see lioyd v. Lang- 3 M. & W. 332 ; 7 L. J. (N. S.) Ex. 57 ; 

ford, 2 Mod. 176. Eoquet v. Moore, 7 Ex. 870 ; 22 L. J. 

^ Coupland v. Maynard, 12 East. Ex. 35; and see Bessell v. Landsberg, 

134 ; and see Cocking v. "Ward, 1 C. 7 Q. B. 638 ; 14 L. J. Q. B. 355. 
B. 868. 



SEC. 48.] ASSIGNMENT AND SXTEEENDEE. 85 

is severed and divided from the reversion, which possession 
being by the assignment transferred to the assignee, may 
without any other entry be surrendered and drown in the 
reversion.^ 

If a lease for years is made, to begin at a future day, this 
future interest cannot be surrendered; but if the lessee 
before that day take a new lease for years, either to begin 
presently or at the days named, this is a surrender in law of 
the first lease.^ A lessee for years of a term to begin at a 
day to come, cannot surrender it by an actual surrender 
before the day the term begins, as he may by a surrender in 
law.* A notice to quit may operate as a surrender, but not 
if it was given under a mistake as to the time when the term 
expires, and consequently is not good as a notice to quit. 
Thus, in a ease previously cited,* a tenant from year to year, 
believing that his tenancy determined at Midsummer, gave 
a written notice to quit at that period, which the landlord 
accepted, and made no objection to. The tenant having 
afterwards discovered that his tenancy expired at Christmas, 
gave his landlord another notice accordingly, and, on posses- 
sion being demanded at Midsummer, refused to quit the 
premises. An ejectment having been brought, it was held 
that the tenancy was not determined by notice, inasmuch as 
it was not good as a notice to quit, and could not operate, as 
a surrender by note in writing under the statute being to 
take effect in future. Parke, B., said : " I am very strongly 
of opinion that there cannot be a surrender to take place 
in future. In Johnstone v. Huddlestone, ante, it was held that 
an iusufficient notice to quit, accepted by the landlord, did 
not amount to a surrender by operation of law, and it was 
there agreed that there could not be a surrender to operate 
in futuro. The case of Aldenburg v. Peaple,^ was much 
shaken by the decision of this court in Weddall v. Capes, 
ante ; for, although this precise point is not there determined, 
yet it is clear that the court were of opinion that the in- 
strument could not operate as a surrender in futuro." 

' Bac. Abr. tit. Leases, § 2; and ' Shep. Touch. 304; Ive v. Sams, 

see Doe v. Walker, 7 D. & B. 487 ; 5 Cro. Eliz. 521 ; Hutchins v. Martin, 

B. & C. 111. il). 605. 

2 Bac. Abr. tit. Leases, § 2 ; Shep. * Murrell v. Milward, 3 M. & W. 327. 

Touch. 302. 6 6 C. & P. 212. 



86 STATUTE OP FiBAUDS. [CHAP. n. 

Sec. 49. Surrender for the Purpose of Renewal. — The sur- 
render of a lease will not affect an existing sub-lease. 
Formerly, if a lessee created out of his estate an under-lease 
for a less term, and surrendered his immediate reversion to 
his own reversioner, as his estate became merged, there was 
no reversion on the sub-lease, and the rent as incident to 
such reversion ceased.^ As regards surrenders for the pur- 
pose of renewal, it is provided by 4 Geo. II. c. 28, § 6, that 
in case any lease shall be duly surrendered in order to be 
renewed, and a new lease made and executed by the chief 
landlord, or landlords, the same new lease shall, without a 
surrender of all or any of the under-leases, be as good and 
valid to all intents and purposes, as if all the under-leases 
derived thereout had been likewise surrendered at or before 
the taking of such new lease ; and all and every person and 
persons, in whom any estate for life, or lives, shall from time 
to time be vested by virtue of such new lease, and his, her, 
and their executors and administrators, shall be entitled to 
the rents, covenants, and duties, and have like remedy for 
the recovery thereof; and the under-lessees shall hold the 
messuages, etc., in the respective under-leases comprised, as 
if the original leases, out of which the under-leases are de- 
rived, had been kept on foot and continued ; and the chief 
landlord and landlords shall have and be entitled to such 
and the same remedy, by distress or entry in and upon 
the messuages, etc., for the rents and duties reserved by such 
new lease, so far as the same exceed not the rents and duties 
reserved in the lease out of which the under-lease was de- 
rived, as they would have had in case such former lease had 
been still continued, or as they would have had in case the 
under-leases had been renewed under such new principal 
lease. The object of the legislature in framing this clause 
appears to have been to place all parties as to every matter 
in the same situation as if no surrender had taken place.^ 
In England, by 8 & 9 Vict. c. 106, § 9, it is provided that, 
when the " reversion expectant on a lease made either before 
or after the passing of the Act, shall, after the 1st of Octo- 

1 Thre'r v. Barton, Moore, 94 ; 2 Doe v. Marchetti, 1 B. & Ad. 721, 

Shep. Touch. 301 j Webb. v. Eussell, per Lord Tenterden, C. J. ; Cousins v. 

3 T. E. 398; Burton v. Barclay, 7 Phillips, 3 H. & C. 892; re Ford's 

Bing. 756 ; 5 M. & P. 785. Estate, L. K. 8 Eq. 309. 



SEC. 52.] ASSIGNMENT AND SUnREKDEE. 87 

ber, 1845, be surrendered or merge, the estate which shall 
for the time being confer as against the tenant under the 
same lease the next vested right to the same tenements or 
hereditaments, etc., shall, to the extent and for the purpose 
of preserving such incidents to and obligations on the same 
reversion as, but for the surrender or merger thereof, would 
have subsisted, be deemed the reversion expectant on the 
same lease." ^ 

Sec. 50. Requisites to Good Surrender. — To make a good 
surrender it is essential : 1st. That the surrenderor be a per- 
son able to grant and make, and the surrenderee, a person 
capable and able to iake and receive or surrender, and that 
they both have such estates as are capable of a surrender ; 
and for this purpose that the surrenderor have an estate in 
possession [or rather an actual vested estate] of the thing 
surrendered at the time of surrender made, and not a bare 
right thereunto only. 2d. That the surrender be to him 
that hath the next immediate estate in remainder or rever- 
sion, and that there be no intervenient estate coming be- 
tween. 3d. That there be a privity of estate between the 
surrenderor and the surrenderee. 4th. That the surrenderee 
have a higher and greater estate in the thing surrendered 
than the surrenderor has [or an estate equally large], so that 
the estate of the surrenderor may be drowned therein. 5th. 
That he have the estate in his own right, and not in the right 
of another. 6th. And that he be sole seized of the estate in 
remainder or reversion, and not in joint tenancy.^ 

Sec. 51. To whom Surrender made. — Under the rules 
stated, a lessee for years may surrender to him who has the 
reversion only for years ; though the lease be for several years 
and the reversioner has it only for one year or a less term.^ 

Sec. 52. who may Surrender. — Those persons who are 
disabled to grant are unable to surrender ; and such persons 

1 Farmer v. Rogers, 2 "Wils. 26 ; » Hughes a. Eobotham, Cro. Eliz. 
Williams v. Sawyer, 3 Brod. & B. 70; 302 ; Dighton v. Greenvil, 2 Vent. 326, 
Doe V. Stagg, 5 Bing. (N. C.) 564; 7 327 ; Challoner v. Davis, 1 Ld. Raym. 
Scott, 690. 402 ; Bac. Abr. tit. Leases, § 2 ; 

2 Shep. Touch. 303. See note, ante, Edwards .,. Wickwar, L. K. 1 Eq. 68, 
p. 76. 403. 



88 STATUTE 0¥ FRAUDS. [CHAP. U. 

as are disabled to take by a grant are unable to take by a 
surrender.! A sub-lessee cannot surrender to tbe original 
lessor, by reason of the intermediate interest, but the lessee 
may surrender to the lessor and then the sub-lessee likewise, 
because then his lease is become immediate to the reversion 
of the lessor.'^ If a husband has a lease or estate for years 
in the right of his wife, he alone, or he and his wife together, 
may surrender the lease. But if the husband has an estate 
for life in the right of his wife, being tenant in dower or 
otherwise, and he alone, or he and she together, surrender it, 
the surrender is good only during the life of the husband, 
except it is made by fine, nor even if there be a fine, unless 
the wife join.^ One executor may surrender an estate or 
lease for years wliich the executors have in the right of their 
testator.* One joint-tenant cannot surrender to another joint- 
tenant, but a release is the proper assurance between them.* 
Where the lessee of premises under a covenant of re-entry, 
if the rent should be in arrear twenty-eight days, died in bad 
circumstances, and his brother administered de son tort, and 
agreed with the landlord to give him possession and suffer 
the lease to be cancelled on his abandoning the rent, which 
was twenty-eight days in arrear, and took out letters of 
administration, it was held that the agreement of the brother 
made as administrator de son tort, did not conclude him as 
rightful administrator, nor give a right of possession to the 
landlord who had entered under the agreement, but who had 
not made any formal claim in respect of the forfeiture, nor 
taken a regular surrender of the lease .^ Where a lessee gave 
up possession on the last day of the term to a trustee to whom 
he had been in the habit of paying his rent, and not to the 
person having the legal estate, it was held there was no sur- 
render.'' So a surrender to sequestrators is not sufficient.® 
The surrender of an infant lessee by deed is void ; but his 
surrender in law by the acceptance of a new lease is good, if 
such new lease increases his term or decreases his rent.^ 

1 "Woodf. L. & T. 9th ed. 277; « Doe v. Glenn, 1 Ad. & El. 49. 
Shep. Touch. 303. i Ackland v. Lutley, 9 Ad. & El. 879. 

2 Bac. Abr. tit. Leases, § 2. 8 Cornish v. Searell, 8 B. & C. 471. 
8 Shep. Touch. 303. 9 Lloyd v. Gregory, Cro. Car. 501 ; 
* Shep. Touch. 303. see Zouch v. Parsons, 3 Burr. 1794. 

6 lb. 303-4. 



SEC. 54.] ASSIGNMENT AND StJEEENDER. 89 

Sec. 53. At 'what Time a Surrender may be made. — A les- 
see for a term of years to begin presently cannot, before 
entry, merge or drown the term by a surrender, because until 
entry there is no term, and no reversion in the possession to 
drown ; but if the lessee enters and assigns his estate to an- 
other, such assignee may, before entry, surrender his term to 
the lessor, because by the entry of the lessee the possession 
was severed and divided from the reversion, which posses- 
sion, being by assignment transferred to the assignee, may 
without other entry be surrendered and drowned in the rever- 
sion ;^ but it is not necessary that the surrenderor of a lease 
to begin at a future day should be in possession, in order to 
make a surrender before the period of commencement.^ As 
to surrender of leases in futuro or future interest, there is 
this distinction to be observed, that a lessee for years of a 
term, to begin at a day to come, cannot surrender it by an 
actual surrender before the day of the term begins, but he 
may by a surrender in law.^ Whenever a deed purporting 
to be a surrender cannot operate as such, it will probably 
take eJBfect as an assignment or as a release of the right to 
the term, ut res magis valeat quam pereat.'^ 

Sec. 54. Cancelling Lease not Surrender. — Since the stat- 
ute of frauds, a lease for years cannot be surrendered by 
cancelling, without writing, because the intention of the 
statute was to take away the former manner of transferring 
interests in lands by signs, symbols, and words only ; and 
therefore, although the cancelling of a lease was a sign of 
surrender before the statute, it is now taken away unless 
there is a writing under the hand of the party ; ^ and the fact 

1 Bacon's Abr. tit. Leases, § 2. lease, it was held that if the old lease 

^ Shep. Touch. 302. was not duly surrendered by writing 

' Shep. Touch. 304 ; Itcs u. Sams, within the statute of frauds, yet that 

Cro. Eliz. 521 ; Hutchins v. Martin, id. A could recover no more land than 

605. what he could prove with absolute 

* "Wood's Landlord and Tenant,803. certainty was covered by the lease, 

5 Magennis u. MacCullough, Gilb. especially after the premises had been 

Eq. Eep. 236, per Gilbert, C. B. ; Roe in the possession of another for near 

0. Abp. of York, 6 East, 86. A de- 16 years. Jackson v. Gardner, 8 

struction of the lease does not operate Johns. (N. Y.) 394 ; Leech v. Leech, 2 

as a- surrender. Thus, where A vol- Chitt. 100; Courtail v. Tliomas, 9 B. 

untarily delivered up and destroyed a & C. 288 ; Close v. McCuUough, Gilb. 

lease of land, and took a new lease, Eq. Gas. 235. A recital in a lease by 

and afterwards claimed under the old one party, that a former lease granted 



90 



STATUTE OF FKAUDS. 



[chap. n. 



that the lessor has the lease in his possession in a cancelled 
state does not proye a surrender, but he must show a sur- 
render by deed or note in -writing. And it appears that the 
rule is the same, whether the deed relates to things lying in 
livery, or to those which lie in grant.^ The deed is evidence 
of title, and if it is loss, secondary evidence may be produced 
to show the grant.^ Moreover, alterations in a deed do not 
prevent it from being received in evidence.* Where prem- 
ises were demised to B, which he again demised to C, and 
subsequently sold his interest to D, upon which D obtained 
a new lease from A, the first lease having been cancelled, it 
was held that B's interest had not been surrendered.* 



Sec. 55. Nor Evidence of Surrender, unless Other Evidence. 

— Nor is the fact that the lease is cancelled by the parties 
prima facie evidence that there was a surrender by deed or 
note in writing.^ But where the lease was produced from 
the lessee's custody with the seals torn off, and it was proved 



to another had been surrendered, 
does not of itself afford any evidence 
against strangers, of the fact of sur- 
render. Lyon V. Reed, 13 M. & W. 
285. Nor would the execution of a 
counterpart of a new lease taken by 
the lessee prior to the determination 
of his former interest, and reciting 
that it was granted iu consideration 
of the surrender of the former lease 
(unless it were by operation of law), 
inasmuch as it did not purport of 
itself to be a surrender, having no 
words in it which could denote, or 
amount to, a yielding or rendering up 
of the interest of the lessee. Earl of 
Berkeley v. The Archbishop of York, 
6 East, 86. So, a surrender would 
not be presumed from the circum- 
stance of the rent having regularly 
been paid by a third person. Cope- 
land V. Watts, 1 Stark. 95. Nor 
would the mere fact of a lease being 
in the custody of the lessor, and in a 
cancelled state, furnish a presumption 
of there having been the requisite 
deed or note in writing. It might 
raise a presumption of intention to 
determine the term, but no more. 
And if the lessor relied on such a 



cancellation as evidence, it was in- 
cumbent on him to prove a surrender; 
not on the lessee to show how the 
lease came to be in that condition. 
If, however, the lease had been in the 
lessor's possession for a long series of 
years — twenty, for instance — with- 
out any dispute ; or if there had been 
any destruction of his papers, or 
change of residence, or any founda- 
tion for supposing that there might 
have been a deed or note in writing, 
and that that deed or note had been 
destroyed) that might have been a 
ground for raising a presumption that 
there was a deed or note in writing 
accompanying the lease when it got 
into his possession. Courtail v. 
Thomas, 9 B & C. 288. 

1 Bolton V. Bp. of Carlisle, 2 H. Bl. 
263, 364; "Walker v. Richardson, 2 M. 
& W. 892 ; 6 L. J. (N. S.) Ex. 229. 

2 Bolton V. Bp. of Carlisle, 2 H. 
Bl. 263. 

8 Stewart v. Aston, 8 Ir. C. L. E. 
35. 

* "Wootley v. Gregory, 2 Y. & J. 
536. 

s Doe V. Thomas, 9 B. & C. 288; 4 
Mann. & R. 218. 



SEC. 55.] ASSIGNMENT AND SUEUENDEK. 91 

to be the custom to send in old leases to the lessor's office 
before a renewal was made, which old leases were thereupon 
cancelled, it was held that there was evidence from which 
the jury might presume a surrender by operation of law.i 
The fact that the lease is cancelled by the mutual consent of 
both parties does not destroy the estates already vested or 
their incidents, nor prevent the lessor from maintaining an 
action of debt for the recovery of the rent.^ In an English 
case ^ the plaintiff leased to the defendant a building called 
"Her Majesty's Theatre," in Haymarket, for the term of 
four years and nine months, for the yearly rent of £6275, 
payable quarterly in advance. In an action for three-quar- 
ter's rent, the defendant set up in defence that the lease, by 
and with the assent of the plaintiff, was wholly cancelled, 
and that he, the defendant, never entered into the possession 
of the premises, and therefore claimed that he had duly sur- 
rendered the premises to the plaintiff, and was not liable for 
the rent thereof. The court held that this defence was not 
available, Martin, B., saying, " When a man demises land 
for a term of years, reserving to himself a rent, the effect of 
it is to create two estates, viz., the estate of the lessee, and 
the reversion of the lessor, and the rent is incident to the 
reversion. When the day of payment arrives, the rent still 
remains annexed to the reversion. Here the question is, 
whether the simply cancelling a lease destroys the lessor's 
right of action for the recovery of the rent. I am of opin- 
ion that it does not, because the cancelling a lease does not 
destroy the estate already vested, nor its incidents." Watson, 
B., said, " The authorities are clear that the cancelling a deed 
does not divest the estate of the lessee, or deprive the lessor 
of his right of action upon the demise." The rule seems to 
be well established, that when a conveyance of land operates 
as a transmutation of possession, the cancellation, destruc- 
tion, or even the redelivery of the deed by mutual consent 
will not of itself revest the estate in the grantor, even 
though the deed has never been recorded.* But where there 

1 Walker v. Richardson, 2 M. & ^ Ward v. Lumley, ante. 

W. 882; 6 L. J. (N. S.) Ex, 229. * Wiley v. Christ, 4 Watts (Penn.) 

2 Ward V. Lumley, 5 H. & N. 87 ; 199 ; Hatch v. Hatch, 9 Mass. 307 ; 
Doe V. Thomas, 9 B. & C. 288; 4 Jones „. Neale, 2 P. & H. (Va.) 339; 
Mami. & E. 218. Parker v. Kane, 4 Wis. 1 ; Holhrook 



92 STATUTE OF FRAUDS. [CHAP. II. 

has been no delivery of the deed, as where it is delivered to 
a person to hold ia escrow until a certain time, or the hap- 
. pening of a certain event, the redelivery of the deed to the 
grantor would put an end to the 'transactions relative thereto 
between the parties, because no estate had ever vested in the 
grantee under the deed.^ 

Sec. 56. Definition of " Surrender by Act and Operation of 
Law." — A surrender by " act and operation of law " may be 
defined as a surrender effected by the construction put by 
the courts on the acts of the parties, in order to give those 
acts the effect substantially intended by them ; and when the 
courts see that the acts of the parties cannot have any oper- 
ation, except by holding that a surrender has taken place, 
they hold it to have taken place accordingly.^ 

Sec. 57. Cases to ■which these Words Applied. Estoppel. — 
The cases to which these words are to be applied are those 
where the owner of a particular estate has been a party to 
some act, the validity of which he is by law afterwards 
estopped from disputing, and which would not be valid if 
his particular estate had continued to exist. There the law 
treats the doing of such an act as amounting to a surrender. 
The acts in pais which bind parties by way of estoppel are 
all acts which anciently really were, and in contemplation of 
law have always continued to be, acts of notoriety not less 
formal and solemn than the execution of a deed, such as liv- 
ery, entry, acceptance of an estate, and the like. Whether 
a party had or had not concurred in an act of this sort was 
deemed a matter which there could be no difficulty in ascer- 

u. Tirrell, 9 Pick. (Mass.) 105; Gray- (N. Y.) 373; King v. Crocheran, 14 

son V. Eichards, 10 Leigh (Va.) 57; Ala. 822; Lawrence v. Lawrence, 24 

Gilbert v. Bulkley, 5 Conn. 262 ; Coe Mo. 369 ; Connelly v. Doe, 8 Bleakf. 

V. Turner, 5 id. 86 ; Botsford v. More- (Ind.) 320; Chessman u. Whittimore, 

house, 4 id. 550; Mallory v. Stodder, 23 Pick. (Mass.) 231. But in New 

6 Ala. 801 ; Morgan v. Elam, 4 Yerg. Hampshire under the statute relative 

(Tenn.) 375; Hine v. Bobbins, 8 to recording deeds, etc., the rule is 

Conn. 347 ; Libeau v. Libeau, 19 Mo. otherwise. Dodge v. Dodge, 33 N. H. 

269; Jackson v. Anderson, 4 Wend. 487. 
(N. Y.) 474; Eaynor v. Wilson, 6 i Coe v. Turner, ante. 
HiH(]Sr. Y.) 469; Jordan v. Jordan, ^ Lynch v. Lynch, 6 Ir. L. E. 136, 

14 Ga. 145 ; Jackson v. Page, 4 Wend, per Brady, C. B. ; see Cannan v. Hart- 

(N. Y.) 585 ; Schutt v. Lange, 6 Barb, ley, 9 C. B. 634 ; 19 L. J. C. P. 323. 



SEC. 60.] ASSIGNMENT AND SUEEENDEE. 93 

taining, and then the legal consequences followed.^ The sur- 
render is presumed to have preceded the act to which the 
tenant is party .^ 

Sec. 58. Disclaimer. — A tenant for a definite term of 
years will not forfeit his term by orally refusing, upon de- 
mand of the rent made by his landlord, to pay the rent, 
and disclaiming his landlord's title.* 

Sec. 59. Agreement to Pay Additional Rent. — A parol agree- 
ment by the tenant to pay an additional rent will not have the 
effect of creating a new tenancy.* So a parol agreement by 
the landlord to lay out money on the premises, the tenant 
paying an increased rent or a percentage on the outlay, 
does not create a new demise so as to amount to a surrender 
of the then existing term, for it cannot be supposed to be in 
the contemplation either of the landlord or tenant that the 
old lease should be at an end, and that instead of it a new 
lease should be created, which being by parol would only 
have the effect of a lease at will.^ Nor does such an agree- 
ment come within the statute for the reason that no addi- 
tional interest in the land is thereby conferred, but in that 
respect the interest of the parties remains the same as 
before,^ and the new agreement is merely collateral, and the 
additional rent cannot be distrained for, because it is not 
embraced in the lease. 

Sec. 60. Agreement to Purchase. — An agreement by the 
tenant to purchase the premises from the landlord does not 
amount to a surrender,^ as there is an implied condition in 
the contract that the landlord shall make out a good title ; 
but the contract may be so specially worded as to be an 



1 Lyon 0. Eeed, 13 M. & W. 306, Doe v. Geekie, 5 Q. B. 841 ; Crowley 
309 ; 13 L. J. Ex. 377, per Parke, B. ; o. Vitty, 7 Exch. 319. 

see also Bessel v. Landsberg, 7 Q. B. ^ Donellan v. Read, 3 B. & Ad. 

638 ; Nickells v. Atherstone, 10 Q. B. 905 ; Lambert v. Norris. 2 M. & W. 

944. 335. 

2 Caiman v. Hartley, 9 C. B. 634, ^ Donellan v. Read, ante. 

II. a. "< Tarte v. Darby, 15 M. & W. 601 ; 

' Doe V. "Wells, 10 Ad. & El. 435. 15 L. J. Ex. 326 ; and see Hamerton 

4 Geekie v. Monk, 1 C. & K. 307 ; v. Stead, 3 B. &. C. 483, per Little- 
dale, J. 



94 STATUTE OF PEAtTDS. [CHAP. n. 

absolute contract for purchase, whether the vendor shows a 
good title or not.^ 

Sec. 61. Determination of Tenancy from Year to Year. — A 

tenancy from year to year cannot be determined unless there 
is either a legal notice to quit, or a surrender in writing or hy 
operation of law? And such a tenancy cannot therefore be 
determined hj a parol license from the landlord to quit in 
the middle of a quarter, although the tenant leaves the 
premises, as there is a subsisting term in the premises which 
can only be surrendered by deed or note in writing, or by 
act and operation of law.^ 

Sec. 62. ineffectual Notice to Quit. — Nor can such a 
tenancy be determined by an ineffectual notice to quit, and 
the tenant's quitting accordingly, if the landlord does not 
accept possession. Where a tenant from year to year, by a 
Lady Day holding, agreed by parol with his landlord's agent 
to quit at the ensuing Lady Day, which was within half a 
year ; and the premises were re-let by auction, at which the 
tenant attended and bid, but the new tenant was not put 
into possession : it was held that the tenancy was not deter- 
mined, there not having been either a sufficient notice to 
quit, or a surrender by operation of law.* So where the 
tenant gave a parol notice to the landlord, less than six 
months before the 25th of March, that he would quit on that 
day, and the landlord verbally accepted and assented to the 
notice, it was held that there had been no surrender.^ Again, 
where the tenant accepted an insufficient notice to quit, and 
agreed to give up the key of the premises, but afterwards 
refused to do so, saying that the notice was bad, to which 
the landlord replied, there would soon be another quarter's 
rent due ; it was held that the tenant's agreeing to give up 
the key was no acquiescence in the notice, and no surrender 
within the statute.^ A notice to quit, signed by two only of 

' Doe «. Stanion, 1 M. cSb W. 695, ^ Johnstone v. Huddlestone, 4 B. & 

701 ; Tyr. & Gr. 1065 ; 5 L. J. (N. S.) C. 922 ; 7 D. &. E. 411 ; and see Doe 

Ex. 253. V. Milward, 3 M. & W. 328 ; Bessel v. 

2 Doe V. Kidout, 5 Taunt. 519. Landsberg, 7 Q. B. 638. 

8 Mollett V. Brayne, 2 Camp. 103 ; « Brown v. Burtinshaw, 7 D & E. 

Thomson v. Wilson, 2 Start. 379. 603. 

* Doe u. Johnstone, McClel. &Y.141. 



SEC. 63.] ASSIGNMENT AND SUEEBNDBR. 



95 



three executors of the original lessor, expressing the notice 
to be given on behalf of themselves and the third executor, 
is not good.i 

Sec. 63. Surrender by Consent, and Acceptance of Posses- 
sion. — As has already been stated, a surrender by operation 
of law properly arises where the landlord or tenant has been 
a party to some act the subject of which cannot be affected 
while the particular estate exists, and the validity of which 
he is by law estopped from disputing. Such a surrender is 
the act of the law, and takes place independently, and even 
in spite of the intention of the parties,^ and is presumed to 
have preceded the act to which the tenant is a party. In 
obedience to the rule stated, it is held that a surrender of 
demised premises by a tenant and their acceptance hy the 
landlord, even though there is a lease under seal, without any 
written agreement, terminates the tenancy.^ A tenancy from 
year to year cannot be determined without either a suflScieht 



1 Right V. Cuthell, 5 East, 491. 

"■ Lyon V. Eeed, 13 M. & W. 285. 

5 Hanham v. Sherman, 114 Mass. 
19; Eaudall v. Eich, 11 Mass. 493. 
In Amory v. Kanoffsky, 127 ed. 117, 
the lessee of land sub-let it, and when 
the first instalment of rent came due, 
both the lessee and sub-lessee paid it 
to the lessor. The lessee then told 
the lessor that if he continued to re- 
ceive the rent from the sub-lessee, he 
must release him from liability under 
the lease. The lessor replied that he 
might give up his lease, and then re- 
funded the money he had paid. The 
lessee took his lease to the office of 
the lessor and delivered it to a person 
there, who gave a receipt for it. The 
lessor knew that the lease had been 
left at his office, and did not return 
it, and without making any demand 
upon the lessee therefor, continued to 
receive the rent for several months 
from the sub-lessee, against whom he 
subsequently brought an action to 
recover possession. In an action 
brought by him against the lessee to 
recover the rents, it was held that 
there had been a surrender by operar 



tion of law, although there was no 
evidence that the person to whom the 
lease was delivered, as before stated, 
had authority to accept the surrender 
of leases, and that the record of the» 
action brought against the sub-lessee 
was competent evidence of a surren- 
der. The fact that the lease is for a 
longer term than three years does not 
prevent a rescission thereof by a parol 
agreement of the parties when accom- 
panied by a surrender of the term 
and possession by the tenant to the 
landlord, and the acceptance thereof 
by the latter. It is not like a sale 
and transfer to a stranger of an in- 
terest in land greater than a term 
of three years, and therefore is not 
within the statute of frauds. It is a 
yielding up to the reversioner the 
limited estate derived from him, 
whereby the future tenancy is re- 
scinded. The relation of landlord 
and tenant is thereby ended. See 
Boyce v. McCulloch, 3 W. & S. 
(Penn.) 428; Eaffensberger „. CuUi- 
son, 28 Penn. St. 426 ; Magaw v. Lam- 
bert, 3 Penn. St. 444; Auer v. Penn., 
Penn. Sup. Ct. 1880. 



96 



STATUTE OP PKAUDS. 



[chap. II. 



notice to quit or a surrender/ and even a parol license given 
by the landlord to quit before the end of the year, and the 
tenant quitting accordingly, of itself is not sufficient to 
amount to a surrender ;2 but if under such a license the 
tenant quits and the landlord accepts the possession of the 
premises, a complete surrender results which destroys the 
lessor's right to rent either for the balance of the year or 
that for the portion of the year already expired.^ Thus, in a 
Massachusetts case,* it was held that the surrender of leased 
premises by the administrator of a deceased lessee who has 
occupied the premises after the death of the lessee, and its 
acceptance by the lessor, without any reservation of, or 
agreement for, a right to sue the administrator or to prove 
against the insolvent estate of the lessee, terminates all 
liability of the administrator or of the estate, upon the 
covenants of the lease. In all cases, an executed agreement 
to surrender is operative as a surrender.^ Thus, where a 
tenant consented that the lessor might lease the premises to 
another and gave up possession to the new lessee, a surrender 
by operation of law was held to transpire ; ® and this doctrine 



1 Eead v. Ridout, 5 Taunt. 519. 

2 MoUett I/. Brayne, 2 Camp. 103 
Thompson v. "Wilson, 2 Stark. 379 
Gore V. Wright, 6 Ad. & El. 118 
"Whitehead v. CUfford, 6 Taunt. 518 
Dodd V. Acklom, 6 M. & G. 672 
Stone V. "Whitney, 2 Stark. 235 
Eeeve o. Bird, 4 C. M. & K. 31 
Thomas v. Cooke, 2 B. & Aid. 119 
Matthews v. Sawell, 8 Taunt. 270 
Phipps V. Sculthorpe, 1 B. & Aid. 50 
Grimson v. Legge, 2 B. & C. 324 
Walls V. Atcheson, 8 Bing. 462 ; Hav- 
land u. Bromley, 1 Stark. 455 ; Red- 
path V. Roberts, 3 Esp. 325. But the 
doctrine of these cases has been much 
shaken by Lyon v. Reed, ante ; but in 
Nicholls V. Atherstone, 11 Jur. 778, 
the Court of Queen's Bench dissented 
from the reasoning and observations 
on tlie previous cases in that judg- 
ment, and said there was no estoppel 
in the case, although the judgment 
was correct. In Biddulph v, Poole, 
12 Jur. 450, is an elaborate judgment 
upon tlie effect of a surrender by ac- 
ceptance of a new lease, which is 



voidable and afterwards avoided ; and 
it was there held, that, to operate as 
a surrender, the estate passing by the 
new lease must be such as was con- 
templated by the parties at the time. 
See Lyon v. Reed, discussed, 2 Smith's 
Leading Cases, 459 a, 459 i. 

3 Grimman v. Legg, 8 B. & C. 324 
Brown v. Burtinshaw, 7 D. & K. 603 
Allen V. Devlin, 6 Bos. (N. T.) 1 
Lamar v. McNamee, 10 G. & J. (Md.) 
116. 

* Deane v. Caldwell, 127 Mass. 242. 

^ Whitney u. Meyers, 1 Den. 
(N. Y.) 266; Davison v. Gent, 1 H. & 
N. 744. 

6 Nickells v. Atherstone, 10 Q. B. 
944; Thomas „. Cook, 2 B. & Aid. 
119; Davison v. Gent, ante. The 
doctrine of Thomas v. Cook, ante, was 
impugned in Lyon v. Reed, 13 M. & 
W. 285, but the first and last cases 
Cited in this note, which were decided 
after Lyon v. Reed, re-afiirmed the 
doctrine of Thomas v. Cooke. In the 
case first cited Lokd Denman, C. J., 
said; "In this case, tlie defendant 



SEC. 63.] ASSIGNMENT AND STTBEENDER. 



97 



has been held in numerous cases in our courts.^ Where a 
tenant abandons the possession, and the landlord enters and 



1 Murray v. Shane, 2 Den. (N. Y.) 
182 ; Randall v. Rich, 11 Mass. 494 ; 
Gehegau v. Young, 23 Penn. St. 18 ; 
Smith V. Nevins, 2 Barb. (N.Y.) 180; 
Seheffelin v. Carpenter, 15 Wend. 
(N. Y.) 400; Heseltine v. Leary, 16 
Me. 212 ; Baker .,. Pratt, 15 111. 569 ; 
Whitney u. Myers, 1 Den. (N. Y.) 
266; Creigh v. Blood, 1 Jones & S. 

being the lessee in possession of the 
premises, the plaintiff, his landlord, 
•with his consent, let them to a new 
tenant, and put him in possession, 
and discharged the defendant from 
his liability as tenant. The judge 
who tried the case held that these 
facts constituted a surrender by oper- 
ation of law, and, therefore, a defence 
against the plaintiff's claim for rent. 
The correctness of that holding has 
been brought into question before us 
in consequence of the opinion ex- 
pressed by the Court of Exchequer 
in Lyon v. Keed, 13 M. & W. 385, 305- 
310 ; but we are of opinion that it is 
correct. If the expression ' surrender 
by operation of law' be properly 
' applied to cases where the owner of 
a particular estate has been party to 
some act, the validity of which he is 
by law afterwards estopped from dis- 
puting, and which would not be valid 
if his particular estate had' continued,' 
it appears to us to be properly ap- 
plied to the present. As far as the 
plaintiff, the landlord, is concerned, 
he has created an estate in the new 
tenant which he is estopped from dis- 
puting with him, and which is incon- 
sistent with the continuance of the 
defendant's term. As far as the new 
tenant is concerned, the same is true. 
As far as the defendant, the owner of 
the particular estate in question, is 
concerned, he has been an active 
party in this transaction, not merely 
by consenting to the creation of the 
new relation between the landlord 
and the new tenant, but by giving up 
possession, and so enabling the new ten- 



(S. Y.) 133; Dayton i>. Craik, 26 
Minn. 133 ; Smith u. Pendergast, 26 
id. 818. And where the tenant aban- 
dons the premises and the landlord 
takes possession, a surrender by opera- 
tion of law results. Smith v. Wheeler, 
8 Daly (N. Y. C. P.) 135 ; ICrank v. 
Nichols, 6 Mo. App. 72; Stewart v. 
Munford, 91 111. 58. 

ant to enter. If the defendant cannot 
technically be said to be estopped from 
disputing the validity of the estate of 
the new tenant, still, according to the 
doctrine of Pickard v. Sears, 6 Ad. & 
El. 469, he would be precluded from 
denying it with effect ; and the result 
is nearly the same as an estoppel. If 
an act which anciently really was, in 
contemplation of law, and has always 
continued to be, an act of ' notoriety, 
not less formal and solemn than the 
execution of a deed, such as livery, 
entry, acceptance of an estate, and 
the like' (Lyon v. Reed, 13 M. & W. 
309), be required as requisite for a 
surrender by operation of law, and if 
the acts of the three parties are re- 
garded together, this requisite is here 
found. Indeed, the notoriety is essen- 
tially greater than that which accom- 
panies a parol redemise between the 
same landlord and tenant, which is a 
clear surrender by operation of law. 
In the present case three are con- 
cerned, and there is an actual change 
of possession: in the other, two are 
concerned, and there is no change of 
possession. This surrender by opera- 
tion of law has been judicially recog- 
nized in each of the superior courts. 
Matthews o. Sawell, 8 Taunt. 270; 
Thomas u. Cook, 2 B. & Aid. 119; 
Walker v. Richardson, 2 M. & W. 
882 ; Bees v. Williams, 2 C. M. & R. 
581 ; S. C. Tyr. & G. 23. And held 
valid at nisi prius in Stone v. Whiting, 
2 Stark. N. P. C. 235, and many sub- 
sequent cases. When the decisions 
on a point are numerous and uniform, 
and carry into effect the lawful inten- 



98 



STATUTE OF FRAUDS. 



[chap. II. 



uses the premises as his own,^ as to make repairs^ or to show 
the premises to parties with a view to letting them on his own 
account^ or does any acts thereon which show that the land- 
lord has resumed the possession as owner. Thus, in the case 
last cited, the defendant took a lease o£ a house, stable, and 
three cottages, at an entire rent for the term of seven years. 
The house and cottages were underlet to different tenants, 
the defendant only occupying the stable and yard. Before 
the expiration of the term the defendant assigned the 



1 Krank v. Nichols, ante; Smith v, 
Wheeler, ante; Phen^ v. Popplewell, 
12 C. B. N. s. 334. 



2 MacKellar v. Sigler, 47 How. Jr. 
(N. Y.) 20. 

8 Reeve v. Bird, 1 C! M. & K. 81. 



tions of the parties according to the 
truth, and are opposed by no princi- 
ple, the law on the point ought not to 
be considered doubtful because the 
reported decisions are only of modern 
date, as the fact that the reports on 
the point do not begin till lately may 
arise from there being no question on 
the point in earlier times. Indeed, in 
1809, it seems probable that a res- 
toration of the possession to the land- 
lord, and a discharge of the tenant by 
him, was considered a surrender by 
operation of law. The defence in 
Mollett V. Brayne, 2 Campb. 10.3, was 
shaped on that principle ; but, as the 
evidence failed to show a change of 
possession by mutual consent of land- 
lord and tenant, the defence failed. 
In Whitehead v. Clifford, 5 Taunt. 
518, where there was such change of 
possession by mutual consent, the de- 
fence to a claim for use and occupa- 
tion succeeded ; and the court distin- 
guished the case from Mollett v. 
Brayne, 2 Campb. 103, for that rea- 
son. Where there is an agreement to 
surrender a particular estate, and the 
possession is changed accordingly, it 
is more probable that the legislature 
intended to give effect to an agree- 
ment so proved, as a surrender by 
operation of law, than to allow either 
party to defeat the agreement by 
alleging the absence of written evi- 
dence. Although we do not assent to 
the observatipns upon the line of cases, 



from Thomas v. Cooh, 2 B. 4- Aid. 119, 
downwards, in the learned and able 
judgment given in Lyon v. Reed, 13 
M. §• W. 285, we wish to express our 
entire concurrence in the decision of that 
case. The question there was not 
upon the estate of the tenant in pos- 
session of the premises, but upon the 
title of the plaintiff as assignee of the 
reversion; whether a lease of the 
reversion, granted to Ord and Planta 
in 1812, for ninety-nine years, could 
be presumed to be surrendered, from 
the fact that such lease was found 
among the deeds of the tenant in fee, 
who had granted in 1814 a term in 
the reversion to Osborne and Burt, 
through whom the plaintiff claimed. 
There was no change in the possession 
of the land. No actual change in the 
possession of the reversion could be 
made apparent ; and the facts stated 
lead to the conclusion that Ord and 
Planta did not know of the demise to 
Osborne and Burt; but the proba- 
bility is, that the term in them as 
trustees had been forgotten at the 
time when their concurrence was 
requisite for the new lease. As the 
defendant is entitled to our judgment 
on this point, it is not necessary to 
consider the effect of his letter as 
evidence of a surrender." See note 
to Christmas v. Oliver, 2 Smith's Lead. 
Ca. 459 a, 459 i, 3d ed. ; and Creagh 
V. Blood, 3 Jones & Latouche, 133, 
there cited. 



SEC. 63.] ASSIGNMENT AND SUEBENDEE. 99 

premises to one Bullock, and quit the possession. The land- 
lord, after the defendant quit the possession, accepted and 
received the rent of the house and cottages from the several 
tenants, and gave them receipts therefor, which indicated 
that he treated and regarded them as his tenants. The 
tenants of two of the cottages quit before the expiration of 
the term named in the lease to the defendant, and the plain- 
tiff advertised the premises " to be let on lease, or to be sold 
bj"^ private contract." It was not stated in the advertisement 
that the premises were in the possession of a tenant, nor was 
any time for giving possession of the premises named. At 
the expiration of the term the plaintiff brought an action 
against the defendant for the rent. The defendant claimed 
that the premises had been surrendered by him, and set up 
the facts detailed as evidence thereof. Loed Denman, C. J., 
upon these facts directed a non-suit to be entered, and upon 
hearing in exchequer, his ruling was sustained, it not 
appearing that the plaintiff requested to have the question 
left to the jury. In such cases, in the absence of any 
positive agreement, the decisive question is, whether the 
landlord accepts or takes possession of the premises and 
deals with them in such a manner as indicates that he takes 
the possession as owner, and not for or on account of the 
tenant, or for the mere protection of the premises against 
damages from the elements, etc.i Thus, where the landlord 
entered, after the tenant had quit possession, and put up 
a " To Let " in the windows, Loed Kenyon held that such 
acts afforded no evidence of an acceptance of the possession 
by the landlord, saying "it was for the benefit of the 
tenant that the premises should be let, and that he would 
not from that fact alone infer that the contract was put an 



1 In Griffiths o. Hodges, 1 C. P. enters and uses such premises or any 

419, the defendant having quit pos- part of them, that will deprive him 

session, the plainti£f, during the unex- of his claim to rent. But here, the 

pired term, entered and built a fire defendant had left the apartments 

and cooked a hare, and it was in- vacant ; and, as it was proper that fires 

sisted that this amounted to such a should be lighted in them, I do not 

resumption of possession by him as think that the plaintiff's lighting such 

created a surrender by operation of fire, or even making some use of it 

law. But Abbott, C. J., said : "If a when he had lighted it, is a sufficient 

landlord, while his tenant is in the taking possession of the premises to 

possession and use of apartments, deprive him of his right to rent." 



100 STATUTE OF FBATJDS. [CHAP. H. 

end to." In a Pennsylvania case^ the fact that the landlord 
accepted the key to the house, put up a " To Let," and had 
repairs made, was held not sufficient to establish a surrender ;2 
and in no case can a surrender be established from the mere 
circumstance that the landlord accepted the key of the 
premises,* but it must also be shown that he s'uhsequently dealt 
with the property in such a manner as to indicate that he 
regarded the tenant's estate at an end ;^ as, if the landlord 
accepts the key and re-lets the premises,^ or if he accepts the 
key under a parol agreement that the rent shall eease,^ or if he 
accepts the key and deals with the premises in such a 
manner as warrants an inference that he intended to resume 
possession^ Where two persons let a house by lease in 
writing, one of whom, after signing the lease, never further 
interfered, and the other, before the first quarter's rent 
became due, accepted the key from the tenant's wife, it was 
held that there was a sufficient surrender by the tenant 
which boimd both the lessors, the wife of the tenant acting 
as his agent, and the lessor who accepted the key as the 
agent of the other ;^ but a plea that three executors had 
agreed to accept a third person as tenant in lieu of the 
defendant is not proved by evidence that one of the plain- 
tiffs had made the agreement.^ Where a lessee quit in the 
middle of his term apartments which he had taken for a 
year, and the lessor let them to another person, so that the 
lessee could not have come back if he had chosen, it was 
held that by so doing the lessor dispensed with the necessity 
of a written surrender.^" Where the owner of a ferry let it 

^ Pier V. Carr, 69 Penn. St. 316 ; The evidence must be such as to war- 

Snyder v. Middleton, 4 Phila. (Penn.) rant a presumption that the landlord 

343. intended to resume possession. Lan- 

* Snyder v. Middleton, 4 Phila. das v. Hollingshead, 4 Phila. (Penn.) ; 

(Penn.) 343; Eastler v. Henderson, Bloomer v. Merrill, 1 Daly (N. T. 

L. E. 2 Q. B. D. 376. See also With- C. P.) 485; Hegeman v. McArthur, 

ers V. Larrahee, 48 Me. 570 ; Matthews 1 E. D. S. (N. Y. C. P.) 147. 

V. Lobenor, 39 Mo. 115; Hanham v. ^ Eandall b. Rich, arte. 

Sherman, 114 Mass. 19 ; Harland v. « Whitehead v. Clifford, 5 Taunt. 

Brawley, 1 Stark. 455. 518; Furnivall v. Grove, SC.B.n.s. 496. 

8 Thomas v. Nelson, 69 N.. Y. 118 ; ' Landas v. Hollingshead, 4 Phila. 

Morgan v. Smith, 70 id. 537 ; Kandall (Penn.) 57 ; Dodd v. Acklom, 6 M. & 

V. Eich, 11 Mass. 494 ; Prentiss v. G. 672. 

Warne, 10 Mo. 601 ; Townsend v. Al- * Dodd v. Acklom, ante. 

bens, 3 E. D. S. (N. Y. C. P.) 560. » Turner v. Hardy, 9 M. & W. 770. 

4 Ladd u. Smith, 6 Oregon, 316. m Walls v. Atoheson, 3 Bing. 462. 



SBC. 63.] ASSIGNMENT AND SUBEENDEE. 101 

for a year, but after a few weeks the lessee, finding it un- 
profitable, agreed instead to become servant to the owner, 
and received daUy wages for attending to the ferry for him, 
it was held to be a surrender by act and operation of law.^ 
Where a tenant from year to year agreed to buy the free- 
hold of the land, it was held that the agreement, not being 
absolute, but conditional on a good title being found, did 
not operate as a surrender of the tenancy by operation of 
law.2 The fact that the landlord re-lets the premises after 
they are abandoned by the tenant affords evidence from 
which a surrender may be found, but this is not the case 
where the landlord re-lets them on the tenant's account. 
Thus, where the tenant informed the landlord that he should 
leave the premises on a specified day, and the landlord told 
him that if he did he should let the premises on his (the 
tenant's) account, and hold him responsible for the rent, and 
the tenant moved out, and the landlord sent a person to 
occupy the house, it was held not to amount to a surrender, 
and that the tenant still remained liable for the rent. But 
where a tenant informed the landlord of his intention to 
leave, and the landlord said that he was sorry, for then he 
must get some one else to hire the premises, and gave the 
tenant permission to leave some of his tilings on the premises, 
it was held that the facts afforded evidence from which a 
surrender could be implied.* But if the tenant abandons 
and the landlord re-lets the premises, giving the tenant notice 
that he does so for and on his account, a surrender is not 
established.* And this is also the rule where the lease pro- 
vides that in case the tenant leaves the landlord may re-let.^ 
Premises may be surrendered by the mutual agreement of 
the parties, even by parol, and when executed on both sides, 
a surrender by operation of law results, although the agree- 
ment under which it arose was invalid as such. And an 
agreement may be implied by operation of law, even where 
the tenant has quit without a sufficient notice, and the land- 
lord re-enters and uses the premises in a manner which is 

1 Peters v. Kendall, 6 B. & C. 703. * Peter v. Kendal, 6 B. &, C. 703; 

2 Gray v. Stanion, 1 M. & W. 695 ; Walla v. Atcheaon, 3 Bing. 462. 
Tarte v. Darby, 15 id. 601. - « Ogden v. Rowe, 3 E. D. S. (N. Y. 

8 Stanley v. Koehler, 1 Hilt. (N. Y. C. P.) 312. 
C. P.) 354. 



102 



STATUTE OF PEATJDS. 



[chap. II. 



inconsistent with an outstanding right to the possession in 
the lessee.^ Surrenders by operation of law result from the 



1 Mollett V. Brayne, ante ; Thomp- 
son V. Wilson, 2 Stark. 379 ; Amory 
V. Kanoffsky, 117 Mass. 357-; McGlynn 
V. Brack, 111 'id. 219. In an Ohio 
case r rented certain premises to S 
for one year at an agreed rent of two 
hundred dollars, and possession was 
taken by S under the agreement. S 
sent word to F that he would no 
longer retain possession of the prem- 
ises, but intended to abandon them. 
F. directed a person in the event of 
such abandonment to take charge of 
the premises. After this, S left the 
premises, and the possession was re- 
sumed by F.' It was held, that the 
contract was put an end to by the 
concurrent act of the parties, and 
that the right of F to recover rent for 
the time S enjoyed the premises must 
be decided by the same rules as if 
possession had been originally taken 
upon an imderstanding that S should 
pay what was reasonable. Fitch v. 
Sargeant, 1 Ohio, 352. See also Ladd 
V. Smith, 6 Oreg. 316 ; Jackson v. 
Gardner, 8 John. (N. Y.) 394; Cole- 
man V. Maherly, 3 T. B. Mon. (Ky.) 
220. A tenancy from year to year, 
created by parol, is not determined 
by a parol license from the landlord 
to quit in the middle of a, quarter, 
and the tenant quitting the premises 
accordingly. Botting v. Martin, 1 
Camp. 318. But contra, see Amory 
V. Kanoffsky, 117 Mass. 357. But if 
in such case both parties act upon 
such parol notice or license to quit, 
that is, the landlord himself take 
possession, so as to render it impossi- 
ble for the tenant to use or occupy 
the premises, the tenancy is thereby 
legally determined. Mollett v. Brayne, 
2 Camp. 103; Thompson u. Wilson, 
2 Stark. 379. And i£, during a letting 
from year to year, the landlord, vrith 
the assent of his tenant, who quits 
the premises, accepts and treats a third 
person as his (the landlord's) tenant, 
this amounts to a valid surrender of 
the original tenant's interest by act 



and operation of law. But in such 
case the express consent of all parties 
to the change of tenancy seems neces- 
sary : Grimman v. Legge, ante ; Ack- 
land V. Lukey, 1 P. & D. 640; Gore 
V. Wright, 3 N. & P. 243; though the 
assent of the old tenant may be pre- 
sumed upon the landlord's producing 
the old lease cancelled, and on proof 
of a user in his office to have all old 
leases sent to be cancelled before re- 
newals are granted. Reeve v. Bird, 1 
C. M. & E. 31 ; Thomas v. Cook, 2 B. 
& Aid. 119; Phipps v. Sculthorpe, 1 
id. 50; Mathews v. Sewell, 8 Taunt. 
270; Stone v. Whiting, 2 Stark. 235; 
Hamerton v. Stead, 3 B. & C. 478; 
Walls V. Atcheson, 3 Bing. 462 ; Bees 
u. WilUams, 2 C. M. & E. 581; Eex 
V. Banbury, 1 Ad. & El. 136; Wed- 
dall V. Capes, 1 M. & W. 50; Walker 
u. Eichardson, 2 M. & W. 882. There 
must be_ a clear case of substitution 
and acceptance of the new tenant, 
and merger of the old tenant's inter- 
est; and it seems that the merely 
taking rent from the new occupier 
will not suffice. Graham v. Wichclo, 
1 C. & M. 188. Thus where, as in 
the case last cited, there was a letting 
to A and B as partners, and A retired 
and C entered, and a receipt for rent 
from B and C was given, it was held 
that A was not discharged. And unless 
there is a written demise to the new ten- 
ant, or he takes possession, it appears 
that no surrender of the prior tenancy 
is effected by legal operation. Taylor 
V. Chapman, Peake's Addl. Cas. 19. 
Where a tenancy is thus determined 
in the middle of a quarter, while the 
rent is current, the tenant, in the ab- 
sence of an express agreement, is not 
liable for a proportion of the current 
quarter's rent from the preceding 
quarter day to the day of quitting. 
Hall V. Burgess, 5 B. & C. 332; Grim- 
man u. Legge, ante; .Walls v. Atche- 
"son, 2 C. & P. 268; 3 Bing. 462. 
There cannot, however, be a surrender 
to take place in future, and therefore 



SEC. 63.] ASSIGNMENT AND STJEEENDEE. 



103 



acts of the parties, and are in no wise dependent upon their 
intention, and exist in spite of the real intention of the 
parties. They are inferences of law from the facts, and 
cannot be overcome by showing that the landlord did not 
intend his act to operate as an acceptance of the surrender.^ 
Under this rule it follows as a matter of course that, where 
an oral agreement is entered into between the landlord and 
the tenant, that another tenant shall be substituted in his 
place, while it is not valid as an executory agreement, it is 
binding when it has been executed, by the tenant giving up 
the possession on the one hand, and the landlord substitut- 
ing another tenant on the other.^ So, if a tenant who has 



where a tenant, believing that his 
tenancy determined at a certain time, 
gave a written notice to quit at that 
period, which the landlord accepted 
and made no objection to ; but the 
tenant, having afterwards discovered 
that his tenancy did not expire until 
a later period, and he gave his land- 
lord another notice accordingly, and 
on possession being demanded at the 
time named in the first notice to quit, 
it was held, that the first notice to 
quit not being good as a notice did 
not operate as such to determine the 
tenancy, and that it could not be 
treated as a surrender by note in 
writing within the statute of frauds. 
MurreU v. Milward, 3 M. & W. 328; 
Weddall ^. Capes, 1 M. & W. 50, 
overruling Aldenburgh v. People, 6 
C. & P. 212. And where a tenant 
from year to year agreed by parol 
with his landlord's agent to quit at 
the end of the year ensuing, which 
was within half a year, and the prem- 
ises were re-let by auction, at which 
the tenant attended and bid : but the 
new tenant was not let into posses- 
sion, and the old tenant refused to quit ; 
it was held that this did not amount 
to a surrender by operation of law. 
Huddlestone v. Johnson, 1 McCl. & 
T. 141. And where a defective parol 
notice to quit was given, and the 
landlord verbally assented to it, yet 
the notice was holden inoperative, it 
not being in writing, and there not 
being any sufficient surrender by 



operation of law. Johnston v. Hud- 
dlestone, 4 B. & C. 922, in which the 
avowry was for double- rent, and it 
was held that double rent could not 
be recovered on a defective notice, 
nor single rent on an avowry for 
double. The. mere cancellation of a 
lease, without a, written surrender, 
does not amount to a surrender by 
operation of law ; Berkeley v. York, 6 
East, 86 ; Wooley u. Gregory, 2 Y. & 
J. 536; and where a lease appeared 
to have the names and seal of the 
parties torn off, it was decided that 
this was neither a surrender by con- 
struction of law, nor prima facie evi- 
dence of a written surrender. Cour- 
tail V. Thomas, 9 B. & C. 288 ; Walker 
u. Richards, ante, 330. The accep- 
tance of a, new lease for a term, to 
commence during the existence of a. 
former demise, is a surrender of the 
first term : Hamerton v. Stead, 3 B. & 
C. 478; Livingston v. Potts, 16 Johns. 
(N. Y.) 28; and where A during his 
tenancy agreed with his landlord that 
he and B should become tenants, and 
B entered^ this was held to determine 
the first tenancy. Hamerton v. Stead, 
5 B. & C. 478. 

1 Creagh v. Blood, 3 J. & L. 133; 
Nichols 0. Atherstone, ante; Talbot 
V. Whipple, 24 Allen (Mass.) 177; 
Hall V. Burgess, 5 B. & C. 332 ; Wood 
V. Partridge, 11 Mass. 493 ; Murray v. 
Shane, 2 Duer (N. Y.) 183. 

2 Stone V. Whitney, 2 Stark. 235 ; 
Hobson V. Camley, 25 L. J. Excliq. 



104 



STATUTE OF PEAtTDS. 



[chap. n. 



under-let the premises surrenders tlie term by parol, the 
landlord's acceptance may be shown by the fact that he 
subsequently notified the undertenant that the rent must 
be paid to him, as the original tenant has no estate in the 
premises.^ So, if the lessor consents to a change in the 
tenancy, and receives rent from the new tenant as an original 
and not as a sub-tenant, he cannot charge the first tenant for 
rent subsequently accruing.^ But the mere circumstance 



209; Lawrence v. Faux, 2 F. & F. 435. 
In Murray v. Shaw, 2 Duer (N. Y.) 
182, a lease haying been executed for 
a year, to commence in future, the 
tenant wished to abandon it, and ob- 
tained a substitute, who, by agree- 
ment endorsed on the lease, agreed to 
assume the lease and perform all the 
covenants, but changing the mode of 
paying rent. It was held, that tlie 
lessor, by accepting this, released the 
former lessee, and he could not alter 
the effect of the surrender by express- 
ing, in his receipts for rent, that it 
was paid under the original lease. 
Murray w. Shave, 2 Duer (N. Y.) 
182; Smith u. Niver, 2 Barb. (N, Y.) 
180. By consenting to a change of 
tenancy, the original lessee is dis- 
charged. Page V. Ellsworth, 44 Barb. 
(N. Y.) 636. 

1 Bailey v, Delaplaine, 1 Sandf. 
(N. Y.) 5. 

2 Smith V. Miner, 2 Barb. (N. Y.) 
180; Thomas v. Cook, ante; Mines 
Eoyal Society u. Magnay, 18 Jur. 
1028. But the assent of the landlord 
to the assignment must be established 
as well as his acceptance of the new 
tenant as a substitute for the former 
tenant. The case of Thomas v. Cook, 
ante, sanctions the rule that a surren- 
der in law will be implied from the 
fact that a tenant has put a third 
person in possession of the demised 
premises, and that each third person 
has been accepted as tenant with the 
assent of the original tenant; but 
this- case was criticized strongly in 
Lyon V. Eeed, 13 M. & W. 285. The 
court, in the principal case, says: 
" To ascribe the effect of a surrender 
to the mere act of the landlord ac- 



cepting the assignee as his tenant, 
and receiving rent from him, would 
be going beyond the precedents. To 
warrant the inference that the origi- 
nal lease has been annulled, the facts 
ought to be of an entirely conclusive 
character." See, also, MOls v. Auriol, 
1 Smith's L. C. (Phil. ed. Hare & 
Wallace's notes) 1239, where it is 
said by Lokd Kenton that, "It is 
extremely clear that \a, person who 
enters into an express covenant in a 
lease continues liable on his cove-, 
nant, notwithstanding the lease be 
assigned over. If the lessee assigu 
over liis lease and the lessor accept 
the assignee as his lessee, either 
tacitly or expressly, it appears from 
the authorities that the action of debt 
will not be against the original lessee ; 
but all those cases with one voice de- 
clare that if there be an express cove- 
nant, the obligation on such covenant 
still continues." See, also, Griffith v. 
Hodges, 1 C. & P. 419; Talbot v. 
Whipple, 14 Allen (Mass.) 180 ; Stobie 
V. Dills, 62 111. 432 ; Baker v. Pratt, 
15 id. 568 ; Hegeman v. McArthur, 1 
E. D. S. (N. Y.) 147; Dodd v.. Ack- 
lom, 6 M. & G. 673; Grimman o. 
Legge, 8 B. & C. 324. The mere re- 
ceipt of rent by the landlord from an 
undertenant does not evidence the 
landlord's assent to the tenant's aban- 
donment of the premises. Slocum v. 
Branch, 5 Cr. (U. S. C. C.) 315 ; Cope- 
land V. Watts, 1 Stark. 65 ; Burnham 
V. Hubbard, 36 Conn. 542; Bacon u. 
Brown, 9 id. 334; Hill v. Robinson, 
23 Mich. 24. In Hull v. Wood, 14 M. 
& W. 682, a tenant from year to year 
died, and his widow remained in pos- 
session, paying the rent to the land- 



SEC. 63.] ASSIGNMENT AND STJEEENDEE. 105 

that the landlord receives the rent from a sub-tenant is not 
of itself sufficient to establish a surrender. Thus, where A 
and H, who were partners by agreement, in March, 1827, 
became tenants to the plaintiff, and in 1828, W retired from 
the partnership, and in January, 1829, H entered into 
partnership with S, and the plaintiff gave receipts for rent 
as received from H after W retired, and as received from H 
and S after S became a partner ; and also gave H a letter to 
his attorney, signifying that a lease might be made to H and 
S, but which was kept by H and not acted upon, and no 
lease was prepared ; it was held, that W remained liable for 
the rent accruing at the time of H and S.^ But, where a 
lease is made to a firm with a covenant for revenues, and 
during the original term one or more of the partners retire 
from the firm, and new partners take their place, and the 
new firm, after the expiration of the term, continue in pos- 
session under the old lease, paying rent according to the 
terms of the old lease, the retiring partners cannot be held 
for the rent accruing after the expiration of the original 
term.^ Where premises had been let to B for a term 
determinable by a notice to quit, and pending the term A, 
the landlord, agreed to let C stand in B's place, and C offered 
to pay rent, it was held, in an action for use and occupation 
against C, that he could not set up as a defence that B's 
term had not been determined! either by a notice to quit or 
a surrender in writing. 

Consequently where there is an agreement that the 
tenancy shall be put an end to, which is acted upon by the 
tenant's quitting accordingly, and the landlord, by some 
unequivocal act, takes possession of the premises, that will 
amount to a surrender by operation of law. Where, there- 
fore, the tenant left the key of the premises at the counting- 
house of the landlord, and the latter, though he at first 
refused to accept it, afterwards put up a board to let the 
premises and used the key to show them, and painted out 

lord. Subsequently, a person who i Graham o. Nichols, 1 C. & M. 

knew the facts took out letters of 188; Woodcock v. North, 8 Bing. 

administration upon the estate, the 170 ; Beall v. White, 94 N. S. 382. 
widow still continuing to pay the ^ James v. Pope, 19 N. Y. 324; 

rent. It was held that this did not Kinsey v. Winnick, 34 Md. 112. 
amount to a surrender of the tenancy 
by operation of law. 



106 STATUTE or PEATJDS. [CHAP. II. 

the tenant's name from the front, it was held that there was 
sufficient evidence of surrender by act and operation of law.^ 
So where A and B demised a house by lease in writing to 
C at a rent payable quarterly, and the key of the house was 
dehvered to C's wife, and C entered into possession, but 
before the first quarter's rent became due (there having 
been some dispute as to arrears of rent and taxes) C's wife 
delivered back the key to A, who accepted it, it was held 
that the delivering back of the key animo sursum reddendi, 
and the acceptance of it by the landlord, amounted to a 
surrender by act and operation of law.^ The case was dis- 
tinguished from Mollett v. Brayne^ on the ground that in 
that case it was not shown that the landlord took possession, 
and it was also distinguished from Johnstone v. Huddlestone * 
on the ground that there the agreement to put an end to the 
tenancy was never carried out. Where, however, A was 
tenant to B, who became bankrupt, and A sent the key of 
the rooms to the office of the official assignee, where it was 
left with a clerk, who was told that it was the key of the 
rooms, and A immediately quitted possession, and no further 
communication took place, it was held that there was no 
surrender, and the case was distinguished from Dodd v. 
Acklom,^ on the ground that the lessor in that case had 
authority to act for both.^ If the landlord enters into pos- 
session of the premises in pursuance of an agreement for a 
surrender, he cannot afterwards refuse to accept the sur- 
render.^ Thus, in a New York case,^ after a lessee had 

' Phen^ u. Popplewell, 12 C. B. all breaches of covenant occurring 

(N. S.) 334; 31 L. J. C. P. 235; and be/ore the surrender. Roe v. Conway, 

see Whitehead „. CHfEord, 5 Taunt. 74 N. Y. 201. 

518 ; Ackland ,;. Lutley, 9 Ad. & El. « Do^d v. Acklom, 6 M. & Gr. 672 ; 

879; Grimmanv.Legge.SB. &C.324; 7 Sc. (N. E.) 415; 13 L. J. C. P. 11. 
Smith V. Lovell, 10 C. B. 6; 20 L. J. 8 2 Camp. 103. 

C. P. 37 ; Purnival o. Grove, 8 C. B. ^ 4 B. & C. 922 ; 7 D. & E. 411. 

(N. S.) 496 ; 30 L. J. C. P. 3. A sur- ^ e M. & Gr. 672 ; 7 Sc. (N. R.) 

render is effected either by words 415. 

manifesting the intention of the les- " Cannan v. Hartley, 9 C. B. 634; 

see to yield up his estate, or by oper- 19 L. J. C. P. 323. 
ation of law, where the parties with- ^ Natchbolt v. Porter, 2 Vern. 112 ; 

out such words do some act which "Whitehead v. Clifford, 5 Taunt. 518; 

implies that they both agree to con- Furnivall i;. Grove, 8 C. B. (K S.) 

sider the surrender as made. Beall 496 ; 30 L. J. C. P. 3. 
o. White, 94 U. S. 382. But the les- « Bailey v. Delaplaine, 1 Sandf. 

Bee remains liable xmder liis lease for (N. Y.) 5. 



SBC. 66.] ASSIGNMENT AND SUERENDEE. 107 

underlet the whole of the demised premises, by two written 
sub-leases, the landlord called on the undertenants, produced 
the sub-leases, demanded of them the rent, forbade their 
paying any more rent to the original lessee, and said he was 
the rightful landlord, and had taken the place off the lessee's 
hands ; and he afterwards collected all the rents which were 
collected of the sub-tenants, it was held that there was a 
surrender of the original lease by operation of law, and that 
the landlord could not collect the subsequent rent of his 
original lessee. 

Sec. 64. Presumption of Acceptance of Surrender when Re- 
butted. — But the mere fact of the landlord's taking posses- 
sion will not necessarily amount to a surrender. Thus, if 
the tenant abandons possession of the premises during the 
term, and the landlord enters and does repairs, or even if he 
uses the premises, the tenancy may not be determined.^ So 
where the tenant quitted without giving notice, the fact of 
the landlord's having put up a bill to let the apartments did 
not prevent his recovering in assumpsit for use and occupa- 
tion.^ 

Sec. 65. Landlord Taking Tenant as Servant. — Where the 
owner of a ferry demised it by parol to A, who, finding it 
unprofitable, agreed to become the lessor's servant as boat- 
man, and received wages, it was held that there was a 
surrender by act and operation of law.^ The acts from which 
it is sought to be inferred that the tenancy has been put an 
end to must be unequivocal.* 

Sec. 66. Surrender by Operation of Law. — The statute of 
frauds in all the States where provision is made relative to 
surrenders, excepts implied surrenders, or surrenders re- 
sulting by act and operation of law, and of this class are 
those created by the acceptance by the tenant of a new 
lease from the reversioner, or other conveyance inconsis- 
tent with the first lease, whether for a longer or a shorter 

1 Eessell v. Landsberg, 7 Q. B. 638 ; » Peter v. Kendal, 6 B. & C. 703. 
14 L. J. Q.B. 355; Griffiths. Hodges, * Ackland u. Lutley, 9 Ad. & EL 
1 C. & P. 419. 879, 894. 

2 Redpath v. Roberts, 3 Esp. 225. 



108 STATUTE OF FEAtTDS. [CHAP. K. 

term, or to begin presently or at a future period during the 
term, because the acceptance of a new lease, to take efPect 
during an existing term, necessarily implies a relinquishment 
of the former term, from the time when the new lease takes 
effect^ unless there are facts which rebut the presumption 
that a surrender was intended.^ But a surrender cannot be 
implied by the acceptance by the tenant of an invalid new 
lease ^ or from a mere agreement for a fviure lease.* Where 
a new lease is made, to take effect at a future time, in so far 
as the provisions of the new lease are inconsistent with the 
old, the former wiU prevail, the presumption being that a 
surrender of the old lease was intended ; ^ but a parol agree- 
ment between the parties to a lease under seal, reducing the 
rent, does not amount to a surrender, nor, unless founded 
upon a new consideration, has it any validity.* But it has 
been held that a subsequent unsealed agreement to surrender 
upon a failure to perform certain conditions, the original 
lease being imder seal, although inoperative as a defeasance, 
is valid as a contingent surrender, the agreement being 
treated as a conveyance in presenti to commence in futuro ; "< 
but this doctrine is opposed to that held in England,* where, 
as we have seen,^ it is held that a surrender cannot be made 
to take effect in futuro, although we. confess that we can see 
no reason or justice in the rule, and cannot understand why 
a valid contract in this respect cannot be made, as well as in 
reference to any other matter ; consequently we believe that 
the New York case, cited supra, expresses the better rule, 
and the one which will be most likely to obtain in this 
country. 

A parol agreement to change a lease, or for a new lease for 
a longer period than that excepted from the statute, is inoper- 



1 Livingston v. Potts, 16 John. (N. » Biddulph v. Poole, 11 Q. B. 713. 
Y.) 28; Bromley v. Stanley, 4. Burr. * Foquet v. Moore, 7 Exchq. 870; 
2210 ; Eurnivall v. Grove, 8 C. B. n. s. John v. Jenkins, 1 C. & M. 227. 

496 ; Crowley v. Vitty, 7 Exchq. 319 ; ^ Jungernian v. Bovee, 19 Cal. 354. 

Logan V. Anderson, 2 Doug. (Mich.) ^ Qqq „ Hobby, 72 N. Y. 143. 

101 ; "Whitney v. Meyers, 1 Duer. (N. ' Allen v. Jaquish, 21 Wend. (N. 

Y.) 266; Clemens v. Broomfield, 19 Y.) 628. 

Mo. 118. 8 Doe „. Milward, 3 M. & "W. 328; 

2 Van Eensselaer v. Penniman, 6 Weddal v. Capes, 1 id. 50 ; Johnstone 
"Wend. (N. Y.) 569; Livingston v. u. Huddlestone, 4 B. & C. 922. 
Potts, 16 John. (N. Y.) 28. » Ante, p. 84. 



SEO. 66.] ASSIGNMENT AND SUEKENDEB. 



109 



ative and invalid as a surrender or as a contract. Thus, in 
a New York case,^ certain tenants who were holding under a 
lease made in 1869, for ten years, under seal at a yearly- 
rental of $5,000, claimed that prior to the sale of the 
premises by the lessor in 1873 they entered into an agree- 
ment with her by which she agreed to reduce the rent to 
$4,000 a year. The agreement was not in writing, nor was 
there any consideration therefor. The court held that there 
was no surrender of the old lease, and that the agreement, 
not being in writing or predicated upon a good consideration, 
was void.2 The reason why the acceptance of a new lease 



1 Coe V. Holiby, 72 N. Y. 141. 

2 Allen, J., in delivering the opin- 
ion of the court in Coe v. Hobby, ante, 
said: "The defendants contend that 
they are no longer liable upon and ac- 
cording to the lease made in 1868, from 
Mrs. Ingersoll, the plaintiff's grantor 
and assignor, to the defendants, upon 
the ground that by the act of the par- 
ties and operation of law, the lease was 
surrendered in 1872, and that from 
that time the occupation of the 
premises by the defendants has been 
in pursuance of a new contract of 
hiring, then made, at a different rent 
and upon different terms. There 
was no written surrender or cancel- 
lation of the original lease; neither 
was there any surrender of the posses- 
sion of the demised premises, nor was 
any authority or dominion over the 
premises exercised by the landlord 
inconsistent with the rights of the 
tenant under that demise. Neither 
was there at any time any contract 
or lease, by deed or in writing, be- 
tween the parties other than the 
indenture of 1868. The claim is, that 
there was a new letting of the prem- 
ises by the lessor to the defendants at 
the time mentioned, by parol, and 
that by reason of such parol letting 
the original lease, and the term there- 
by created, were by act and oper- 
ation of law surrendered. A surrender 
is the restormg and yielding up an 
estate or interest in lands to one who 
has an immediate estate in reversion 
or remainder, and by the statute of 



frauds a term exceeding one year 
cannot be surrendered, unless by act 
or operation of law, or by a deed of 
conveyance in writing. A surrender 
is implied and so effected by operation 
of law within the statute quoted, 
when another estate is created by the 
reversioner or remainder-man, with 
the assent of the termor, incompatible 
with the existing estate or term. In 
the case of a term for years, or for 
life, it may be by the acceptance by 
the lessee or termor of an estate in- 
compatible with the term, or by the 
taking of a new lease by a lessee. It 
will not be implied against the intent 
of the parties, as manifested by their 
acts ; and when such intention cannot 
be presumed, without doing violence 
to common sense, the presumption 
will not be supported. Van Rens- 
selaer's Heirs v. Penniman, 6 Wend. 
(N. Y.) 569. In the case referred to, 
the devisee of the lessor had made a 
new lease to the assignee of the lessee 
for the same time, and upon the same 
conditions as the first lease, but it 
was held that the original lease was 
not thereby surrendered, but remained 
in force, entitling the lessee and his 
assignees to the benefits of its pro- 
visions, and that under the circum- 
stances the new lease was probably 
given to confirm the prior lease, and 
to give the lessee greater security for 
his improvements than he had by the 
first lease. There is an implication of 
intention to surrender an existing 
lease upon the giving of a second 



110 



STATUTE OP rEAXJDS. 



[chap, n. 



operates as a surrender of the old one is, because the lessee, 
by accepting the new lease, has been a party to an act the 



lease, for the reason that the lessor 
cannot legally execute a second lease 
of the same premises during the term 
of a first lease ; and when the lessee 
accepts a second lease unexplained, 
he admits the power of the lessor 
which he cannot legally have without 
a surrender of the first. The pre- 
sumption of law is, therefore, that a 
surrender has been made. Livingston 
V. Potts, 16 John. (N. Y.) 28; Schief- 
felin V. Carpenter, 15 Wend. (N. Y.) 
400. It is said in that case by Nel- 
son, J., that unless such new lease be 
executed so as to pass an Interest ac- 
cording to the contract and intention of 
the parties, it will not operate as a sur- 
render of the prior lease by operation of 
law. And it was so held where there 
was a, parol letting for a term of 
years to third persons, who had 
entered into possession and paid rent 
to the landlord for a portion of the 
term agreed upon. The conclusion 
was that a valid parol lease, since the 
statute of frauds, might produce a 
surrender in law, and that the true 
rule was as laid down in 2 Starkie's 
Ev. 342, that the taking a new lease 
by parol is by operation of law a 
surrender of the old one, although it 
be by deed, provided it be a good one, 
and pass an interest according to the 
contract and intention of the parties; 
for otherwise thfe acceptance of it is 
no implied surrender of the old one. 
See, also, Bedford t)..Terhune, 30 K 
Y. 453, approving tliis case. See, 
also, Eowan v. Lytle, 11 Wend. (N. 
Y.) 617, and Lawrence o. Brown, 5 
N. Y. 394. In England the rule is, 
that if there be a tenancy under a 
lease, and the parties make a verbal 
agreement for a sufficient consider- 
ation, that instead of the existing 
term there shall be a tenancy from 
year to year, at a different rent, that 
would not be a surrender of the lease 
by operation of law. Eoquet v. Moor, 
7 Exch. 870. The farthest that our 
courts have gone, is to hold that to 



effect a surrender of an existing lease 
by operation of law, there must be a 
new lease, valid in law, to pass an in- 
terest according to the contract and 
intention of the parties. Within "this 
rule there was no surrender of the 
lease upon which this action is 
brought. There was no new lease 
which could take effect according to 
the verbal contract of the parties as 
stated by the defendant. The claim 
is that in 1872, by the verbal agree- 
ment of the parties, there was in effect 
a new lease for the unexpired term of 
seven years, at a reduced rent, with 
liberty to the lessee to terminate the 
lease at any time on giving three 
months' notice. This could only 
operate as a lease from year to year, 
as long as the parties elected to con- 
tinue the relation. Schuyler v. Leg- 
gett, 2 Cow. {N. Y.) 660; People v. 
Eickert, 8 id. 226; Lounsbery v. 
Snyder, 31 N. Y. 514. This was not 
the contract intended by the parties, 
and there was therefore no surrender 
of the existing lease implied by law 
as resulting from the intention of the 
parties. But there was no new lease, 
or a letting from year to year, as the 
legal result of a verbal lease for a 
term of years. Assuming that the 
contract and agreement of the parties 
was, that from the time of making it 
the rent should be reduced to ^4,000 
per annum, and that the lessor should 
have the right to terminate the lease 
upon notice, and that such agreement 
was valid, it was but a modification of 
the terms of the original demise, 
leaving all the other covenants and 
conditions intact. There was no 
agreement inconsistent with the exist- 
ing lease, or any assumption of do- 
minion over the estate by the lessor 
Inconsistent with the term vested in 
the lessee. Each, in dealing with the 
other, dealt with matters over which 
they had control under and by virtue 
of the lease. The lessor assumed to 
release Ms right to a portion of the 



SEC. 66.] 



ASSIGNMEaTT AND STJREENDER. 



Ill 



validity of which he is afterwards estopped from denying, 
and which would not be valid if the first lease continued to 
exist, for he would be estopped from saying that the lessor 
had no power to make the new lease ; and as the lessor 
could not grant the new lease until the first lease was 
surrendered, the acceptance of the new lease is of itself a 
surrender of the old.^ The question whether the taking of 



rent, which he might lawfully do, and 
the lessee undertook to yield con- 
ditionally, and upon notice in the 
future, a portion of his term. It can 
not be assumed or implied from such 
agreement that a surrender of the old 
lease was contemplated by either 
party. The lease continued in full 
force, except as modified by the agree- 
ment. It is preposterous to say that 
a reduction of the rent is a surrender 
of an existing lease, and the granting 
of a new one. The new agreement in 
such case is yirtually incorporated 
into, and made a part of, the ante- 
cedent agreement, and the two would 
constitute the lease for the unexpired 
term. Evans v. Thompson, 5 East, 
193 ; Hasbrouck v. Tappen, 15 John. 
(N. T.) 200. There was no surrender 
of the lease by operation of law, for 
the reason that there was no dealing 
with the estate by the lessor incom- 
patible with the lease, and no new 
letting of the premises by parol or 
otherwise. The defendants, in their 
answer, and upon the trial, relied 
upon an alleged surrender of the 
lease ; but upon appeal they contend 
that there was a valid agreement to 
reduce the rent, and that they are 
now entitled to the benefit of such 
modification of the terms of the lease. 
At most, the agreement alleged was 
executory and verbal, and it is well 
settled that before breach a covenant 
or contract under seal cannot be 
modified by a parol executory con- 
tract. Delarnoix v. Bulkley, 13 
Wend. (N. T.) 71; Hasbrouck v. 
Tappen, ante. 

1 In Lyon v. Eeed, 13 M. & W. 285, 
Paeke, B., said : " The real question 
for our consideration is, whether the 



plaintifE has succeeded in showing 
that the term of the 7th April was 
surrendered previously to the exe- 
cution of the indenture of the 31st of 
August, 1812. On this subject it was 
argued by the counsel for the plain- 
tiff, first, that the circumstances of 
the case warranted the conclusion 
that there was an actual surrender in 
fact; and if that be not so, then, 
secondly, that they prove conclu- 
sively a surrender in point of law. 
We will consider each of these prop- 
ositions separately. And first, as 
to a surrender in fact. The subject- 
matter of the lease of the 7th April, 
1812, was, it must be observed, a 
reversion; a matter, therefore, lying 
in grant, and not in livery, and of 
which, therefore, there could be no 
valid surrender in fact otherwise than 
by deed ; and what the plaintiff must 
make out, therefore, on this part of 
his case is, tliat, before the execution 
of the first lease for ninety-nine years, 
Ord and Planta, by some deed not 
now forthcoming, assigned or sur- 
rendered to the dean the interest 
which they had acquired under the 
lease of the 7th of April. But what 
is there to warrant us in holding that 
any such deed was ever executed'? 
Prima facie a person setting up a deed 
in support of his title is bound to 
produce it. But undoubtedly this 
general obligation admits of many 
exceptions. Where there has been 
long enjoyment of any right, which 
could have had no lawful origin ex- 
cept by deed, then, in favor of such 
enjoyment, all necessary deeds may 
be presumed, if there is nothing to 
negative such presumption. Has 
there, then, in this case been any 



112 



STATUTE OP FEATJDS. 



[chap. n. 



a new lease operates as a surrender of the old,^depends upon 
the circumstance whether the new lease confers a neio interest so that 

1 See also Beesell v. Liindsberg, 7 G. B. 638. 



such enjoyment as may render it un- 
necessary to show the deed on which 
it has been founded t The only fact 
as to enjoyment stated in this case 
has precisely an opposite tendency; 
it is stated, so far as relates to the 
property, the rent of which forms the 
subject of this action, namely, the 
houses, etc., underlet to Eeed, that no 
rent has ever been paid ; and there- 
fore, as to that portion of the property 
included in the lease of April, 1812, 
there has certainly been no enjoy- 
ment inconsistent with the hypothesis 
that that lease was not surrendered. 
The circumstances on which the 
plaintiff mainly relies as establishing 
the fact of a surrender by deed, are 
the statements in the two leases to 
Osborn and Burt, that they were 
made in consideration, inter alia, of 
the surrender of the lease of the 7th 
April, and the fact of that lease being 
found among the dean's instruments 
of title. These circumstances, how- 
ever, appear to us to be entitled to 
very little weight. The ordinary 
course pursued on the renewal of a 
lease is for the lessee to deliver up 
the old lease on receiving the new 
one, and the new lease usually states 
that it is made in consideration of the 
surrender of the old one. No sur- 
render by deed is necessary, where, as 
is commonly the case, the former 
lessee takes the new lease, and all 
which is ordinarily done to warrant 
the statement of the surrender of the 
old lease as a part of the consider- 
ation for granting the new one, is, 
that the old lease itself, the parchment 
on which it is engrossed, is delivered 
up. Such surrender affords strong 
evidence that the new lease has been 
accepted by the old tenant, and such 
acceptance undoubtedly operates as a 
surrender by operation of law, and 
so both parties get all which they 
require. We collect from the docu- 
ments that this was the course pur- 



sued on occasion of making the lease 
of the 26th of December, 1803, and 
the lease of the 7th of April, 1812; 
and we see nothing whatever to war- 
rant the conclusion that anything 
else was done on occasion of mak- 
ing the lease to Osborn and Burt. 
.Where a surrender by deed was un- 
derstood by the parties to be neces- 
sary, as it was with reference to the 
term assigned to Barber and Pany, 
there it was regularly made, and the 
deed of surrender was endorsed on 
the lease itself. There is no reason 
for supposing that the same course 
would not have been pursued as to 
the lease of April, 1812, if the parties 
had considered it necessary. If any 
surrender had been made, no doubt 
the deed would have been found with 
the other muniments of title. No 
such deed of surrender is forthcom- 
ing, and we see nothing to justify us 
in presiiming that any such deed ever 
existed. We may add, that the state- 
ment in the new lease, that the old 
one had been surrendered, cannot 
certainly of itself afford any evidence 
against the present defendants, who 
are altogether strangers to the deed 
in which those statements occur. It 
remains to consider whether, although 
there may have been no surrender 
in fact, the circumstances of the 
case will warrant us in holding that 
there was a surrender by act and 
operation of law. On the part of the 
plaintiff it is contended, that there is 
sufficient to justify us in conung to 
such a conclusion, for it is said, the 
fact of the lease of the 7th of April, 
1812, being found in possession of the 
dean, even if it does not go the length 
as establishing a surrender by deed, 
yet furnishes very strong evidence to 
show that the new lease granted to 
Osborn and Burt was made with the 
consent of Ord and Planta, the lessees 
under the deed of the 7th of April, 
1812. And this, it is contended, on 



SBC. 66.] 



ASSIGNMENT AND STTREENDBK. 



113 



the two cannot stand together because inconsistent with each other. • 
Thus, where a tenant under a lease of a house for a term of 

> Gybson v. Searl, Cro. Jao. 177 ; Gie v. Rider, Sid. 76. 



the authority of Thomas v. Cooke, 2 
B. & Aid. 119, and Walker v. Richard- 
son, 2 M. & W. 882, is sufficient to 
cause a surrender by operation of 
law. In order to ascertain how far those 
two oases can be relied on as authori- 
ties, we must consider what is meant 
by a surrender by operation of law. 
This term is applied to cases where 
the owner of a particular estate has 
been a party to some act, the validity 
of which he is by law afterwards es- 
topped from disputing, and which 
would not be valid if his particular 
estate had continued to exist. There 
the law treats the doing of such act 
as amounting to a surrender. Thus, 
if lessee for years accept a new lease 
from his lessor, he is estopped from 
saying that his lessor had not power 
to make the new lease ; and, as the 
lessor could not do this until the prior 
lease had been surrendered, the law 
says that the acceptance of such new 
lease is of itself a surrender of the 
former. So, if there be tenant for 
life, remainder to another in fee, and 
the remainder-man comes on the land 
and makes a feoffiuent to the tenant 
for life, who accepts livery thereon, 
the tenant for life is thereby estopped 
from disputing the seizin in fee of the 
remainder-man, and so the law says, 
that such acceptance of livery 
amounts to a surrender of his life 
estate. Again, if tenant for years 
accepts from his lessor a grant of a 
rent issuing out of the land and pay- 
able during the term, he is thereby 
estopped from disputing his lessor's 
right to grant the rent, and as this 
could not be done during his term, 
therefore he is deemed in law to have 
surrendered his term to the lessor. 
It is needless to multiply examples; 
all the old eases will be found to 
depend on the principle to which we 
have adverted, namely, an act done by 
or to the owner of a particular estate, 
the validity of which he is estopped 



from disputing, and which could not 
have been done if the particular 
estate continued to exist. .The law 
there says, that the act itself amounts 
to a surrender. In such case it will 
be observed there can be no question 
of intention. The surrender is not the 
result of intention. It takes place inde- 
pendently, and even in spite of intention. 
Thus, in the cases which we have 
adverted to of a lessee taking a 
second lease from the lessor, or a 
tenant for life accepting a feofEment 
from the party in remainder, or a, 
lessee accepting a rent-charge from 
his lessor, it would not at all alter 
the case to show that there was no 
intention to surrender the particular 
estate, or even that there was an ex- 
press intention to keep it unsur- 
rendered. In all these cases the 
surrender would be the act of the 
law, and would prevail in spite of the 
intention of the parties. These prin- 
ciples are all clearly deducible from 
the cases and doctrine laid down in 
EoUe, and collected in Viner's Abridg- 
ment, tit. ' Surrender,' F. and G., and 
in Comyns' Dig., tit. 'Surrender,' T. 
and I. 2, and the authorities there 
referred to. But, in all these cases, 
it is to be observed, the owner of the 
particular estate, by granting or ac- 
cepting an estate or interest, is a 
party to the act which operates as a 
surrender. That he agrees to an act 
done by the reversioner is not suf- 
ficient. Brooke, in his Abridgment, 
tit. 'Surrender,' pi. 48, questions the 
doctrine of Pkowike, C. J., who says : 
'If a termor agrees that the rever- 
sioner shall make a feofEment to a 
stranger, this is a surrender,' and 
says he believes it is not law; and 
the contrary was expressly decided in 
the case of Swift v. Heath, Carthew, 
110, where .it was held, that the con- 
sent of the tenant for life to the 
remainder-man making a feoffment to 
a stranger, did not amount to a sur- 



114 



STATUTE OF FRAUDS. 



[CHAP. n. 



years accepts a grant of the custody of the same house, it is 
a surrender, because a grant of the custody of a thing which 



render of the estate for life, and to 
the same effect are the authorities in 
Viner's Abr., ' Surrender,' F. 3 and 4. 
If we apply these principles to the 
case now before us, it will be seen 
that they do not at all warrant the 
conclusion that there was a surrender 
of the lease of the 7th of April, 1812, 
by act and operation of law. Even, 
adopting, as we do, the argument of 
the plaintiff, that the delivery up by 
Ord and Planta of the lease in ques- 
tion alfords cogent evidence of their 
having consented to the making of 
the new lease, still there is no estoppel 
iu such a case. It is an act which, 
like any other ordinary act in pais, is 
capable of being explained, and its 
effect must therefore depend, not on 
any legal consequence necessarily 
attaching on and arising out of the 
act itself, but on the intention of the 
parties. Before the statute of frauds, 
the tenant in possession of a corporeal 
hereditament might surrender his 
term by parol, and therefore the cir- 
cumstance of his delivering up his 
lease to the lessor might afford strong 
evidence of a surrender in fact ; but 
certainly could not, on the principles 
to be gathered from the authorities, 
amount to a surrender by operation 
of law, which does not depend on 
intention at all. On all these grounds, 
we are of opinion that there was in 
this case no surrender by operation 
of law, and we should have consid- 
ered the case as quite clear had 
it not been for some modern cases, 
to which we must now advert. 
The first case, we believe, iu which 
any intimation is given that there 
could be a surrender by act and oper- 
ation of law by a demise from the 
reversioner to a stranger with the 
consent of the lessee, is that of Slone 
V. Whiting, 2 Stark. 230, in which 
HoLKOYD, J., intimates his opinion 
that there could; but there was no 
decision, and he reserved the point. 
This was followed soon afterwards by 



Thomas v. Cooke, 2 Stark. 408; 2 B. 
& Aid. 119. That was an action of 
debt by a landlord against his tenant 
from year to year, under a parol 
demise. The defence was, that the 
defendant Cooke, the tenant, had put 
another person (Parkes) in possession, 
and that Thomas, the plaintiff, had, 
with the assent of Cooke, the defend- 
ant, accepted Parkes as his tenant, 
and that so the tenancy of Cooke had 
been determined. The Court of 
King's Bench held, that the tenancy 
was determined by act and operation of 
law. It is matter of great regret that a 
case involving a question of so much 
importance and nicety should have 
been decided by refusing a - motion 
for a new trial. Had the case been 
put into a train for more solemn 
argument, we cannot but think that 
many considerations might have been 
suggested which would have led the 
court to pause before they came to 
the decision at which they arrived. 
Mr. Justice Batley, in his judgment 
says, the jury were right in finding 
that the original tenant assented, 
because, he says, it was clearly for 
his benefit, an observation which 
forcibly shows the uncertainty which 
the doctrine is calculated to create. 
The acts in pais which bind parties 
by way of estoppel are but few, and 
are pointed out by Lord Coke, Co. 
Litt. 352 a. They are all acts which 
anciently really were, and in contem- 
plation of law have always continued 
to be, acts of notoriety, not less for- 
mal and solemn than the execution of 
a deed, such as livery, entry, acceptance 
of an estate, and the like. Whether a 
party had or had not concurred in an 
act of this sort was deemed a matter 
which there could be no difficulty in 
ascertaining, and then the legal con- 
sequences followed. But in what 
uncertainty and peril will titles be 
placed, if they are liable to be affect- 
ed by such accidents as those alluded 
to by Mr. Justice Bayley. If the 



SEC. 66.] 



ASSIGNMENT AND STJEKENDEE. 



115 



was leased before, is another interest in the same thing leased, 
and cannot stand with the first lease.^ But the taking of a 
new lease, to commence upon the expiration of the old lease, 
does not operate as a surrender of the latter, because the 
second lease being reversionary, is not inconsistent with the 
existing demise,^ nor does the acceptance of a lease to com- 



1 Gybson v. Searl, ante; Arundale 
c. Gray, 2 Dyer, 200 j "Woodward „. 
Aston, 1 Vent. 296. 

doctrine of Thomas v. Cooke should 
be extended, it may very much affect 
titles to long terms of years, mortgage 
terms, for instance, in which it fre- 
quently happens that there is a con- 
sent, express or implied, by the legal 
' termor to a demise from a mortgagor 
to a third person. To hold that such 
a transaction could, under any cir- 
cumstances, amount to a surrender by 
operation of law, would be attended 
with most serious consequences. 
The case of Thomas v. Cooke has 
been followed by others, and acted 
upon to a considerable extent. What- 
ever doubt, therefore, we might feel 
as to the propriety of the decision, 
that in such a case there was a sur- 
render by act and operation of law, 
we should probably not have felt 
ourselves justified in overruling it. 
And, perhaps, the case itself, and 
others of the same description, might 
be supported upon the ground of the 
actual occupation by the landlord's 
new tenants, which would have the 
effect of eviction by the landlord 
himself in superseding the rent or 
compensation for use and occupation 
during the continuance of that occu- 
pation. But we feel fully warranted 
in not extending the doctrine of that 
case, which is open to so much doubt, 
especially as such a course might be 
attended with very mischievous con- 
sequences to the security of titles. 
If, in compliance with these cases, 
we hold that there is a surrender by 
act and operation of law where the 
estates dealt with are corporeal and 
in possession, and of which demises 
may therefore be made by parol or 



2 Rawlings v. "Walker, 5 B. & C. 
Ill ; Anon., Dal. 74 pi. 58. 



writing, and where there is an open 
and notorious shifting of the actual 
possession, it does not follow that we 
should adopt the same doctrine where 
reversions or incorporeal heredita- 
ments are disposed of, which pass 
only by deed. "With respect to these, 
we think we ought to abide by the 
ancient rules of the common law, 
which have not been broken in upon 
by any modern decision, for that of 
"Walker v. Richardson, 2 M. & "W. 
882, which has been much relied on 
in argument, is not to be considered 
as any authority in this respect, inas- 
much as the distinction that the right 
to tolls lay in grant was never urged, 
and probably could not have been 
with success, as the leases, perhaps, 
passed the interest in the soil itself. 
Moreover, according to the report of that 
case, it would seem that the new 
lessees had, before they accepted 
their lease, become entitled to the old 
lease by an actual assignment from 
the old lessee. If this were so, then 
there could, of course, be no doubt 
but that the old lease was destroyed 
by the grant and acceptance of the 
new one. It is, however, right to say, 
that w# believe this statement to have 
crept into the report inadvertently, 
and that there was not, in fact, any 
such assignment. The result of our 
anxious consideration of this case is, 
that the verdict on the issues on the 
first plea and on the rejoinder to the 
replication to the fifth plea, must be 
entered for the defendants, and as 
those pleas go to the whole cause of 
action, the judgment must be for 
them." 



116 STATUTE OP FBAtTDS. [CHAP. H. 

melace upon a contingency which may not occur until after 
the termination of the first term ; as, if a lessee for a term of 
twenty years, takes a lease of the same lands for forty years, 
to commence upon the death of a certain person named, the 
acceptance of such lease does not operate a present surrender 
of the first lease, because the contingency may not occur 
during the term ; but if it does occur, the acceptance of the 
last lease operates as a surrender of the first from the date 
of its occurrence,^ even though the second lease is afterwards 
defeated by the non-performance of a condition subsequent.^ 
So if a lessee for twenty years accepts a new lease for ten 
years, to begin at a certain fixed period, the term of twenty 
years is thereby surrendered immediately, because by the 
acceptance of the new lease he admits that the lessor is in 
a situation to lease to him, notwithstanding the existence of 
the other lease.^ But a mere agreement for a new lease is 

' Anon., Leon, 30 pi. 83. In case Roll. Abr. 496, pi. 15. So, according 

the contingency does occur, what is to Tanfield, J., if a man possessed of 

left of the old term is surrendered Black Acre and other lands in D, let 

and gone, because the new lease then ^Black Acre for twenty-one years, and 

becomes instantly operatire. Bacon's the next day let (to the same person) 

Abr. tit. " Leases," § 3. all his lands in D for ten years, it is 

2 Plowden, 107 6. not a surrender of Black Acre; but 

3 Ives V. Sams, Cro. Eliz. 522 ; amounts to a lease of all the other 
Hutching v. Martin, id. 604. The lands, which may well stand with 
early books are not agreed as to the the former lease. Id. ; and Cro. Jae. 
principle on which these cases of im- 84. So, acceptance of the equitable 
pUed surrenders depend. Coke states interest in a lease made to a friend as 
it to be, that, by taking the new in- a trustee will not work a surrender of 
terest, the lessee affirms the lessor's a former lease held by a cestui que 
ability to confirm it; an ability he trust. Gie v. Eider, 1 Sid. 75; Jay w. 
cannot possess if the first lease is to Eider, 1 Keb. 285. And it is held 
stand; such new interest, therefore, that the lessee's acceptance of an 
being regarded as inconsistent with, office collateral to the lands demised 
and destructive of, the lessee's former — as by a lessee of a park, of the 
estate. Ive's Case, 5 Coke, 11 6. office of park-keeper; or by a lessee 
The principle propounded ii#Lyou v. for years of a manor, of the office of 
Eeed has already been noticed, ante, surveyor, bailiff, or steward thereof — 
p. 111. But there will be no sur- will not effect a surrender by oper- 
render if a lessee for years takes a ation of law. And, on the same prin- 
grant of a rent-charge out of the same ciple, if a lessor makes a feoffment, 
lands for life, or without limiting the and appoints the lessee his attorney 
period of its commencement ; or if a to deliver seizin, it Is not a surrender, 
lessee for life takes a grant for years ; as the livery is made by the lessee in 
for in each case he may have the his official capacity. 1 Dy. 33 6. In 
benefit of the rent after the determi- cases of surrender by operation of 
nation of the estate in the land, law, it must be understood that the 
Gybson v. Searl, Cro. Jac. 176-7; 2 lessee takes the actual interest contracted 



SEC. 66.] 



ASSIGNMENT AND STJEEENDER. 



117 



not sufficient to create an implied surrender of the old one,^ 
nor is the acceptance of a new lease in trust for another.'* 
A notice given by the tenant to the landlord of his intention 



for under the second lease; for it is 
settled, in opposition to some early 
cases: Whitley v. Gough, 2 Dy. 140 
b; Mallows v. May, Cro. Eliz. 873; 
Corbet's Case, 3 Dy. 280 a. And see 
Brewster v. Parrot, Cro. Eliz. 264, 
that the acceptance of a new lease which 
is void will not effect an extinguishment 
of the one previously subsisting. Baker 
V. Willoughby, cited, Hutt. 105; 
Lloyde v. Gregory, Cro. Car. 502; 
"Watt u. Maydewell, Hutt. 104-5; 
Wilson V. Sewell, 4 Burr. 1975 ; Brom- 
ley V. Stanley, 4 Burr. 2210 ; Earl of 
Berkeley v. The Archbishop of York, 
6 East, 86; Hamerton v. Stead, 3 B. 
& C. 481; Bishop of Rochester v. 
Bridges, 1 B. & Ad. 874; Lowther v. 
Troy, 1 It. T. K. 192. And, accord- 
ingly, where a lessee for years under 
the crown took a new lease for years 
of the same estate, which was void 
for want of a recital of the former 
lease, it was held that the former was 
not surrendered. Harris v. Wing, 3 
Leon. 242 ; Wing v. Harris, Cro. Eliz. 
231 ; cited, Cro. Car. 198. So, where 
one seized in fee granted a lease for 
ninety-nine years, and having in the 
interim made a settlement, and taken 
back an estate for life only, granted, 
previously to the determination of the 
former, a new lease of ninety-nine 
years, to the same lessee, who was not 
informed of the settlement, and then 
died, the court held that the latter 
did not annul the former, as it would 
be inconsistent with the intention of 
the parties to the contract, that an in- 
valid lease should be substituted for 
a valid one. Bromley v. Stanley,' 2 
Burr. 2210. So a contract by a tenant 
from year to year with his landlord 
to purchase the fee will not amount 
to a surrender by operation of law of 
the existing tenancy, unless the tenant's 
continuance in possession is clearly 
referable to an agreement for holding 
as tenant at will under the contract. 
Denison v. Wertz, 7 S. & R. (Penn.) 



372. If the contract is conditional to 
purchase only provided a good title 
be made out, and to pay the purchase- 
money when that shall have been 
done, and the estate conveyed, there 
is no room for imj)lying any agree- 
ment as tenant at will in the mean 
time, the effect of which would be 
absolutely to surrender the existing 
term, whilst it would be uncertain 
whether the purchase would be com- 
plete or not. Gray v. Stanion, 1 M. 
& W. 695. So, an agreement for a 
new lease will not put an end to a 
former tenancy, unless a new tenancy 
is actually created. But if a tenant 
from year to year agrees during a, 
current year to take a lease of the 
premises jointly with another, and he 
and his co-tenant actually enter and 
enjoy the property, this joint occu- 
pation, coupled with the agreement, 
will operate as a surrender in law of 
the separate tenancy: Hamerton v. 
Stead, 3 B. & C. 478; Jay v. Ryder, 1 
Keb. 285; Gie v. Rider, 1 Sid. 75; 
Perryn v. Allen, Cro. Eliz. 173. It is, 
however, to be observed, that, with 
regard to an actual surrender by deed, 
a different rule prevails. The Bishop 
of Rochester v. Bridges, 1 B & Ad. 
847. In Dankersley v. Levy, 38 Mich. 
54, an agent executed a lease to cer- 
tain parties for his principal while it 
was still in force, the principal exe- 
cuted a lease of the same premises to 
the agent, who then verbally leased 
them to the same tenants, for a 
smaller rent than before, who con- 
tinued in possession without change. 
It was held, that the original lease 
was surrendered by operation of law, 
and not assigned to the agent, and 
consequently that he could not claim 
the rent under the old lease. 

1 John V. Jenkins, 1 C. & M. 227; 
Parris v. Allen, Cro. Eliz. 173. 

2 Comyn's Dig. tit. Surrender (H.) 
(D. 1.). 



118 STATUTE OP FEATJDS. [CHAP. II. 

to quit does not operate as a surrender,^ but a written 
request by the tenant to his landlord to re-let the premises 
to some other person, if acted upon by the landlord, amounts 
to a surrender by operation of law,^ and it has been held that 
the same result ensues when the premises are re-let at the 
request of a surety for the lessee ; ^ but we apprehend that 
the latter doctrine can only apply where the tenant has 
abandoned the possession of the premises. Provision may 
be made in the lease itself for its surrender by the tenant 
upon doing certain things : he can only surrender the lease 
in the mode named therein,* unless he can clearly establish a 
waiver by the landlord, of the modes named in the lease ; as, 
where notice in writing is named, that the .landlord waived 
such notice and accepted the possession.^ A recital in a 
second lease, that it was granted in consideration of the 
surrender of the first, is not a surrender by deed or note in 
writing, as it does not purport to be of itself a surrender or 
yielding up of the interest in the first lease.® 

Sec. 67. Effect of 'Sew Lease of a Part of Premises. — If a 

tenant accepts a new lease of a part of the premises embraced 
in a prior lease, such new lease operates only as a surrender 
of that part only, and does not affect his interest in the 
remainder of the premises ; '^ and the rule that a contract for 

1 Bessell v. Landsberg, 7 Q. B. 638 ; of the copyholders. But on the part 

Murrell v. Milward, 3 M. & W. 328. of the defendant it was shown, that 

^ Nickells v. Atherstone, 10 Q. B. King Henry III., in the 16th year of 

944. his reign, granted by charter under 

8 McKenzie v. Tarrell, 4 Bos. (N. the great seal of the then Bishop of 

Y.) 192. Winchester and his successors free 

^ Kettle V. St. John, 7 Neb. 73. warren in all their demesne lands of all 

* Farson v, Goodale, 8 Allen their manors in England; and it was 

(Mass.) 202. contended that, by this grant, the 

8 Berkley v. York, 6 East, 86 ; bishop and all deriring title under 

Egremout v. Courtnay, 11 Q. B. 702. him were estopped from setting up 

' Fish V. Campion, 2 Eoll. Abr. 498 the original title 'by prescription, and 

(M.) ; "Williams u. Sawyer, 3 B. & B. so that the free warren over the lands 

70; Morrison v. Chadwick, 7 C. B. of the copj/XoWers was gone; no such 

266. In Earl CamarTon v. Villebois, right having been conveyed by the 

13 M. & W. 313, Aldbeson, B., said : charter, which was confined to the 

"At the trial, the plaintiff established demesnes. The defendant, in support 

his title by prescription through the of this proposition, relied on Com. 

bishops of Winchester to a general Dig. tit. Prescription (G), and 17 

right of free warren over all the lands Vin. Ahridg. tit. Prescription, (T), 

of these manors, including the lands pi. 5, and several old authorities there 



SEC. 68.] ASSIGNMENT AND SUEKBNDEE. 



119 



years cannot be divided or severed so as to be good for a 
part of the term, and avoided as to the residue, has no 
application because, while the contract cannot be divided, 
the land may be, and the tenant may surrender a part, either 
expressly or by operation of law, and the lease will stand 
good as to the residue.^ An unconditional assignment of a 
lease to the lessor operates as a surrender, but a conditional 
assignment for collateral purposes only, as to secure a loan, 
etc., does not so operate.^ 

Sec. 68. Acceptance of a New Lease. — If a lessee for years 
accepts a new lease from his lessor, he is estopped from saying 
that his lessor had not power to make the new lease ; and as 
the lessor could not do this until the prior lease had been 
surrendered, the law says that the acceptance of such new 
lease is of itself a surrender of the premises.^ So if there is 
a tenant for life remainder to another in fee, and the remain- 
der-man comes on the land, and makes a feoffment to the 
tenant for life, who accepts livery thereon, the tenant for 



referred to, particularly a case frpm 
the Year Books, 21 Hen. 7, fo. 5, and 
Brooke's Abridg., Estoppel, 210, and 
Prescription, 102. It may well be 
doubted whether any such principle 
as that contended for can be applied 
to a grant like the present, which 
probably was never intended as any 
thing more than a confirmation of 
rights already existing. It is not, 
however, necessary to go into this 
question, for it is clear the doctrine 
is not applicable to the case where the 
subject-matter of the grant and of the 
prescription are different. Now here, 
adopting the argument of the defend- 
ant that the copyholds are not to be 
considered as demesnes, then it fol- 
lows that the prescriptive right was 
one which extended over two descrip- 
tions of land, namely, 'copyholds and 
demesnes. The grant was of a right 
over demesnes only. In such a state 
of things, it appears to us clear that 
the grant could not affect the pre- 
scription so far as related to the 
copyholds. It is, as was put by Mr. 
Smikke in his argument, to be likened 



to the case of tenant for years or for 
life of Blackacre and Whiteacre ac- 
cepting from his lessor a new lease of 
Blackacre only. This is, no doubt, a 
surrender by operation of law of 
Blackacre, but it in no respect affects 
the title to Whiteacre. On this short 
ground, even asuming that the charter 
in question is to be construed as a 
grant and not as a confirmation, and 
that it was duly accepted by the 
grantee, and that its effect was to 
destroy the prescriptive title to the 
free warren over the demesnes, still it 
left the right over the lands of the copy- 
holders untouched." 

1 Bacon's Abr. tit. Leases, § 3. 

2 Breese v. Bangs, 2 E. D. S. (N. Y. 
C. P.) 474. 

8 Lyon V. Eeed, 13 M. & W. 305 ; 
13 L. J. Ex. 377, per Pakke, B.; and 
see Bernard v. Bonner, Aleyn. 59; 
Ives V. Sams, Cro. Eliz. 521 ; Hutchins 
V. Martin, ib. 505; Mallows v. May, 
ib. 874; Gybson v. Searl, Cro. Jac. 
177; Crowley v. Vitty, 7 Exch. 319; 
Pumivall V. Grove, 8 C. B. (N. S.) 
496. 



120 STATUTE OF FEAT7DS. [CHAP. II. 

life is thereby estopped from disputing the seizin in fee of 
the remainder-man ; and so the law says such acceptance of 
livery amounts to a surrender of his life estate. Again, if 
tenant for years accept from his lessor a grant of a rent 
issuing out of the land and payable during the term, he is 
thereby estopped from disputing his lessor's right to grant 
the rent, and as this could not have been done during his 
term, therefore he is deemed in law to have surrendered his 
term to the lessor.^ In these cases it will be observed there 
can be no question of intention ; it is the act of the law, and 
will prevail in spite of the intention of the parties.^ 

Sec. 69. New Lease need not be in Writing. — In Magennis 
V. MacCullogh,3 Loed C. B. Gilbert said that the words 
" by act and operation of law " are to be construed a surren- 
der in law by the taking a new lease which, being in writing, 
is of equal notoriety with a surrender in writing.* Accord- 
ing to this reasoning the new lease must be in writing. But 
in Thomas v. Cook,^ the tenancy, which was from year to 
year, was created by parol, and was held to have been 
surrendered by a parol under-lease, and the acceptance of 
the new tenant by the landlord, and therefore it would 
seem that the acceptance of a lease to himself by parol, by 
the old tenant, wiU be a surrender of the existing lease.® A 
recital in a second lease, that it was granted in consideration 
of the surrendering up into the hands of the lessor by the 
lessee at or before the delivery thereof of the lease first 
granted, is not a sufficient surrender.'^ 

Sec. 70. Agreement for New Lease. — A mere agreement 
to grant a new lease will not put an end to the tenancy 
unless a new tenancy is actuq^y created.^ Thus where the 

1 Lyon V. Reed, 13 M. & "W. 305; < And see Roe v. Abp. of York, 6 

13 L. J. Ex. 377, per Pakke, B.; and East, 86. 

see Bessell v. Landsberg, 7 Q. B. 640 ; » 2 Stark. 408 ; 2 B. & Aid.' 119. 

14 L. J. Q. B. 355 ; Mokells v. Ather- « See 1 Wm. Saund. 203, n. u. 
stone, 10 Q. B. 944; 16 L. J. Q. B. ' Doe v. Courtenay, 11 Q. B. 702; 
371 ; Vin. Abr. tit. Surrender (F. & 17 L. J. Q. B. 151 ; Roe v. Abp. of 
G.), Com. Dig. tit. Surrender (T. & J.). York, 6 East, 86. 

2 Lyon V. Reed, 13 M. & W. 306 ; » Hamerton v. Stead, 3 B. & C. 482 ; 
13 L. J. Ex. 377. 6 D. & E. 206. 

8 GHb. Eq. Rep. 236, 



SEO. 72.] ASSIGNMENT AND SUEEBNDEE. 121 

tenant agreed to relinquish his interest under his lease, and 
to accept a fresh lease, and to hold the premises as tenant 
from year to year until such lease was tendered, and no lease 
was executed : in an action for rent it was argued for the 
defendant that, if there is a tenancy under a lease, and the 
parties make a verbal agreement for a sufficient considera- 
tion, that instead of the existing term, there should be a 
tenancy from year to year, at a different rent, that would be 
a surrender of the lease by operation of law ; but it was held 
that the term created by the existing lease would not be de- 
termined until the new lease was executed.^ So also an 
agreement between the lessor and a stranger, that the lessee 
shall have a new lease, is not a surrender .^ But if a' tenant 
from year to year of premises gives them up to the landlord 
in pursuance of a parol agreement that the tenant shaU take 
other rooms upon the same terms, this amounts to a sur- 
render.^ 

Sec. 71. New Lease to Begin Presently. — Where a lessee 
for twenty-one years took a lease of the same lands for forty 
years, to begin immediately after the death of J S, it was 
held that this was not any present surrender of the first term, 
because J S might wholly outlive that term, and then there 
would be no union to work a surrender; and it being in 
equilihrio in the meantime whether he would survive it or 
not, the first term should not be hurt till that contingency 
happened ; for if J S died within the first term, then what 
remained of it was surrendered and gone by the taking place 
of the second.* 

Sec. 72. "What is a Sufficient New Lease. — If a lessee 
accepts a new lease de vestura terrae, it will be a surrender.^ 
So, also, if he accepts a grant of common, or rent out of the 
same land, to commence at a certain day within the term.^ 

1 Foquet v. Moore, 7 Exch. 870 ; " Perry v. Allen, Cro. Eliz. 173. 
22 L. J. Ex. 35; and see John v. Jen- » Giles v. Spencer, 3 C. B. (N. S.) 

kins, 1 Cr. & M. 227 ; Crowley v. Vitty, 251. 

7 Exch. 319 ; Badeley v. Vigurs, 4 E. * Bac. Abr. tit. Leases, § 2. 
& B. 71 ; 23 L. J. Q. B. 377 ; 23 L. T. « Com. Dig. tit. Surrender (T.) 1. 
297; Whitley w. Gongh, Dyer, 140 5; « Mallows v. May, Cro. Eliz. 174; 

Weddall v. Capes, 1 M. & W. 51 ; Doe Gybson v. Searl, Cro. Jac. 176. 
V. MUward, 3 M. & "W. 328. 



122 STATUTE or FEATJDS. • [CHAP. II. 

Where the lessee for years of a house accepts a grant of the 
custody of the same house, that is a surrender ; for the cus- 
tody of the same thing which was let before is another in- 
terest in the same thing leased, and cannot stand with the 
first lease.i If the sovereign grants an ofl&ce by patent, or 
makes a demise for years, the acceptance of a new patent in 
the one case, or of a new lease in the other, is no surrender 
of the first grant.^ So where a lessee for years of a park or 
a manor accepts a grant of the office of park-keeper of the 
same park for his life, or takes a lease of the bailiwick of the 
manor, that is not a surrender, because it is an office collat- 
eral to the land ; ^ and the acceptance of a new lease in trust 
is not a good surrender.* If a lessee for twenty years takes 
a lease for ten years, to begin at Michaelmas, there is no 
doubt but that the term for twenty years is surrendered or 
determined presently; for by the lessee's acceptance the 
lessor hath power to make a new lease during the former.^ 
Where the lessee for years of an advowson was presented to 
the advowson by the lessor, it was adjudged to be a sur- 
render of his term.® 

If a lessee re-demises his whole term to the lessor with a 
reservation of rent, it will operate as a surrender.'^ Where 
the tenant, by letter, authorized the lessor to let the premises 
to any one else, and the lessor did so, and the new tenant 
entered into possession, it was held that there was a sur- 
render by operation of law.^ If there be two lessees for life, 
or years, and one of them takes a new lease for years, this is 
a surrender of his moiety.^ Again, if a lessee for years of 
lands accepts a new lease by indenture of part of the same 
lands, that is a surrender of that part only, and not for the 
whole, because there is no inconsistency between the two 
leases, for any more than that part only which is so doubly 
leased, and though a contract for years cannot be so divided 
and severed as to be avoided for part of the years, and to 

1 Gybson v. Searl, Cro. Jac. 177 ; « jygg „, Sams, Cro. Eliz. 522 ; Hut- 
Earl of Arundel «. Lord Gray, Dyer, chins v. Martin, ib. 605. 

■ 200 b. e Gybson v. Searl, Cro. Jac. 84. 

2 Brook «. Goring, Cro. Car. 197. ' Loyd v. Langford, 2 Mod. 174; 
8 Gybson v. Searl, Cro. Jac. 176; Smith v. Mapleback, 1 T. R. 441. 

Woodward v. Aston, 1 Vent. 296. « Nickells v. Atherstone, 10 Q. B. 

4 Gie V. Ryder, Sid. 75; Com. Dig. 944; 16 L. J. Q. B. 371. 
tit. Surrender (H.) L. 1. 9 Shep. Touch. 302. 



SEC. 74.] ASSIGNMENT AND STJERENDER. 123 

subsist for tlie residue, either by act of the party or act in 
law, yet the land itself may be divided or severed, and he 
may surrender one or two acres either expressly or by act 
in law, and yet the lease for the residue stands good and un- 
touched, because here the contract for the residue remains 
entire, whereas in the other case the contract for the whole 
would be divided, which the law will not allow.^ 

In Morrison v. Chadwick,^ the landlord evicted his tenant 
from a part of the demised premises. It was held that the 
entire rent was suspended during the continuance of the 
eviction ; but that the tenancy was not put an end to, nor 
was the tenant discharged from the performance of his cove- 
nants, other than the covenant for the payment of rent. 

Sec. 73. Term Taken in Execution. — A sheriff who takes 
a term in execution under a writ of fieri facias, and sells, 
must execute an assignment of the term, according to the 
provisions of the statute, or the term will still remain in the 
debtor, and the purchaser will have no defence in an action 
for the recovery of lahd.^ 

Sec. 74. New Iiease Voidable on Condition may be Sur- 
render. — The acceptance of a new lease, made voidable upon 
condition, may be a surrender by operation of law, if ren- 
dered Toid according to the contract ; * for the surrender, by 
taking the new lease, is executed absolutely at the time, and 
it is not defeated, although the condition makes the second 
lease void, ah initio, for various purposes.^ 

But no surrender, express or implied, in consideration of a 
new lease, will bind if the new lease is absolutely void ; for 
the ground of the surrender fails.^ It creates no new estate, 

1 Bac. Abr. tit. Leases, § 3; citing Wilson v. Sewell, 4 Burr, 1980; Eoe 
Fish V. Campion, 2 Roll. Abr. 498 ; v. Abp. of York, 6 East, 102 ; Doe v. 
see also Earl of Carnarvon v. Ville- Courtenay, 11 Q. B. 712 ; 17 L. J. Q. 
bois, 13 M. & W. 342. B. 151 ; Doe v. Poole, ib. 716 ; 17 L. 

2 7 C. B. 266 ; 6 D. & L. 567 ; 18 J. Q. B. 143. No Implied surrender 
L. J. C. P. 189. by the grant of a new lease will take 

' Doe V. Jones, 9 M. & "W. 372. effect if the new lease is absolutely 

* Doe V. Poole, 11 Q. B. 716. void: Abbott w. Parsons, 3 Burr, 1807 ; 

6 Fulmerston v. Steward, Plowd. "Wilson v. Sewell, 4 Burr, 1980; 1 W. 

107 ; and see Eoe v. Abp. of York, 6 Blac. 617 ; Earl of Berkeley v. Abp. 

East, 102, and Co. Litt. 45 a. of York, 6 East, 86 ; Bromley v. Stan- 

6 Zouch V. Parsons, 3 Burr, 1807 ; ley, 4 Burr, 2210 ; Earl of Egremont 



124 



STATUTE OP FEATJBS. 



[chap. n. 



and is no estate inconsistent with the tenant's former inter- 
est.^ Besides, a void contract for a thing that a man cannot 
enjoy, cannot in common sense or reason imply an agreement 
to give up a former contract.^ But where tenant from year 
to year entered into an agreement during a current year for 
a lease to be granted to him and A B, and from that time 
A B entered and occupied jointly with him, it was held that 
by this agreement, and the joint occupation under it, the 
former tenancy was determined, although the lease contracted 
for had never been granted, Abbott, C. J., saying : " In Roe 
V. The Archbishop of York, the occupation, by virtue of the 
new lease, took place under a mistaken idea that it was a 
good and valid lease ; and when that was discovered to be 



V. Courtenay, 11 Q. B. 702; Smith, 
L. & T. 307, 2d ed.; 3 Priest. Conv. 
164, 166 ; or if the new lease does not 
pass an interest according to the con- 
tract and intention of the parties, an 
acceptance of it does not amount to 
an implied smrender of the old lease : 
Com. Dig. tit. Estates (G.) 13; Whit- 
ney V. Myers, 1 Duer, 266 ; Schiefflin 
V. Carpenter, 15 Wend. (N. Y.) 400; 
Eton V. Luyster, 60 N. Y. 252. The 
acceptance of a voidable lease which 
is afterwards made void contrary to 
the intention of the parties, but which 
has operated to pass some part of the 
term contracted for, is not a surrender 
of a valid former lease inconsistent 
therewith: therefore, where a tenant 
for life, with a power of leasing, made 
a lease of part of some land, which 
was not a good execution of the power, 
in consideration of the surrender of 
two prior leases of the whole of the 
land, and in order to effectuate an 
agreement entered into between the 
lessee .and aijother person for the sale 
of the remaining part of the land, 
which the lease recited that it was 
intended to lease to the vendee by 
indenture of even date, and which 
was done, it was held, after the death 
of the tenant for life, that this new 
lease as to the premises thereby de- 
mised did not operate as a surrender 
of the two prior leases : Biddulph v. 
Poole, 11 Q. B. 713 ; Earl of Berkeley 



V. Abp. of York, 6 East, 86 ; 2 Smith, 
L. C. 655, 4th. ed. ; Smith, L. & T. 308, 
2d ed. So where a tenant for life, 
with power of leasing, granted a lease 
in "consideration of the surrender up " 
of a former lease, "which surrender 
is hereby made and accepted," it was 
held, the new lease not being a good 
execution of the power, and therefore 
voidable, did not operate as a sur- 
render of the prior lease : Earl of 
Egremont v. Courtenay, 11 Q. B. 
702; overruling Earl of Egremont v.- 
Forwood, 3 Q. B. 627. Where a void- 
able lease, which had been granted in 
consideration of a surrender by deed 
executed a few days before of a prior 
lease, was avoided, it was held that 
the first lease was not revived by such 
avoidance. Murray v. Bridges, 1 B. & 
Aid. 847. A surrender is effected if 
the tenant relets to his landlord for 
the entire term, reserving an annual 
rent : Lloyd v. Langford, 2 Mod. 174 ; 
Winton v. Pinkeney, 2 Lev. 80; 
Wilson V. Pig, 3 Keb. 95 ; Gartwright 
V. Pinkeney, 1 Vent. 272; Smith v. 
Mapleback, 1 T. R. 441 ; though not 
if he retains a reversion : 2 Roll. Abr. 
497, pi. 13; Mallows v. May, Cro. Eliz. 
873; Lit. § 144; Gourtail v. Thomas, 
9 B. & C. 298 ; Bernard v. Bonner, Al. 
58-9 ; Shep. Touch. 

1 Lynch v. Lynch, 6 Ir. L. R. 142. 

2 Davison v. Stanley, 4 Burr, 2213. 



SEC. 75.] ASSIGNMENT AND SUREENBEE. 125 

void, the court very properly held that it should not operate 
as a surrender of the former lease." Here there is nothing 
to show that the defendant refused to grant such a lease as 
was contracted for ; and we find, in fact, that a new contract 
was made to let the premises to two persons instead of one, 
and that both entered and occupied.^ 

The acceptance of a lease which is voidable, and after- 
wards made void, contrary to the intention of the parties, 
and which does not pass an interest according to the con- 
tract, will not operate as a surrender. Thus, where tenant 
for life, with a power of leasing, granted a new lease to the 
original lessee, which purported to be made in consideration 
of the surrender of the original lease, but the new lease was 
not a due execution of the power, it was held that the new 
lease did not operate as a surrender.^ And the rule is the 
same whether the surrender be implied or express, for in the 
case of a surrender implied by law from the acceptance of a 
new lease, a condition ought also to be understood as implied 
by law, making void the surrender in case the new lease 
should be made void ; and in the case of an express surren- 
der so expressed as to show the intention of the parties to 
make the surrender only in consideration of the grant, the 
sound construction of such instrument in order to effectuate 
the intention of the parties would make that surrender also 
conditional to be void in case the grant should be made void.* 

"Where a voidable bishop's lease, which had been granted 
in consideration of the surrender of a prior lease by deed 
poll, was avoided by the bishop's successor, it was held that 
the first lease was not revived by such avoidance.* 

Sec. 75. New Lease Granted to Third Party. — If the land- 
lord and tenant agree that a new lease shall be granted to a 
third party, and such third party either continues in or enters 
into possession, this will amount to a surrender by operation 
of law, though no new lease is ever granted. Thus, where 
A being tenant from year to year underlet the premises to B, 

1 Hamerton v. Stead, 3 B. & C. 478 ; 17 L. J. Q. B. 151 ; overruling Doe v. 
5 D. & K. 206. Forwood, 3 Q. B. 627 ; 11 L. J. Q. B. 

2 Doe V. Poole, 11 Q. B. 716; 17 321. 

L. J. Q. B. 143. 4 Doe v. Bridges, 1 B. & Aid. 847. 

3 Doe V. Courtenay, 11 Q. B. 712; 



126 STATUTE OF FBATJDS. [CHAP. n. 

and the original landlord with the assent of A accepted B as 
his tenant, but there was no surrender in writing of A's 
interest, it was held that there had been a valid surrender 
by act and operation of law.^ But where a tenant from year 
to year whose holding commenced at Lady Day gave notice 
at Christmas to his landlord that he would quit the Lady 
Day following, and the landlord agreed to accept such notice, 
it was held that this was no determination of the tenancy, 
there not being a half year's notice, nor a surrender either 
in writing or by operation of law.^ Bayley, J., observed 
that the question whether the landlord's assent to the notice 
operated as an actual surrender was not raised, inasmuch as 
that assent was not expressed in writing. The case of 
Thomas v. Cook was recognized by the court, but distin- 
guished on the ground that there the surrender operated not 
by reason of the agreement of the parties alone, but by reason 
of that agreement coupled with the change of possession.^ 

The tenancy will not be surrendered unless the agreement 
is in writing, or the new tenant takes possession.* Where 
the landlord grants a new lease to a stranger with the assent 
of the tenant under an existing lease, and the latter gives up 
his own possession, that is a surrender by operation of law.^ 
The privity of estate between the lessor and the first lessee 
is destroyed by the acceptance of a new tenant,^ and it is 
more probable that the legislature intended to give effect to 
an agreement, so proved as a surrender by operation of law, 
than to allow either party to defeat the agreement by alleg- 
ing the absence of written evidence.^ The reason of the 
rule is that, as a new letting to an old tenant, commencing 

1 Thomas v. Cook, 2 B. & Aid. 119 ; * Taylor v. Chapman, Peake Add. 
2 Stark, 408; and see Stone «. Whiting, Cas. 19; and see Cocking v. Ward, 1 
2 Stark, 235; Hamerton v. Stead, 3 C. B. 868; Kelly v. Webster, 12 C. 

B. & C. 482; 5 D. & R. 206; 3 L. J. B. 283; Doe ■/. Johnston, McClel. & 
(K. B.) 33; Rex u. Banbury, 3 Nev. Y. 141. 

& Man. 292; Lynch v. Lynch, 6 Ir. L. 6 Davison v. Gent, 1 H. & N. 744; 

K. 131. Lawrance v. Faux, 2 F. & P. 435 ; Gore 

2 Johnstone v. Huddlestone, 4 B. v. Wright, 8 Ad. & El. 118; 3 N. & P. 
& C. 922 ; 7 D. & R. 411 ; and see Doe 243. 

V. Johnston, McClel. & Y. 141 ; Bessell " Thomas v. Cook, 2 Stark, 408 ; 2 

V. Landsberg, 7 Q. B. 638. B. & Aid. 119. 

3 Johnstone v. Huddlestone, 4 B. & ' Nickells v. Atherstone, 10 Q. B. 

C. 922; 7 D. & R. 411; and see Doe 950; 16 L. J. Q. B. 371. 
V. Johnston, McClel. &Y. 141; Bessell 

u. Landsberg, 7 Q. B. 638. 



SBC. 7S.] ASSIGNMENT AND STJREENDEE. 127 

immediately, operates as a surrender of the original term, 
because tlie lessor could have no power to create the new 
term if the original term had subsisted ; so a new letting to 
a third party, with the assent of the original tenant, has the 
same operation.^ 

Where the defendant took premises for a year certain, but 
quitted at the end of the first quarter, and the plaintiff then 
let the premises for a portion of the remaining three quarters 
to another tenant at a less rent, it was held that by re-letting 
the premises the plaintiff had assented to the determination 
of the original tenancy, and dispensed with the necessity of 
a legal surrender ; and the case was distinguished from Mol- 
lett V. Brayne,^ as there the tenant had a subsisting term, 
wliich could not be determined by a mere parol surrender.^ 

Where the tenant of a house, three cottages, and a stable 
and yard, let at an entire rent for a term of seven years; 
before the expiration of the term assigned all the premises 
to B for the remainder of the term, the house and cottages 
being in the possession of undertenants, and the stables and 
yard in that of A ; and the landlord accepted a sum of money 
as rent up to the day of assignment, which was in the middle 
of a quarter, and B took possession of the stables and yard 
only ; and the occupiers of the cottages having left them 
after the assignment, but before the expiration of the term, 
the landlord re-let them ; and A paid no rent after the as- 
signment, but the landlord received rent from the under- 
tenants ; and before the expiration of the term the landlord 
advertised the whole of the premises to be let or sold; it 
was held that this was a surrender by operation of law of all 
the premises.* Where two persons, holding from different 
lessors, verbally agreed to exchange their holdings, and on 
the same day each took possession of the other's land, the 
steward of both the lessors expressing his concurrence, it 
was held that there was evidence to go to the jury of sur- 
render.^ A tenant from year to year died, leaving his widow 

' McDonnell v. Pope, 9 Hare, 705 ; 3 Bing. 462 ; and see Hall v. Burgess, 

and see Hobson «. Cowley, 27 L. J. 5 B. & C. 332; Woodcock v. Nuth, 8 

Exch. 209 ; Walker v. Richardson, 2 Bing. 170 ; 1 Moo. A. Sc. 317. 
M. & W. 882; 6 L. J. (N. S.) Ex. 229. * Reeve v. Bird, 1 C. M. & R. 31 ; 

2 2 Camp. 103. 4 Tyr. 612. 

» Walls V. Atcheson, 11 Moo. 379; « Bees v. WilUams, 2 C. M. & R. 



128 STATUTE OF FEATXDS. [CHAP. H. 

in- possession, with the knowledge of the administrator to the 
deceased tenant. It was held that there was no evidence of 
a surrender.! 

Where premises had been let to B for a term, determinable 
by a notice to quit, and, pending such term, C applied to A, 
the landlord, for leave to become the tenant instead of B, 
and upon A consenting, agreed to stand in B's place, and 
offered to pay rent, it was held that A might maintain an 
action for use and occupation against C, and that the latter 
could not set up B's title in defence to that action.^ 

Sec. 76. Commencement of Nevo- Tenancy Question of Fact. 

— When there has been a surrender by the admission of a 
new tenant, it is a question for the jury, and not for the 
judge, to be determined by a consideration of all the facts, 
at what time the tenancy commenced.^ In order that there 
may be a valid surrender by the grant of a new lease to a 
new tenant, the transaction must be assented to by all the 
parties,* as the legal presumption, until the contrary appears, 
is, that the new tenant came in as the assignee of the origi- 
nal lessee.^ 

Where W and H, by agreement, in March, 1827, became 
tenants to the plaintiff for three years, of premises occupied 
by them as partners, with power to them to extend the term 
to seven years by giving the plaintiff notice, which they did 
in January, 1827, and at Midsummer, 1828, W retired from 
the partnership, which was carried on by H with a new part- 
ner, S, the plaintiff giving receipts for rent as received from 
H and S, and in February, 1829, gave H a letter to his attor- 
ney signifying that a lease might be made to H and S, but 
no lease was ever prepared, it was held that W remained 
liable to the plaintiff for rent accruing in 1831.® 

581; Tyr. & Gr. 23. In this case, 219; Trent v. Hunt, 9 Exoh. 14; 22 

Thomas v. Cook does not appear to L. J. Exch. 318 ; Cadle v. Moody, 80 

have been cited. L. J. Exch. 385. 

1 Doe V. Wood, 14 M. & "W. 682; ^ Doe „. Williams, 9 D. & R. 30; 
15 L. J. Ex. 41. 6 B. & C. 41. 

2 Phipps V. Sculthorpe, 1 B. & Aid. ^ Graham v. Wichelo, 1 C. & M. 
50 ; but see Hyde v. Moakes, 5 C. & P. 188 ; 3 Tyr. 201 ; and see Matthews v. 
42. Sawell, 2 Moo. 262 ; 8 Taunt. 270 ; Lyon 

8 Walker v. God6, 6 H. & N. 594 ; v. Eeed, 13 M. & W. 285 ; 13 L. J. Ex. 
30 L. J. Ex. 172. 3775 McDoneU v. Pope, 9 Hare, 705. 



Eex V. Stow Bardolph, 1 B. & Aid. 



SEC. 76.] ASSIGNMENT AND SUEEENDEE. 129 

Assent to the grant of a new lease by one of several exec- 
utors is not sufficient to determine the tenancy, although 
possession is given up by the original tenant.^ 

The foregoing cases apply exclusively to chattel interests, 
and it is not quite clear whether the doctrine of surrender 
by the grant of a new lease to a third party would apply to 
the case of a freehold interest. In Lynch v. Lynch ^ it was 
held that the doctrine did apply. In that case the original 
lease was freehold.^ In Creagh v. Blood,* Loed St. Leon- 
AEDS, referring to the doctrine of Thomas v. Cook, said: 
" The case of Lynch v. Lynch was relied upon as an 
authority that the doctrine equally applies to a freehold 
interest like that in this case, and no doubt the point was so 
decided. But with all my respect for the judges who decided 
that case, I cannot follow it — I never so understood the law; 
and the authorities quoted in Lyon v. Reed would seem to 
establish the contrary to be the law. I think the new rule 
would have a more extensive operation than at first sight 
would appear. Upon this point, if I were compelled to de- 
cide, I should be of opinion that the freehold interest could 
not be held to be surrendered by operation of law on the 
ground of an acquiescence in the new lease." The doctrine 
of Thomas v. Cook does not extend to incorporeal heredita- 
ments.^ 

The doctrine of surrender by the grant of a new lease to 
a third party, with the assent of the original lessee, coupled 
with a change of possession, as laid down in Thomas v. Cook, 
has been questioned in some later cases, and especially in 
Lyon V. Reed.^ There it was decided that the delivery up 
by a lessee, who had a term of years in a reversion, of his 
lease, with an assent by him to the grant of a new lease by 
the owner of the reversion expectant on his term, to a third 
person, and the grant of such lease did not amount to a sur- 
render by operation of law, as these acts were not such as 
bound parties by way of estoppel. Paeke, B., said : " If the 
doctrine of Thomas v. Cook should be extended, it may very 
much affect titles to long terms of years — mortgage terms, 

1 Turner v. Hardey, 9 M. & W. 770 ; * 3 J. & Lat. 133. 

Bight V. Cuthell, 5 East, 491. 6 Lyoa v. Reed, 13 M. & W. 310. 

2 6 Ir. L. E. 131. » 13 M. & W. 309. 
8 See 2 Sm. L. C. 7th ed. 857. 



130 STATUTE OF FRAUDS. [CHAP. II. 

for instance, in whicli it frequently happens that there is a 
consent expressed or implied by the legal termor to a demise 
from a mortgagor to a third person. To hold that such a 
transaction could, under any circumstances, amount to a sur- 
render by operatioii of law, would be attended with most 
serious consequences. The case of Thomas v. Cook has been 
followed by others, and acted upon to a considerable extent ; 
whatever doubt, therefore, we might feel as to the propriety 
of the decision that in such a case there was a surrender by 
act and operation of law, we should probably not have felt 
ourselves justified in overruling it. And perhaps the case 
itself, and others of the same description, might be supported 
upon the ground of the actual occupation by the landlord's 
new tenants, which would have the eflfect of eviction by the 
landlord himself in suspending the rent or compensation for 
use and occupation during the continuance of that occu- 
pation." The case of Gore v. Wright ^ was decided on a sim- 
ilar ground, but the point was not raised in Thomas v. Cook, 
and in Lynch v. Lynch ^ the action was brought by the 
lessees themselves, who had consented to the new lease.* 
The doctrine of Thomas v. Cook was, as we have seen, also 
doubted by Lord St. Leonards in Creagh v. Blood.* The 
original term in that case was freehold. His lordship, re- 
ferring to Lynch v. Lynch,^ said: "The point came upon 
me by surprise, and untU I heard of the decision I was not 
aware of any such rule, and, speaking with great deference, 
I think it will turn out that there is not such a rule of law. 
Before I would act on it, I should require the question to 
undergo further consideration ; for an estate of freehold 
cannot, since the statute of frauds, be created or transferred 
without writing, and where the statute speaks of surrender 
by operation of law, it certainly alludes to those surrenders 
where the party, whether by estoppel or otherwise, accepts 
an estate inconsistent with the estate he has. If I am in 
possession under a freehold lease, it is not by standing by, 
while the lessor with my knowledge grants the lands to 
another person, as if he were entitled to theni in possession, ' 
that my estate is to be divested. I may, in consequence of 

1 8 Ad. & El. 118 ; 3 N. & P. 243. 4 3 j. & Lat. 151. 

2 6 Ir. L. E. 131. 6 6 Ir. L. E. 131. 
8 See Taylor on Evid. 891, 6th ed. 



SEC. 77.] ASSIGNMENT AND STJEEENDEE. 131 

my conduct, be compelled by a court of equity to transfer 
my estate, but not being a party to the deed, and not having 
transferred my estate or parted with the possession, I confess 
it appears to me that such conduct cannot amount to a sur- 
render by operation of law of the estate so vested in me. 
. . . The case of Thomas v. Cook established a new doc- 
trine, but it proceeded upon the act of the former tenant, 
who had placed another in possession, and agreed to the 
latter becoming immediate tenant to the landlord, and it is 
so explained in Johnston v. Huddlestone^ by Bayley, J., 
who joined in the decision in Thomas v. Cook. But I entirely 
concur in the reasons given by Parke, B., in delivering the 
judgment of the court in Lyon v. Eeed. If Thomas v. Cook 
is not to be overruled, the doctrine should not be carried 
further." « 

But since these cases the Court of Queen's Bench, in 
Nickells v. Atherstone,^ and the Court of Exchequer in Davi- 
son V. Gent,* have approved of Thomas v. Cook. In Nickells 
V, Atherstone, Lord Dbnman said : " If the expression 
' surrender by operation of law ' be properly applied to cases 
where the owner of a particular estate has been party to 
some act, the validity of which he is by law afterwards es- 
topped from disputing, and which would not be valid if his 
particular estate had continued, it appears to us to be prop- 
erly applied to the present. As far as the plaintiff the land- 
lord is concerned, he has created an estate in the new tenant 
which he is estopped from disputing with him, and which is 
inconsistent with the continuance of the defendant's term. 
As far as the new tenant is concerned, the same is the case. 
As far as the defendant, the owner of the particular estate, 
is concerned, he has been an active party to this transaction, 
not merely by consenting to the creation of the new relation 
between the landlord and the new tenant, but by giving up 
possession, and ap enabUng the new tenant to enter." ^ 

Sec. 77. Surrender may be Presumed, 'When. — A surrender 
may be presumed even where there is no direct evidence of 

1 4 B. & C. 933; 7 D. & R. 411. ' See also McDonnell o. Pope, 9 

2 3 J. & Lat. 160. Hare, 705, and the notes to Doe v. 

3 10 Q. B. 944 ; 16 L J. Q. B. 371 Oliver, 2 Sm. L. C. 7th ed. 863. 
* 1 H. & N. 744. 



132 STATUTE OP FEAUDS. [CHAP. II. 

the fact,^ but such presumption must arise from facts and 
circumstances independent of length of time which are suffi- 
cient to warrant a jury in making it,^ and the court will 
never presume a surrender, but leaves it as a matter of fact 
to be found by the jury.^ Thus, in an English case,* A, 
having granted a lease to B for twenty-one years, before the 
expiration of the term granted another lease of the same 
premises to 0. No surrender in writing of B's interest was 
shown, but the lease granted to B was produced from A's 
custody with the seals torn off, and it was proved to be the 
custom to send in the old leases to A's office before a renewal 
was made; and it was held that this was proper evidence 
from which the jury might infer that B assented to the lease 
to C, and to support a consequent presumption of a surrender 
of B's interest under the lease.^ A surrender cannot, how- 
ever, be presumed to bind the landlord from the naked cir- 
cumstance that he has received the rent from a third person 
and not from the original tenant.® Indeed, the general rule 
may be said to be that a jury may presume a surrender of a 
term when it dearly appears that all the purposes for which it was 
created have been fully satisfied, and that it ought in justice and 
equity to have been re-assigned or surrendered to the owner of the 
reversion, especially if there has been any subsequent dealing with 
the property of such a nature as would not have happened with 
reasonable means, supposing the term had not been put an end to, 
or there is other express evidence beyond the mere lapse of 
time, from which such a presumption might arise.''' But a 
presumption of a surrender cannot be raised except where a 
title is shown by the party who calls for the presumption, or 
the possession is shown to be consistent with the execution 
of the surrender required to be presumed,^ and such presump- 
tions are made in favor of the possession, and not against it.^ 

1 Bridges v. Duke of Chandos, 4 v. Slade, 4 T. R. 682; Rees a. "Wil- 
Burr, 1072; Bedford v. Terhune, 30 liams, 2 M. & "W. 749; Burdett v.. 
N. Y. 463. Wright, 2 B. & Aid. 710 ; Blacknell v. 

2 Harrop v. Cooke, 6 Bing. 174. Plowman, 2 B. & Aid. 573 ; Bowerman 

3 Cottrell K. Hughes, 15 Q. B. 532. v. Syboum, 7 T. E. 2; Bartlett c 
< Walker v. Richardson, 2 M. & W. Downs, 3 B & C. 616 ; Lloyd v. Pas- 

822. singham, 6 id. 305. 

6 Davidson v. Gent, 1 D. & K. 744. ^ Harrop v. Cooke, 6 Bing. 174. 
6 Copeland v. Watts, 1 Stork. 96. ^ Rees v. Williams, ante ; Brandon 

' Hodson V. Staple, 2 T. R. 684 ; v. Calvert, 5 Taunt. 170. 

Garrard v. Tuck, 8 C. B. 231 ; Syburn 



SEC. 77.] ASSIGNMENT AND SURRENDER. 133 

The court will not require positive proof of a surrender 
in any case where there is suificient presumption of it.^ 
Thus we have seen that the production of a cancelled lease, 
and evidence that it was the custom to send old leases to the 
lessor's ofSce before a renewal, has been held evidence to go 
to the jury, from which they might presume a surrender.^ 
The case of Doe v. Thomas ^ is not, it is submitted, at variance 
with this doctrine. In that case the simple production of the 
lease in a cancelled state was considered not to be prima facie 
evidence of a surrender ; whereas in Walker v. Richardson 
there was also the evidence of custom, coupled with the fact 
that the lease was produced from the custody of the person 
whose duty it was to cancel the old leases.* The mere receipt 
of rent by the landlord from a third party is not sufficient to 
warrant the presumption of a surrender ; the prima facie pre- 
sumption being that the rent was paid by the latter as the 
agent of the original lessee and on his behaK.^ Where a, 
mortgagor before mortgage let a farm to P as tenant from 
year to year, and after the mortgage P let the defendant into 
possession in his stead, and informed the mortgagor of the 
fact, and the mortgagor subsequently received the rent from 
the hands of the defendant, it was held that the tenant's term 
was still in P, there being no effectual surrender, and con- 
sequently that the mortgagee could not maintain ejectment 
against the defendant without a notice to quit.® But the 
production of receipts is strong confirmatory evidence of a 
surrender.'^ The facts upon which the surrender is to be 
presumed must be such as make it not unreasonable to believe 
that the surrender was actually made.^ And the presump- 
tion, if made at all, must be made by a jury and not by the 
court.^ 

1 Goodtitle v. Duke of ChandoB, 2 15 L. J. Ex. 41 ; Graham v. Wichelo, 
Burr, 1072. 1 C. & M. 188 ; 3 Tyr. 201 ; 2 L. J. 

2 "Walker v. Richardson, 2 M. & W. (N. S.) Ex. 70. 

882 ; 6 L. J. (N. S.) Ex. 229. « Cadle v. Moody, 30 L. J. Ex. 385. 

8 9 B. & C. 288 ; 4 Man. & R. 218. " Woodcock v. Nuth, 1 Moo. & Sc. 

* And see Lyon v. Reed, 13 M. & 317 ; 8 Bing. 170 ; Lawrance v. Eaux, 

W. 285 ; 13 L. J. Ex. 377 ; Davison v. 2 E. & E. 435. 

Gent, 1 H. & N. 744. s Doe v. Cooke, 6 Bing. 174. 

6 Copeland v. Gubbins, 1 Stark. » Cottrell v. Hughes, 15 C. B. 532. 
963; Doe v. Wood, 14 M. & W. 682; 



134 STATUTE OF PEAITDS. [CHAP. II. 

Sec. 78. Effect of Surrender oa Rent Due and Accruing. — 

Where a lease containing a personal covenant for the payment 
of rent is surrendered, the personal covenant is independent 
of the estate in the property, and as to rent previously due 
is not affected by the surrender, but the lessor remains a 
specialty creditor for the rent which accrued due before the 
surrender.! "Where the tenant quits the premises either with 
or without notice, and the landlord accepts possession, he 
cannot recover rent pro rata for the actual occupation of the 
premises for any period short of the last rent day.^ Nor can 
he recover for the time subsequent to his accepting posses- 
sion.^ Where the tenant of several houses underlet each of 
them to different persons, and the landlord gave notice to 
quit to one of the undertenants, who quitted accordingly, 
after which the house remained unoccupied some time, and 
then the tenant underlet it again, Lord Ellbnbokottgh, C. J., 
held that the landlord could not maintain an action for use 
and occupation against the tenant for the rent during the 
time the house remained unoccupied, considering the circum- 
stances as proof of eviction.* 

In an action for debt for rent, a plea that the landlord and 
tenant agreed that the tenant should give up and the landlord 
take possession of the premises, in consideration whereof the 
tenant was to be discharged from the rent, and that posses- 
sion was actually given up and accepted accordingly, was 
held to be a good plea, as the defence set up was merely an 
executed contract and not a surrender.^ 

Sec. 79. How a Surrender should be Pleaded. — In setting 
up a surrender in a plea, enough should be stated to show 
that if the matter alleged is true, a surrender has transpired 
either by virtue of a special contract or by operation of law. 
If the surrender is by the acceptance of a new lease, it is not 
sufficient to say that the lessee being possessed of a former 

1 Att. Gen. v. Cox, 3 H. L. C. 240. & G. 673 ; Doe v. Benjamin, 9 A. & E. 

2 Grimman «. Legge, 8 B. & C. 644; 1 P. & D. 440; 8 L. J. (N. S.) 
324; 2 Man. & E. 438; Hall v. Bur- 117; Eurnivall v. Grove, 8 C. B. (N. 
gess, 5 B. & C. 332 ; 8 D. & R. 67. S.) 496 ; 30 L. J. C. P. 3. 

8 Whitehead v. Clifford, 5 Taunt. « Burn v. Phelps, 1 Stark, 94. 

518; "Walls v. Atcheson, 3 Bing. 462; » Gore v. Wright, 8 A. & E. 118; 3 

11 Moo. 379 ; and see Slack v. Sharp, N. & P. 243 ; Peter v. Kendal, 6 B. & 

8 A. & E. 366; Dodd v. Acklom, 7 So. C. 703 ; Smith v. Lovell, 10 C. B. 6 ; 

(N. R.) 415 ; 13 L. J. C. P. 11 ; 6 M. Purnivall v. Grove, 8 C. B. (N. S.) 496. 



SEC. 79.] ASSIGNMENT AND SUEEENDEE. 135 

lease, the lessor demised to Mm ; but it should be stated that 
the lessee surrendered, and then the lessor demised, or that 
the lessor entered and demised,^ or that before the rent 
sought to be recovered accrued, or before the breaches 
alleged, the demised premises and all the residue of the 
term then to come and unexpired were duly surrendered to 
the plaintiff by act and operation of law ; that is to say, by 
the defendant then giving up to the plaintiff, and the plain- 
tiff then accepting from the defendant the possession of the 
demised premises with the intention of then putting an end 
to the term.2 The plea ought to state that the defendant 
surrendered the estate and land; but if he pleads a surrender 
of the lease only, it is sufficient to say that he surrendered 
"the demise aforesaid." If it is not stated that the plaintiff 
accepted the surrender, while the plea is open to demurrer, 
yet the defect is cured by verdict.^ It is always best to 
allege that the plaintiff re-entered ; but if it is alleged that he 
agreed to the surrender, it will be presumed that he entered.* 
In an action of debt for rent where the plea set up an agree- 
ment to deliver up the premises, and also stated that they 
were delivered up and accepted accordingly, it was held good 
after verdict, not as setting up a surrender of the term, but 
as a valid excuse for non-payment of the rent.^ 

1 Com. Dig. tit. Surrender (N.). « Cannon v. Hartley, 9 C. B. 634. 

2 Smith V. Lovell, 10 C. B. 6. « Gore v. Wright, 8 Ad. & El. 
8 CoUes V. Evason, 10 C. B. (N. S.) 118. 

282. 



SECTION IV. 

GUARANTIES, ETC. 

" No action shall be brought whereby to charge any executor or ad- 
ministrator upon any special promise to answer damages out of his 
own estate; or whereby to charge the defendant upon any special 
promise to answer for the debt, default, or miscarriage of another 
person ; or to charge any person upon any agreement made upon 
consideration of marriage ; or upon any contract or sale of lands, 
tenements, or hereditaments, or any interest in or concerning them; 
or upon any agreement that is not to be performed within the space 
of one year from the making thereof; unless the agreement upon 
which such action shall be brought, or some memorandum or note 
thereof, shall be in writing, and signed by the party to be charged 
therewith, or some other person thereunto by him lawfully authorized." 



CHAPTER III. 

GTTABANTIES. — PROMISE BY EXECTJTOES. 

SECTION. 

80. Must be Consideration. 

81. What is Admission of Assets. 

82. Exceptions. 

83. Requisite to Promise. 

84. What is Sufficient Consideration. 

85. Forbearance to Sue. 

86. Must be Cause of Action when Promise Made. 

87. Moral Obligation. 

88. *rime of Forbearance. 

89. Promise to Pay at Future Time. 

90. When not Necessary to Prove Assets. 

91. Action Lies to Recover Specific Chattel, or on Promise in Consideration 

of Assets. 

92. Not Necessary to Allege Assets. 

93. Executor not Bound to Plead Statute. 



Section 80. Must be Consideration. — A promise by an 
executor to pay a debt out of his testator's estate is nudum 
pactum unless there are assets,^ and a consideration must be 
alleged as of assets come to his hands, or of forbearance, 
otherwise the promise will not be personally binding on 
him.^ The satute of frauds was made for the relief of per- 

1 Pearson v. Henry, 5 T. R. 6; sent such debt against the estate, 

MUcheson v. Hewson, 7 T. R. 348. within the time limited by the court 

^ Reech v. Kennegal, 1 Ves. Sen. of probate, and the consequent loss 
126 ; Barnard v. Pumfrett, 5 My. & of all claim upon said estate for such 
Cr. 63. In an action on a special prom- debt, is a sufficient averment of a con- 
ise to pay a debt, due from the estate sideration for such promise. A verbal 
of a deceased person, whom the de- promise to pay a debt, due from a, de- 
fendants represented as administra- ceased person, made to a creditor, in 
tors, the allegation of forbearance, at consideration of forbearing to pro- 
the request of the defendants, to pre- ceed against the estate which the 



138 



STATUTE OP FRAUDS. 



[chap. ni. 



sonal representatives and others, and did not intend to 
charge them further than by common law they were charge- 
able. The words of the statute are merely negative, and say 
that executors and administrators shall not be liable out of 
their own estates, unless the agreement upon which the 
action is brought, or some note or memorandum thereof, is 
in writing, signed by the party. The common law required 
a consideration, and the statute added writing.^ It is not 
necessary to plead that the promise was in writing, though 
it must be proved in evidence that it was.^ 

Sec. 81. what Amounts to an Admission of Assets. — In a 
case cited in the last note,^ Bullek, J., said: "I only 
recollect two cases in which the question, what shall be 
considered an admission of assets, has been discussed, — 
Barry v. Rush,* and Cleverley v. Brett.® In the last of those 
the executor had paid interest on a bond due from the tes- 
tator, which was held on the trial to be an admission of 



promisor represents, is not necessarily 
within the clause of the statute of 
frauds, which relates to " a special 
promise [by an executor or adminis- 
trator] to answer damages, out of his 
own estate " ; but whether or not it is 
so, depends upon his having, or not 
haying, assets of the deceased. The 
possession of assets is not, of itself, suffi- 
cient to charge him personally, on such 
promise, without u, new consideration. 
In an action on such promise, the de- 
fendants pleaded in bar, that neither 
of the contracts, agreements, and 
promises contained in the declaration, 
nor any note or memorandum of them, 
nor either of them, was ever made by 
the defendants, and signed by them or 
either of them, or by any person there- 
to lawfully authorized. It was held, 
that such plea did not constitute a 
complete defence, without further al- 
leging a want of assets. WTiere the 
declaration, in such action, stated that 
the defendants were the administra- 
tors on the estate of the plaintiff's 
debtor, it was held that such allega- 
tion might be treated as surplusage, 
and did not render it incumbent on 
the plaintiff also to allege that they 



had assets. The clause of the statute 
which relates to a "special promise 
[by one person] to answer for the debt, 
default, or miscarriage of another," 
was intended to apply only to prom- 
ises made tothe person to whom another 
is answerable ; and therefore, a promise 
to A, to pay certain debts, which he 
owed his creditors, being a promise to 
him, and not to them, is not within 
this provision of the statute. Pratt 
V. Humphrey, 22 Qonn. 317. See also 
Stebbins v. Smith, i Pick. (Mass.) 97; 
Smithwick v. Shepherd, 4 Jones (N. 
C.) L. 196. 

1 Rann v. Hughes, 7 T. R. 350, n. 
(a) ; 4 Bro. P. C. 27 ; and see Hawkes 
V. Saunders, Cowp. 289 ; Philpot v. 
Briant, 4 Bing. 717 ; 1 M. & P. 754. 
But see also Herbert v. Powis, 1 Bro. 
P. C. 355. 

2 Anon., Salk. 519; "Williams v. 
Leper, 3 Burr, 1890. 

' Pearson v. Henry, ante. 

* 1 T. R. 691. 

6 M. 13 Geo. 3, B. R. In that case 
Lord Mansfield, C. J., said: "To be 
sure, the evidence eases the creditor 
from proving assets, and throws the 
onus on the other side." 



SEC. 81.J GUAKANTIES. — PEOIUSE BY EXECUTORS. 139 

assets. But that opinion was overruled in this court, on a 
motion for a new trial, when it was thought highly un- 
reasonable that because the executor, thinking the demand 
just, had chosen to pay a part of a demand out of his own 
pocket, he should be liable for the whole debt; or that, 
because having enough to pay the interest, he should thereby 
be concluded to dispute assets for the principal. In the 
other case, it seems to me that the plea has nothing to do 
with the case. That was an action of debt on a bond given 
by the defendant, by which he bound himself, his heirs, etc., 
for performance of the award, and therefore I said, in decid- 
ing that case, that it was a personal engagement by the 
defendant to perform the award. Another ground has also 
been mentioned, that the administrator personally promised 
to pay whatever should be awarded. But that would not 
avail the plaintiff in this action ; for this action is brought 
against the defendant, as administrator, and it is brought 
against him to recover the plaintiff's demand out of the 
intestate's effects ; and if there were no assets, the personal 
promise by the administrator would be nudum pactum." 
The giving of a bond by an administrator to the judge of 
probate, to pay the debts and legacies of the testator, is held 
to operate as an admission of assets.^ But an agreement to 
arbitrate is not,^ unless the executor also binds himself to 

1 Stebbius v. Smith, 4 Pick. (Mass.) istrator is desirous of ascertaining 
97. whether or not there be any founda- 

2 Pearson v. Henry, ante. In this tion for the demand which is made 
case Lord Kenton, C. J., in delivering upon him, without disputing it in an 
the opinion of the court and distin- action, and it is frequently adranta- 
guishing the case from Barry v. Rush, geous to both parties that the matter 
said : " With regard to the principal in dispute should be referred ; but if 
question, in point of justice and con- the reference be attended with this 
science, the plaintiffs' demand ought supposed consequence, it will in future 
not to extend beyond the assets of the prevent every executor or administra- 
intestate: here it is not pretended that tor from submitting to arbitration, 
in fact there were assets to the extent The case of Barry v. Bush was very 
of the plaintifis' demand, but it is said properly decided, but it does not affect 
that the defendant precluded himself, the present. There the defendant 
by sometliing which he did at the out- submitted in broad terms to pay wha1> 
set of this business, from denying that ever should be awarded, and the ar- 
he had assets, for that every submis- bitrator did award that he should pay 
sion to arbitration by an administrar a certain sum; whereas, here, the 
tor in that character is conclusive evi- arbitrator has only ascertained the 
dence against him that he has assets, amount of the debt due from the in- 
In many cases an executor . or admin- testate, but has not directed the de- 



140 STATUTE OP FRAUDS. [CHAP. EOT. 

pay the award.^ In an Indiana case,^ an administrator orally- 
agreed to submit a claim in favor of the estate, against the 
plaintiff, to arbitration, with a proviso that, if the award 
proved satisfactory, each party should pay one-half the costs ; 
but if unsatisfactory, the one objecting should pay all the 
costs. The submission was made, and the administrator 
objected to the award, and in an action to recover the costs, 
it was held that the promise was not within the statute, 
because not a promise to answer for a debt created by the 
decedent, but by himself. " It must be kept in mind," said 
Elliott, J., "fAat the subject-matter of the contract declared 
upon grows out of transactions which occurred after the dece- 
dent's death. The administrator's promise was not to pay 
some liahility his decedent had incurred, nor to fulfil some 
engagement he had undertaken in his lifetime. In Mills v. 
Kuykendall,^ it was said : " The whole case shows that the 
object of the plaintiff was to charge the estate of the deceased 
by obtaining judgment against the administrators de bonis 
intestati. The promise of administrators, on a consideration 
originating subsequently to their intestate's death, cannot 
sustain such an action." * In such cases the statute does not 
apply, because the undertaking is the promisor's original 
contract.^ But in order to charge the executor or adminis- 
trator de bonis propriis, it is not necessary to aver in the 
■ declaration that the defendant has assets, for if the promise 
be in writing, and supported by a consideration, as forbear- 

fendant to pay it. It is impossible ' Barry v. Bush, ante. 
then to say that the arbitrator decided ^ Holderbaugh v. Turpin, 76 Ind. 
that the defendant had assets; and 84; 39 Am. Kep. 124. 
the submission to arbitration by an '2 Blackf. (Ind.) 47. 
administrator is not of itself an admis- * Carter v. Thomas, 3 Ind. 213; 
sion of assets. What was said by my Comthwaite v. First National Bank, 57 
brother Ashhhrst in the case of id. 268. Anderson u. Spence, 72 id. 315. 
Barry v. Rush, respecting the admis- ^ In Hackleman v. Miller, 4 
sion of assets, must be taken to refer Blackf. (Ind.) a, person was induced 
to the particular case then undef dis- to purchase a note due from an intes- 
cussion, but ought not to be extended tate's estate upon the promise of the 
further. And indeed he immediately administrator that it should be paid, 
subjoined that the bond given by the and it was held that the promise was 
defendant to abide by the award was not within the statute. But in Has- 
an undertaking to pay whatever the sachusetts it is held that a promise by 
arbitrator should award, without any an administrator to pay a debt of the 
regard to assets ; and my brother Btjl- estate out of lands sold or to be sold, 
LEE went expressly on that ground." is within the statute. Silsbee v. In- 
See Long v. Rodman, 58 Ind. 58. galls, 10 Pick. (Mass.) 526. 



SBC. 81.J GTJABANTIES. — PEOMISE BY EXECUTOBS. 141 

ance to prosecute at the request of the defendant,^ the plain- 
tiff, by acquiescing in a possible detriment to himself, by his 



1 In Wdlllam Banes' case, 9 Coke, 
93 b, it was clearly held, that the 
declaration was good enough, without 
saying that the defendant had assets, 
for it shall be intended prima facie 
that she had assets. But Coke said, 
that he conceived the truth to be, 
that if there had not been any debt, 
or if there had been a debt, and the 
executrix had nothing in her hands at 
the time, she might have given it in 
evidence. But this last position seems 
not to be law, according to the cases. 
See 1 Roll. Abr. 24, pi. 33 ; 2 Lev. 3 ; 
Davis V. Reyner, Yelv. 11 ; Goreing v. 
Goreing, 1 Vent. 120 ; Davis d. Wright, 
Cro. Eliz. 91 ; Trewinian v. Howell, 1 
Vez. 126; Reech v. Kennegal. But 
it seems clear enough that the execu- 
tor must be liable, and that there 
must be an existing debt, otherwise 
there will be no consideration. An 
executor so closely represents the per- 
son of the testator, that if a man ex- 
ecutes a bond, his executors are bound, 
though they are not named ; therefore, 
in a declaration against the executor 
upon the bond of the testator, it is 
not necessary to say that the obligor 
boimd himself and his executory ; but 
if the suit was against the heir, it 
would be a material allegation to say 
that the ancestor bound himself and 
his heirs, and to prove that he did so 
in fact ; for the heir is not bound by 
his ancestor's bond, unless he be ex- 
pressly named. If, therefore, the 
declaration omits to state that the 
heir was bound, it is substantially de- 
fective ; and by the case of Barber v. 
Fox, 2 Saund. 136, it appears that this 
is such a defect as a verdict cannot 
cure ; for unless it be shown upon the 
pleadings, that the heir was bound, 
there will appear to have been no con- 
sideration for his promise, and so no 
sufficient cause of action. Thus also, 
if the heir promise to pay a simple 
contract debt of the ancestor, no ac- 
tion will lie upon this promise, inas- 
much as it is without consideration, 



for the heir is not chargeable upon 
such debts of his ancestor. Fish 
V. Richardson, Cro. Jac. 47. But if 
an executor promises to pay, in con- 
sideration of a consent only by an 
assignee of a debt not to sue, the 
promise stands upon a sufficient con- 
sideration. 1 Roll. Abr. 20, pi. 11. 
And so doubtless the heir, under the 
same circumstances, will be liable, if 
the debt is founded upon a specialty. 
In Forth v. Stanton, 1 Saund. 210, 
there was no allegation of any under- 
taking to forbear on the part of the 
assignees. In this case the plaintiff 
declared that the defendant's testator 
was indebted to A, who, after the tes- 
tator's death, assigned the debt to the 
plaintiff, and appointed him to receive 
it to liis own use ; and that the defend- 
ant, in consideration that the plaintiff 
would accept the defendant for his 
debtor, promised to pay the debt to 
the plaintiff. And for want of alleg- 
ing a sufficient consideration for the 
promise, the declaration was judged 
insufficient. Upon the principle of 
the determination in Barber u. Fox, 
cited above in this note, it seems that 
a verdict for the plaintiff could not 
have cured this radical defect ; but in 
the case of Roe v. Haugh, 1 Salk. 20, 
which was the converse of the last^ 
mentioned case in its circumstances, 
and the relative situation of the par- 
ties, the verdict was held by four 
judges against three to have cured 
the omission to allege a sufficient con- 
sideration in the declaration. There, 
in consideration that the plaintiff 
would accept C to be his debtor for 
£20 due to him from A, in the place 
of A, C promised and undertook to B 
to pay to him the £20 ; and this was 
adjudged good, after a verdict, with- 
out express averment that A was dis- 
charged; for the majority of the 
judges in the Exchequer Chamber 
held, that being after verdict, they 
ought to do what they could to help 
it, and that, therefore, they would not 



142 STATTJTB OF FEAUDS. [CHAP. HI. 

relinquishmeiit of legal proceedings (for lie might at least 
have obtained a judgment of assets quando acciderinf) has 
purchased a title of action upon the undertaking of the 
defendant. But without such special agreement, in which 
the executor steps out of his representative character, an 
action cannot be sustained against an esrecutor, otherwise 
than as an executor ; and if the action is brought against him 
in the character of executor, to recover a demand out of the 
testator's estate, any special promise to pay the testator's 
debt is a mere nudum pactum, if there are no assets ; and if 
there are any, the extent of the promise is measured ly the 
extent of the assets, or, in other words, the promise superin- 
duces no obligation upon the original representative liability. 
In many of the States by statute, and in others by the deci- 
sion of the courts, not only must the promise be in writing, 
but the writing, to be valid, should, in the case of such pro- 
mise made by an executor, not only state the consideration, 
whether it be forbearance of suit, or whatever else, in terms, 
but that the undertaking on both sides should be comprised 
in the agreement, so as to make it a subject of action to 
either party; for it was intimated by the chief justice, in 
this, that " the obligatory part of the transaction was indeed 
the promise, which will account for the word ' promise ' being 
used in the iirst part of the clause, but still, in order to 
charge the party making it, the statute proceeds to require 
that the agreement, by which must be understood the agree- 
ment in respect of which the promise was made, must be 
reduced into writing." 

Sec. 82. Exceptions. — Under some circumstances, how- 
ever, a mere parol agreement is binding, and specific perform- 
ance may be decreed. Thus a verbal promise by a person to 
whom letters of administration are afterwards granted may 
be binding on him as administrator. Where A promised that 
if the widow of an intestate would permit him to be joined 
with her in the letters of administration, he would make 
good any deficiency of assets to pay debts, it was held that 

take it as a promise only on the part viz., that C promised B to pay the 

of C, because, as such, it could not debt, and B promised in consideratione 

bind unless A was discharged ; but inde to discharge A. 
they construed it as a mutual promise, 



SEC. 84.] GUARANTIES. — PROMISE BY EXBCTJTOKS. 143 

the promise was binding, and not -within the statute, because 
at the time it was made A was not administrator, and it was 
no answer to say that he was administrator afterwards.^ So 
an administrator, de bonis non, verbally promising to pay an 
annuity given by the testator's will, does, under certain cir- 
cumstances, make himself personally liable.^ 

Seo. 83. Requisites to Promise. — It is not necessary to 
show the cause of the debt,^ but in order that a promise may 
be binding, there must be some benefit to the party making it, 
or some detriment to the party to whom it is made, otherwise 
it will be nudum pactum, and cannot be enforced ; and there- 
fore, if at the time the promise was made there was no 
person whom the plaintiff could have sued, his forbearance 
does not amount to a consideration.* So it has been held 
that where a man who is neither executor nor administrator 
gives a promissory note, payable at a future day, to a cred- 
itor of a deceased person, for the debt, without any other 
consideration for making it, the payment of the note cannot 
be enforced by the payee, if at the time of the making thereof 
there was no personal representative of the debtor.^ 

Sec. 84. what is Sufficient Consideration. — A promise in 
consideration that the plaintiff would forbear to require sure- 
ties of the peace is a sufficient consideration.® Where the 
plaintiff declared in assumpsit that the defendant's testator 
was indebted to A, who, after the testator's death, assigned 
the debt to the plaintiff, and appointed him to receive it to 
his own use, and the defendant, in consideration that the 
plaintiff would accept the defendant for his debtor, promised 
to pay it to the plaintiff, it was held that this was not a suffi- 
cient consideration to support the promise to charge the 
defendant de bonis propriisJ A promise by an executor to 
pay a debt of his testator in consideration that more goods 

1 TomUnson v. Gill, Ambl. 330 ; ^ Nelson v. Serle, 4 M. & W. 795 
and see Griffith v. Sheffield, 1 Eden, reversing Serle u. Waterworth, ib. 9 
77; Gregory v. Williams, 3 Mer. 590. Hamilton v. Terry, 21 L. J. C. P. 132 

2 Herbert v. Powis, 1 Bro. P. C. 355. and see Barber v. Pox, 2 Wms. Savmd. 
8 Theme v. Puller, Cro. Jac. 396; 420, n. (a). 

Austen v. Bewley, ib. 548. ^ Ripon v. Norton, Cro. Eliz. 881. 

* Jones V. Ashbumham, 4 East, ' Porth v. Stanton, 1 Wms. Saund. 

455; and see Marshall w. Burtinshaw, 210. 
IB&P. (N. E.) 172. 



144 STATUTE OP FEATJDS. [CHAP. in. 

are supplied by tlie creditor will make the executor liable, 
de. bonis propriis, for both debts.^ ' 

Where an attorney delivered up deeds to an executor, 
which he was not bound to do till his bill was paid, the deeds 
being of great use to the executor in several suits which he 
was then carrying on, it was held that there was a sufficient 
consideration to make the executor liable to the attorney's 
whole demand, whether there were assets or not.^ And if 
the creditor is induced to hand over a security, given to him 
by the executor, to a third party, he will be entitled to re- 
cover against the third party .^ 
« 

Sec. 85. Forbearance to sue by Creditor. — If a creditor for- 
bears to sue at the request of an executor, that is considered 
a sufficient consideration to charge the executor, whether he 
had assets or not at the time of the promise.* In Hawes v. 
Smith,^ Hale, C. J., said that though a bare accounting will 
not oblige an executor to pay, de bonis propriis, yet a prom- 
ise in consideration of forbearance will. Where the plain- 
tiff having a debt owing to him from the testator on a simple 
contract, the executor, in consideration the plaintiff would 
forbear to sue him until such a time, promised to pay, and 
the plaintiff averred that he did forbear accordingly, this was 
held to be a good promise ; but it was said that if the heir 
had promised, on forbearance of the suit, to pay this debt, 
no assumpsit would have laid against him, because without 
consideration, the heir is not chargeable to any debt without 
specialty.^ If a man declares, on a promise towards an admin- 
istrator, that the intestate was in debt to him in £20 by obli- 
gation, and died, and the defendant being administrator in 
consideration of the promise and that the plaintiff would 
spare him till a certain time after, promised to pay him the 
debt, and avers that he spared him till such time, and that 
the defendant has not paid him, etc., although he did not say 
that he would spare him the debt, or to sue him, yet it shall 

1 Wheeler v. Collier, Cro. Eliz. * Barber v. Fox, 2 Wms. Saund. 
406. 423 (n). 

2 Hamilton v. Inoledon, 4 Bro. P. ^ 2 Lev. 122. 

C. 4. « Fish V. Richardson, Yelv. 55; 56 

= Walker v. Taylor, 6 C. & P. S. C. nom; Fisher k. Richardson, Oro. 
752. Jac. 47. 



SEC. 86.] GTTAKANTIES. — PROMISE BY EXECUTORS. 145 

be SO intended, and for that it is a good consider ation.^ So 
if A (to whom the testator was indebted) comes to the exec- 
utor and says that he intends to sue for the debt, on which 
the executor promises, in consideration that the plaintiff will 
forbear for a reasonable time, he will pay him, and A for- 
bears for a reasonable time to sue him, that is a good consid- 
eration to charge the defendant in an action on the case out 
of his goods without assets, for by this promise it is intended 
as well to forbear to sue the executor, as to forbear the debt, 
and forbearance of suit is a good consideration, without 
assets at the time of the promise.^ If a surety pays the debt 
for the principal, who dies, and his executor promise the sur- 
ety that if he wiU forbear to sue him for a certain time, that 
he will pay, that is a sufficient consideration to support the 
promise.^ Forbearance to sue by the assignee of a debt is a 
sufficient consideration to support a promise by an executor 
to pay.* For it is sufficient in the case of any other debtor 
whom the assignee of the debtor forbears, at his request, to 



Sec. 86. Must be Cause of Action when Promise made. — 
But forbearance to sue is not a consideration where there 
was no cause of action before the promise was made. Thus, 
where a married woman gave a promissory note as femme 
sole, and after her husband's death, and, in consideration of 
forbearance, promised to pay it, it was insisted in an action 
against her that she, being under coverture at the time of 
giving the note, it was voidable for that reason ; yet, by her 
subsequent promise, when she was of ability to make a prom- 
ise, she had made herself liable, and the forbearance was a 
Txeyf consideration ; but Pratt, C. J., held the contrary, and 
that the note was not barely voidable, but absolutely void, 
and that forbearance, where originally there was no cause of 
action, was no consideration to raise an assumpsit. But he 



1 Gardener v. Tenner, 1 Roll. Abr. pi. 11 ; Hardr. 74; Eussel v. Haddock, 
15, pi. 3 ; Chambers v. Leversage, Cro. 1 Lev. 188. 

Eliz. 644. 5 1 Wms. Exors. 7th ed. 782, citing 

2 Johnson v. Whitchott, 1 Roll. Reynolds v. Prosser, Hadr. 71 ; Oble 
Abr. 24, pi. 33. v. Dittlesfleld, 1 Ventr. 153; and see 

3 Scott V. Stevens, Sid. 89. also Forth v. Stanton, 1 Wms. Saiuad. 



Pitt V. Bridgewater, Roll. Abr. 20, 209 n. ( 1 ) 



146 STATUTE OF FRAUDS. [CHAP. in. 

said it might be otherwise where the consideration was but 
voidable.! 

Sec. 87. Moral Obligation. — A moral obligation may be a 
good consideration for a promise. Where a femme covert, 
having an estate settled to her separate use, gave a bond for 
repayment by her executors of money advanced at her re- 
quest on security of that bond, to her son-in-law, and after 
her husband's death wrote, promising that her executors 
should settle the bond, it was held that assumpsit lay against 
the executors on their promise,® and it was pointed out that 
Loyd V. Lee^ and Barber v. Fox* proceeded on the ground 
that no good cause of action was shown on the pleadings. 

Sec. 88. Time of Forbearance. — Forbearance for a reason- 
able time,^ or for a certain time,^ is a sufficient consideration. 
But forbearance for some time,^ or for a little time,^ is not. 

Sec. 89. Promise to pay at a Future Time. — If an executor 
is indebted to J S in £1G0, and J S comes to demand the 
money, in this case the executor is chargeable only in respect 
of the assets ; but if he expressly promise to pay the debt at 
a day to come, it is made his own debt, and it will have to 
be satisfied out of his own goods.^ Thus, where B having 
died indebted to G for work and labor done, his executors 
signed the following memorandum on the back^ of G's 
account : " Mr. G having consented to wait for the payment 
of the within account, we, as the executors of B, engage to 
pay Mr. G interest for the same at .£5 per cent, until the 
same is settled ; " it was held that they were personally liable 
to pay the debt and interest.^" 

Sec. 90. when Wot Necessary to Prove Assets of Testator. — 

Where the executors, by a promissory note given " as execu- 
tors," jointly and severally promised to pay the same, "on 

1 Loyd V. Lee, 1 Str. 94; and see ^ Pitti'. Bridgewater, ib. 20, pi. 11; 
Barber v. Fox, 2 Wms. Saund. 427 Hardr. 74 ; Semple v. Pink, 1 Ex. 74. 
(n.) ; Davis v. Keyner, 2 Keb. 758. ' Tilston u. Clarke, 1 Roll. Abr. 23, 

2 Lee V. Muggeridge, 5 Taunt. 36. pi. 26. 

s 1 Str. 94. 8 Brian v. Salter, ib. 23, pi. 25. 

* 2 Wms. Saund. 427. » Goring v. Goring, Yelv. 11; Tre- 

5 Johnson v. Whitchcott, Boll. Abr. winian v. Howell, Cro. Eliz. 91 ; Reech 
24, pi. 33. V. Kennegal, 1 Ves. S. 126. 

10 Bradley v Heath, 3 Sim. 543. 



SEC. 90.] GtTAKANTIBS. — PROMISE BY EXECUTORS. 147 

demand with lawful interest " ; it was held that they were per- 
sonally liable, Dallas, C. J., saying: "The promise must 
depend, not on the words ' as executors,' but on the words of 
the "whole instrument taken together. Take the words ' on 
demand.' Suppose a demand had been made immediately, do 
not the executors, by subjecting themselves to such a demand, 
admit they have assets to satisfy it ? If they meant to limit 
their liabiUty, why did they not add to the words ' as execu- 
tors ' the words 'out of the estate of? But they promise 
absolutely, and further add an engagement to pay interest. 
When, therefore, by the engagement to pay interest, they 
have induced the plaintiff to suspend his clear and admitted 
demand, by so doing they make the promise personal and 
individual." ^ In Rideout v. Bristow,^ a widow gave a prom- 
issory note "for value received by my late husband," and it 
was held that the note was valid on the face of it. Bayley, 
B., said: "If an administratrix take upon herself to give a 
security which may have the effect of inducing forbearance 
and which purports to bind her individually, is it competent 
for her to say, ' You must prove assets ' ? To my mind, the 
act of giving such a security supersedes the necessity of an 
investigation as to there being assets. It seems to me that 
the words ' value received by my late husband ' do not make 
the proof of assets necessary ; and I go still further, and say 
that it was not competent for her to show that there were 
no assets." 

An executor giving such a promissory note will be liable 
out of his own estate, although the testator's estate was 
insolvent at the time the note was given, of which fact he 
was ignorant.* Where, however, an executrix gave an accep- 
tance for a debt, due from her testator, taking an engage- 
ment from the drawer to renew the bill from time to time, 
until sufficient effects were received from the estate of the 
testator, it was held that this meant sufficient effects in the 
ordinary course of administration, and that she had not pre- 

1 Child V. Monins, 2 Brod. & Bing. thwaite v. Eirst National Bank, ante, 
460 ; 5 Moo. 282 ; Barnard v. Pumfrett, where a similar doctrine was held as 

5 My. & Cr. 71 ; I*orton v. EUam, 2 M. to the renewal of a note of the intes- 

6 W. 461 ; Serle v. Waterworth, 4 M. tate by the executor. 

& W. 9. ^ Lucas V. Williams, 3 GifiE. 150. 

2 1 Cr. & J. 231. See also Com- 



148 STATUTE OP FRAUDS. [CHAP. in. 

eluded herself from first applying assets to pay £3,000 to 
trustees for her own use, in discharge of a bond given by her 
husband before marriage to that effect, before she paid the 
acceptance.^ 

If executors endorse a bill, it is immaterial whether they 
endorse it as executors or not. If they endorse it at all, they 
are liable personally, and not as executors, for their endorse- 
ment would not give them a cause of action against the 
effects of the testator.^ 

Sec. 91. Action lies to Recover Specific Chattel ; or on 
Promise in Consideration of Assets. — An action lies against 
an executor to recover a specific chattel bequeathed after his 
assent to the bequest.^ So an action lies upon an express 
promise by an executor to pay a legacy in consideration of 
assets,* and an action for money had and received will lie 
upon admission by the executor that he had assets.^ 

Sec. 92. Not Necessary to Allege Assets. — Where it is 
sought to charge the executor, de bonis propriis, on a promise 
made on good consideration, it is not necessary to allege in 
pleading that he had assets.^ In Bane's case^ it was said 
that if there be no assets, it shall be given in evidence. But 
this opinion has since been overruled.^ Where it is sought 
to charge the defendant in his character of executor, and the 
nature of the debt is such as necessarily makes him personally 
liable, the judgment will, nevertheless, be de bonis propriis.^ 

Sec. 93. Executor, etc., not Bound to Plead Statute. — Neither 
an executor or administrator is bound to plead the statute of 
frauds, at the requirement or for the benefit of another, in 
an action against himself, upon a claim, the obligation or 
justice of which he admits to be founded in right and good 
faith.10 

1 Bowerbank !). Monteiro, 4 Taunt. Graham, 7 Taunt. 580; 1 Moo. 305; 
844. Dowse v. Coxe, 3 Bing. 20 ; 10 Moo. 

2 King V. Thorn, 1 T. E. 489, per 272. 
BuLLEK, J. '9 Co. 94. 

8 Doe V. Guy, 3 Bast, 120. « See 1 Wms. Saund. n. (1) ; 2 

4 Atkins t). Hill, Cowp. 284 ;Hawkes Wms. Exors. 7th ed. 1778, n. (c). 

0. Saunders, lb. 289. ^ Powell v. Graham, 7 Taunt. 585; 

6 Gorton v. Dyson, 1 Brod. & B. Wigley v. Ashton, 8 B. & Aid. 101 ; 

219 ; and see Barnard v. Pumfrett, 5 Corner v. Shew, 3 M. & W. 350. 

My. & Cr. 63. w Ames v. Jackson, 115 Mass. 508; 

6 Bane's Case, 9 Co. 94 ; Pqwell v. Cahill v. Bigelow, 18 Pick. (Mass.) 369. 



CHAPTER IV. 

GtTAEANTIES. 

SECTION. 

94. Application of the Statute. 

95. Eule as to Pleading. Masters v. Marriott. 

96. Rule in Harris v. Huntback. 

97. Rule in Buckmyr v. Darnall. 

98. Form of Promise not Decisive of its Character. 

99. Attendant Circumstances to be Regarded. Eule in Anderson v. Hayman. 

100. Eule in Keate v. Temple. 

101. Statute does not Apply to Guaranty of Specialty Debts. 

102. Must be Consideration for the Promise, Instances of. 

103. Consideration need not More directly between the Parties. 

104. Consideration must be New. 

105. Consideration need not Appear in the Guaranty. 

106. Special Consideration not Necessary. 

107. Parol Evidence Admissible to Identify Subject-matter of Promise. 

108. Bad Promise not Helped by Statute. 

109. Statement of Consideration. 

110. Amount of Consideration. 

111. Construction of Guaranty. 

112. Rules for Construing. 

113. Instances of Considerations. 

114. Meaning of the Words " Debt," " Default," " Miscarriage." 

115. Promise Partly Within and Partly Without Statute. 

116. Eule in Couch v. Meeker. 

117. Promise to Guarantee, not Binding Until. 

118. OfEer to Guarantee does not Bind till Accepted. 

119. Offer may be Withdrawn. 

120. Implied Acceptance. 

121. Express Acceptance. 

122. Waiver of Eeferences. 

123. Original Debtor's Liability must Continue. 

124. Tests for Determining Whether Promise is Collateral or Not. 

125. Promise Must be to the Person Guaranteed. 

126. If the Person Promised for is Liable at all, Promise must be in Writing. 

127. Guarantor must not be Liable. 

128. When Credit is Given to Guarantor. 

129. Eule when Original Debtor is Discharged. 

130. Question to Whom Credit was Given, for Jury. 

131. Evidence as to Whom Credit is Given. 

132. Must be Principal Debtor. 

133. Must be Debt to Guarantee. 

134. Rule when there is New and Independent Consideration. 

135. Promise to Pay Broker. 

136. Promise to Pay a Debt to be Transferred. 

137. Promise by Execution Creditor. 

138. Promise in Consideration of Percentage. 



150 STATUTE OP rBAITDS. [CHAP. IV. 



139. Promise to Pay out of Funds of Another. 

140. Property Deposited with Promisor Charged with a Payment of the Debt. 

141. Promise to the Debtor. 

142. Promise of Grantee to Pay Mortgage Debt. 

143. Promisor Estopped from Denying that He had Funds. 

144. When Debt has become Debt of the Promisor. 

145. When Promise Cannot be Revoked. 

146. Ground upon which Doctrine Rests. 

147. Parting with Security or Giving up Lien. 

148. Rule in Maine. Stewart v. Campbell. 

149. General Rule. 

150. Promisor must Derive Benefit from Promise. 

151. Forbearance to Sue, etc., not Enough, Unless. 

152. Purchase of Debt. 

153. Refraining from Distress. 

154. Promise, when Original. Instances. 

155. Statute Applies to Promises to Answer for Tortious Acts. 
166. Bail in Criminal Cases. 

157. When Liability Guaranteed is Extinguished. 

158. Novation. 

159. Indemnities, Whether Within Statute. 

160. Promise to Indemnify Against Costs of Suit. 
IGl. Parol Guaranty of Note Turned out to Pay Debt. 

162. Contract for Del Credere Agency. 

163. Goods Furnished to an Infant. 

164. Rights under Parol Guaranty. 

165. Dissolution or Alteration of Contract. 

166. Application of Statute to Foreign Contract. 
187. False Representations as to Solvency. 

168. Statute Applies to Corporations. 



Section 94. Application of the Statute. — This section does 
not declare that contracts mentioned in it, if made by parol, 
shall be void,^ but simply precludes the bringing of an action 
thereon to enforce them.^ So far as the subdivision of the 
section which relates to the topic treated in this section is 
concerned, it wiU be observed that it applies only to collat- 
eral undertakings, that is, to promises to pay a debt which 
exists against another person, or to answer for that other's 
default or miscarriage, and has no application where the prom- 

^ But in Alabama, California, Da- ceived unless in writing, while in all 

kota, Michigan, Montana, Nebraska, the others the provisions of the Eng- 

Nevada, New York, Oregon, Utah, lish statute prevail. 
Wisconsin, West Virginia, and Wyo- ^ Banks v. Crossland, L. R. 10 Q. 

ming, the statute provides that such B. 99 ; Crosby v. Wadsworth, 6 East, 

contracts shall be void unless in writ- 602 ; Bankworth v. Young, 4 Drew, 1 ; 

ing, and in Iowa, that no evidence to Leroux v. Brown, 12 C. B. 801. 
establish such contracts shall be re- 



SEC. 94.] 



GUAEANTIES. 



151 



isor is himself the debtor, although he becomes so for the 
sole benefit of another person. The distinction is obvious. 
Thus, if A requests B to perform certain services for C, and 
promises to pay him therefor, A is the debtor, and conse- 
quently his promise is original and not collateral, even 
though C has the entire benefit of B's services.^ Thus, 



' Brown v. George, 17 N. H. 128 ; 
Axbuckle v. Hawks, 20 Vt. 538; 
Backus V. Clark, 1 Kan. 303. Pren- 
tice V. Wilkinson, 5 Abb. Pr. (N. Y.) 
N. s. 49; Kand o. Mather, 11 Cush. 
(Mass.) 1; Warnick v. Groshalz, 3 
Grant's Cas. (Penn.) 234; Deylin v. 
"Woodgate, 34 Barb. (N. Y. ) 252 ; Eowe 
V. Whittier, 21 Me. 545 ; Benedict v. 
Dunning, 1 Daly-(N. Y.C. P.) 241. And 
the same rule applies to a promise to 
pay for services out of funds which the 
promisor lias in his hands belonging to 
the debtor left with him for that pur- 
pose. Thus A agreed with a railroad 
company to build a portion of their 
road; he also agreed to pay the labor- 
ers he employed, and save the company 
harmless from their demands, by allow- 
ing the company to retain enough in 
their hands for this purpose. A let out 
a portion of this work to B, a sub-con- 
tractor, and he made the same agree- 
ment with A, as A had made with the 
company. B proceeded with the work, 
but at length stopped, leaving his 
laborers unpaid, who then took meas- 
ures under the statute to enforce their 
claims against the company; and 
thereupon, A requested B to obtain 
from C his bills against the laborers 
for supplies furnished to them, which 
he did. A then paid the laborers 
what B owed them, retaining in his 
hands what they owed C, which debts 
he agreed to pay C, the arrangement 
being assented to both by B and C, 
and the laborers being discharged 
from any liability to C. It was held 
that this was a valid and binding 
agreement, and did not come within 
the statute of frauds, and that C 
might maintain an action against A 
thereon, for money had and received 
to C's use, even although A was not 
originally liable to the laborers. 



Beach v. Ilungerford, 19 Barb. (N. Y.) 
258. 

The rule may be said to be that if the 
promise springs fromanewtransaction, 
or moves to the party promising upon 
some fresh and substantive ground, 
of a personal concern to the promi- 
sor, the statute does not attach upon 
such promise, if the consideration is 
sufficient, though existmg in parol 
only. In other words, promises made 
on a new consideration, having no im- 
mediate relation to the liability of 
the person on whose account they are 
made, are not within the provisions of 
the statute. Gold v. Phillips, 10 
Johns. (N. Y.) 412; Myers v. Morse, 
15 id. 425 ; Stocking v. Sage, 1 Conn. 
519 ; Colt V. Root, 17 Mass. 229. 

Thus, unless the liability of the 
person to whom, in the case of Buck- 
myr v. Darnall, the horse had been 
lent, had arisen upon an implied con- 
tract to re-deliver him, for which 
detinue might be brought (which is 
a, species of mixed remedy, resting 
partly on contract, and partly on tort) 
the promise of the defendant would 
have wanted that correspondence 
with the original liability of the party 
answered for, which was necessary to 
bring it within the statute ; for it was 
remarked by Powell, J., with his usu- 
al discrimination, that there must not 
only be a remedy against the other, 
but a remedy upon the same contract; 
and, as the council for the plaintiff 
put it, the question upon the statute 
is not only whether an action does or 
does not lie against the party himself 
upon the contract, but also whether 
it does or does not lie against him 
upon collateral respects. If, there- 
fore, the promise is founded upon a new 
distinct consideration, moving to the 
party promising, it seems a perfectly 



152 



STATUTE OF PEAUDS. 



[chap. IV. 



where a father requested an attorney to take charge of cer- 
tain suits in which his son was interested, and said that if he 



established doctrine, upon all the 
cases, that the statute will not ex- 
tend to it. In the case of Castling v. 
Aubert, there was a "distinct and new 
consideration, to wit, the giving up 
of the securities, which were in the 
hands of the plaintiff. The argu- 
ment seems, therefore, to have taken 
much too narrow a ground, when it 
was contended, it the report states 
accurately the words of the counsel, 
that the statute was no bar to the 
plaintiff's recovery in that case, as it 
only applied to cases where there was 
no consideration for the promise ; for 
if that had been the only object of the 
statute, it would have been nugatory 
in respect to this branch of its provi- 
sions, because the promise would have 
been a nudum pactum by the common 
law, without a sufficient consideration. 
But the true hne of argument was 
that there was a new and engrafted 
consideration, moving to the party 
himself, who made the promise, and 
not to the party in respect to whose 
liability the promise was made. 
The authorities adduced to prove 
that the existence of a consideration 
took a case out of the statute, did 
not prove what is certainly not law, 
but they proved that this was the 
consequence of there being a (dis- 
tinct consideration superadded. As in 
Meredith u. Short, 1 Salk. 25, where 
the promise was in consideration of a 
delivery of a note, under J S's hand, 
for £60, and so again in Love's Case, 
1 Salk. 28, where the promise was by 
a stranger to a sheriff's officer, in con- 
sideration that he would restore goods 
taken on a, fieri facias, to pay the debt 
of the defendant. Sustaining the doc- 
trine of Castling v. Aubert, ante, see 
Wolff!;. Koppel, 5 Hill (N. Y.) 458; 
Gardiner v. Hopkins, 5 Wend. (N. T.) 
23; Olmstead v. Greenly, 18 John. 
(N. Y.) 12; Hindman v. Langford, 3 
Strobh. (S. C.) L. 207 ; Allen v. Thomp- 
son, 10 N. H. 32 ; French v. Thompson, 
6 Vt. 54. 



It appears, from the case of Tom- 
linson v. Gill, Amb. 330, to have 
been clearly Lord Hakdwioke's 
opinion, that if the consideration of the 
promise takes its root in a transaction 
distinct from the original liability, the 
case is out of the statute. There the 
defendant. Gill, promised the widow 
and administratrix of an intestate, 
that if she would permit him to be 
joined with her in the letters of ad- 
ministration, he would make good any 
deficiency of assets, to discharge the 
intestate's debts. Thus, also, in Read 
V. Nash, 1 Wils. 305, the consideration 
of the promise was perfectly distinct 
from any liability of the original de- 
fendant: Tuack, the plaintiff's testa- 
tor, brought an action of assault and 
battery against one Johnson; the 
cause being at issue, the record en- 
tered, and first coming on to be tried, 
the defendant Nash, being then present 
in court, in consideration that Tuack 
would not proceed to trial, lout would 
withdraw his record, undertook and 
promised to pay Tuack i50, and the 
costs in that suit to be taxed up to the 
time of withdrawing the record; the 
statute was pleaded, and the plaintiff 
demurred, and Lee, C. J., declared 
the opinion of the court to be, that 
this promise was an original promise, 
sufficient to found an assumpsit upon 
against Nash; Johnson was not a 
debtor; the cause was not tried; he 
did not appear to be guilty of any 
default or miscarriage; there might 
have been a verdict for him, if the 
cause had been tried, for anything 
the court could tell ; he never was lia- 
ble to the particular debt, damages, or 
costs. But in all cases the considera- 
tion must be sufficient to support the 
promise, and must enure to the bene- 
fit of the promisor, and it is not 
enough that the promise gives up 
some benefit or advantage because of 
it, and mere forbearance is insufficient. 
Curtis V. Brown, 5 Cush. (Mass.) 491 ; 
rish V. Thomas, 5 Grey (Mass.) 45; 



SEC. 94.] 



GUAEANTIES. 



153 



would do the business for his son, he would pay him, his 
promise was held to be an original undertaking, and not 



Brightman v. Hicks, 108 Mass. 240; 
Hilton V. Dinsmore, 21 Me. 410 ; Long 
V. Henry, 54 N. H. 57 ; Myers v. 
Morse, 15 John. (N. Y.) 425; Meech 
V. Smitli, 7 Wend. (N. Y.) 315; Tay- 
lor D.Drake, 4 Strobh. (S. C.) L. ^31; 
Ragland v. Wynn, 1 Lit. Cas. (Ala.) 
270; Tompkins v. Smith, 3 S. & P. 
(Ala.) 34 ; Thomas w. Delphy, 33 Md. 
373 ; Musick a. Musick, 7 Mo. 495 ; 
Brown !>. Barnes, 6 Ala. 694 ; Harring- 
ton t>. Eich, 6 Vt. 660 ; Cooper v. Cham- 
bers,4 Dey. (N. C.) 261 ; Carton v. Moss, 
1 Bailey (S. C.)L.14; Creel ti.Ball, 2 
J. J. Mar. (Ky.) 309; Templeton v. 
Bascom, 33 Vt. 132. 

But the case most illustrative of 
tliis distinction between a promise, 
the only moving consideration for 
which is the liability of another per- 
son, and that which is grounded upon 
a superadded inducement, is that of 
"Williams v. Leper, 3 Burr, 1886. 
Taylor, a tenant of the plaintiff, be- 
ing in arrear for rent to the amount 
of i£45, for three-quarters of a year, 
conveyed all his effects for the bene- 
fit of his creditors. They employed 
Leper, the plaintiff, as a broker, to 
sell the effects ; who, accordingly, ad- 
vertised a sale. On the morning ad- 
vertised for the sale, "Williams, the 
landlord, came to distrain the goods 
in the house. Leper, having notice 
of the plaintiff's intention to distrain, 
promised to pay the arrear of rent, 
if he would desist from distraining ; 
and "Williams, on the faith of this 
promise, desisted accordingly. At the 
trial a verdict was found for the plain- 
tiff, for i45, and on a case reserved, 
it was contended on behalf of the 
plaintifi, that this was not such a 
special promise for the debt of an- 
other, as was within the statute of 
frauds, which only meant to defeat 
parol promises, where there was no 
new consideration moving from the 
party making the promise to the party 
to whom it was made, and that the 
legislature did not mean to prevent 



direct undertakings, but only collat- 
eral ones, for the debt, default, or 
miscarriage of others. It was also in- 
sisted that in this case there was a new 
consideration ; for the reason that the 
goods of Leper were, at the time of 
the promise, liable to the landlord's 
distress. It was, therefore, a direct 
undertaldng for himself, and not for 
another. The plaintiff had a legal 
interest in these goods, prior to the 
bill of sale, and was deprived by the 
defendant of an advantage which he 
could never have again. The prop- 
erty of the goods was in Leper as a 
trustee for the creditors, at the time 
■vjhen he made this promise; it was, 
therefore, an original undertaking, 
moving upon consideration personal 
to himself. 

It was answered by the counsel 
for the defendant, that upon this 
declaration, coupled with the facts 
given in evidence, the plaintiff had u 
right to recover this £45 because the 
declaration expressly charged " that 
Taylor was indebted to the plaintiff, 
in £45 for three-quarters of a year's 
rent ; and that the defendant under- 
took to pay it ; " which was directly 
within the words of the statute of 
frauds, " a special promise to answer 
for the debt of another person. " That 
Leper was in possession of the goods 
of the tenant, who owed the plaintiff 
three-quarters' rent, and being about 
to sell them, the landlord came to dis- 
train for this rent in arrear, and Leper 
promised to pay it, if he would desist 
from distraining. He promised abso- 
lutely to pay it, and not to pay it out 
of the goods, or with any other restric- 
tion. But Lord Mansfield said 
that the case had nothing to do with 
the statute of frauds. The res gestae 
would entitle the plaintiff to his action 
against the defendant. The landlord 
had a legal pledge. He entered to 
distrain ; he had the pledge in his cus- 
tody. 'The defendant agreed that the 
goods should be sold, and the plaintiff 



154 



STATUTE OP FEATTDS. 



[chap. IV. 



within the statute.^ But a promise by A to B that if he will 
perform certaia services for C, he will pay him if C does not, 

1 Hodges u. Hall, 29 Vt. 209. 



paid in the first place. The goods 
were the fund ; the question was not 
between Taylor the tenant, and the 
plaintiff the landlord. 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. Wil- 
MOT and Yates, JJ., were of the 
opinion that this was an original 
promise; and Aston, J., said, he 
looked upon the goods to be the debt- 
or, and that Leper was not bound to 
pay to the landlord more than the 
goods sold for. — The goods were, a 
fund between both, and on that ground 
he concurred. Clark v. Hall, 10 N. J. 
Eq. 78 ; Woodward v. Wilcox, 27 Ind. 
78; Alger v. Scoville, 1 Gray (Mass.) 
391; Stoudts v. Hiue, 45 Penn. St. 30; 
Slingerland v. Morse, 7 John. (N. Y.) 
463 ; Rogers v. Collier, 2 Bailey (S. C.) 
581 ; McCrary v. Madden, 1 McCord 
(S. C.) L. 436. A case quite similar 
to Williams v. Leper, ante, Is Edwards 
V. Kelly, 6 M. & S. 208, and the same 
rule was adopted. See, also, Bampton 
V. Paulin, 4 Bing. 264. The rule is 
well established in this country that 
the relinquishment of a lien or advan- 
tage which inures to the benefit of the 
promisor, makes the undertaking 
original. Arnold v. Stedman, 45 Penn. 
St. 186 ; King v. Despard, 5 Wend. 
(N. Y.) 277; Corldns v. Collins, 16 
Mich. 478; Burr v. Wilcox, 13 Allen 
(Mass.) 269; Richardson v. Robbins, 
124 Mass. 105 ; Krutz v. Stewart, 54 
Lid. 178 ; Boyce v. Owens, 2 McCord 
(S. C.) L. 208; Crawford v. King, 54 
Ind. 6 ; Luark v.. Malore, 34 id. 444 ; 
Spooner v. Drum, 7 id. 81 ; Conradt 
V. Sullivan, 45 id. 180; Scott v. 
Thomas, 2 III. 58; Stewart v. Camp- 
bell, 53 Me. 439. 

The case of Fish u. Hutchinson, 2 
Wils. 94, is plainly distinguishable 
from the case of Williams v. Leper, 
and Read v. Nash, ante. In that case 



the facts were that Vickars was in- 
debted to Fish in a sum of money, 
and Fish had commenced an action 
for it. The defendant promised, 
that in consideration the plaintifE 
would stay his action against Vickars, 
he would pay the money which was 
owing. There was a debt subsist- 
ing at the time of the promise, so 
that the liability of him, on whose 
behalf it was made, was the moving 
consideration to the promisor. The 
liability of the party was so immedi- 
ately the ground of the promise, that 
the action could not have been sus- 
tained against the promisor, without 
showing such liability to have been in 
existence when the promise was made. 
In Williams v. Leper, it was the prom- 
isor's oivn liability, which was the im- 
mediate ground of the promise, and 
however that liability might be shown 
to have originated in the tenant's lia- 
bility primarily to pay the rent, yet 
the promise, being immediately moved 
by the defendant's own liability, by 
reason of his having possession of the 
goods, whereon the plaintiff's lieu had 
attached, might in that respect be 
said to be original. The tenant's lia- 
bility was in fact removed by the 
distress upon the goods, and the ob- 
ject of the promisor, in procuring 
the fund to be released from the 
plaintiff's claim, was not for the 
benefit of the tenant, or intended 
in any way to uphold or sustain his 
credit. The tenant's liability was 
sunk in the subsequent proceeding. 
In Read v. Nash, the defendant in 
the first action had not yet become 
liable ; the period had not arrived, at 
which any debt, default, or miscar- 
riage could be imputed to him. If 
judgment had been given in the first 
action, ascertaining the damages, a 
promise by a third person to pay these 
damages would doubtless have been 
within the statute ; for then a specific 
liability would have arisen. Tomlin- 



SEC. 94.J 



GUAEANTIES. 



155 



is collateral, and within the statute unless in writing ; ^ so if 
A says to B, "you go on and do the work, and I will see you 
paid ; " or, " if C employs you, I will see you are paid ; " ^ or, 
"I will be responsible for the pay,"^ are sl\ prima facie, col- 
lateral undertakings, because they are contingent upon the 
failure of the person promised for, to pay. But where the 
sole credit is rightfully given to the person promising, the 
undertaldng is original, and not within the statute ; but if 
any credit is given to the person promised for, such liability 
is conclusive that the promise is collateral.* K the credit is 
jointly given to the promisor and the person promised for, 
the promise is within the statute.^ But if the credit is given 
solely to the promisor, it is an original undertaldng.^ In 



son V. Gell, 6 Ad. & El. 571. If a 
benefit or advantage is given up by 
the promisee, which enures directly to 
the advantage of the promisor, the 
promise is original. Laung v. Erench, 
35 "Wis. Ill ; Scott v. White, 71 HI. 
287 ; Lampson v. Hobart, 28 Vt. 697 ; 
Curtis V. Brown, 5 Cush. (Mass.) 491; 
Nelson v. Boynton, 3 Met. (Mass.) 396 ; 
Cross V. Richardson, 30 Vt. 641 ; Ames 
V. Foster, 106 Mass. 400 ; Hodgkins v. 
Kearney, 15 Minn. 185. 

1 Aldrich v. Jewell, 12 Vt. 125. 

2 Skinner v. Conant, 2 Vt. 453; 
Brown k. .Webber, 24 How. Pr. (N. Y.) 
306; s. c. 38 N. Y. 187. So where a 
person says to another, whom B is 
about to employ, "B is good; if 
not,. I am," Steele v. Towne, 28 Vt. 
771. 

' Larson v. Wyman, 14 Wend. 
(N. Y.) 246. But in all cases the 
question, irrespective of the form of 
expression used, is for the jury, to say 
from all the circumstances whether 
the promisee gave credit to the prom- 
isor solely, and had a right to do so. 
Thus A, under a contract with B, was 
building a house on lands of C, and 
said to C, " I want you to agree to pay 
me for building the house, or I can do 
no more to it," and C replied, " You 
go on and finish the house, and I will 
pay you," and it was held to be a 
question for the jury whether this new 
contract was collateral or original. 
Sinclair y. Richardson, 12 Vt. 33; 



Stone V. Walker, 13 Gray (Mass.) 
613 ; Billingsley v. DcmpewoU, 11 Ind. 
414 ; Hall v. Wood, 4 Chand. (Wis.) 
36. A promise by one to be respon- 
sible and stand good for the pay by 
an employer of the wages of an em- 
ployee, is a collateral undertaking. 
Miller v. Niehaus, 51 Ind. 401. 

* Ware it. Stephenson, 10 Leigh. 
(Va.) 155; Read v. Ladd, 1 Edm. 
(N. Y.) Sel. Cas. 100; Cutter v. Hin- 
ton, 6 Rand. (Va.) 509; Kurtz .,. 
Adams, 12 Ark. 174 ; Kinloch v. Brown, 
1 Rich. (S. C.) 223 ; Cropper v. Pitman, 
13 Md. 190 ; Taylor v. Drake, 4 Strobh. 
(S. C.) 431; Cahill v. Bigelow, 18 
Pick. (Mass.) 369; Hill v. Raymond, 
3 Allen (Mass.) 540; Swift v. Pierce, 
13 id. 136; Knox v. Nutt, 1 Daly, 
(If. Y. C. P.) 213 ; Brown v. Bradshaw, 
1 Duer (N. Y.) 199; Walker v. Rich- 
ards, 39 N. H. 259 ; s. c. 41 id. 388 ; 
Dixon V. Frazer, 1 E. D. S. (N. Y. C. 
P.) 32; Allen v. ScarfE, 1 Hilt. (N. Y. 
C. P.) 209; Hetfield v. Dow, 27 N. J. 
L. 440 ; Brady v. Sackrider, 1 Sandf. 
(N. Y.) 514; Carville v. Crane, 5 Hill 
(N. Y.) 483 ; McDonnell v. Dodge, 10 
Wis. 106 ; Cowdin v. Gottgetreau, 55 
N. Y. 650. 

s Matthews u. Milton, 4 Yerg. 
(Tenn.) 576. 

« Williams v. Corbett, 28 Rl. 262 ; 
Porter v. Langhorn, 2 Bibb. (Ky.) 63 ; 
Nelson v. Hardy, 7 Ind. 364; Briggs 
V. Evans, 1 E. D. S. (N. Y. C. P.) 192; 
Weyland v. Crichfield, 3 Grant's Cas. 



156 



STATUTE OF FEATJDS. 



[chap. IV. 



order to make a promise collateral and within tlie statute, 
there must he, 1. A liability in the original party to pay the 
debt, or to perform some act existing and ascertained at the 
time when the promise was made.^ 2. The consideration of 
the promise must he immediately connected with the liability,^ and 
3. TJie promise must be made to the party to whom the original 
debt is owing, and to do the same thing which the original debtor 
was liable to do, because, if there was no liability on the part 
of the person promised for, or if the promise was made upon 
a new and independent consideration of benefit or power 
moving between the promisor or promisee, or if it was 
made to the debtor himself, or if the original debtor was 
discharged from the debt, or by virtue of the promise the 
promisor becomes in fact or in law the purchaser of the 
debt, the undertaking is original and not within the statute.^ 



(Penn.) 113; Dunning v. Roberts, 35 
Barb. (N. Y.) 463. 

1 Prentice v. Wilkinson, 5 Abb. Pr. 
(N. Y.) N. S. 49; Mease v. "Wagner, 1 
McCord (S. C.) 395; Chapin v. Lap- 
ham, 20 Pick. (Mass.) 467; Miller v. 
Long, 45 Penn. St. 350 ; Connerat v. 
Goldsmith, 9 Ga. 14 ; ICimbaU v. New- 
ell, 7 Hill (N. Y.) 116; Maggs ^. 
Ames, 4 Bing. 470; Thompson a. 
Blanchard, 3 N. Y. 335; Griffin v. 
Derby, 5 Me. 476 ; Johnson ;-. Noonan, 
16 Wis. 687; Lampson v. Swift, 11 
Vt. 315; Walker v. Norton, 29 Vt. 
226; Peck v. Thompson, 15 id. 637; 
Merrill v. Englesby, 28 id. 150 ; Roche 
V. Chaplin, 1 Bailey (S. C.) L. 419; 
Douglass V. Jones, 3 E. D. S. (N. Y. 
C. P.) 551; Mountstephen v. Lake- 
man, L. R. 7 H. L. 24; Dexter v. 
Blanchard, 11 Allen (Mass.) 365; 
Clark V. Levi, 10 N. Y. Leg. Obs. 184 ; 
Dovmey v. Hinchman, 25 Ind. 453; 
Duffy V. Wunsch, 42 N. Y. 243. 

2 Simons v. Steele, 36 N. H. 73; 
Leonard v. Vredenburgh, 8 John. 
(N. Y.) 9; Richard v. DeWolf, 1 
Paine (U. S. C. C.) 580; Nelson v. 
Boynton, 3 Met. (Mass.) 396; Town- 
ley V. Sumrall, 2 Pet. (N. S.) 170; 
Larson v. Wyman, 14 Wend. (N. Y.) 
246. There must be some consid- 
eration valid in law to support the 
promise. Crane v. Bullock, E. M. 



Charlt. (Ga.) 318; Sears v. Brink, 3 
John. (N. Y.) 210; Ware v. Adams, 
24 Me. 177 ; Gillighan v. Boardman, 
29 id. 79 ; Himtress v. Patten, 20 id. 
28; ElUottK. Giese, 7 H. & J. (Md.) 
457. 

8 Booth V. Eighme, 60 N. Y. 238 ; 
Stone V. Symmes, 18 Pick. (Mass.) 
467; Watson c. Jacobs, 29 Vt. 1G9; 
White V. Solomonsky, 30 Md. 585; 
AUhouse V. Ramsey, 6 Whart. (Penn.) 
331; Armstrong v. Elora, 3 T. B. 
Mon. (Ky.) 43; Watson v. Randall, 
20 Wend. (N. Y.) 201; Draughan o. 
Bunting, 9 Lred. (N. C.) 10; Robinson 
V. Lane, 22 Miss. 101; Clisk u. Mc- 
Affee, 7 Port. (Ala.) 72; Moseley v. 
Taylor, 4 Dana (Ky.) 542; Yale v. 
Edgerton, 14 Minn. 194 ; Haggerty v. 
Johnson, 48 Ind. 41 ; Corbett u. 
Cochran, 3 Hill (S. C.) 41; Dawes 
V. Young, 40 Ga. 65; Bxmting v. 
Darbyshire, 75 HI. 408; Cooper v. 
Chambers; McCaffie v. Eadcliffe, 
3 Rob. (N. Y.) 445; Rhodes v. Leeds, 
3 S. & P. (Ala.) 212 ; Doyle v. White, 
26 Me. 341; Brown v. Curtis, 2 N. Y. 
225; Antonio v. Clissy, 3 Rich. (S. C.) 
L. 201; Arbuckle v. Hawks, 20 Vt. 
538 ; Whitman v. Bryant, 49 id. 511 ; 
Aldrich v. Jewell, 12 id. 125 ; Bushel 
V. Allen, 31 id. 613; Darlington v. 
McCann, 2 E. D. S. (N. Y. C. P.) 411 ; 
Norris t,. Graham, 33 Md. 56 ; Gibbs 



SEC. 95.] GUARANTIES. 157 

But where the undertaking is collateral, by reason of the 
existing liability, a special declaration on such promise 
becomes necessary .; and if the undertaking was to pay upon 
request, the declaration must state formally and explicitly that 
a request was made ; nor will the usual allegation in the com- 
mon counts, that the defendant did not pay, although often 
requested, in such case, be suificient.^ 

Sec. 95. Rule as to Pleading. Masters v. Marriott. — 
Whether such special mode of declaring is necessary or 
not will depend upon the question, whether the promise was 
original or collateral; the point has, therefore, sometimes 
come under adjudication, not on the statute of frauds, but on 
the rules of pleading ; as in the case of Masters v. Marriott,^ 
where the plaintiff declared in an action of assumpsit, that 
the defendant had sold to him a bay gelding for eight guineas, 
and that lie agreed on the sale, that in consideration the 
plaintiff had paid to the defendant the eight guineas, he, the 
defendant, promised to the plaintiff, that if he disapproved of 
the gelding, and delivered it to Barham for the defendant's 
^lse, that Barham should repay the said eight guineas, and if 
Barham did not pay it, that defendant would repay it on 
request. The declaration then averred that the plaintiff did 
disapprove of the gelding, and delivered it to Barham, and 
requested him to pay the eight guineas, which he refused to 
do upon request. The plaintiff also declared in another 
count upon an indebitatus assumpsit for another eight guineas, 
had and received to his use, and concluded that the defend- 
ant, not regarding his said several promises, had not, although 
often requested, repaid the said sums, to the damage of the 
plaintiff. On nan assumpsit pleaded, a verdict was giA'^en for 
the plaintiff, with entire damages ; and it was moved in arrest 
of the judgment, and argued several times, that the promise 
to repay the eight guineas, if Barham did not do it, was a 
collateral promise to pay in default of another, and that the 
defendant was not a debtor, but only a surety in default of 
Barham, and that, consequently, a special request to the 

V. Blanchard, 15 Mich. 292 ; ex parte ^ 3 Lev. 363 ; and see 1 Roll. Abr. 

"Williams, 4 Yerg.(Tenn.) 579; Walker 27, 30, 32; 1 EoU. Rep. 275-6; Cro. 

V. Richards,' 39 N. H. 259; Ruggles v. Jac. 386, 500; 3 Bulst. 94; 1 Danv. 

Gatton, 50 111. 412. Abr. 68 ; 1 Vent. 43, 268, 293, 311 ; 2 

1 Roberts on Frauds, 215-223. Vent. 36; 1 Salk. 23; 2 Saund. 136. 



158 STATUTE OP PEAT7DS. [CHAP. IV. 

defendant ought to have been laid, and that saepius requisitus 
fuit was insufficient ; that there should have been a notice 
that Barham had not paid, and a special request to the 
defendant ; for the promise of the defendant was that he 
would pay it, if Barham did not; and the damages being 
entire on the promises in both counts, it was contended that 
the plaintiff could not have judgment. But it was held 
by the court that it was not a collateral promise to pay 
a debt for another, but that the whole was one entire con- 
tract upon 'the sale, and was in effect, that the plaintiff 
bought the gelding upon the condition that if he did not 
like him, he should receive back his money, and the defend- 
ant received the money upon the same condition ; and that 
when the condition was performed by the disapproval of the 
gelding, and the returning of it to Barham, the contract was 
void and at an end, and the money was in the hands of the 
defendant as a debtor to the plaintiff as for money re- 
ceived to the plaintiff's use, and Barham was no more than 
a servant to receive the gelding, and to repay the money, 
and that by his not paying it, the plaintiff, as master, was the 
debtor, and upon this ground judgment was given for the 
plaintiff upon the whole declaration, the count upon the in- 
debitatus assumpsit being considered good, and the judgment 
was afterwards affirmed in error. The statute of frauds was 
not in question in tliis case, the undertaking probably hav- 
ing been in writing ; but the precise point could not have 
been more directly raised upon the statute, than it was in 
this instance upon the principles of pleading. 

Sec. 96. Rule in Harris v. Huntback. — The necessity for the 
actual liability of the person undertaken for, was the point 
decided in Harris v. Huntback,^ where the promise appeared 

1 1 Burr, 371. But it cannot be 508; Chicago Dock Co. o. Kenzie, 49 

assumed in an action between third 111. 289; Aicarde v. Craig, 42 Ala. 

parties that the promisor would set 311; Beal v. Brown, 13 Allen (Mass.) 

up the statute to defeat his liability. 114 ; Crawford v. Woods, 6 Bush 

Downey v. Hinchman, 25 Ind. 453; (Ky.)200; Sneed v. Bradley, 4 Sneed 

Dexterv.Blanchard, 11 Allen (Mass.) (Tenn.) 301; Hall «. Soule, 11 Mich. 

365. The protection afiEorded by the 494; Houser u. Lamont, 55 Penn. St. 

statute may be waived, and the privi- 311 ; Dung v. Parker, 52 N. Y. 494 ; 

lege afforded by it being personal, it Baltzen v. Nicolay, 53 id. 467 ; Garrett 

cannot be set up by a person not privy v. Garrett, 27 Ala. 687 ; Gadden v. 

to the contract. Fowler v. Burget, 16 Pierson, 42 id. 370 ; Caliill v. Bigelow, 

Ind. 841 ; Ames !). Jackson, 115 Mass. 18 Pick. (Mass.) 869; HufEman v. 



SEC. 96.] GUARANTIES. 159 

to be in writing, but upon the same rule in pleading of showing 
specially the collateral promise, and not relying upon the com- 
mon indebitatus assumpsit, a similar doctrine was established. 
The cause came before the court upon a case reserved for 
their opinion in an action upon a general indebitatus assumpsit, 
in which the plaintiff declared upon two counts : the first for 
money lent and advanced by the plaintiff at the defendant's 
request ; and the second for money laid out and expended by 
the plaintiff at the defendant's request; and the question 
upon the case stated was, whether the evidence supported the 
declaration. On the first count, the evidence produced was 
a note of the defendant's, in the following words : " 3d Decem- 
ber, 1751, Then received of Mr. Harris the sum of £19, on 
behalf of my grandson, which I promise to be accountable 
for on demand. Witness my hand, S. Huntback." 

On the second count, the evidence was that one Davidson, 
coming to the plaintiff by the defendant's order, for money 
to pay workmen, the plaintiff refused to pay the money 
unless the defendant would sign a receipt. Whereupon the 
defendant wrote the following note: "Mr. Harris, at the 
earnest request of the gardener, the workmen wanting money 
greatly for the work at the woodhouses, this is to certify, 
that at my request you pay to Mr. Davidson, on the account 
of Master Hillier, for the workmen's use, the sum of <£15, as 
witness my hand, S. Huntback." And a receipt was given 
by the said Davidson the gardener, to the plaintiff, on the 
plaintiff's paying him this £15. 

It was contended, on behalf of the defendant, that inde- 
bitatus assumpsit would not lie upon a collateral undertak- 
ing ; but it was clearly determined by the court, that as there 
was no remedy against the infant, it was an original and not 
a collateral undertaking ; and Buckmyr v. Darnall ^ was 
cited, in which it was held, that where no action will lie against 
the party, undertaJcen for, it is an original promise.^ Accord- 

Ackley, 34 Mo. 277 ; Kratz v. Stocke, bins from performing the contract. 

42 id. .351, In Eice v. Manley, 2 Hun In an action against him therefor, it 

(N. Y.) 492, the plaintiff and one was held that, unless there was a con- 

Stebbins • entered into a verbal con- tract between the parties which could 

tract for the sale of cheese. The de- have been enforced, no action would 

f endant by false representations, and lie against the defendant for his fraud, 

by sending a false telegram in the i 2 Lord Eaym. 1085 ; 6 Mod. 248. 

name of the plaintiS, prevented Steb- ^ In such cases the debt is treated 



160 STATUTE OF FEATJDS. [CHAP. IV. 

ing to this ease, it seems not only necessary that the party for 
whom the promise is made should be liable, but that he should 
be or become liable at the time of the promise being made. And 
by the opinions of the court in the same case, it also appears 
that the liability and the promise ought to grow out of the same 
contract.^ 

Sec. 97. Rule in Buckmyr v. Darnall. — In Buckmyr v. 
Darnall, ante, which was an action of assumpsit, the plaintiff 
declared that the defendant, in consideration that the plain- 
tiff, at his request, would let to hire, and deliver to -one 
Joseph English, a gelding of the plaintiff's, to ride to Read- 
ing, in- the county of Berks, undertook and promised the 
plaintiff, that the said Joseph would deliver the said gelding 
to the plaintiff. Upon non assumpsit pleaded, the case 
came to trial before Holt, C. J., at Westminster Hall ; and 
the counsel for the defendant insisting that the plaintiff 
ought to produce a note in writing of the promise within 
the statute of frauds, and the Chief Justice doubting, a 
case was made and ordered to be moved in court, to have 
the opinion of the other judges. And it was argued and 
insisted for the defendant, that the case was within the 

as the debt of the promisor. Walker 260; Headrick v. Wiseheart, 57 Ind. 

V. Norton, 29 Vt. 226; Chicago &e. 128; Tarhell y. Stevens,- 7 Iowa, 163; 

Canal Co. v. Liddell, 69 111. 639 ; San- Rice v. Barry, 2 Cr. (XT. S. C. C.) 447 ; 

'bom ... Merrill, 41 Me. 467; Whit- Files «. McLeod, 14 Ala. 611. 
comb V. Kephart, 50 Penn. St. 85 ; i But where the promise arises from 

Walker v. Hill, 119 Mass. 249 ; Duffy a new consideration, moving either 

V. Wunsch, 42 N. Y. 243; Hull v. from the promisee, Arnold v. Sted- 

Brown, 35 Wis. 652 ; Allaire v. Craw- man, 45 Penn. St. 186 ; Burr v. Wil- 

ford, 2 John. (N. Y.) Cas. 52; Adams cox, 13 Allen (Mass.) 369; Russell ^. 

V. Densey, 6 Bing. 506; Dorwin v. Babcock, 14 Me. 138, or the person 

Smith, 35 Vt. 69 ; Goodspeed v. Fuller, for whose benefit the promise is made, 

46 Me. 141 ; Stocking v. Sage, 1 Conn, it is not, as we shall hereafter see, 

518 ; Chapman v. Ross, 12 Leigh, -within the statute. Presbyterian &c. 

(Va.) 565; Tarr v. Northey, 17 Me. Soc. «. Staples, 23 Conn. 544; Colt «. 

113; Evans v. Mason, 1 Lea (Tenn.) Root, 12 Mass. 229; Helms w..Kearns, 

26; Conkey v. Hopkins, 17 John. 40 Ind. 124; Balliet «. Scott, 32 Wis. 

(N. Y.) 113; Flemm v. Whitmore, 23 174; Welch v. Kenney, 49 Cal. 49; 

Mo. 430 ; Apgar v. Hiler, 24 N. J. L. Taylor v. Preston, 79 Penn. St. 436 ; 

812; Barry v. Ransom, 12 N. Y. 462; Besshears v. Rowe, 46 Mo. 501 ; John- 

Ferrell v. Maxwell, 28 Ohio St. 383 ; son v. Knapp, 36 Iowa, 616 ; Seaman 

Comstock V. Morton, 36 Mich. 277; v. Hasbrouck, 35 Barb. (N. Y.) 151; 

Beamon v. Russell, 20 Vt. 205 ; Baker Runde v. Runde, 58 111. 232 ; Urquhart 

V. Dillman, 12 Abb. Pr. (N. Y.) 313; v. Brayton, 12 R. I. 169; Mitchell v. 

Kingsley w. Balcom, 4 Barb. (N. Y.) Griffin, 58 Ind. 159; Maxwell w.Haynes, 

131; Wildes v. Dudlow, L. R. 19 Eq. 41 Me. 559. 
Cas. 198; Hopldns v. Carr, 31 Ind. 



SEC. 97.] 



GXTAEANTIES. 



161 



statute, for it was the promise to answer for the default and 
miscarriage of the person the horse was lent to. That the 
very letting out and delivery of the horse to English implied 
a contract by English to redeliver him, and he was bound 
by law so to do, and consequently the defendant's promise 
was to answer for the default of another. And the counsel 
for the defendant reminded his Lordship of his own ruling, 
that where an action will lie against the party himself, there, 
an undertaking by a third person is within the statute ; but 
that where no action will lie against the party himself, it is 
otherwise.^ And he said he agreed, that if a man should say 
to another, do you build a house for J S and I will pay you ; 
that case is not within the statute, because there J S is not 
liable. But the case is not more than this, if a man should 



1 This is still the rule, and the de- 
cisive test as to whether the under- 
taking is collateral or original, and 
the statute does not require the prom- 
ise of a defendant to he in writing 
where it is in effect to pay his own 
debt, though that of a third person 
be incidentally guaranteed ; it ap- 
plies to a mere promise to become 
responsible, but not to actual obliga- 
tions. Malone v. Keener, 44 Penn, 
St. 107 ; Creel v. Bell, 2 J. J. Marsh 
(Ky.) 309 ; Alcalda v. Morales, 3 Nev. 
132 ; Gold v. Phillips, 10 John. (N. Y.) 
412; Wolff V. Koppel, 2 Den. (N. Y.) 
368 ; Therasaon v. McSpedon, 2 Hilt. 
(N. Y. C. P.) 1; Stoddard v. Graham, 
23 How. (N. Y.) Pr. 518; PhilUps v. 
Gray, 3 E. D. S. (N. Y. C. P.) 69; 
Clymer v. De Young, 54 Penn. St. 
118; Romson v. Hope, 18 Tex. 446; 
Barringer v. Warden, 12 Cal. 311; 
Williams i. Little, 36 Vt. 323 ; Story 
V. Menzies, 4 Chand. (Wis.) 61; Cot- 
terill V. Stevens, 10 Wis. 422 ; Cook v. 
Barrett, 15 Wis. 596. A promise by 
a company, or its agent, to pay an ac- 
count due from the company, which 
has been assigned to a third person, is 
not within the statute of frauds, and 
need not be in writing. Mt. Olivet 
Cemetery v. Shubert, 2 Head (Tenn.) 
116. The rule being that if the peiv 
son on whose account the promise is 
made is not liable at all, the under- 



taking is original, and is valid, al- 
though by parol. Wallace v.Wortham, 
25 Miss. 119 ; Mease v. Wagner, 1 Mc- 
Cord (S. C.) 395; but if any liability 
for the debt remains against the party 
for whose benefit the promise was 
made, it is a collateral undertaking. 
Wainwright v. Straw, 16 Vt. 215; 
Perkins v. Goodman, 21 Barb. (N. Y.) 
218; Blank ^. Dreher, 25 111. 331; 
Eddy V. Roberts, 17 id. 505 ; Bronson 
ti.Stroud,2 McMuU. (S. C.) 372; Clay 
V. Walton, 9 Cal. 328; Dugan v. 
Cowzleman, 31 Mo. 424. Thus, in the 
last case, it was held that where M and 
S had put to livery a horse which was 
entrusted to them by C for the pur- 
pose of trial before purchasing, and 
the credit was given to M and S, a 
subsequent verbal promise of C to 
pay for the keeping to the liveryman 
Trill be within the statute and void. 
So where A had taken a contract to 
do a piece of work for B, but not 
being paid abandoned the work, and 
afterwards resumed it, and did certain 
extra work upon the promise of C to 
pay him, and the evidence showed that 
he still looked to B for his pay, and 
not to C, except as guarantor, it was 
held that such promise was void un- 
der the statute of frauds, as not being 
in writing, both as to the extra work 
and that done under the contract with 
B. Bresler v. Pendell, 12 Mich. 224. 



162 STATUTE OF PEATJDS. [CHAP. IV. 

say, do you let J S have goods, and if he does not pay you, 
I will : this is within the statute, because an action will lie 
against J S for the money for the goods ; or, if a man shall 
say, take J S into your service, and if he does not serve you 
faithfully, or if he wrongs you, I wUl be responsible, that is 
also within the statute.^ 

Upon the first motion and argument upon the case, the 
three judges against Powys, seemed to be of opinion, that 
the case was not within the statute, because English was not 
liable under the contract ; but if any action could be main- 
tained against him, it must be for a subsequent wrong in 
detaining the horse, or actually converting it to his own use. 
And Powell, J., said that the rule, of what things shall 
not be within the statute, is not confined to these cases 
only, where there is no remedy at all against the other, but 
where there is no remedy against him on the same contract. 
This case is just like that wherein a man says, send goods 
to such a one, and I will pay you ; that is not within the 
statute, for the seller does not trust the person he sends the 
goods to. So here, the stable-keeper only trusted the defend- 
ant, and an action on the contract will not lie against English, 
but for a tort subsequent ; he may be charged in detinue, or 
trover and conversion, which are collateral actions. 

PoWYS, J., said, that there was a trust to English, for the 
very lending of the horse necessarily implied a trust to the 
person he was lent to, and consequently the defendant in this 
case was to answer for the default of another, and was within 
the statute. Powell, J., agreed, that if a man should say, 
lend J S a horse, and I will imdertake he shall pay the hire 

^ A naked parol promise to pay the Johnson,2 N. J. L. 5 ; South v. Toomey, 

debt of, or to be responsible for the acts id. 98; Ayres «. Herbert, 3 N. J. L. 

of another in whatever form itis made, (2 Pen.) 662 ; Caston v. Moss, 1 Bailey 

is within the statute. The question (S. C.) 14; Hoppock u. Wilson, 4 N. J. 

always is whether the promise is col- L. 149 ; Dilts v. Parke, id. 219 ; Youngs 

lateral or original. If the former, it v. Shough, 15 N. J. L. (3 Green) 27 ; 

is not enforceable. Murphy v. Merry, 8 Mundy v. Eoss, id. 466 ; Jackson v. 

Blackf. (Ind.) 295 ; Smith f. Stephens, Eayner, 12 Johns. (N. Y.) 291 ; Clarke 

3 Ind. 832; Johnson v. Morris, 21 Ga. v. Eussel, 3 Dall. (Penu.) 415 ; Boyce 

238; Bumford v. Purcell, 4 Greene v. Owens, 2 McCord '(S. C.) -208; 

(Iowa) 488 ; Helm v. Logan, 4 Bibb Eichardson o. Eichardson, 1 McMull. 

(Ky.) 78; Smith u. Fah, 15 B. Mon. (S. C.) 280; Campbell v. Kndley, 3 

(Ky.) 443; Elder t). Warfield, 7 H. & Humph. (Tenn.) 330; Caperton v. 

J. (Md.) 391; Wymau v. Gray, id. Gray, 4 Terg. (Tenn.) 563. 
409; Elliott v. Giese, id. 457; Eose v. 



SEC. 97.] GUAKANTIES. 163 

of it ; or send J S goods, and I will undertake he shall pay 
you ; that these cases would be within the statute ; and agreed 
with PowYS, that if any trust were given to English, then 
the ease would be within the statute. But a majority of the 
court held, that there was no credit given to English ; and 
Holt, C. J., agreed with them, that if there had been, this 
promise would have been an additional security, and within the 
statute. And Holt, C. J., said, that if a man should say, "let 
J S ride your horse to Reading, and I will pay you the hire," 
that is not within the statute, any more than if a man should 
say, " deliver clothes to J S, and I will pay you." He said 
also that a bailee of a horse for hire is not bound to redeliver 
him at all events, but if hsj be robbed of him without fraud 
in him, he is excused, and that so it was ruled in the case of 
Coggs V. Bernard.^ 

The last day of the term, Holt, C. J., delivered the opin- 
ion of the court. He said that the question had been pro- 
posed at a meeting of judges, and that there had been a great 
variety of opinions between them, because the horse was lent 
wholly upon the credit of the defendant, but that the judges 
of this court were all of opinion, that the case was within the 
statute. The objection that was made was, that if English 
did not deliver the horse, he was not chargeable in an action 
upon the promise, but in trover or detinue, which are founded 
upon the tort, and are for a matter subsequent to the agree- 
ment. But I answered that English may be charged on the 
bailment in detinue on the original delivery, and detinue is 
the adequate remedy, and consequently, this promise by the 
defendant is collateral, and is within the reason and the very 
words of the statute ; and is as much so as where a man is 
indebted, and J S in consideration that the debtee would for- 
bear the man, promises to pay him the debt ; such a promise 

1 Lord Eaym. 216. It hardly needs the circumstances warrant it, and the 

the weight of supporting cases to sus- credit is jointly giren to both as prin- 

tain the rule that, where any credit is cipals, the undertaking is original as 

given to the person for whose benefit to both, as in such a case neither can 

the promise is made, the undertaking be surety for the other. Swift v. 

is collateral, as the proposition is self- Pierce, 12 Allen (Mass.) 136; Wain- 

eyident. Whitman v. Bryant, 49 Vt. wright v. Straw, 15 Vt. 215 ; Gibbs v. 

512; Norris v. Graham, 33 Md. 56; Blanchard, 15 Mich. 292; Eddy v. 

Welch V. Marvin, 36 Mich. 59 ; Walker Davidson, 42 Vt. 56 ; Hetfield v. Dow, 

V. Kichards, 39 N. H. 259 ; Jack v. 27 N. J. L. 440 ; ex parte Williams, 

Morrison, 48 Penn. St. 113. But where 4 Yerg. (Tenn.) 579. 



164 STATUTE OF FEATJDS. [CHAP. IV. 

is void, unless it be in writing. Suppose a man comfes with 
another to a shop to bily goods, and the shopkeeper should 
say, " I will not sell him the goods^ unless you will undertake 
he shall pay me for them," such promise is within the stat- 
ute ; otherwise, if the promisor had been the person to pay 
for the goods originally. So here, detinue lies against Eng- 
lish, the principal; and the plaintiif, having this remedy 
against English, cannot have an action against the defend- 
ant, the undertaker, unless there had been a note in writing. 
This case mainly depended on the question, whether, at the 
instant of making the promise, there was or was not an existing 
liability/ in the party undertaken for. And it was the opinion 
of all the judges upon the first argument, except PoWYS, that 
the mere delivery of the horse to English generated no right 
of action, nor could be regarded as any contract made with 
him ; but that the right of action would arise, if it arose at 
all, against the deliveree, by some matter subsequent to the 
agreement, as a demand of the horse and a refusal, affording 
a ground for the remedy by trover, which would depend upon 
some act of detainment or conversion. But although this 
could not have been denied if trover had been the only rem- 
edy, yet, as detinue also lay, the gist of which was the origi- 
nal delivery, implying a contract for the redelivery, and this 
implied contract, and the act of delivery, and also the prom- 
ise by the defendant, were all coincident in time, there was 
every circumstance to support the construction of a collateral 
promise. 

Sec. 98. Form of Promise not Decisive of its Character. — 
The form of expression used in making the promise does 
not in all cases necessarily determine the question as to 
whether the promise is an original or collateral undertaking,^ 

' Skinner v. Conant, 2 Vt. 453; agreed to pay for them, if delivered 

Barrett v. McHugh, 128 Mass. 165. to B, in case B did not, it was held 

If a promise is collateral to the agree- that the engagement of C was col- 

■ ment of another, it is immaterial lateral and void under the statute of 

whether it was made before or after frauds, unless in writing, and that 

the original contract was entered into, there was no joint liability of B and 

as in either event it is within the C. Connolly v. Kettlewell, 1 Gill 

statute unless in writirig. Glenn v. (Md.) 260. A promise to make or 

Lehnen, 54 Mo. 45. Where B selected indorse a note with others to pay a 

goods of A, and A refused to deliver debt of a third person is within the 

them to B until he saw C, and C statute : State v. Shinn, 42 N. J. L. 138. 



SEC. 98.J 



GUABANTIES. 



165 



nor does tlie circumstance that tlie promisee charges the debt 
to the promisor on his books,^ determine the question, but 
the circumstances attending the transaction at the time when 
the promise was made are to be looked to, and from them in 
connection with the language employed by the promisor, the 
question as to whether the promisee gave credit solely to the 
promisor, and had a right to do so, is to'^ be determined, and 
in determining this question the intention of the promisee 
to give credit solely to the promisee, is not material, and he 
cannot be asked to whom credit was given ; but must state 
the promise and the circumstances attending the making of 
it, and from these the real intention of the parties are to be 
found.2 It is for the jury to find what the real substance 
and spirit of the undertaking between the party was, and if 
there is any evidence to sustain their finding, it will be svis- 



148. A promise, in consideration 
that the promisee incurs & liability to 
a third person, is an original promise 
and not within the statute of frauds. 
Underhill v. Gibson, 2 N. H. 352; 
Doane v. Newman, 10 Mo. 69. 

' Barrett t>. McHugh, ante. In 
Green v. Disbrow, 56 N. Y. 334, the 
goods for which recovery was sought 
were delivered and charged to the 
defendant's son, on the books of the 
plaintiff, and it was claimed that this 
was conclusive evidence that they 
were sold on his credit, but the plain- 
tiff claimed that they were furnished 
at the special instance and request of 
the defendant and were charged to 
the defendant's son for convenience, 
and the court held, 7 Lans. (N. Y.) 
389, that, while the fact that the 
goods were so charged prima facie 
established the fact that the sole credit 
was not given to the defendant, yet 
that it was not conclusive and might 
be explained by showing that, while 
the sole credit was given to the de- 
fendant, yet they were charged to the 
son to distinguish the article sold 
from those sold to the defendant 
personally. " It is always competent," 
says Mjllek, P. J., " to explain acts 
of this character, and where satis- 
factorily done, there is no reason why 
they should bear a different interpre- 



tation from what is authorized by the 
evidence." 

2 Allen V. Scarff, 1 HUt. (N. Y. C. 
P.) 209. In Hazen v. Bearden, 4 
Sneed (Tenn.) 48, the defendant 
authorized goods to be sold and de- 
livered to a third person, and agreed 
to be responsible therefor. The goods 
were in fact charged to the third 
person, and the account presented to 
him for payment. It was held that 
these facts were not conclusive to 
discharge the defendant from liability 
under the statute of frauds, but that 
the plaintiff might satisfy the jury, if 
he could, that the credit was nevei^ 
theless given to the defendant; and a 
verdict for the plaintiff was sustained. 
The construction which the parties 
themselves place upon an agreement 
to be responsible for goods delivered 
to a third person, is important and 
often conclusive of its true character. 
-If the credit is not given to the 
person making such agreement, his 
undertaking is collateral, and must be 
in writing. Dixon v. Frazee, 1 E.D.S. 
(N. Y. C. P.) 32. An agreement by 
one partner that goods purchased of 
the firm may be applied upon the 
debt of one of the partners is not 
within the statute. Bhodes v. Mc- 
Kean, 55 Iowa, 647. 



166 STATUTE OF PBATJDS. [CHAP. IV. 

tained.i The efPect of the form of expression, in deterinining 
■whether a promise is collateral or original, is illustrated in an 
early English case.^ In that case. Holt, C. J., said : " If A 
promises B, who is a surgeon, that if he wUl cure C of a 
wound, he ' will see him paid,' ^ this is only a promise to pay 
if C does not, and therefore it ought to be in writing. But 
if A promise in such a case that he will b.e B's pay-master, 
whatever he shall deserve, it is immediately the debt of A, 
and he is liable without writing. In the case first put it is 
clear that B will have a double remedy ; in the other case 
the credit is considered as being giveh solely to A, and even 
though C, by subsequent circumstances should render himself 
liable for the debt, yet such liability not having existed at the 
time of the promise would have no effect upon A's liability 
upon his promise.* So if A promises B, that if he will do a 
certain act, C shall pay him a certain sum, or that, if G does 
not pay him, he (A) will, this is not a collateral promise, 
unless C was privy to the contract, and recognized himself as 
debtor also, because A, being the, sole debtor, his promise is 
merely to pay his own debt." It is not possible to lay down 
any rule in the abstract for the construction of these expres- 
sions, but they must go to the jury, together with the attend- 
ant circumstances, for them to find to whom the credit was 
really given. And in determining the intention of the par- 
ties, the situation, circumstances, and general responsibility 
of the party promising will be regarded. But as bearing 
upon the question to whom credit was given, it is not compe- 
tent for the plaintiff to show the pecuniary inability of the 
person in whose behalf the promise was made, as tending to 
show the improbability of his having given any credit to him, 
nor that the defendant had paid debts of such person under 
similar circumstances.^ 

Sec. 99. Attendant Circumstances to be Regarded. Rule in 
Anderson v. Hayman. — The doctrine stated supra that the at- 
tendant circumstances, the situation and general responsibility 

' Heywood v. Styles, 124 Mass. 275. * Green v. Disbrow, ante. 

2 Watkins v. Perkins, Lord Eaym. ^ Anderson v. Hayman, 1 H. Bl. 
224. 120 ; also by Keate v. Temple, 1 B. 

3 Green v. Disbrow, 56 N. Y. 334; & P. 158. 
reversing the ruling on tliis point, in 

the General Term, 7 Lans. 389. 



SEC. 99.] GUAEANTIBS. 167 

of the promisor will be looked at, is well illustrated and fully 
supported by an English case.^ In that case the plaintiff was 
a woollen draper in London, and employed one Biffin as a rider 
(commercial agent) to receive orders from his customers in the 
country. The defendant requested Biffin to write the plaintiff, 
to request him to supply the defendant's son, who traded in 
the West Indies, with whatever goods he might want, on his, 
the defendant's credit, saying at the same time, "use my son 
well, charge him as low as possible, and I will be bound for 
the payment of the money, as far as £800 or £1000." Biffin 
accordingly wrote to the plaintiff the following letter : " Mr. 
Hayman of this town says, his son wiQ call on you, and leave 
orders ; and he has promised me to see you paid, if it amounts 
to £1000. N. B. If deal for twelve months' credit, and pay in 
6 or 8 months, expects discount in proportion." Soon after- 
wards the son received the goods from the plaintiff to the 
amount of £800, which were delivered to him in conse- 
quence of the engagement of the father above mentioned. 
The son was debited in the plaintiff's books, and being ap- 
plied to for payment, wrote an answer to the plaintiff, as fol- 
lows : " Your favor of the 27th past has been forwarded to 
me from Ostend, in answer to which I can only say, that I 
understand your credit for the goods was twelve months, 
which was also mentioned by your rider to my father. I 
shall at this rate make you remittances for the different par- 
cels, as they become due." 

The son afterwards became a bankrupt, and this action 
was brought against the father to recover the value of the 
goods. — Heath, J., who tried the cause, directed the jury 
to consider whether the plaintiff gave credit to the defendant 
alone, or to him toff ether with his son; that in the latter case, 
they should find a verdict for the defendant ; in the former, 
for the plaintiff ; being of opinion, that if any credit was given 
to the son, the promise of the defendant, not being in writ- 
ing, was void by the statute of frauds. \ A verdict was found 
for the defendant, and a rule nisi was obtained to set it 
aside ; but the court were clearly of opinion that this prom- 
ise was within the statute, as it appeared by the letter of 
Hayman the younger, that credit was given to him, as well 

I Anderson v. HaTman, 1 H. Bl. 120. 



168 STATUTE OP FRAUDS. [CHAP. TV. 



as to the defendant his father, and the rule was accordingly 
discharged. i 

Sec. 100. Rule in Keate V. Temple. — In a subsequent 
case ^ it appears that, in collecting the true state of the 
transaction, and ascertaining the fact, whether the party- 
promising intended only to come in aid ^f the liability 
of the person on whose account he promised, or to become 
himself immediately responsible, the court will not only 
consider the expressions used, but will also regard the par- 
ticular situation of the defendant at the time of his under- 
taking ; and will compare the amount ^ the sum in question 
with the circumstances of the party. 7*his action was brought 
for goods sold and delivered, and wptk and labor, with the 
common money counts, to which me general issue of non-- 
assumpsit was pleaded. The cause was tried before Law- 
EENCE, J. It appeared that the plaintiff was a tailor and 
slopseller at Portsmouth, and th© defendant the first lieuten- 
ant of his majesty's ship, the Boyne. When the ship came 
into port, the defendant applied to a third person to recom- 
mend a slopseller who might supply the crew with new clothes, 
sajdng, " he wUl run no risk. Twill see him paid " ; the plain- 
tiff being accordingly recommended, the defendant called 
upon him, and used these words, " I will see you paid at the 
pay-table ; are you satisfied ? " The plaintiff answered, "per- 
fectly so." The clothes were delivered on the quarter-deck 
of the Boyne; slops are usually sold on the main-deck; the 
plaintiff produced samples to ascertain whether his direc- 
tions had been followed; some of the men said that they 
were not in want of any clothes, but were told by the defend- 
ant that if they did not take them he would punish them ; 
and others, who stated that they were only in want of part 
of a suit, were obliged to take a whole one, with anchor but- 
tons to the jacket, such as are usually worn by petty officers. 
The clothing of the crew in general was light and adapted to 
the climate of the West Indies, where the ship had been last 
stationed. Soon after the delivery the Boyne was burnt, and 
the crew dispersed into different ships on that occasion. The 
plaiutiff having e?:pressed some apprehensions for himself, 
the defendant saidj to him, " Captain Grey (the captain of the 
' Keate v. Temple, 1 B. & P. 158. 



SEC. 100.] GTTAJIANTIES. 169 

Boyne) and I will see you paid ; you need not make yourself 
uneasy." After this the commissioner came on board the 
Commerce de Marseilles, in order to pay the crew of the 
Boyne, at which time the defendant stood at the pay-table, 
and having taken some money out of the hat of the first 
man who was paid, gave it to the plaintiff; the next man 
refused to part with his pay, and was immediately put in 
irons. The defendant then asked the commissioners to stop 
the pay of the crew, who answered that it could not be done. 

The judge in his directions to the juty said, that if they 
were satisfied on the evidence, that the goods in question 
were advanced on the credit of the defendant, as immediately 
responsible, the plaintiff was entitled to a verdict ; but if they 
believed that at the time when the goods were furnished, the 
plaintiff relied on being cMe, through the assistance of the 
defendant, to get his money from the crew, they ought to 
find for the defendant.^ The jury returned a verdict for the 
plaintiff for £576 7s. Bd., the whole amount of his claim. 
A rule for a new trial having been obtained, on the ground 
of the defendant's undertaking being within the statute of 
frauds, the counsel for the plaintiff contended that the only 
question in the case had been left to the jury, and decided 
by them, viz., whether the sailors were liable in the first in- 
stance, and the defendant only came in aid of their liability ; 
or whether the defendant was immediately responsible. They 
said that if the Boyne had been burnt before the delivery of 
the goods, the plaintiff would have had no communication 
with the crew, and of course no ground of action against 
them : if, therefore, they were not liable on the original con- 
tract, the subsequent delivery would not shift the credit 
upon them. 

Eyre, C. J., said : " There is one consideration independent 
of every thing else, which weighs so strongly with me, that 
I should wish the evidence to be once more submitted to a 
jury. The sum recovered is ^£576 7s. %d., and this against a 
lieutenant in the navy : a sum so large, that it goes a great 

1 The question to whom the credit 76 Penn. St. 97 ; Dean v. Tallman, 105 

was giren is for the jury. Pettit v. Mass. 443. But this case shows that 

Braden, 55 Ind. 201 ; Bloom v. Mc- in determining the question they must 

Grath, 53 Miss. 249; Moshier v. Kit- regard the circumstances attending 

chell, 87 111. 18; Castlemanv. Harnish, the transaction. 



170 STATUTE OF PEAUDS. [CHAP. IV. 

way towards satisfying my mind, that it never could have 
been in the contemplation of the defendant to make himself 
liable, or of the slopseller to furnish the goods on his credit, 
to so large an amount. I can hardly think that, had the 
Bojrne not been burnt, and the plaintiff been asked whether 
he would have the lieutenant or the crew for his pay-master, 
but that he would have given the preference to the latter. 
The circumstances of this case create some prejudices against 
the defendant, but which I think capable of explanation. 
There is some appearance of harshness in making the men 
purchase these clothes against their inclination. But it was 
in evidence, that though they were pretty well clothed, yet 
their clothes were adapted to a warm climate, rather than to 
the service in which they were to be engaged. It was there- 
fore the bounden duty of the officer to take some course to 
oblige the crew to purchase proper necessaries. "We all know 
that a sailor is so singular a creature, so careless of himself, 
that he cannot, though his life depend upon it, be prevailed 
upon, without force, even to bring up his hammock upon 
deck to be aired. We know that he will risk any danger, in 
order to employ his money in a way that he likes, rather than 
let it out in that provident method which his situation may 
require. The whole of the imputation then on the defen- 
dant and Captain Grey amounts to this, that when the men 
were to be clothed, they wished them to be somewhat well- 
dressed. I do not know but that this circumstance may have 
had some influence with the jury. But I do not feel the 
force of it, when opposed to the weight of the evidence on 
the other side, so as to make the officer liable for so large a 
sum. From the nature of the case it is apparent, that the 
men were to pay in the first instance ; the defendant's words 
were, ' I will see you paid at the pay-table ; are you satis- 
fied ? ' and the answer then was, ' perfectly so.' The mean- 
ing of which was, that however unwilling the men might be 
to pay themselves, the officer would take care that they should 
pay. The question is, whether the slopman did not in fact 
rely on the power of the officer over the fund out of which 
the men's wages were to be paid, and did not prefer giving 
credit to that fund to giving credit to the lieutenant, -who, if 
we are to judge of him by others in the same situation, was 



SEC. 102.] GT7ABANTIES. 171 

not likely to be able to raise so large a sum. Considering 
the whole bearing of the evidence, and that the learned judge 
who tried the cause has not expressed himself satisfied with 
the verdict, I think this a proper case to be sent to a new 
trial." 

Sec. 101. Statute does not Apply to Ouaremty of Specialty 
Debts. — The statute applies only to promises, and does not 
apply to instruments under seal.^ Therefore it has been held 
that a promise by the vendor of railroad bonds, that if a per- 
son will buy them he will guarantee them, is an original under- 
taking, and not within the statute,^ and that a guaranty by 
one railroad company of the bonds of another is not within 
the statute, and is enforceable, although it is claimed that 
such guaranty is ultra vires, and that the consideration does 
not appear.* 

Sec. 102. Must be Consideration for the Promise, Instances of. 
— There must be a sufficient consideration for a promise to pay 
the debt of another as well as for any other promise, otherwise 
it will not be binding though reduced into writing. A guaranty 
must have a consideration to support it. If it is made at the 
time of the contract to which it relates so as to constitute a 
part of the consideration of the contract, it is sufficient ; but 
if the guaranty is subsequent to the contract, there must be a 
distinct consideration to support it,* otherwise it is void. 

1 Williams v. Springs, 7 Ired. raneous with the making of the con- 
(N. C.) L. 384 ; Ward u. Ely, 1 Dev. tract, the consideration of the contract 
(N. C.) L. 372 ; Livingston ti. Tremper, supports the promise; but where the 
4 John. (N. Y.) 416. promise is made subsequently thereto, 

2 Allen V. Eighme, 21 N. Y. S. C. it is distinct therefrom, and requires a 
559. distinct consideration. Thus, a surety 

8 Amot V. Erie E. B. Co., 67 N. Y. for the payment of rent signed an 

315. agreement indorsed upon the back of 

* Bason v. Hughart, 2 Tex. 476 ; the lease as follows : " I guarantee the 

Beebe t>. Moore, 3 McLean (XJ. S.) 387 ; payment of the rent, as stipulated by 

How V. Kimball, 2 id. 103 ; Leonard v. said F, in case of non-payment by 

Vredenburgh, 8 John. (N. Y.) 29; Col- him." In an action by the lessor, 

bum V. Tolles, 14 Conn. 341 ; Cook v. against the lessee and surety, for the 

Elliott, 34 Mo. 586 ; Lines v. Smith, 4 rent, it was held that the undertaking 

Flo. 47; Tennay v. Prince, 4 Pick, of the guarantor was distinct from 

(Mass.) 383; Joslyn v. CoUinson, 26 that of the principal, and collateral 

111. 61 ; Ware •». Adams, 24 Me. 177 ; thereto, and that the parties were 

Gilligan v. Boardman, 29 id. 79 ; Mc- improperly joined : Virden v. Ells- 

Kinney v. Guilter, 4 McCord (S. C.) worth, 15 Ind. 144. In such a case, 

409. Where the promise is contempo- if there is no distinct consideration, 



172 



STATUTE OF PEAUDS. 



[chap. 



IT. 



Thus, when A has sold and delivered goods to B, and after- 
wards C promises A in writing to pay for them, this promise 



the promise is within the statute. 
Furbish v. Goodnow, 98 Mass. 296; 
Fowler v. Moller, 4 Bos. (N. Y.) 149. 
It was held that a promise by the as- 
signee of a lease to the landlord, that 
if the latter will permit him to remain 
in possession of the premises, he will 
pay the arrears of rent due from the 
lessee, is a collateral promise, and if 
not in writing, is void by the statute 
of frauds. In Leonard v. Vreden- 
burgh, 8 John. (N. T.) 29, where A 
applied to B for goods on credit; and 
B refused to let him have them with- 
out security, on which A drew a note 
for the amount, under which C wrote 
"I guarantee the above," and the 
goods were then delivered, it was held 
that this was a collateral undertaking 
of C ; but that, as the transaction was 
one and entire, the consideration pass- 
ing between A and B was sufficient to 
support as well the promise of C as 
that of A, and no distinct considerar 
tion passing between B and C was 
necessary. In Bailey v. Freeman, 11 
id. 221, B, by a written agreement, 
promised to deliver to A a certain 
quantity of goods, and also to pay the 
costs on an execution issued by A 
against B, which B was to have re- 
turned nulla bona ; and F, at the bot- 
tom thereof, signed a written guaranty 
as follows : " I guarantee the perform- 
ance of the above agreement," it was 
held : 1. That the guaranty of F was an 
original collateral agreement, and not 
a promise to pay a previously subsist- 
ing debt of B. 2. That the agreement 
and the guaranty formed an entire 
contract, including the consideration 
stated in the agreement to which the 
guaranty referred ; and that, if no con- 
sideration had been expressed in the 
principal agreement, it might be shown 
by parol. In "Wakefield v. Greenhood, 
29 Cal. 597, it was held that a promise 
by a forwarder of goods to a common 
carrier to pay any draft on himself by 
the consignee for the transportation 
of the goods, was a collateral under- 



taking, and within the statute. In 
Crane v. Bullock, K. M. Charlt (Ga.) 
818, a married woman drew a bill on 
A, who accepted the same, payable 
" when in funds." Afterwards B, who 
was trustee of the separate property 
of the drawer under a marriage settle- 
ment, wrote upon the bill, " I will have 
this paid out of the next crop/' and 
signed his name as trustee. In an ac- 
tion by the payee against B, it was 
held that there was no consideration 
for the promise, and that it was within 
the statute of frauds. A writing in this 
form : " Mr. J S will apply to you for 
the rent and disposal of your building 
now in charge of D M ; any arrange- 
ment he can make with you as regards 
renting the same I will be responsible 
for," signed " J D S," is a direct and 
original promise to pay, if such ar- 
rangement should be made, and not 
collateral : Bates v. Starr, 6 Ala. 697. 
And, generally, a parol agreement of 
a grantee to pay a debt of the grantor, 
made as part of the consideration, is 
not an undertaking to "answer for 
debt or default of another " : Jen- 
nings V. Crider, 2 Bush (Ky.) 322; 
McLaren u. Hutchinson, 22 Cal. 187; 
Euhling V. Hackett, 1 Nev. 360 ; Berry 
V. DoremuB, 30 N. J. L. 399 ; Seaman 
V. Hasbrouck, 35 Barb. (N. T.) 151 ; 
but if made after the debt is con- 
tracted, it is collateral. Thus, while 
the mother of the defendants resided 
in the plaintiffs house at a stipulated 
annual rent, the defendants promised, 
verbally, to pay the rent while she 
continued to occupy it, it was held 
that this promise was collateral, and 
consequently void, because the con- 
tract had already been made, and its 
performance entered upon by the 
mother and the plaintiff, so that it 
could not be said that the defendants' 
promise was based upon the original 
consideration, or that credit was given 
solely to him; Moses v. Norton, 36 
Me. 113. 



SBC. 102.] GUARANTIES. 173 

is a mere nudiim pactum and void, because it was so at the 
common law, hnd the statute makes no alteration.i But if C 
had requested A to forbear to sue B for the debt, and A had 
forborne accordingly, that was a good consideration at the com- 
mon law to support such promise,^ and is good since the statute 
if the promise be in writing,^ but not otherwise. Where the con- 
tract is in writing, any consideration in the nature of forbear- 
ance,* as the continuance of an action ^ or any postponement 
of the promisee's remedy is sufficient.® But this does not seem 
to be the case where the promise is made to secure delay in 
the enforcement of a final process, as an execution,^ although 
there seems to be no good reason for this distinction. In 
order that a forbearance of suit may be a good consideration, 
it must appear that the promisee had an immediate cause of 
action at the time when the promise was made^ and it must also 
be shown that the promisee agreed to forbear, and the mere 
circumstance that he did so does not suffice,^ although actual 
forbearance is prima facie proof of an agreement to do so,^" 
and the burden is upon the promisor to show that no such 
agreement was in fact made.^^ Where the promisor is to 

> Sadler v. Hawkes, 1 EoU. Abr. ^ Stewart ». McGuin, 1 Cow. (N.Y.) 

27 PI. 49; Forth v. Stanton, 1 Wms. 99; Thomas v. Croft, 2 Rich. (S. C.) 

Saund. 227 ; Barrell v. Trussell, 4 L. 113 ; Etting v. Vanderlyn, 4 John. 

Taunt. 117; French U.French, 2 Man. (N. Y.) 237; Mapes v. Stanley, Cro. 

&Gr.644; Boydt). Moyle,2C.B.844; Jac. 183. But see, holding that a 

Saunders k. Wakefield, 4 B. & Aid. promise to pay if the creditor would 

595; Pillans v. Van Mierop, 3 Burr, discontinue an action he had brought 

1663 ; Westhead v. Sproson, 30 L. J. against the principal debtor is not 

Ex. 265. sufficient. Nelson v. Boynton, 3 Met. 

2 Sadler v. Hawkes, 1 Roll. Abr. 27. (Mass.) 396; Lieber v. Levy, 3 Met. 

» ICing V. "Wilson, Str. 873; Fish v. (Ky.) 292. 

Hutchinson, Bull. N. P. 281 ; 2 Wils. « Templeton v. Bascom, 33 Vt. 132 ; 

94. Bunting v. Darbyshu-e, 75 III. 408. 

* Harrington v. Uioh, 6 Vt. 666 ; ' McKinney v. Guilter, 4 McCord 

Pratt ... Humphrey, 22 Conn. 317; (S. C.) 409. 

Smith f. Finch, 3 111. 321 ; Taliaferro 8 Martin v. Black, 20 Ala. 309. 

V. RofE, 2 Call. (Va.) 258; Rann v. » Sage v. Wilcox, 6 Conn. 81; 

Hughes, 7 T. R. 350 ; Thomas u. Croft, Breed v. Hillhouse, 7 id. 523; Mc- 

2 Rich. (S. C.) 113 ; Barber v. Fox, 2 Comey v. Stanley, 8 Cush. (Mass.) 85 ; 

Saund. 136; Martin v. Black, 20 Ala. Walker v. Sherman, 11 Met. (Mass.) 

309 ; Parish v. Wilson, Peake, 73 ; 170 ; Crolts v. Beale, 11 C. B. 172. 

Killian v. Ashley, 24 Ark. 511 ; Phil- w Breed v. Hillhouse, ante. 

pot V. Briant, 4.Bing. 717; Kean v. n Watson v. McLaren, 19 Wend. 

McKinsey, 2 Penn. St. 30; McAlvey (N. Y.)557; Jones w. Palmer, 1 Dougl. 

V. Noble, 13 Rich. (S. C.) 330; Sage (Mich.) 379; Miller v. Cook, 23 N. Y. 

V. Wilcox, 6 Conn. 81 ; Kershaw v. 495 ; Connecticut &c. Ins. Co. v. Cleve- 

Whittaker, 1 Brev. (S. C.) 9. land &c. E. R. Co., 41 Barb. (N. Y.) 



174 STATUTE OF FRAUDS. [CHAP. IV. 

derive a direct benefit from the forbearance of a person to 
enforce his claim, it affords a good consideration for the prom- 
ise. Thus it has been held that a promise made by one 
creditor to pay the claim of another against their mutual 
debtor, if the latter would forbear testing the validity of a 
judgment which the former had obtained against the debtor, 
is an original undertaking, and not within the statute.^ So 
where A, having shipped goods on a vessel which were dam- 
aged on the passage, was about to call the port-warden to view 
the goods in order to charge the ship-owners with the loss, 
and the agent of the ship-owners promised to pay him the 
amount of the loss if he would sell the goods at auction with- 
out such view, it was held that the promise was not within 
the statute.^ But where the indorser of a note, who had been 
discharged from his liability thereon by the laches of the 
holder, promised him to pay the note if he would forbear to 
sue the maker, it was held that there was no such inde- 
pendent consideration as would take the promise out of the 
statute.^ A promise in consideration that the creditor will 
forbear attaching the property of the debtor,* or will stay 
proceedings on an execution he was about to levy on the 
debtor's property, is within the statute.^ But it has been 
held that a promise to pay any deficiency, etc., in considera- 
tion that a mortgagee would stay the execution of a fore- 
closure judgment is not within the statute where the party 
making the promise has an interest to be subserved.® A parol 
promise of a husband to pay a debt of his wife,'^ or of a wife 
to pay a joint bond of herself and her husband, the bond 

9; Caldwell v. McKain, 2 N. & M. Huntington v. Harvey, 4 id. 124; El- 

(S. C.) 555; Woodward u. Pickett, lison u. Wisehart, 29 Ind. 32; Jones 

Dudley (S. C.) 30; Brown v. Bussey, v. "Walker, 13 B. Men. (Ky.) 356; 

7 Humph. (Tenn.) 573; Hall v. Rod- Turner v. Hubbell, 2 Day (Conn.) 

gers, id. 536 ; Cooper v. Dedrick, 22 457. 

Barb. (N. Y.) 516; Day v. Elmore, 4 * Waldo v. Simonson, 18 Mich. 

Wis. 100; Cheney v. Cook, 7 Wis. 345. 

413. 6 Van Slyok v. Pulver, H. & D. 



' Smith V. Eogers, 35 Vt. 140 

Ferris v. Barlow, 1 Aik. (Yt.) 100 

Templeton v. Bascom, 33 Vt. 132 

Pratt V. Humphrey, 22 Conn. 317 



Supp. (N. Y.) 47 ; Stem v. Drinker, 2 
E. & G. (N. Y. C. P.) 401 ; Durham 
V. Arledge, 1 Strobh. (S. C.) 5. 

^ Johnson v. Noonan, 16 Wis. 687. 



Fish V. Thomas, 5 Gray (Mass.) 45. ' Bagley v. Sasser, 2 Jones (N. C.) 

2 Travis v. Allen, 1 S. & P. (Ala.) Eq. 350 ; Miller u. Long, 45 Peun. St. 

192. 350; Cole v. Shurtliff, 41 Vt. 311. 
8 Peabody v. Harvey, 4 Conn. 119 ; 



SEC. 104.] GUABANTIBS. 175 

being void as to herself,^ is within the statute, and the rela- 
tion of the parties affords no consideration therefor. 

Sec. 103. Consideration KTeed not Move Directly Between 
Parties. — It is not necessary, if the promise is a parol or in 
writing, that there should be a consideration directly moving 
between the persons giving and receiving the guaranty. It 
is enough if the person for tvhom the guarantor becomes surety 
has benefit, or the person to whom the guar'anty is given suffers 
inconvenience as an inducement to the surety to become guar- 
antee for the principal debtor.^ If the promise was made 
upon a consideration which was good at the time the prom- 
ise was made, the fact that it subsequently fails does not 
impair the validity of the promise or bring it within the 
statute. 

Sec. 104. Consideration must be New. — The promise must 
be made on a new consideration; a past or executed con- 
sideration is bad.^ But a promise on a future or executory 
consideration is good, although an existing debt is guaran- 
teed against. Thus, where the defendant gave the following 
note to the plaintiff which he dated and signed: "I hereby 
guarantee the present account of Miss H M due to R T S 
' and Co. (the plaintiffs), of £112 4s. 4(i., and what she 
may contract from this date to the 30th September next ; " it 
was held that there was a sufficient consideration.* So also 

1 Guishaber v. Hairman, 2 Bibb len v. Thompson, 10 N. H. 82 ; Spann 
(Ky.) 320; Thwaits i>. Curl, 6 B. Men. v. Baltzell, 1 Ma. 301; Lemmon v. 
(Ky.) 472. Box, 20 Tex. 329; Huber v. Ely, 45 

2 Morley u. Boothby, 3 Bing. 113, Barb. (N. Y.) 169; Small t>. Schaeffer, 
per Best, C. J. ; and see ex parte 24 Md. 143 ; Smith v. Finch, 3 111. 321 ; 
Minet, 14 Ves. 189; Pillans v. Van Hindmanu.Langford.SStrobh. (S.C.) 
Mierop, 3 Burr. 1663. The rule, as 207; Todd v. Tobey, 29 Me. 219; 
enunciated by Kent, Oh., in Leonard Oldershaw v. King, 2 H. & N. 399, 
V. Vredenburg, 8 John. (N. Y.) 29, is 517 ; Wynne v. Hughes, 21 W. K. 628. 
that a parol agreement to pay the ' Hunt v. Hughes, Dyer, 272 a; 
debt of another is not within the Payne o. "Wilson, 7 B. & C. 423; 
statute, if the promise arises from some Thomas v. Williams, 10 B. & C. 664; 
new consideration of benefit or harm Tomlinson v. Gell, 6 A. & E. 564; 1 
moving between the parties thereto, and N. & P. 588; Eastwood v. Kenyon, 11 
this seems to be the generally recog- Ad. & El. 438 ; 3 P. & D. 276 ; Erench 
nized rule. Meeck v. Smith, 7 Wend. v. French, 2 Man. & Gr. 644 ; Johns- 
(N. Y.) 315; Cross v. Eichardson, 30 ton v. NichoUs, 1 C. B. 251 ; Broom v. 
Vt. 641 ; Reed v. Holcomb, 31 Conn. Batchelor, 1 H. & N. 255. 

360; Dauber v. Blackney, 38 Barb. * Russell w. Moseley, 6 Moo. 521; 

(N. Y.) 432; Dyer v. Gibson, 16 Wis. 6 Brod. & B. 211. 
557; Mason v. Hall, 30 Ala. 599; Al- 



176 STATUTE OF FEATIDS. [CHAP. IV. 

the consideration was held to be .sufficient on the following 
guaranty: "In consideration of your agreeing to supply S 
with goods upon credit, in the way of your trade (the amount 
to be in your own discretion), I hereby guarantee you the. 
due and regular payment of such sum or sums as he may 
now, or at any time, and from time to time hereafter, owe to 
you; my liability under this guaranty is to be limited to 
principal sum in running account of & 100.^ The distinction 
between the effect of a promise made hefor& a debt is con- 
tracted and one made afterwards is illustrated by a Massachu- 
setts case,^ in which it was held that a promise made by one 
person to pay for a dinner furnished to others, made while 
they are in the act of eating it, was within the statute, and 
that the circumstance that relying upon such promise the 
plaintiff forbore to collect the pay for the dinner from the 
persons who were eating it, gave no additional force to the 
promise. But a verbal promise made by A before a meal is 
furnished to B, that he wiH pay for it, is an original under- 
taking and valid.^ The employment of a third person is a 
sufficient consideration to support a promise to answer for 
his default. The party indemnified is not bound to employ 
the person designated by the guaranty ; but if he does em- 
ploy him, then the guaranty attaches, and becomes binding 
on the party who gave it.* 

Sec. 105. Consideration Need not Appear in the Guaranty. — 

Formerly it was necessary that the consideration for the 
promise, as well as the promise itself, should appear on the 
face of a guaranty .^ This rule was doubted in several cases,^ 
but was finally settled in Saunders v. Wakefield.'^ It proved, 
however, to be a grievance to the mercantile community ; * 
and now it is provided in England and several of the States 
in this country that the consideration need not be stated. 

1 White !). 'Woodward, 5 C. B. 810; Armstrong, 6 Bing. 201; Lysaght v. 
and see Stead v. Liddard, 1 Bing. 196 ; Walker, 6 Bligh (N. E.) 1 ; Offlord v. 
Coe V. Duffield, 7 Moo. 252 ; Chapman Davies, 12 C. B. (N. S.) 748. 

V. Sutton, 2 C. B. 644 ; Boyd v. Moyle, ^ "Wain v. Warlters, 5 East, 10. 

2 C. B. 644. 6 Ex parte Minet, 14 Ves. 189; ex 

2 Tilcston V. Nettleton, 6 Pick, parte Gardom, 15 Ves. 286; Phillips 
(Mass.) 509. v. Bateman, 16 East, 356 ; Goodman 

' Porter v. Langhom, 2 Bibb (Ky.) v. Chase, 1 B. & Aid. 300. 
63. ' 4 B. & Aid. 595. 

* Kennaway v. Treleavan, 5 M. & s i Wms. Saund. 227. 
W. 498, per Pakke, B. ; Newbury v. 



SBC. 106.] GTJAEANTLES. 177 

This is the case in Illinois, Indiana, Massachusetts, Michi- 
gan, Kentucky, Nebraska, New Jersey, and Virginia, while 
in Minnesota, Montana, Nevada, New York, Oregon, Utah, 
and Wisconsin the statute expressly provides that the consid- 
eration must be expressed in the writing, while in the others 
no provision in this respect is made, and the matter rests upon 
the construction of the courts. 

These statutes are not retrospective, ^ nor do they exempt 
guaranties from the application to them of the ordinary rule 
of evidence with reference to written instruments, except in 
so far as they allow the terms constituting the consideration 
to be added by parol. By the ordinary rules of evidence 
proof of the actual consideration is admissible in cases of 
patent ambiguity, where the language of the instrument 
renders it uncertain as to which of two or more matters 
severally mentioned therein was the consideration upon which 
it was given.2 But, though parol evidence may supply the 
consideration for a guaranty, it cannot be admitted to explain 
the promise, which must still be in writing,^ because opposed 
to the rule that parol evidence cannot be admitted to change 
the terms of a written contract. 

Sec. 106. Special Consideration not KTecesBary. — In the 
case of guaranties, while a consideration is required to sup- 
port them, yet they do not necessarily require a special or 
separate one, Chancellor Kent, in a New York case,* 
divides the consideration of guaranties into three classes : — 

1. Where the promise is made at the same time that the debt is 
created. 

2. Where the promise is made subsequent to the creation of the 
debt; and 

3. Wliere the promise arises out of some new and original consid- 
eration of benefit or harm, moving between the promisor and prom- 
isee. 

It will not be necessary to consider these matters extend- 
edly here, as they are considered elsewhere in this chapter 
quite fully, but it may be said as to the first class that the 
same consideration which supports the principal debt supports, 
the promise. As to the second, a valid consideration beyond. 

> Taylor on Evid. 6th ed. 905. 361 ; 28 L. J. C. P. 301. 

a 1 Sm. L. C. 7th ed. 816. * Leonard v. Vredenburgh, 8 John. 

8 Holmes «. Mitchell, 7 C.B. (N. S.) (N. Y.) 29. 



178 STATUTE OF PKAUDS. [CHAP. IT. 

that upon which the original debt was created must appear 
or be showii,^ while as to the third, the contract being origi- 
nal does not come within the statute at all. 

Sec. 107. Parol Evidence Admissible to Identify Subject- 
matter of Promise. — Parol evidence is admissible to identify 
the subject-matter in respect o£ which the promise is made ; 
as, for instance, to explain what is meant by " the promissory 
note,"' there not being evidence of any other note to which 
the words could apply .^ Where the defendant wrote to the 
plaintiff's attorney, who was about to sue one David WiUiams 
for a debt due to the plaintiff : " Sir, — The bearer, David 
Williams, has a sum of money to receive from a client of 
mine some day next week, and I trust you will give him 
indulgence till that day, when I undertake to see you paid," 
— it was held that parol evidence was admissible to identify 
the amount of the debt.* Although the guaranty is binding, 
notwithstanding that the consideration does not appear on 
the face of it, yet the consideration must be proved.* 

Sec. 108. Bad Promise not Helped by Statute.— The statute 
does not make a promise good which was not good before,® 
nor place the promisor's liability on any different basis than 
that of the person promised for, and if the consideration 
stated is bad, the guaranty will not be helped by the statute.^ 
A promise to answer for the debt of another, even though 
not within the statute, does not impose any greater liability 
upon the promisor than existed against the person for whom 
the promise is made ; consequently where the promise is to 
answer for another upon a contract, no action lies against the 
promisor while the contract remains unperformed.^ This 
rule is well illustrated by a Vermont case,^ in which the 
defendant while the plaintiff, a physician, was attending his 

1 Ware v. Adams, 24 Me. 177 ; explain a written instrument, post. 
Crane v. Bulloch, R. M. Charlt (Ga.) chapter on the Memorandum or note 
318 ; Gillighan v. Boardman, 29 Me. in writing. 

79; Huntress v. Patten, 20 id. 28; ^ Glover u. Halkett, 2 H. & N. 489. 

DeWolfti.Robsand, IPet. (N.S.)466; 5 Holmes «. Mitchell, 7 C. B. 

ElHott V. Gresse, 7 H. & J. (Md.) 457. (N. S.) 361 ; 28 L. J. C. P. 30, per 

2 Shortrede v. Cheek, 1 Ad. & El. Btles, J. 

57; 3 N. & M. 866. ^ Wood v. Priestner, L. E. 2 Ex. 

8 Bateman v. Phillips, 15 East, 272 ; 71, per Bramwall, B. 

add see Brunton v. DuUens, 1 P. & F. ' Baker v. IngersoU, 39 Mich. 158. 

450. See further as to the admis- ^ Smith u. Hyde,. 19 Vt. 54. 
sibUity of parol evidence to vary or 



SEC. 110.] GUARANTIES. 179 

father and mother under a contract with the father that 
"if there was no cure, there should be no pay," executed to 
the plaintiff a writing by which he agreed to be " holden " to 
him "for the payment of his bill for medicine and attend- 
ance " upon his father and mother, and it was held that the 
undertaking of the defendant was collateral merely to the 
contract beween his father and the plaintiff, and could not 
be enforced against him, unless it could also be enforced 
against the father under the contract. 

Sec. 109. statement of Consideration. — If there is a good 
consideration, it is not necessary that it should appear in 
express terms ; it will he sufficient in any case, if the memoran- 
dum is so framed that any person of ordinary capacity must 
infer from the perusal of it that such and no other was the 
consideration upon which the undertaking was given} Where 
the plaintiff, having shipped goods to R S, refused to deliver 
the bill of lading to him without a guaranty, upon which the 
defendant enclosed a bill — accepted by R S — in a letter to 
the defendant, in which he stated that R S having accepted 
the biU, he gave his guaranty for the due payment of it, in 
case it should be dishonored, it was held that the considera- 
tion was suflSciently expressed upon the guaranty.^ 

Sec. 110. Amount of Consideration. — The adequacy of the 
consideration will not he taken into account, so long as there 
is any consideration at all? The courts refuse to enforce a 
contract only where it is nudum pactum, that is to say, where 
there is an absence of consideration, not where the considera- 
tion is inadequate merely, for the law has nothing to do with 
the prudence or imprudence of the bargain.* The following 
memorandum, signed by the defendant, was held to be suffi- 
cient to charge him within the statute : "I hereby guarantee 

' Hawes v. Armstrong, 1 Bing. 679; 3 Moo. 15; and see Pace u- 

(N. C.) 761 ; 1 Scott, 661, per Tindal, Marsh, 1 Bing. 216 ; Oldershaw v. 

C. J. ; see also Shortrede v. Cheek, King, 2 H. & N. 517 ; 27 L. J. Ex. 

1 Ad. & EI. 57; Bentham v. Cooper, 5 120. 

M. & W. 621 ; Emmott v. Keams, 5 » Roll. Abr. 23, pi. 29 ; Edwards v. 

Bing. (N. C.) 559; Haigh w. Brooks, Baugh, 11 M. & W. 641; Semple v. 

10 Ad. & EI. 309; James v. Williams, Pink, 1 Ex. 74. 

5 B. & Aid. 1109; 3 Nev. & Man. 196 ; * Johnston v. NichoUs, 1 C. B. 272, 

Powers V. Fowler, 4 E. & B. 511. per Erle, J. 

2 Boehm v. Campbell, 8 Taunt. 



180 STATUTE OF FRAUDS. [CHAP. IV. 

to you the payment of the proceeds of the goods you have 
consigned to my brother, J P, of Sydney, and also any future 
shipments you may make to him, in consideration of the sum 
of 2s. Qd. paid to me, which I hereby acknowledge to have 
received," it being a necessary intendment that the considera- 
tion was paid by the plaintiff.^ 

Sec. 111. Construction of Guaranty : Admissibility of Parol 
Evidence. — If a guaranty is ambiguous, or primarily imports 
a past consideration, parol evidence may be admitted to show 
that the parties intended it to refer to a future transaction.^ 
In an action on the following guaranty : " In consideration 
of your having this day advanced to our client, Mr. S D, 
£150, secured by his warrant of attorney, payable on the 
22nd of August next, we hereby jointly and severally under- 
take to pay the same on default, etc.," it was held that the 
instrument was sufficiently ambiguous to admit of evidence 
to show that the advance was not a past one, but was made 
simultaneously with the execution of guaranty.^ Where 
the defendant gave a guaranty in the following terms : 
"Gentlemen, as Mr. D informs me you require some per- 
son as guaranty for goods supplied to him by you in his 
business, I have no objection to act as such for payment of 
your account," it was held that the guaranty was not on 
its face a guaranty in respect of a past supply, but was to be , 
read as if it were for goods to be supplied.* 

Sec. 112. Rules for Construing Guaranties. — In construing 
guaranties, the surrounding circumstances should be taken 
into consideration.^ And in certain cases the principle of 
construction, ut res magis valeat quam pereat, may be ap- 
plied.^ But the maxim in question does not apply in 
cases where there are extrinsic circumstances, in relation 

1 Dutchman v. Tooth, 7 So. 710; v. Ames, 23 L. T. (N. S.) 729; "Way v. 
and see Edwards v. Baugh, 11 M. & Hearn, 13 C. B. (N. S.) 305. 
W. 641. 6 Newell v. Kadford, L. R. 3 C. P. 



2 Haighti.BrookSjlOAd. &E1.309 
aff'd. nom. Brooks v. Haigh, ib. 334 
Butcher V. Stewart, 11 M. & W. 873 



52 ; Heffield o. Meadows, L. R. 4 C. 
P. 595 ; Laurie v. Schofleld, L. R. 4 
C. P. 622; Coles v. Pack, L. R. 5 



King V. Cole, 2 Exch. 632. C. P. 65. 

8 Goldshede v. Swan, 1 Exch. 154. ^ Broom v. Batchelor, 1 H. & N. 

* Hoad V. Grace, 7 H. & N. 494; 255; 25 L. J. Ex. 299; Steele ». Hoe, 
31 L. J. (Ex.) 98; and see Mockett 14 Q. B. 431 ; 19 L. J. Q. B. 89 ; Newell 

V. Radford, L. R. 3 C. P. 52. 



SEC. 113.] GUARANTIES. 181 

to which the words used are, in their primary sense, intel- 
ligible.^ A guaranty indorsed on an agreement may be read 
with the agreement for the purpose of making out a consider- 
ation.^ If the words of a guaranty, in their ordinary accep- 
tation, are capable of expressing either a past or a concurrent 
consideration, that construction will be adopted which makes 
the instrument valid.^ Where the defendant gave the follow- 
ing guaranty : " In consideration of E R & Co. giving credit 
to D J, I hereby engage to be responsible, and to pay any sum, 
r.ot exceeding £120, due to the said E R & Co. by the said 
D J," it was held that the guaranty was good and binding, 
the words " giving credit " being equally applicable to future 
as to past advances.* If the guaranty does not import that it 
is to attach upon future advances, and refers, in fact, to past 
transactions only, without showing a future consideration, it 
is void.^ Where the defendant gave the following guaranty : 
"I hereby guarantee Mr J J's account with you for wines 
and spirits to the amount of £100," it was held that the 
guaranty was for an existing account, and not for a future 
supply.^ 

Sec. 113. instances of Considerations. — Although it is no 
longer necessary that the consideration should appear on the 
face of the guaranty in a majority of the States,'^ yet, as a 
consideration must exist, it will be convenient to refer to 
some of the older cases, which turned upon the suflSciency 
of the consideration. Guaranties for the payment of any 
goods which the plaintifP should deliver to A,^ for the pay- 
ment of a debt owing by A, if the plaintiff would withdraw 
a promissory note,^ give up a security ,1" or stay an action,^^ 

1 Broom a. Batchelor, 1 H. & N. ^ AUnutt w. Ashenden,6 Sc. (N. R.) 
255; 25 L. J. Ex. 299, per Beam- 127; and see Boyd i,. Moyle, 2 C. B. 
WELL, B. 644. . 

2 Coldham v. Showier, 3 C. B. 312. ' See Chapter on " I^emorandum." 
8 Steele v. Hoe, 14 Q. B. 431; 19 « Stadt v. Lill, 9 East, 848, S. 0. 

I/. J. Q. B. 89. nom. ; Stapp v. Lill, 1 Camp. 242 ; see 

* Edwards v. Jevons, 8 C. B. 436; also ex parte Gardom, 15 Ves. 286; 

19 1/. J. C. P. 50 ; and see Bainbridge Price v. Richardson, 15 M. & W. 539. 

V. "Wade, 16 Q. B. 89; Brooks v. 9 ghortrede i;. Cheek, 1 Ad. & El. 57. 

Haigh, 10 A. & E. 334; Colbourn v. i" Peate v. Dicken, 5 Tyr. 116; 1 

Dawson, 10 C. B. 765. C. M. & B. 422 ; Goodwin «. Bond, 69 

E Bell V. "Welch, 9 C. B. 154; 19 N. H. 

L. J. C. P. 184; "Westhead v. Sproson, " Tanner v. Moore, 9 Q. B. 1. 

6 H. & N. 728 ; 30 L. J. Ex. 265. 



182 STATUTE OF FRAUDS. [CHAP. IV. 

have been held to be sufficient. So undertakings to see rent 
paid,i to pay goods ordered by A,^ and a promise conditional 
on the plaintiff's accepting a certain offer ,^ have been held to 
be sufficient. 

The following memorandums : " To the amount of £100 
be pleased to consider me as a security on J C's account," * 
and, " I undertake to secure to you the payment of any sums 
you have advanced, or may hereafter advance, to D on his 
account with you, commencing 1st November, 1831," ^ have 
been held not to express a sufficient consideration ; and where 
the defendant wrote as follows : " As you have a claim on 
my brother for £5 17s. 9c?. for boots and shoes, I hereby 
undertake to pay the amount within six weeks from this 
date," it was held that the consideration, viz., forbearance for 
six weeks, did not appear, and that the guaranty was bad.^ 
The fact that goods were brought by a third person but for 
and used by the promisor, does not afford such a moral 
obligation as will support his parol promise to pay for them, 
if he was under no legal obligation to do so when they were 
purchased, and a promise to pay for the goods after they were 
purchased and delivered upon the credit of a third person, is 
within the statute, unless the original debtor by the agree- 
ment of the parties is discharged from the debt.^ But where, 
by the terms of a parol promise, the original debtor is dis- 
charged and the promisor is substituted in his place as 
debtor, the promise is not within the statute, although there 
is no other consideration therefor than the original debtor's 
discharge.* 

Sec. 114. Meaning of the ■Words "Debt," "Default," "Mis- 
carriage." — The words "debt," "default," or "miscarriage" 
apply (1) to guaranties for an existing debt, (2) to guar- 
anties for future debts, or for future losses, which may be 
incurred by the acts of a third party, (3) to some past or 



1 Caballero v. Slater, 14 C. B. 300. « James v. 'WiUiams, 3 Nev. & 

2 Jarvia v. Willdns, 7 M. & W. 410. Man. 196 ; and see Ellis v. Levy, 1 
8 Powers V. Fowler, 4 E. & B. 511. Sc. 669 n. (a). 

* Jenkins v. Eeynolds, 6 Moo. 86; ' Hendricks v. Hobinson, 5 Miss. 

3 Brod. & B. 14. 694. 

» Eaikes v. Todd, 8 A. & E. 846; ^ Underwood v. Lovelace, 61 Ala. 

and see Cole v. Dyer, 1 Tyr. 304. 155. 



SEC. lis.] GTTAEANTIES. 183 

future default in duty by a third party.^ The adjective 
" special " describing the kind of promise has no other effect 
than to distinguish express from implied promises, and by 
necessary inference to except the latter from the operation 
of the statute.^ In the case last cited, Hosmer, C. J., in a 
very able opinion, defined the form of this phrase. He said : 
" The first expression in the statute is ' that no suit in law or 
equity shall be brought on any contract or agreement.' The 
words * contract ' and ' agreement ' are used synonymously, 
and are followed by this phraseology 'whereby to charge tlie 
defendant on any special promise.' The expression ' special 
promise ' most obviously is applied to the same subject, and 
with the same extent as the preceding words 'contract or 
agreement.' The word ' special ' has no other effect than to 
show that promises in fact were referred to, and not promises 
implied by law, for every actual promise is particular or special. 
The statute, then, comprising the same ideas it now does, 
might have been thus expressed, ' whereby to charge the defendant 
on any promise, except a promise in law.' " ^ 

Sec. 115. Promise Partly "Within and Partly 'Without Statute. 
— Where a promise is entire, and is void from the commencement 
as to part, for not being in writing, the parts being indivisible, no 
a,ction can be brought on that part of the promise which is not within 
the statute, but the whole promise is void. Thus, where the 
defendant, in consideration that the plaintiif would not dis- 
train for rent in arrear, verbally promised to pay him, not 
only the rent due, but the rent due at the ensuing quarter- 
day, it was held that the promise to pay the accruing rent 
was a promise founded on a new consideration, distinct from 
the demand which the plaintiff had against the tenant, and, 
therefore, void under the statute ; and that the promise being 
entire, and in the commencement void in part, was void 
altogether, and that the plaintiff, therefore, could not recover 
from the defendant the rent due at the ensuing quarter-day.* 

1 See De Colyar on Guaranties, 305; Pike v. Brown, 7 Cush. (Mass.) 
pp. 45-49; and Kirkham v. Marter, 313. 

2 B. & Aid. 613; Mountstephen v. * A servant was injured by the 

Lakeman, L. R. 7 Q. B. 197. wrongful act of B. A physician 

2 Sage V. "Wilcox, 6 Conn. 81. called in by B came to A's house and 
' Goodnow V. Gilbert, 9 Mass. 510 ; attended the servant, immediately 

Allen V. Pryor, 3 A. K. Mar. (Ky.) after which, A told the physician 



184 STATUTE OP FEAUDS. [CHAP. IV. 

Where, however, the promise is divisible, an action may be brought 
upon that part which is not within the statute. Thus, where a 
guaranty as follows was given : " I, the undersigned, do 
hereby engage to pay the directors of the Manchester Gas 
Works, or their collector, for all the gas which may be con- 
sumed in the Minor Theatre, and by the lamps outside the 
theatre, during the time it is occupied by my brother-in-law 
Mr. Neville; and I do also engage to pay for all arrears 
which may be now due." It was held that the agreement 
was void as to the arrears, but that the amount of the gas 
supplied might be recovered.^ 

In Loomis v. Newhall,^ where the defendant's son had 
already become Uable to the plaintiff for supplies, the plaintiff, 
at the request of the defendant, continued to furnish the son 
with supplies, upon the defendant's promise that " for what 
you have done and for what you may do for my son, I wiU 
see you paid," and it was held that the defendant was not 
liable under this promise for that part of the claim accruing 
after the promise was made because there could be no recovery 
on that part of the debt which accrued before by reason of 

about the accident and that B was hie contract a third person tells him 
responsible for it, and then added, to " go on and finish the work, and I 
" but, doctor, you need not be alarmed will see you paid," upon the faith of 
about your bill. I will see that you which he does complete it, the prom- 
are paid." The physician continued ise is without consideration and with- 
his treatment until the patient was in the statute, even though the prom- 
. cured, but it was held that no recov- isor has sufficient funds in his hands 
ery could be had of A, as his promise belonging to the debtor to pay the 
was within the statute. Rose v. claim. Birchell v. Neaster, 36 Ohio 
O'Linn, 10 Neb. 364. In a similar St. 831 ; Thomas u. Williams, 10 B. 
case in Illinois, King v. Edmunston, & C. 664 ; and see Lexington v. 
88 m. 267, it was held that while the Clarke, 2 Vent. 223 ; Chater v. Beck- 
physician could not recover upon the ett, 7 T. R. 201 ; Mechelen v. Wal- 
promise for past visits, he could re- lace, 7 Ad. & El. 49 ; 2 N. & P. 224 ; 
cover for those made after the prom- Head v. Ealdrey, 6 Ad. & El. 469 ; 2 N. 
ise was made. And a similar rule & P. 217 ; Hodgson v. Johnson, E. B. 
was adopted in Illinois as to a prom- & E. 685 ; 28 L. J. Q. B. 88 ; Vaughan 
ise to pay for goods sold to another, v. Hancock, 3 C. B. 766; Harman v. 
Hartley v. Varner, 88 id. 661. Where Reeve, 18 C. B. 687 ; Cooke v. Tombs, 
a person is performing labor under Ans. 420 ; Lea v. Barber, ib. 425, n. ; 
an entire contract, as, to erect a house Corder v. Drakeford, 3 Taunt. 382.; 
and furnish materials, he is under a Neal «. Viney, 1 Camp. 471. 
legal obligation to complete it ; and i Wood v. Benson, 2 Cr. & J. 94 ; 
if, before its completion, he refuses to 2 Tyr. 93 ; see also Earl of Falmouth 
go on upon the security of the person v. Thomas, 1 Cr. & M. 101. 
for whom he is performing the ser- ^ 15 pjck. (Mass.) 159. But see 
vice, and to induce him to perform Bobson v. Harwell, 6 6a. 689. 



SEC. 115.] GUARANTIES. 185 

it being within the statute, the court proceeding upon the 
ground that the promise being void in part was void in toto. 
But the doctrine of this case has been overruled,^ and in a 
recent case in that State ^ it was held that an oral promise to 
pay for past and future board of the child of another at a 
certain weekly rate, is severable, and that a recovery might 
be had for the board of the child after the promise was made. 
In Rand v. Mather, ante, the rule which generally prevails was 
announced, that if a part of a contract is valid, and the part 
which is valid can be separated from that which is invalid, 
it will be given effect to pro tanto. In that case the plaintiff 
contracted to do certain work for B, but quit work because 
B failed to pay him according to the contract. Thereupon, 
the defendant told him to finish the work and he would pay 
him in full. It was held that, while no recovery could be 
had for the work done before the promise was made, yet a 
recovery might be had for that done after it was made.^ But 
where the contract is entire, and not divisible, if a part is 
invalid because within the statute, the whole is invalid. 
Thus in Irvine v. Stone, ante, it was held that a contract for 
the purchase of coal in Philadelphia, and to pay the freight 
on the same to Boston, was not divisible so that a recovery 
could be had for the freights. A deed void in part and 
good in part is void in toto. It cannot be held good for part 
and void as to the remainder.* In Dowling v. McKinney,^ A 
orally agreed to convey lands to B and to take in exchange, 
or payment, a monument, to be of a certain value when finished, 
and the balance in money. B completed the monument and 
tendered it to A together with the balance of the money, 
which he refused to accept. B also performed certain labor 
in preparing the foundation for the monument. A refused to 
convey the land, and in an action to recover for the value of 

J Band v. Mather, 11 Cush. (Mass.) promise to pay the antecedent debt of 

1. See also Irvine v. Stone, 6 id. 508, a third person. 

where, while the case was not referred * See also Allen v. Leonard, 16 

to, yet a doctrine wholly inconsistent Gray (Mass.) 202, where the same 

therewith was held. rule was adopted under a similar state 

2 Haynes u. Nice, 100 Mass. 327. of facts. 

In Pfeiffer v. Adler, 37 N. Y. 164, it ^ Smith v. Kenny, 1 Mackey (D. 

was held that a verbal promise to sell C.) 12. 

goods to a responsible party for full ' Dowling v, McKinney, 124 Mass. 

value and on the usual terms, forms 478. 
no consideration for an independent 



186 STATUTE OP PBATTDS. [CHAP. IV. 

the monument, it was held that, the contract being entire and 
within the statute, no recovery could be had therefor, but 
that, if the foundation was laid on A's land, and was to his 
benefit, a recovery might be had for the labor so expended. 
The rule is that, if some of the stipulations of a contract 
are within the statute and others are not, and those within 
it have been performed, an action lies upon the other stipula- 
tions if they are separate ; ^ but if they are not separate, no 
recovery can be had for either.^ In Vermont^ an agree- 
ment to convey lands, coupled with a guaranty that a certain 
piece of it contains a certain number of acres, has been held 
to be entire, and the • same has been held as to a contract to 
convey lands and pay off the incumbrances,* or to take an 
assignment of a lease of lands and buy the stock,^ or to sell 
an interest in a mill and all the timbers and irons belonging 
thereto,^ or to let a house and the furniture therefor ; '' but 
this rule does not apply when the lease of the house has 
been actually delivered,^ although it is held that even where 
a valid lease is delivered, legal vitality is not thereby given to 
a parol agreement to pay a bonus.® The rule in reference 
to the severability of contracts may be said to be that, if the 
part to be performed by one party consists of several distinct 
and separate items, and the 'price to be paid by the other is 
apportioned to each item to be performed, or is left to be 

1 Page V. Monks, 5 Gray (Mass.) Lamb w. Crafts, 12 Met. (Mass.) 353; 
492; Tunbridge v. Wetherbee, 11 Dack t. Hart, 7 "W. & S. (Penn.) 172; 
Allen (Mass.) 361 ; Hand v. Mather, Duncan v. Blair, 5 Den. (N. Y.) 196; 
11 Cush. (Mass.) 1; Pierce v. Wood- Noyes v. Humphries, 11 Gratt. (Va.) 
ard, 6 Pick. (Mass.) 206; Mobile &c. 636; Alexander v. Guiselin, 5 Gill. 
Ins. Co. V. McMillan, 31 Ala. 711; (Md.) 138; Henderson v. Hudson, 1 
Wood V. Benson, 2 C. & J. 94 ; Little- Munf. ( Va.) 510 ; Crawford v. Morrell, 
John, ex parte, 3 M. D. & DeG. 182; 8 John. (N. Y.)253; Woodw. Benson, 
Mayfield v. Wadsley, 3 B. & C. 357. 2 C. & J. 94. 

2 McMullen v. Riley, 6 Gray » Dyer v. Graves, 37 Vt. 369. 
(Mass.) 50; Lexington v. Clark, 2 * Duncan u. Blair, ante; Dack v. 
Vent. 223 ; Reinbalt v. East, 56 Ind. Hart, ante. 

538; Thomas v. Williams, 10 B. & C. ^ Lea v. Barber, 2 Anst. 425, n. 

664 ; Chater v. Beckett, 7 T. R. 201. " Thayer v. Rock, 13 Wend. (N. Y.) 

In Biddell v. Leeder, where the de- 53. 

fendant agreed to purchase the plain- ' Mechelen v. Wallace, 7 Ad & El. 

tiff's share in a ship, and to indemnify 49; Vaughan v. Hancock, 3 C. B. 766. 

him from .all liability on account of ^ Angell v. Duke, L. R. 10 Q. B. 

his share, it was held that the contract 174. 

was entire, and that no recovery ' Sanderson v. Graves, L. R. 10 

could be had upon either branch of it. Exchg^. 234. 



SEC. 116.] GtrAEANTIES. 187 

implied by law, the contract will generally be held severa- 
ble ; and the same rule holds where the price to be paid is 
clearly and distinctly apportioned to different parts of what 
is to be performed, although the latter is in its nature single 
and entire. In Rand v. Mather,^ the court lay down the 
rule as follows: "On principle and according to numerous 
modern adjudications, the true doctrine is this : If any part 
of an agreement is valid, it will avail pro tanto, though 
another part of it may be prohibited by statute, provided 
the statute does not, either expressly or by necessary impli- 
cation, render the whole void; and provided, furthermore, 
that the sound part can be separated from, the unsound, and be 
enforced without injustice to the defendant. ... In the applica- 
tion of this doctrine, Chakcblloe Kent says : 'if the part 
which is good depends upon that which is bad, the whole is void; 
and so I take the rule to be, if any part of the consideration 
be malum in se, or the good and the void consideration be so 
mixed, or the contract sO entire that there can be no appor- 
tionment.' " ^ 

Sec. 116. Rule in Couch v. Meeker. — In a Connecticut 
case,^ where a note was given by A to B for five hundred 
dollars, upon which there was endorsed a condition as fol- 
lows: "The condition of this note is such that the said 
Meeker hath this day bargained his Starr farm (so called) 
to the said Couch ; now, if the said Meeker stands to 
the bargain, the within note is to be void; if. not, then the 
within note is to stand in full force." In an action upon 
the note it was held that the statute of frauds did not 
preclude the plaintiff from proving by parol evidence that 
the note was delivered as an escrow, whatever the conditions 
on which it was to take effect, and that they were performed, 
although the conditions respected a parol contract for the 
sale of lands; the object of the testimony being, not to 
support an action upon such parol contract for the sale of 
lands, but to show that a written contract to pay money had 
taken effect. Swift, C. J., in the course of his opinion, 
in giving the reason for the decision, said : " The statute only 
requires that the agreement on which the action is brought 

1 Eand v. Mather, 11 Cu8h.(Mass.) 1. ^ Couch v. Meeker, 2 Conn. 302. 

2 2 Kent's Com. 6th ed. 467. 



188 STATUTE OF PBATJDS. [CHAP. IV. 

should be in -writing. This action is brought on a written 
obligation, complete in itself; and is warranted by a literal 
construction of the statute. Though it was delivered as an 
escrow, to take effect on the performance of certain condi- 
tions, which amounted to a contract for the sale of lands, 
yet such conditions are not required by the terms of the 
statute, or any construction ever given it to be in writing. 
These conditions are not part of the written contract, but 
only the terms upon which it was to take effect, or not ; the 
proof of them, then, is necessary only to prove the execu- 
tion of a written contract. The proof of the execution of 
a written contract must be by parol ; and it might as well 
be said, that parol proof is not admissible respecting the 
delivery of a deed conveying lands, as to say it cannot be 
admitted respecting the performance of the conditions on 
which such deed is to operate; for in both cases, it is no 
more than proving the execution of the contract ; and it has 
often occurred, that deeds conveying lands have been de- 
livered as escrows upon parol conditions, and they have 
never been considered as void by the statute of frauds and 
perjuries. 

It has been argued, that this is in substance an action to 
recover damages for the breach of a parol contract for the 
sale of lands, though it is in form an action on a written 
contract. Admitting this to be trite, there was, in substance, a 
written contract to pay a certain liquidated sum in damages, in case 
a parol contract for the sale of lands should not be performed. It 
is on this written contract that this action is founded; and is, of 
course, strictly conformable to the requirements of the, statute. 

It has been insisted, that a court of equity could not have 
decreed a specific performance of the parol contract for the 
sale of the land in question ; and that, of course, a court of 
law cannot give damages for the non-performance of it. It 
will be conceded that equity could not have interposed, and 
compelled a specific performance of the bargain for the sale 
of the farm, for this rested in parol, and the note did not 
specify the terms of it. But there is no rule that a court 
of law will not give damages for the breach of a contract 
respecting the sale of land, which equity cannot enforce. 
... It is said that written conditions were annexed to the 
note, different from the parol conditions, and that proof 



SEC. 117.] GUARAKTIES. 189 

could not be admitted respecting such parol conditions. 
But the efficacy of the note depended on the parol conditions on 
which it was delivei'ed in escrow; of course it operated when 
these were performed, and the written conditions were imma- 
terial. And though it was not formally delivered over by 
the depository to the plaintiff, yet it took effect in his hands 
the instant the conditions were performed, without any formal 
act of delivery on his part." The doctrine of this case cannot 
be successfully questioned, nor is it aU obnoxious to the rule 
that, where part of an entire contract is void by the statute, 
the whole is void.^ In a Texas case ^ an action was brought 
upon a note, as follows : " Thirty days after date I promise 
to pay J. A. Donathan, or bearer, two hundred and fifty 
dollars, with five per cent interest per month until paid, for 
value received. The consideration of the above note is one- 
half of a certain town lot in the town of Jacksboro, in lot 
four, in block number three, L. L. Crutchfield." The note 
was given under a parol agreement for the sale of lands, and 
the land had not been conveyed at the time when the action 
was brought; but the plaintiff alleged that he was ready 
and willing to convey. The court held that, although such 
a note given under such circumstances may not be such a 
a memorandum as satisfies the statute, the maker cannot 
avoid the note because he has omitted to bind the vendor.' 
In an Illinois case,* in an action upon a note, the defendant 
alleged the delivery and acceptance of real estate in fuU 
satisfaction. The court held that an instruction that a 
verbal agreement for the sale and delivery of real estate 
would be void within the statute and could not be set up in 
defence, was erroneous, as the statute has no application to 
such case, as, if the plea is sustained, the contract is exe- 
cuted, and, if not sustained, the defence fails. 

Sec. 117. Promise to give Guaranty. — A promise to give 
a guaranty is required to be in writing as much as a guaran- 



' Van Alstine w. Wimple, 5 Cow. ^ Crutchfield v. Donathon, 49 Tex. 

(N. Y.) 162; Goodrich u. Nickols, 2 691. 

Root (Conn.) 498; Patterson v. Cim- ^ Rhodes v. Starr, 7 Ala. 347; 
ningham, 12 Me. 506; Rice v. Peet, 15 McGowen v. West, 7 Mo. 569. 
John. (N. Y.) 503. * Thayer v. McEwen, 4 111. App. 

416. 



190 STATUTE OF FEATTDS. [CHAP. IV. 

ty itself.^ But a promise to procure a guaranty from a third 
person is not within the statute. This was decided in the case 
of Bushel V. Beavan.^ There the plaintiffs, the owners of a 
ship hired on a charter-party by H. Semphill, refused to let her 
saD. till certain disputes about the freight between them and 
H. Semphill were settled by H. Semphill's giving security, 
whereupon the defendant, in consideration that plaintiffs 
would let H. Semphill sail without giving security, under- 
took to get P. Macqueen to sign the following guaranty: 
" Whereas H. Semphill has hired your ship for six months 
from the 12th July, 1830, and such longer time as his 
intended voyage may require, and has paid or secured the 
freight for six months from the 20th August, 1830, and is 
about to leave England, I guarantee the payment of freight 
which shall accrue for any portion of the voyage after the 
said six months." It was held that the guaranty was 
within the statute, but that the undertaking to procure 
P. Macqueen's signature was not. 

Sec. 118. Offer to Guarantee does not Bind till Accepted. — ' 
A mere offer to guarantee is not sufficient to bind the person 
making it, until he has notice that it is regarded as a 
guaranty and is accepted, or until he has consented to its 
being considered as conclusive. Thus, where the defendant 
gave the following letter to A (to whose house the plaintiffs 
had declined to furnish goods on their credit alone) : " I 
understand A & Co. have given you an order for rigging, 
etc., which wUl amount to about X4,000. I can assure you 
from what I know of D A's honor and probity, you wlLL be 
perfectly safe in crediting them to that amount, indeed I 
have no objection to guarantee you against any loss from 
giving them this credit ; " and this letter was handed over 
by A to the plaintiffs, with a guaranty from another house 
which they required in addition, and the goods were there- 
upon furnished ; the letter was considered not to amount to 
a guaranty, there being no notice given by the plaintiffs to 
the defendant that they accepted it as such, or any consent 
of the defendant that it should be a conclusive guaranty.^ 

1 Mallett V. Bateman, L. R. 1 C. P. » Mclver v. Eiohardson, 1 M. & 
170. Sel. 557 ; and see Coleman v. Upcot, 

2 1 Bing. (N. C.) 103; 4 Moo. & S. 5 Tin. 527; Bird v. Blosse, 2 Vent. 
622. 361; Hodgson v. Hutchinson, 5 Tin. 



SEC. 122.] GUABANTIES. 191 

Sec. 119. Offer may be Withdrawn. — Until an. offer tO 
guarantee lias 'been accepted, it may be revoked by the 
person -who has made it. In Offord v. Davies,i it was held 
that a guaranty to secure moneys to be advanced to a third 
party on discount to a certain extent "for the space of twelve 
calendar months," might be countermanded within that time. 

Sec. 120. implied Aooeptanoe. — Acceptance of an offer to 
guarantee may be implied from the action of the parties. 
Where a guaranty was given in the following terms : " I 
hereby guarantee to you the sum of £250 in case Mr. P 
should make default in the capacity of agent and traveller 
to you ; " it was held that the person indemnified was not 
bound to employ the person designated by the guaranty, 
but that, if he did employ him, the guaranty attached and 
became binding on the person who gave it.^ 

Sec. 121. I!:spress Acceptance. — The terms of the offer 
may, however, show that an express acceptance is expected, 
and then the guaranty is not conclusive unless it has been 
expressly accepted. Thus, where the defendant wrote as 
follows: "F informs me that you are about publishing an 
arithmetic for him. I have no objection to being answerable 
as far as £50. For my reference apply to B of this place ; " 
the memorandum was witnessed by B, and forwarded by him 
to the plaintiffs, who never communicated their acceptance 
to the defendant ; the court decided that the plaintiffs, not 
proving any notice of acceptance to the defendant, were not 
entitled to recover, as the transaction " could not be tortured 
into a consummate and perfect contract." * 

Sec. 122. Waiver of References. — Where a surety is re- 
quired to give, and gives, references, the creditor may dis- 
pense with them, as the condition is for his benefit, but he 

522 ; Gaunt v. Hill, 1 Stark, 10 ; Sym- ^ Kennaway v. Treleavan, 5 M. & 

mons V. Want, 2 Stark, 371 ; Mozley ' W. 498, per Parke, B. ; and see Offord 

V. Tinkler, 1 C. M. & K. 692 , 5 Tyr. v. Davies, 12 C. B. (N. S.) 748, and the 

416; Newport w. Spivey, 7 L.T. (N. S.) judgment of Colekidge, J., in Pope 

328. V. Andrews, 9 C. & P. 564. 

1 12 C. B. (N. S.) 748; and see » Mozley v. Tinkler, 1 C. M. & E. 

Grant v. Campbell, 6 Dow. H. L. C. 692 ; 5 Tyr. 416. 
239. 



192 STATUTE OF FEAUDS. [CHAP. IV. 

cannot enforce the guaranty against the surety until he has 
given him notice of the intended waiver.^ 

Sec. 123. Original Debtor's Liability must Continue. — The 
question whether each particular case comes within this 
clause of the statute or not, depends, not on the considera- 
tion for the promise, but on the fact of the original party 
remaining liable, coupled with the absence of any liability 
on the part of the defendant or his property, except such as 
arises from his express promise.^ In Green v. Cresswell,' 
Denman, C. J., said that there did not appear to be any 
objection to the above test, and it was also approved of by 
CocKBUEN, C. J., in Fitzgerald v. Dresler.* There the plain- 
tiffs through D & Co., who were brokers, sold 682 bags of 
linseed at a certain price per quarter to H, and H afterwards, 
through the same brokers, sold the linseed at an increased 
price to the defendant. The time for the defendant's pay- 
ment of the purchase-money was to arrive before the time 
fixed for H's payment. The defendant being in want of the 
linseed to complete a contract he had made, sent one of his 
clerks to D & Co. for the delivery order, with instructions 
to follow up the matter and get the order. The clerk was 
taken by D & Co. to the plaintiffs, from whom he obtained 
the order only on his promising that the defendant would 
pay the plaintiffs for the seed, as the plaintiffs required to be 
paid before they parted with the order. On the following 
day the defendant sent a check to D & Co. for £900, on 
account of the seed, which had not been measured at that 
time, so that the precise quantity of it was not then known. 
Upon its being measured it was found that the plaintiffs were 
entitled under their contract with H to receive £971 15s. 6d. 
In an action by them against the defendant to recover the 
difference between this amount and £900, the amount of 
the check, it was ruled that the contract made by the de- 
fendant's clerk was not a contract to pay the debt of a third 
person within the statute, as the linseed, the giving up of 
which by the plaintiffs was the consideration for such promise, 
was the property of the defendant subject to the plaintiff's 
lien for the purchase-money. 

' Morten v. Marshall, 2 H. & C. » 10 Ad. & El. 453, 2 P. & D. 430. 
305. 4 7 C. B. (N. S.) 392 ; 29 L. J. C. P. 

a 1 Wms, Saund, 233, 118. 



SEC. 124.] GUARANTIES. 193 

Sec. 124. Tests for Determining whether Promise is Collat- 
eral or Not. — An important inquiry in determining whether 
a promise is collateral or not is whether there is any debt 
or duty to which it can be collateral. The fact that there 
is, is not decisive of the question, lut the fact that there is not, 
clearly is. Thus in an Ohio case,^ the defendant, who was a 
stockholder, and also president of a corporation, being desirous 
to have the stock of the corporation taken, verbally promised 
the plaintiff that if he would subscribe and pay $500 into the 
capital stock of the corporation, he should receive fifteen per 
cent on that amount in one year. It was held that this was 
not a contract to answer for the debt, default, or miscarriage 
of another, but an original undertaking, and no dividend having 
been declared or earned within a year, the defendant was held 
liable upon his promise, Johnsoit, J., saying : " Was there any 
debt, obligation, or legal duty, express or implied, owing by 
the corporation to the plaintiff as a stockholder, for which the 
defendant undertook to answer upon default of the corpora- 
tion ? The obligations legally imposed upon the corporation, 
and upon those charged with the duties of managing the cor- 
porate business, in favor of the plaintiff as a stockholder, were 
only such as were common to all stockholders. These corporate 
authorities were bound to good faith, and to reasonable care, 
skUl, and diligence, with a view to profit in the prosecution of 
the business of the corporation. If profits thereby accrue, it 
becomes the duty of these authorities to declare such divi- 
dends out of the same, from time to time, as the nature and 
condition of the business should warrant. The defendant 
did not undertake to answer for any debt, default, or miscar- 
riage by the corporation, growing out of a failure to perform 
any of these duties. Indeed, so far as the record discloses, all 
these obligations in favor of the plaintiff have been faithfully 
performed by the corporate authorities. Most clearly, there- 
fore, it appears that there was no corporate contract, express 
or implied, for which defendant made himself responsible. 
His contract was entirely distinct and independent of the 
obligation of the corporation to the plaintiff. The corpora- 
tion had no power to obligate itself in advance to pay to 
plaintiff as a dividend, or otherwise, the sum which defendant 

1 Moorehouse v. Crangle, 36 Ohio St. 130 ; 38 Am. Eep. 564. 



194 STATUTE OF FRAUDS. [CHAP. IV. 

agreed he should receive on his investment. There was 
then no corporate debt or obligation, express or implied, to 
pay to plaintiff any amount or his investment. Defendant's 
contract was, in legal effect, essentially different from the 
obligations of the corporation^ in favor of plaintiff as a stock- 
holder, and the liability created was wholly independent of 
any default by the corporation. It was not an undertaking 
to answer for the default of the corporation." If the debt 
and the promise are cotemporaneous, then the inquiry is, to 
whom was the credit given ? If given solely to the promisor, 
then he is the original debtor, the debt is his debt, and the 
undertaking is original.^ But if any credit was given to the 
person in whose behalf the promise is made, then the under- 
taking is collateral, and within the statute,^ and in all 
cases the question as to whether there is a debt or duty to 
which the promise can be collateral, or as to whether the 
promise was collateral in fact, is for the jury.^ Another 
important inquiry is whether, although the promise is to pay 
the debt of another, it was made upon consideration of the dis- 
charge of the original debtor from the debt, and if so, whether he 
was in fact discharged therefrom ; and if such was the consid- 
eration, and the debtor was discharged because of the promise, 
then the undertaking is not collateral, because the promisor was 

1 McCaffli V. Kadcliffe, 3 Bob. Newhall v. Ingraham, 15 id. 422; 

(N. Y.) 445. In Proprietors of the Steel v. Towne, 28 id. 771; Busliel v. 

Upper Locks v. Abbott, 14 N. H. 157, Allen, 31 id. 613 ; Caperton v. Gray, 

S haying agreed to transport lumber 4 Yerg. (Tenn.) 563; Cahill w. Bigelow, 

down the Connecticut River, caused 18 Pick. (Mass.) 369; Head v. Ladd, 

it to enter the head of a canal, on Edm. Sel. Cas. (N. Y.) 100 ; Tilleston 

which were the plaintiif's locks. At v. Nettleton, 6 Pick. (Mass.) 509; 

this place it was the custom to exact Hall v. Wood, 4 Chand. (Wis.) 36 ; 

the tolls. The plaintiff's agent re- Puckett v. Bates, 4 Ala. 396 ; Taylor 

fused to permit the lumber to pass v. Drake, 4 Strobh. (S. C.) L. 431; 

through the locks on the credit of S ; Peabody v. Harvey, 4 Conn. 124 ; 

and the defendant thereupon promised, Bresler v. Pendell, 15 Mich. 224; 

that if the agent would permit it to Chase v. Day, 17 John. (N. Y.) 114 ; 

pass through the locks, he would be Walker u. Eichards, 39 N. H. 259; 

responsible for the tolls, and would Leland v. Creyon, 1 McCord (S. C.) 

see tliem paid, and the lumber was L. 100 ; Boykin v. Dohlonde, 1 Sel. 

permitted to pass. It was held that Cas. (Ala.) 502; Conually v. Kettle- 

the defendant's promise was an origi- well, 1 Gill. (Md.) 260; Norris v. 

nal and not a collateral undertaking, Graham, 33 Md. 56 ; Blake v. Perlin, 

and was not within the statute of 22 Me. 395; Moses v. Norton, 36 id. 

frauds. 113. 

^ Jack V. Morrison, 48 Penn. St. ^ Moorehouse v. Crangle, ante ; An- 

113; Whitman v. Bryant, 49 Vt. 512; derson v. Hayman, 1 H. Bl. 120. 



SEC. 124.] 



GUAKANTIES. 



195 



substituted as debtor, and the debt became his own} If the prom- 
isor was jointly liable with another, his promise is not collat- 
eral, because before the promise he was liable for the whole 
debt, as in case of a promise by one partner to pay the firm 
debt,''' or indeed a promise made by a person in any capacity 
who was, before the promise was made, liable for the debt ^ 
where the promisor promises to pay out of the debtor's funds, 
or the proceeds of the debtor's property in his hands for that 
purpose, the promise is original.* So when there is some 



1 White y.Solomonsky, 30 Md. 585; 
Booth V. Eighmie, 60 N. Y. 238; 
Gleason v. Briggs, 28 Vt. 135 ; Watson 
V. Jacobs, 29 id. 169 ; Curtis v. Brown, 
5 Cush. (Mass.) 492; AUhouse v. 
Eamsay, 6 Whart. (Penn.) 331; Hag- 
gerty v. Johnson, 48 Ind. 41 ; Parker 
V. Heaton, 55 id. 1 ; Moseley v. Taylor, 
4 Dana (Ky.) 542; CUck ■;. McAffee, 
7 Port. (Ala.) 62. The statute has no 
application where the promise is to 
pay a debt of another, if the debtor is 
discharged therefrom, becauGe upon 
the debtor's discharge the promisor 
becomes the debtor, and the discharge 
of the original debt affords a sufficient 
consideration. Andre u. Badman, 13 
Md. 241. Thus, in Mead v. Keyes, 4 
E. D. S. (N. Y. C. P.) 510, the holder of 
certain notes overdue, having sent 
them to his agent for collection, took 
in satisfaction thereof the notes of his 
debtor's brother, giving a receipt for 
his claims against the debtor, and an 
order on his agent for the original 
notes. It was held that the transaction 
was a transfer of the original debt, 
and that the notes were not within the 
statute. See also Cooper v. Chambers, 
4Dev. (jST. C.) L. 261. So, where a 
chattel was purchased by one of a 
firm which was about to be formed, 
for the use of the firm, and was used 
by the firm, and the firm agreed to 
take it from the purchasing partner 
when he retired from the firm, and 
the note originally given for the 
chattel was surrendered to the pur- 
chasing partner, it was held not to 
be a contract within the statute of 
frauds, but that the old contract was 
ended by the surrender of the note. 



and that a new one was made by the 
other members of the firm, on which 
they were liable. Shaver v. Adams, 
10 Ired. (N. C.) L. 13. But a promise 
to pay the debt of another, the origi- 
nal debt not being released, is within 
the statute of frauds, and will not 
sustain an action. Britain v. Thrail- 
kill, 5 Jones (N. C.) L. 329. S.P. 
Stone V. Symmes, 18 Pick. (Mass.) 
467 ; Brown u. Hazen, 11 Mich. 219 ; 
Shoemaker v. King, 40 Penn. St. 107 ; 
Gunnels v. Stewart, 3 Brev. (S. C.) 52 ; 
Newell V. Ingraham, 15 Vt. 422 ; 
Waggoner v. Gray, 2 Hen. & M. (Va ) 
603; Noyes o. Humphries, 11 Gratt. 
(Ta.) 636. Thus, where a father 
promised the creditor of his son that, 
if he would go to a distant place and 
become the bail of his son, so as to 
release him from imprisonment, he 
would pay the debt which the son 
owed him. It was held that, notwith- 
standing the performance of the ser- 
vice, yet, as the debt againstfhe son was 
still in force, it was a contract within 
the statute, and therefore void. Rog- 
ers V. Rogers, 6" Jones (N. C.) L. 300. 

2 Hopkins v. Carr, 31 Ind. 260; 
Durham v. Manrow, 2 N. Y. 541; 
Pilies V. McLeod, 14 Ala. 61 ; Eice v. 
Barry, 2 Cr. (U. S. C. C.) 447; Aikin 
V. Duren, 2 N. & McC. (S. C.) 370; 
Stephens v. Squire, 5 Mod. 205 ; 
Hawes v. Martin, 1 Esp. 162. 

' Hendricks v. Wiseheart, 57 Ind. 
129; Fish v. Thomas, 5 Gray (Mass.) 
45; Orrell v. Coppock, 26 L. J. Ch. 
269. 

* Welch </. Kenney, 49 Cal. 49; 
Berry v. Doremus, 30 N. J. L. 399; 
Crosby v. Joralemon, 37 Ind. 264; 



196 STATUTE OF FEATJDS. [CHAP. IV. 

liability of the promisor's property independent of his express 
promise, and Tie derives a direct and immediate henejit there- 
from, the promise is original, as a promise made by the part 
owner of a vessel to pay a debt for labor and materials 
furnished for her construction, if the creditor will forbear 
enforcing his lien upon the vessel therefor,^ or where the 
creditor has, by reason of the promise, relinquished some lien, 
benefit, or advantage for securing or recovering his debt, and 
by means of such relinquishment the same interest or advantage has 
enured to the promisor^ the promise is original ; and this is the 
rule in all cases where the promise is made upon a new and inde- 
pendent consideration, of benefit or harm, moving between the parties,^ 
or where the promisor may be treated as the purchaser of the debt,* or 
where the promise is made to the debtor himself upon a sufficient 
consideration,^ or where there is no liability on the part of the person 
promised for. ^ These rules cover the general exceptions to 
the statute, but as they are treated fully under each separate 
head elsewhere in this chapter, it is not necessary to say more 
in reference to them in this place. 

In California and Dakota, by an express provision of the 
statute, a promise to pay the debt of another is deemed original : 

1. Where the promise is made by one who has received 
property of another upon an undertaking to apply it pursuant 
to such promise, or by one who has received a discharge from 
an obligation, in whole or in part, in consideration of such 
promise. 

2. Where the creditor parts with value or enters into an 
obligation, in consideration of the obligation in respect to 
which the promise is made, in terms or under circumstances 
such as to render the party making the promise the principal 

Crim u. Eitcli, 53 id. 214; Ernide v. « Farley v. Cleaveland, 4 Cow. 

Eunde, 58 111. 232; Balliet v. Scott, (N. Y.) 432; Young i-. French, 32 

32 Wis. 174; Buchanan k. Paddleford, Wis. Ill; Burr v. Wilcox, 13 Allen 

43Vt. 64. (Mass.) 269; Wills v. Brown, 118 

1 Fish u. Thomas, 5 Gray (Mass.) Mass. 137. 

45. 1 Anstey v. Marden, 1 B. & P. 133 ; 

2 Curtis V. Brown, 5 Cush. (Mass.) Castling v. Aubert, 2 East, 325. 

488; Ames"!>. Foster, 106 Mass. 400. ^ Spadam v. Reed, 7 Bush. (Ky.) 

But both must concur. The mere 450; Colt v. Eoot, 17 Mass. 220; 

fact that the creditor relinquished his Soule v. Alhee, 31 Vt. 142 ; Eastwood 

lien is not sufficient, hut such relin- u. Kenyon, 11 Ad. & El. 438. 
quishment must also inure to the « Drake v. Fleurellen, 33 Ala. 106 ; 

direct and immediate advantage of Harris v. Huntbaeh, 1 Burr, 373; 

the promisor. Dunscomb v. Liokridge, Aleyn, 94. 



SEC. 12S.] GUABAOTIES. 197 

debtor, and the person in whose behalf it is made his 
surety. 

3. Where the promise, being for an antecedent obligation 
of another, is made upon the consideration, accepting the new 
promise as a substitute therefor ; or upon the consideration 
that the party receiving it releases the property of another 
from a levy, or his person from imprisonment under an execu- 
tion on a judgment obtained upon the antecedent obligation ; 
or upon a consideration beneficial to the promisor, whether 
moving from . either party to the antecedent obligation, or 
from another person. 

4. "Where a factor undertakes for a commission to sell 
merchandise and guarantee the sale. 

5. Where the holder of an instrument for the payment of 
money, upon which a tliird person is or may become Uable 
to him, transfers it in payment of a precedent debt of his own 
or for a new consideration, and in connection with such 
transfer enters into a promise respecting such instrument. 

The wisdom of incorporating these exceptions into the 
statute is not doubtful, as they are mainly such as have been 
adopted by the courts, and the result of incorporating them 
into the statute is to give permanency to those doctrines which 
have been held by the better class of courts under the statute 
when no such exceptions exist. Of course, under the rule for 
the construction of statute, where certain exceptions are 
expressly made, no other exception can be made by the courts, 
and thus the law is definitely settled so that parties with 
certainty can know and understand what their rights and 
habilities are under this head of the statute. 

Sec. 125. Promise Must be to the Person Guaranteed. — 

The statute only contemplates a promise made to the person 
to whom another is already, or is to become liable : therefore 
a promise hy the defendant to the plaintiff to pay A B a debt 
due from the plaintiff to A B, is not within the statute?- It 
must he a promise to he answerable for a debt of or a default in 
some duty by that other person towards the promisee? The 

1 Eastwood V. Kenyon, 11 Ad. & El. ^ Hargreaves v. Parsons, 13 M. & 

438 ; 2 P. & D. 370 ; see observations W. 561, per Paeke, B. ; Eastwood v. 

on this case, Sni. Merch. Law, 8th ed. Kenyon, 11 Ad. & EI. 438 ; Thomas v. 

457; and see also Gregory D. Williams, Cook, 8 B. & G. 728. In Hargreaves 

3 Mer. 682. v. Parker, ante, Paeke, B., said ; 



198 



STATUTE OF FEAXnDS. 



[chap. IV. 



rule adopted in this class of cases is that an agreement to pay 
and discharge the debt of another made with the debtor or some 
person on Ms behalf, if founded upon a new and valid consideration, 
is an independent undertaking, and does not come within the 
letter or spirit of the statute.^ But in Kentucky it is held 



" The statute applies only to promises 
made to the persons to whom another 
is already, or is to become, answer- 
able. It must be a promise to be 
answerable for a debt of, or a default 
in some duty by, that other person 
towards the promisee. This was de- 
cided, and no doubt rightly, by the 
Court of Queen's Bench, in Eastwood 
V. Kenyon, 11 Ad. & El. 438; 3 P. & 
D. 276; and in Thomas v. Cook, 8 B. 
& C. 728 ; 3 Man. & E. 444. In this 
case Parker had not contracted with 
the plaintiff, nor was it intended ' that 
he should; there was no privity be- 
tween them; the non-performance of 
Parker's contract with the defendant 
would be no default towards the 
plaintifi, and, consequently, the under- 
taking by the defendant was no 
promise to answer for the default or 
miscarriage of Parker in any debt or 
duty towards the plaintiff. It was an 
original promise that a certain thing 
should be done by a third person." 

1 Brown v. Brown, 47 Mo. 130; 
Britton o. Angler, 48 N. H. 420; 
Hubon V. Park, 116 Mass. 541; Gaetz 
V. Poos, 17 Minn. 265. The rule 
generally adopted is that the promise 
must be made to the creditor to be 
within the statute ; and that a prom- 
ise to the debtor to pay his debt to 
the creditor, or to a. surety to indem- 
nify him for becoming surety for a 
third person to a fourth, is an original 
and not a collateral undertaking when 
the promisee acts solely on the prom- 
ise of the promisor. Tibbetts v. 
Planders, 18 N. H. 284; Cailleux v. 
Hall, 1 E. D. S. (N. Y. C. P.) 5; Jones 
V. Hardestry, 10 G. & J. (Md.) 404 ; 
Barker v. Bucklin, 2 Den. (N. Y.) 45; 
Jennings v. Webster, 7 Cow. (N. Y.) 
256 ; Maxwell v. Haynes, 41 Me. 559 ; 
Kutzmeyer v. Ennis, 27 K J. L. 371 ; 
Decker v. Sehaffer, 3 Ind. 187 ; Plemm 
u. Whitmore, 23 Mo. 430; Perkins v. 



Littlefield, 5 Allen (Mass.) 370; How- 
ard V. Coshaw, 33 Mo. 118; Hubon v. 
Parks, 116 Mass. 541 ; 'Wild v. Nichols, 
17 Pick. (Mass.) 538; Preble v. Bald- 
win, 6 Cush. (Mass.) 549; Piske u. 
McGregory, 34 N. H. 414; Soule a. 
Albee, 31 Vt. 142 ; North v. Eobinson, 
1 Duv. (Ky.) 71; Morin ». Murtz, 13 
Minn. 191 ; Vogel o. Melms, 31 "Wis. 
306 ; Aldrich v. Ames, 9 Gray (Mass) 
76; Alger B. ScOville, 1 id. 391, 395; 
Pike V. Br,own, 7 Cush. (Mass.) 133, 
130; Chapin v. Lapham, 20 Pick. 
(Mass.) 467; Blake v. Cole, 22 id. 97 ; 
Beaman «. Eussell, 20 Vt. 205, 210; 
Harrison v. Sawtel, 10 Johns. (N. Y.) 
242 ; Chapin o. MerriU, 4 Wend. (N. 
Y.) 657; Staats u. Howlett, 4 Den. 
(N. Y.) 559; Barry v. Eansom, 12 N. 
Y. 462, 467; Conkey v. Hopkins, 17 
Johns. (N. Y.) 113; Eeed w. Holcomb, 
31 Conn. 360; Johnson v. Gilbert, 4 
Hill (N. Y.) 178. In such a case the 
debt becomes the debt of the promis- 
or. Eobinson v. Gilman, 43 IT. II. 
435; Smith v. Sayward, 5 Me. 504, 
507; Tarr v. Northey, 17 Me. 113; 
Dunn V. West, 5 B. Mon. (Ky.) 370 ; 
Thomas v Cook, 8 B. & C. 728; East- 
wood V. Kenyon, 11 Ad. & El. 438; 
Hargreaves v. Parsons, 13 M. & W. 
560, 580; Eeader v. Kingham, 13 C. 
B. (N. S.) 344; Cripps v. Hartnall, 4 
B. & L. 414; Wilson v. Bevans, 58 111. 
233; Ellenwood v. Fults, 03 Barb. 
(N. Y.) 321. The statute does not 
apply where, although the promise is 
in form to pay the debt of another if 
the promisor's intent be not' merely 
to pay such debt, but also to subserve 
a purpose of his own, so as to bring it 
under the head of an original under- 
taking. McCreary v. Van Hook, 35 
Tex. 631; Dickinson v. Coulter, 45 
Ind. 445; Cross v. Ballard, 46 Vt. 
415; Armstrong v. Baldwin, 3 T. & C. 
(N. Y.) 443; Eunde v. Eunde, 59 111. 
98; Johnson w. Krupp, 86 Iowa, 616; 



SEC. 125] GUAKANTIES. 199 

that such agreements are only enforceable by the creditor in 
equity,! ^nd in Vermont it is held that a debtor cannot rely 
upon a parol agreement of another to pay his debt, such 
agreement being within the statute of frauds; hut he must 
show in addition an actual substitution of the third person for 
himself by an agreement of all the parties, or an actual com- 
pliance with the terms of the agreement. Willingness to pay 
as agreed by the third person, and to receive payment from 
him by the creditor, is not sufficient.^ In most of the States 
the creditor may sue upon such a promise as well as where funds 
or property have been by the debtor placed in the hands of 
the promisor with which to pay his debts, upon the ground 
that, as the promise is made for his benefit, and upon a valid 
consideration, the law Avill imply the necessary privity.^ But 
in England,* as well as in several of the States of this country, 
this rule does not prevail, and it is held that no one can sue 
upon a contract to the consideration of which he is a stranger.^ 
As to the right of the debtor himself to sue for the breach of 
such a contract made by him upon a good consideration, there 
can be no question. 

Where A, at the request of B, entered into a bond with 
him and C to indemnify D against certain debts due from C 
to D, and B promised to save A harmless from all loss by 
reason of the bond, it was held that the promise was binding, 
although not in writing. " If the plaintiff," said Pakke, J., 
" at the request of the defendant had paid money to a third 
person, a promise to repay it need not have been in writing, 
and this case is in substance the same." ® 

Again, in a case where the defendant and one Parker agreed 
for the sale by Parker to the defendant of the "put " or "call" 

Conradt v. Sullivan, 45 Ind. 180 ; 2 Buchanan v. Paddlef ord, 43 Vt. 64 

Darst V. Bates, 95 111. 493. In Mathers » Lawrence v. 'Fox, 20 N. Y. 268 : 

V. Carter, 7 111. App. 225, A surren- Urquhart v. Brayton, 12 R. I. 6 Re- 

dered to B a bond for a deed which porter, 601. 

he held against him, in consideration ^ Tweddle' v. Atkinson, 1 B. & S 

of B's verbal promise that he would 393 ; Jones v. Robinson, 1 Exchq. 456 

pay to C the amount of a note which ^ Clapp u. Lawton, 31 Conn. 95 : 

C held against him, and it was held Halstead v. Erancis, 31 Mich. 113: 

that the statute did not apply and Exchange Bank v. Rice, 107 Mass. 37 : 

that it was a new and independent Brice v. King, 1 Head. (Tenn.) 152 

contract upon which C might main- Campbell v. Eindley, 3 Humph, 

tain an action in his own name. (Tenn.) 330; Rice u. Carter, 11 Ired 

' Hodgkins v. Jackson, 7 Bush. (N. C.) 298. 

(Ky.) 324. 5 Thomas v. Cook, 8 B & C. 728. 



200 STATUTE OF FEATJDS. [CHAP. IV. 

of fifty foreign railway shares, at a certain price per share 
premium, at any time on or before the 18th of February, 1844, 
and before that day the defendant agreed to resell the option 
to the plaintiff, and to guarantee the performance of the agree- 
ment by Parker, and on the 16th of February the plaintiff 
" called " the shares (z.e. required the delivery of them pursu- 
ant to the agreement), but it was at the same time yerbally 
agreed between him and the defendant and Parker, that they 
should be delivered to the plaintiff not on the 18th of Febru- 
ary, but on the 2d of March, at Paris ; it was held that this 
was not an agreement by the defendant to be answerable for 
the default of Parker, but an original promise by him for the 
delivery of the shares by Parker, for which a note in writing 
was not required by the statute, Pabkb, B., saying: "In this 
case Parker had not contracted with the plaintiff, nor was it 
intended that he should ; there was no privity between them ; 
the non-performance of Parker's contract with the defendant 
would be no default towards the plaintiff, and consequently 
the undertaking by the defendant was no promise to answer 
for the default or miscarriage of Parker in any debt or duty 
towards the plaintiff. It was an original promise that a 
certain thing should be done by a third person."^ In a 
Missouri case ^ the defendants were creditors of the husband 
of Laura S. Brown, and being in failing circumstances, he 
proposed to execute to their use a trust deed of valuable 
real estate belonging to him. Mrs. Brown declined to release 
her dower, and claims to have consented to do so only upon 
the agreement by defendants to pay a certain debt from her 
husband to said Clardy, which had not been otherwise 
provided for. The defendants, having bid in the property at 
trustees' sale, refused to pay the Clardy debt, and tliis suit 
was brought to enforce their agreement to do so. The de- 
fendants denied the agreement, but judgment was obtained 
against them for the amount of the debt, which was affirmed 
by the Supreme Court. Upon the trial the defendants 
insisted that, as a matter of law, the contract could not be 
enforced because it was a verbal agreement to pay the debt 
of another, and witliin the statute of frauds. Bliss, J., said : 

1 Hargreaves v. Parsons, 13 M. & ^ Brown v. Brown, 47 Mo. 130 ; 4 
W. 561. Am. Eep. 330. 



SEC. 125.] GUABANTIES. 201 

" The provision that no action shall be brought to charge any 
person upon a promise to answer for the debt of another, 
unless it is made in writing, is construed to apply to promises 
made to the creditor, and hence it is always held that while the 
creditor cannot recover upon a collateral parol agreement 
made with him to pay his debtor's obligation, yet if such 
agreement be net made with the creditor, it can be enforced 
if otherwise good, though not evidenced by any note or 
memorandum in writing.^ It is held that a parol contract 
with the creditor to pay the debt of another can in general 
only be enforced when the original debt is cancelled, and the 
third person is alone looked to for the debt. It then becomes 
an independent agreement to assume the debt. It is not a 
collateral promise, for the original debt is discharged. It 
becomes the debt of the promisor alone, and is no longer the 
debt of another, and hence it is not within the statute. So, 
also, an agreement to pay and discharge the debt, made with 
the debtor or some person interested for him, if founded upon 
a new and valid consideration, is an independent undertaking, 
and does not come within the letter or object of the statute. 
It is neither uncommon nor is it unreasonable for a debtor to 
make provision by contract for the payment of his obligations ; 
and if a purchaser of property, instead of paying the whole 
consideration, should assume to pay certain liabilities of his 
vendor, and be able to escape his obligation and retain the 
property, the statute would be one of frauds in a new sense. 
No such construction has ever been given it, and the courts 
of New York go so far as to hold that, though not a party to 
this independent agreement, the creditor may avail laimself of 
it and sue in his own name." ^ 

So where the plaintiff, the bailiff of a county court, being 
about to arrest one H under a warrant of contempt for non- 
payment of a. judgment debt, the defendant, in consideration 
that he would forbear to execute the warrant, promised to 
pay the plaintiff £11 on a given day or surrender H, it was 
held that this was not an agreement by the defendant to be 

1 Howard v. Coshaw, 33 Mo. 118; 45; Pratt v. Humphrey, 22 Conn. 317; 

Hargreaves v. Parsons, 13 M. & W. Alger v. ScovUle, 1 Gray, 391 ; Per- 

561; Eastwood v. Kenyon, 11 Ad. & kins u. Littlefield, 5 Allen (Mass.) 370. 
El. 438 ; Westf all v. Parsons, 16 Barb. ^ Barker v. Bucklin, supra. 
645; Barker u. Bucklin, 2 Den. (N. Y.) 



202 



STATUTE OF PKATTDS. 



[chap. IV. 



answerable for the debt or default of H, but an original 
promise by him to pay the money or surrender ^.^ 

Sec. 126. if the Person Promised for Liable at all, Promise 
must be in "Writing. — Formerly a distinction was made between 
promises to pay for goods sold, made before delivery of the 
goods, and promises made after the goods were delivered. In 
the former case the undertaking was considered original, and 
not within the .statute ; in the latter, collateral, and within the 
statute.^ But this distinction has been overruled,^ and the 



1 Reader v. Kingham, 13 C. B. (N. 
S.) 344; and see Hodson v. Anderson, 
3 B. & C. 842 ; 6 D. & R. 735. 

^ Mowbray v. Cunningham, cited 2 
T. R. 80; Jones v. Cooper, Cowp. 227 ; 
LofEt. 769. 

8 In Matson v. "Wharam, 2 T. R. 
80, BuLLER, J., said: "I argued the 
case in Cowper (Jones v. Cooper, 
Cowp. 227) the facts of which were, 
that a person who was going abroad, 
wished to malce some provision for 
his mother-in-law, in his absence, and 
said to a baker, you must supply my 
mother-in-law with bread, and I will 
see you paid; that case was tried 
before Nares, J., at Bristol. I was 
for the plaintiff, and cited the case of 
Mawbray v. Cunningham, in which 
Lord Mansfield said : ' This is a 
promise made before the debt accrues ; 
and what is the reason of the trades- 
man's requiring that promise? It is 
because he will not trust the person 
for whose use the goods are intended ; ' 
and tlie plaintiff obtained a verdict. 
But Nares, J., overruled tliis determi- 
nation, and non-suited the plaintiff, 
and this court afterwards refused to 
grant a new trial." 

But notwithstanding what was said 
by BuLLEE, J., it does not appear that 
the case of Jones ;;. Cooper overruled 
the determination in Mawbray v. Cun- 
ningham, for although in botli cases 
the promise was made before the deliv- 
ery of the goods, yet in the case de- 
termined by Lord Mansfield, the 
promise was simply to see the goods 
paid for ; whereas, in Jones v. Cooper, 
the promise was expressly conditional, 



thus, " I will pay you if Smith will 
not ; " and Smith was entered the debtor 
in the plaintiff's books. And upon this 
distinction, the new trial was refused , 
and Lord Mansfield observed that 
the general distinction was a clear 
one : meaning, as he afterwards made 
it appear, the distinction between an 
undertaliing before tlie delivery of the 
goods, and afterwards ; but he said, 
"there may be a nicety where the un- 
dertaking is before delivery, and yet 
conditional; and upon this sub-distinc- 
tion between promises conditional and 
promises unqualified, made before de- 
livery, it appears that the case of 
Jones a. Cooper was in reality decided. 
But the distinction upon which Maw- 
bray V. Cunningham was decided by 
Lord Mansfield, was directly over- 
ruled by the case of Matson v. 
Wharam, which was an action for 
goods sold and delivered, and tried 
before Wilson, J., when a verdict was 
found for the plaintiffs, subject to the 
opinion of the court on the following 
case ; the defendant, Wharam, applied 
to Matson, one of the plaintiffs, and 
asked him if he was willing to serve 
one R C of Pontefract, with gro- 
ceries; he answered, that he dealt 
with nobody in that part of the 
country, and did not know R C ; to 
whicli the defendant, Wharam, replied, 
"if you don't know him, you know me, 
and I will see you paid." Matson then 
said, he would serve him ; and Wharam 
answered, he is a good chap, but I will 
see you paid. A letter was afterwards 
received by the plaintiffs from R C 
containing an order for goods, to the 



SEC. 126.] GUAKANTIES. 203 

rule now is, that if the person to whom the goods are supplied 
is liable at all, the promise must be in writing.^ This rule 
was well illustrated in a Tennessee case,^ in which it appeared 
that the defendant and another person were in a store together, 
and the defendant told the plaintiff that he would pay for all 
the goods which the other person might buy, and thereupon, 
and in reliance upon such promise, the plaintiff sold such 
person several articles, and charged them to him and the defend- 
ant jointly; and the court held that the defendant's prom- 
ise was collateral and within the statute. In an Indiana 
case,* the defendant verbally agreed with the plaintiff that if 
he wojild sell C a certain horse, he would make good any 
agreement about it. In an action to recover the price of the 
horse, the judge left it for the jury to say whether the plain- 
tiff primarily gave credit to C for the horse, and they having 
so found, it was held that the promise was collateral and 
within the statute. In all cases where the question is whether 
a promise by the defendant is collateral or original, the 
question is for the jury, whether the sole credit was given to 
the promisor,* and if the jury finds that any credit was given 
to the third person in whose behalf the promise was made, so 
that there is any liability on his part to pay the debt, the 
promise is collateral, and the verdict must be for the defend- 
ant.^ Thus, a promise to pay the debt of another, if it is 

amount of £7, and the goods were the promise is made, is an essential 

sent according to the order. The point of inquiry, and must be gath- 

plaintiffs made R C the debtor for ered from the circumstances of the 

these goods in their books. They case. 

afterwards applied to K C by letter, > Matson v. Wharam, 2 T. R. 80 ; 

for the payment of the debt, and re- Colman v. Eyles, 2 Stark. 62 ; Peck- 

ceiving no answer, they then applied ham v. Paria, 3 Doug. 13; Parsons v. 

to the defendant, Wharam, who re- Walter, ib. 14, n. (c). 

fused to pay, and there having been 2 Matthews v. Milton, 4 Yerg. 

no promise in writing, according to the (Tenn.) 576. 

statute of frauds, judgment was given ' Billingsby v. Dempewolf, 11 Ind. 

for the defendant. In this case, 414. Where the evidence shows that 

although the promise was not condi- sales were made wholly upon the credit 

tional in expression, yet the circum- of a promisor upon either a written or 

stances sufficiently imported an un- verbal promise, the statute is not ap- 

derstanding" among all the parties, plicable. McLenden v. Frost, 57 Ga. 

that both the party for whose use the 448. 

goods were delivered, and the party * Doyle v. White, 26 Me. 341 ; 

expressly promising to pay, were to Homans v. Lombard, 21 id. 341. 

become liable. Such liability, there- ^ Read v. Ladd, 1 Edm. (N. Y.) 

fore, of the person on whose account Sel, Cas. 100 ; Hill v, Raymond, 3 



204 



STATUTE OF FRAUDS. 



[chap. IV. 



not paid by him,^ or " to be responsible and stand good " for 
another's debt,^ or to indemnify a surety against loss or liabil- 
ity,3 or to " see that the debt is paid," * unless when the lat- 
ter form of expression is used, it is shown that credit was 
given solely to the promisor,^ or to accept an order for anoth- 
er's debt,® or of a member of a corporation to pay its debts,^ 
and generally any promise which is conditional upon the 
debtor himself not paying,* or which shows an intent that the 
promisor should merely occupy the position of a surety for 
the debt, is collateral and within the statute. Indeed, in all 
cases where the undertaking of a party is to further secure 
an existing debt between the regular parties to a i;ote or 
other obligation, it is a collateral contract within the, statute; 
and in New Jersey it is held that a simple indorsement of a 
note hi blank, before the name of the payee, is not such a 
writing as wUl satisfy the statute.^ Where A, having com- 



AUen (Mass.) 540; First National 
Bank v. Bennett, 33 Mich. 520; Wood 
V. Patch, 11 E. I. 445. 

1 Gllfillan V. Snow, 51 Ind. 305. 

2 Miller v. Nehaus, 51 Ind. 401. 

' First National Bank v. Bennett, 
33 Mich. 520. 

* Petit i).Braden,55Ind. 201; Bloom 
V. McGrath, 53 Miss. 249. A promise 
made by A to B that if C employs 
him, A " will see him paid " is a col- 
lateral undertaking and within the 
statute. Skinner v. Conant, 2 Vt. 
453 ; In Chase v. Day, 17 John. (N. Y.) 
114, A inquired of B the terms on 
which he would let C have newspapers 
to sell ; and, on being told the terras, 
said : " If C calls for the papers, I will 
be responsible for the papers he shall 
take," and it was held that this was an 
original and absolute contract on the 
part of A, and not within the statute 
of frauds. 

6 Wagner v. Hallock, 8 Col. 176. 
But in Petit v. Braden, ante, it was 
held that those words import u col- 
lateral undertaking, and that the cir- 
cumstance that the creditor relied 
solely upon tlie promisor's liability 
does not change the rule. But the 
court may have placed stress upon the 
circumstance that the goods had al- 



ready been sold to the vendee, but de- 
livery was withlield until he obtained 
security for the price. 

' Benson v. Walker, 5 Harr. (Del.) 
110. In Morrison v. Baker, 81 N. C. 
76, it was held by the court that an 
unconditional promise to pay for goods 
to be furnished to another is not within 
the statute. Evidence to change a 
contract relation between a plaintifE 
and a third party and to prove a 
promise to pay the debt of another as 
a new and original undertaking and 
not as a contract of suretyship must 
be clear and satisfactory, or it will fall 
witliin the statute. Haverly v. Merian, ' 
78 Penn. St. 257 ; Palmer v. Haggard, 
78 111. 607. 

' Quin V. Hanford, 1 Hill (N. Y.) 
82; Trustees v. Flint, 13 Met. (Mass.) 
539. 

8 Dufalt V. Gorman, 1 Minn. 301. 
A promise to pay the debt if he does 
not, in reliance upon which the prom- 
isee permitted the debtor to leave the 
state, taking his property with him, is 
within the statute. Gillfillan v. Snow, 
61 Ind. 305. A parol contract to 
answer in part for another's debt is 
within the statute. Luer v. Zeile, 53 
Cal. 54. 

' Hay den v. Weldon,43 N. J. L. 128. 



SEC. 127.] GUARANTIES. 205 

menced certain business for B, which he had undertaken, 
refused to proceed without a promise from C to pay the 
further expenses, it was held that C was not liable on such 
a promise without a note in writing.^ So, where the de- 
fendant verbally promised the plaintiff that if he would 
supply goods to A, drawing upon him at one month, and 
would allow him (the defendant) three per cent upon the 
amount of the invoice, he would pay the plaintiff cash to 
take A's bill " without recourse," in other words, buy the bill 
of him, it was held that there was a contract to answer for 
the debt or default of another which, not being in writing, 
could not be enforced.^ 

SkC. 127. Guarantor must not be Liable. — The statute does 
not apply to a case where the party giving the guaranty 
is himself liable to the demand which he is purporting to 
guarantee, it must he exclusively the debt, default, or miscar- 
riage of another person. In Arden v. Rowney,^ a check for 
£100 was drawn upon the defendant, and the plaintiff, who 
was asked to cash it, sent to the defendant to know whether 
it was good. The defendant replied that it would be honored, 
as he was indebted to the drawer of it in £200. The check 
was void, as being post-dated ; but it was held, nevertheless, 
that the plaintiff could recover, on the ground of the sum 
due to the drawer being appropriated. Lord Ellenbokough 
said : " If this had been an agreement to pay an amount of 
any money which the plaintiff might advance to Alder (the 
drawer), and no specific sum of money had been mentioned, 

An unwritten agreement of suretyship was applied where a seller of goods 

is Toid under the statute. Ingersoll v. had refused to deliver them to the 

Baker, 41 Mich. 48 ; Bonlne v. Dennis- purchaser without security therefor, 

ton, 41 id. 292, and so is any agree- and the defendant orally promised that 

ment merely collateral to answer for if he would deliver the goods he would 

the deht of another. Thatcher v. " see that he got his pay." The court 

Rockwell, 4 Cal. 375 ; Anderson v. held that the promise was collateral 

Hayman, 1 H. Bl. 120. In Bugbee and within the statute because the 

V. Kendrickson, 130 Mass. 437, it vendee still remained liable for the 

was held that in the ^ale of goods, goods. Smith v. Montgomery, 3 Tex. 

if any credit at all is given to the 199. 

person to whom the goods are de- i Barker v. Tox, 1 Stark, 270. 
livered, the promise is collateral and ^ Mallett v. Bateman, L. R. 1 C. P. 

within the statute. See also Bloom 103, affg. S. C. 16 C. B. (N. S.) 530. 
V. McGrath, 53 Miss. 249. In Petit = 5 Esp. 254. 
u. Braden, 55 Ind. 201, this rule 



206 



STATUTE OF FKAT7DS. 



[chap. IV. 



■which was to be so advanced, I should have thought this a 
case within the statute of frauds ; but it appears to me that 
this is an appropriation of £100, part of the money which 
the defendant said he owed to Alder, amounting to .£200, 
and that the plaintiff may recover." 

Where the testator appointed his son, Alfred Orrell, and 
three other persons his executors and trustees, and Alfred 
Orrell disclaimed and renounced probate, and afterwards 
purchased a portion of the testator's estate, the other lega- 
tees raised a claim for losses incurred by the trustees, and 
Alfred Orrell's solicitor wrote, on his behalf, to the claimants, 
agreeing to pay £3,000 in satisfaction of the alleged losses, 
it was held that this letter was not within the statute, as an 
agreement to answer for the debt, default, or miscarriage of 
another, as Alfred Orrell was himself liable for the debt.^ 



1 Orrell v. Coppock, 26 L. J. Ch. 
269 ; and see Coutourier v. Hastie, 22 
L. J. Ex. 97 ; Hodgson v. Anderson, 5 
D. & K. 735; 3 B. & C. 942; Batson 
V. King, 4 H. & N. 739; Fitzgerald v. 
Dressier, 7 C. B. (N. S.) 374. The 
operation of the statute is not con- 
fined to collateral undertakings to be 
answerable for a subsisting liability, 
debt, or duty, but extends as well to 
undertakings made be/ore the debt 
accrues or the duty arises, and a guar- 
anty consequently, which a trades- 
man requires from a third person be- 
fore he sends out goods sold on credit, 
because he does not like to trust the 
person for whose use the goods are 
intended, is within the statute if the 
latter has been treated by the trades- 
man as his debtor. Jackson v. Covert, 
5 Wend. (N. Y.) 139; Crookshank v. 
Burrell, 18 John. (N. Y.) 58; Peckham 
V. Paria, 3 Doug. 13 ; Parsons v. Wal- 
ter, 3 id. 14 n. (c). Thus where the 
plaintiff having commenced business 
for one Pox, refused to go on with it, 
without a promise by the defendant 
to pay the further expenses to be in- 
curred, it was holden that this prom- 
ise was within the statute. Barber v. 
Fox, 1 Stark, 270. But the sale may 
be to one man, although the goods are 
to be delivered to another, and a per- 
son may promise to pay for goods 



supplied to, or for work done at his 
request, or by his directions for a 
third party, as the real debtor, and 
not in the character of a surety, and 
if he has been treated by the person 
who has furnished the goods and done 
the work, as the party liable, and 
credit has been given to him, his 
promise or undertaking to pay is not 
a collateral promise to answer for the 
debt of another, and the statute con- 
sequently is out of the ease. Har- 
greaves v. Parsons, 13 M. & W. 661, 
570; Graham v. O'STeill, 2 Hall (N. Y.) 
474; Hilton v. Dinsmore, 20 Me. 410; 
Colt V. Root, 17 Mass. 229; Perley v. 
Spring, 12 Mass. 297 ; Corbett v. Coch- 
ran, 3 Hill (S. C.) 41; McKenzie v. 
Jackson, 4 Ala. 230 ; Durham v. Ar- 
ledge, 1 Strobh. (S. C.) 5; Hall v. 
Rogers, 7 Humph. (Tenn.) 536; Ar- 
buckle I'. Hawks, 20 Vt. 538; Proprie- 
tors V. Abbott, 14 N. H. 157 ; Blount 
V. Hawkins, 19 Ala. 100. If two 
come to a shop, and one buys, and 
the other to gain him credit promises 
the seller " it he does not pay you, 
/ will," this is a collateral undertak- 
ing, void without writing, by the stat- 
ute. But if he says, "let him have 
the goods, I will be your paymaster," 
or " I will see you paid," this is an 
undertaking as for himself, and he is 
regarded as the buyer. Birkmyr c;. 



SEC. 127.] 



GTJAHANTIES. 



20T 



Of course, if the promisor was before the making of the 
promise liable to pay the debt, his promise is not within the 



Darnell, 1 Salk. 27 ; 6 Mod. 250 ; Wat- 
kins V, Perkins, Raym. 224 ; Seaman 
V. Price, 1 C. & P. 586; 10 Moore, 34; 
2 Bing. 437. Where the defendant, 
in consideration that the plaintiff, at 
the request of the defendant, would 
provide a workman with materials for 
his work, promised the plaintifl to 
pay him a reasonable sum for such 
materials, out of such moneys re- 
ceived by him, as sliould become due 
to the workman in respect of the 
work, it was held that this was not a, 
promise by a surety to answer for the 
debt or default of another, witliin the 
meaning of the statute, but an origi- 
nal independent contract. Andrews 
u. Smith, 2 C. M. & R. 627 ; Sweeting 
V. AspUn, 7 M. & W. 173 ; Gerish v. 
Chartier, 1 C. B. 13. Whether the 
contract of one who engages to be 
responsible for another is to be re- 
garded as original and joint, or col- 
lateral, must depend upon the inten- 
tion of the parties, to be ascertained 
from the nature of it, and the lan- 
guage used. Norris v. Spencer, 18 
Me. 324 ; Homans i'. Lombard, 20 Me. 
303; Sinclair v. Richardson, 12 Vt. 
33; Doyle .;. White, 26 Tenn. 341. 
If goods are furnished to an infant at 
the request of the defendant, the de- 
fendant's undertaking or promise to 
pay for them is not a collateral prom- 
ise to answer for the debt of another, 
because the infant is not liable to pay 
for them and cannot be indebted by 
reason of his minority. Harris v. 
Himtback, 1 Bur. 373 ; Duncombe v. 
Tickeridge, Aleyn, 94 ; 1 Wms. Saund. 
211 d. And if the original debt is 
discharged and extinguished by the 
substitution in lieu thereof of a new 
contract to pay the amount of that 
debt, such new contract is not a col- 
lateral promise to answer for the debt 
or default of another. Hodgson v. 
Anderson, 5 D. & R. 746, 747 ; 3 B. & 
C. 855, 866; Lacy v. McNeile, 4 D. & 
R. 7 ; Taylor v. HUary, 1 C. M. & R. 
743 ; 3 Dowl. 461. Tlie contract of a 



factor binding him in the term im- 
plied by a del credere commission is 
not within the statute of frauds. The 
contract is the factor's own contract, 
and the debt of another comes in in- 
cidentally only as a measure of dam- 
ages. Wolf V. Koppel, 6 Hill, N. Y. 
R. 458 ; Coutourier v. Hastie, 8 Exch. 
56. Where a debtor being taken in 
execution by the plaintiff, the defend- 
ant, in consideration that the plain- 
tiff would discharge his debtor out of 
custody, promised the plaintiff to pay 
him the debt, it was held that this 
was not a collateral promise to an- 
swer for the debt of another, the debt 
being extinguished by the discliarge 
of the debtor. Goodman v. Chase, 1 
B. & Aid. 297 ; Butcher v. Steuart, 11 
M. & W. 857 ; 12 Law J. Exch. 391 
Lane u. Burghart, 1 Q. B. 937; An 
derson v. Davis, 9 Vt. 136 ; Cooper v 
Chambers, 4 Dev. (S. C.) 261. So, 
where the plaintiff had issued exeeu' 
tion against one Lloyd, and after 
wards, with the assent of all the par- 
ties interested, Lloyd conveyed all 
his property to the defendant, he un- 
dertaking to satisfy Lloyd's creditors ; 
and, thereupon, it was agreed between 
the plaintifE Lloyd and the defendant, 
that the plaintiff should relinquish 
the execution against Lloyd (which 
he did), and should look to the de- 
fendant as his debtor instead of Lloyd ; 
it was held, that the defendant's un- 
dertaking to pay the plaintiff was not 
a promise to answer for the debt of a 
third person ; for that Lloyd was dis- 
charged from the debt, and would 
have had a good answer by plea, if 
the plaintiff had sued him, or by 
audita querela, if the plaintiff had 
issued execution. Bird v. Gammon, 
5 Sco. 213 ; 3 Bing. (N. C.) 883. And 
where a purchaser of goods, being 
unable to pay for them, transferred 
and delivered them to the defendant, 
and the latter promised the vendor to 
pay for them, it was held, that this 
was a substitution of a new contract 



208 



STATUTE 03r FUAUDS. 



[chap. IV. 



statute, although other persons were equally liable with him, 
as in that case the promise is merely to pay his own debt, 
and therefore a promise by one partner to pay a firm debt is 
Talid ; ^ but not if the promise is to pay the individual debt 
of another partner,^ nor is a verbal promise made by a 



of sale and a new purchaser, in lieu 
of the original contract of sale, that 
the original purchaser was discharged 
from all liability in respect of the 
goods, and his debt being extinguished, 
the promise was not a promise to be 
answerable for the debt of another. 
Browning v. Stallard, 5 Taunt. 450. 
The agreement of a factor to account 
for the amount of sales made by him, 
under a del credere commission, is not 
within the statute a promise to an- 
swer for the debt of another. Wolf 
V. Koppel, 2 Den. (¥. Y.) 368. 

And a contract or promise, al- 
though made concerning the debt or 
default of a third party, may yet be 
an original contract not within the 
statute. If the plaintiff, for example, 
has a lien upon the goods and chattels 
of his debtor in his possession, or if 
he holds securities for the payment of 
his debt, and is induced either to give 
up his lien upon the goods, or to part 
with his securities upon the faith of 
a promise, made by the defendant, to 
pay the amount of the plaintiff's 
claim thereon, the promise so made is 
not within the mischief intended to 
be provided against by the statute of 
frauds, although the amount prom- 
ised to be paid, as the consideration 
or inducement for the abandonment 
of the lien or the surrender of the 
securities, may be the subsisting debt 
of a third party, due to the plaintiff, 
and the performance of the promise 
may have the effect of discharging 
that debt. Barker v. Birt, 10 M. &, 
W. 61 ; Baigg v. Brooks, 10 Ad. & El. 
309; ib. 335; Barrel v. Trussell, 4 
Taunt. 117 ; Meredith v. Short, Salk. 
25 ; Castling v. Aubert, 2 East, 325 ; 
Vfalker v. Taylor, 6 C. & P. 752. 
Where the plaintiff had distrained 
upon his tenant for rent in arrear, 
and afterwards delivered up the goods 



and chattels to the defendants, for 
the use of the tenant upon the faith 
of an undertaking signed by the de- 
fendants in the following terms: 
"We, the undersigned, hereby agree 
and undertake to pay to Thomas 
Edwards (the plaintiff) all such rent 
as shall appear to be legally due to 
him from Edward Kelly, tenant, etc., 
up to the twenty-fifth day of Decem- 
ber, 1815 ; " it was held that the un- 
dertaking was not witliin the mischief 
intended to be provided against by 
the statute. Edwards v. Kelly, C M. 

6 S. 204; Williams v. Leper, 3 Burr. 
1887 ; Hampton v. Paulin, 12 Moore, 
497; Houlditch v. Milne, 3 Esp. 80; 

1 Wms. Sauud. 211 d, 211 e, ed. 1845. 
The landlord, having distrained the 
goods, held them in his hands as a 
pledge for the rent; the debt in re- 
spect of such rent was for the time 
suspended, and the promise founded 
upon the relinquishment by the land- 
lord of his lien upon the goods, was 
an original independent contract, and 
not a mere promise to answer for the 
debt of another. In these cases the 
plaintiff must so shape his case, as 
not to show or admit that there is a 
principal debtor or that the defend- 
ant's promise is a promise to pay the 
debt of another. Clemay v. Piggott, 

2 Ad. & El. 473 ; Slingerland v. Morse, 

7 John. (N. Y.) 403. 

1 Hopkins v. Carr, 31 Ind. 360; 
Piles V. McLeod, 14 Ala. 611 ; Eice v. 
Barry, 2 Cr. (U. S. C. C.) 447; Aiken 
V. Duren, 2 N. & McCord (S. C.) 370; 
Durham v. Munrow, 2 N. Y. 541; 
Stephens o. Squires, 6 Mod. 205; 
Homes v. Martin, 1 Esp. 162; Oli- 
phant V. Patterson, 56 Penn. St. 368. 

2 Wagnor u.Clay.l A.K.Mar.(Ky.) 
257 ; Taylor v. Hillyer, 3 Blackf . (Ind.) 
433; Georgia Co. v. Castleberry, 49 
Ala. 104. 



SEC. 127.J GTTARANTIES. 209 

member of a corporation to pay its debts, binding upon 
him.i But where any liability for the debt existed against 
the promisor when the promise was made, it is not within 
the statute ; and under this rule it is held that a promise by 
one of several owners of a ship to pay for materials, etc., for 
which the ship was liable,^ or of one trustee to reimburse 
a cestui que trust for the default of his co-trustees,^ are not 
within the statute, because the promisor was liable before, 
and when the promise was made ; and the rule is well estab- 
lished that the statute has no application where the promise 
is in effect to pay the promisor's own debt, although that of a 
third person is thereby incidentally guaranteed.* It is under 
this rule that the verbal acceptance of an order drawn by 
one upon his debtor is held valid,^ or a promise by a debtor 
to pay. the debt to a person to whom it has been assigned.^ 
But it has been held that where, from any cause, a person's 
liabiHty upon a promise to pay the debt of another has been 
discharged, his promise to pay it made after such discharge is 
within the statute, as the pre-existing liability does not afford 
any consideration therefor;^ but in several States it has been 
held that, as the indorser of a note has the power to waive 

1 Quin V. Hanford, 1 Hill (N. Y.) Paddleford, 43 Vt. 64; Dearborn v. 

62; Trustee (/.Flint, 13 Met. (Mass.) Parks, 6 Me. 81; Cram <;. Ktch, 53 

539; Wyman v. Gray. 7 H. & J. (Md.) Ind. 214; Crosby v. Joralemon, 37 id. 

409; Rogers v. Waters, 2 G. & J. 264; Helms v. Kearns, 40 id. 124; 

(Md.) 64 ; Searight v. Payne, 2 Tenn. Seaman v. Hasbrouck, 35 Barb. (N. Y.) 

Ch. 175. 151 ; Welch v. Kearney, 49 Cal. 49 ; 

^ Fish V. Thomas, 5 Gray (Mass.) Kowe v. Whittier, 21 Me. 545; Bear- 

45 ; Headrick v. Wiseheart, 57 Ind. shears v. Eowe, 46 Mo. 501 ; Berry v. 

129. Doremus, 30 N. J. L. 399 ; Johnson 

3 Orrell v. Coppock, 26 L. J. Ch. v. Knapp, 36 Iowa, 316 ; Taylor v. 
269; Fitzgerald «. Dressier, 7 C. B. Preston, 79 Penn. St. 436; Meyer v. 
(N. S.) 374; Coutourier w. Hastie, 22 Hartman, 72 111. 442; Sweetman v. 
ii. J. Exchq. 97. Parker, 49 Miss. 19 ; Robberman v. 

4 Malone v. Keener, 44 Penn. St. Wyskamp, 54 111. 159 ; Tisdale v. Mor- 
107; Cook V. Barrett, 15 "Wis. 596; gan, 7 Hun (N. Y.) 583; Mitchell o. 
Creely. Bell, 2 J. J. Mar. (Ky.) 309; Griffin, 58 Md. 554; Maxwell v. 
Barring v. Warden, 12 Cal. 311; Wil- Haynes, 41 Me. 559; Brown v. Strait, 
liams V. Little, 35 Vt. 323 ; Alcalda 19 111. 88. 

V. Morales, 3 Nev. 132 ; BalUet v. ^ Shields v. Middleton, 2 Cr. (U. S. 

Scott, 32 Wis. 144; RoUison w. Hope, C. C.) 205; Mt. Olivet Cemetery v. 

18 Tex. 446; Gold v. Phillips, 10 Shubert, 2 Head (Tenn.) 116. 

John. (N. Y.) 412; Phillips v. Grey, » Presbyterian Society of Greene 

3 E. D. S. (N. Y. C. P.) 69; Wolfe v. Farm v. Staples, 23 Conn. 544; Colt 

Koppel, 2 Den. (N. Y.) 368; Barker v. Root, 17 Mass. 290. 

V. Bucklin, 2 id. 61 ; Buchanan v. '' Peabody v. Harvey, 4 Conn. 119. 



210 STATUTE OF FRAUDS. [CHAP. IV. 

the technical bar, which a neglect to protest the note 
affords, a promise to pay after he is discharged of such 
neglect amounts to a "waiver, and keeps the original liability 
on foot.^ Where a guaranty is executed after the debt is 
contracted; but in pursuance of an agreement to guarantee 
the debt made before it was contracted, upon the faith of 
which the creditor trusted the principal, the consideration 
is sufficient.^ The leaving of a demand with an attorney 
for collection, is a sufficient consideration for a guaranty of 
the debt made by him at that time ; ^ but a guaranty made 
subsequently is invalid, unless supported by a new and good 
consideration. Thus, A became bound for the delivery of 
goods to a constable, which were taken by him in execution 
against B. C claimed the goods and prevented the delivery, 
and after suit commenced against A by the constable, or ally, 
promised A to indemnify him from all costs and damages in 
consequence of not delivering the goods. It was held that 
the promise of C was not binding, it being for the default of 
another ; and that, admitting that the moral obligation of C 
to protect and save B, who was the father of C, harmless 
(which is denied), and was a sufficient consideration, yet 
the cqnsideration of the promise, being past, is not valid.* 
Where the consideration of a guaranty is sufficient when the 
guaranty is made, the guaranty does not fail by the subse- 
quent loss of value of the consideration.^ 

Sec. 128. Credit given to Guarantor. Promise not within the 
Statute. — If goods are supplied to, or work is done for, a third 
person at the instance of the guarantor, and credit is given to Mm 
and he is treated as the real debtor, then the promise is direct, and 
not collateral, and the case is not within the statute. The rule is 
that if the promise is of such a character as to make it an original 
undertaking on the part of the promisor, it is not within the statute, 
although it is for the exclusive benefit of another.^ Where the 

1 Uhler V, Farmer's Ijfat. Bank, 64 ^ Mordecai v. Gadsden, 2 Spears 
Penn. St. 406 ; Ashford v. Robinson, (S. C.) 566. 

8 Ired. (N. C.) L. 114; United States » Cook v. Barrett, 15 Wis. 596 

Bank v. Southard, 17 N. J. L. 473. Malone v. Keener, 44 Penn. St. 107 

2 Standley v. Miles, 36 Miss. 434. Crul v. Bell, 2 J. J. Mar. (Ky.) 309 
8 Gregory v. Gleed, 33 Vt. 405. Story v. Menzies, 4 Chand. (Wis.) 61 

4 Nixon V. Vanhise, 5 N. J. L. 491. Alcalda v. Morales, 3 Nev. 132 ; Gold 
See also Weed v. Clark, 4 Sandf. v. Phillips, 10 John. (N. Y.) 412; 
(N. Y.) 31. Williams v. Little, 35 Vt. 323; Cot- 



SEC. 128.] 



GUARANTIES. 



211 



promise was as follows : " If L S shall go through the pur- 
chase, my brother will give you a handsome gratuity for the 
trouble and pains you shall be at in transacting the affair, 
which I promise and assure you shall not be less than X300. 
My meaning is, you shall be paid when the conveyances shall 
be executed ; " it was held that the defendant was personally 
liable, and Lee, C. J., said that there was a difference be- 
tween a conditional and an absolute undertaking, as if A- 
promise to pay B such a sum if C does not : there A is but 
a security for C. But if A promise that C will pay such a 
sum, A is the principal debtor, for the act done was on his 
credit, and no way on C.-' Where a mother took her son to 
school, and saw the master, but no evidence was given of 
what passed at the time, and afterwards a bill was delivered 
to the boy's vmcle, who said it was quite right to deliver the 



trell i\ Stevens, 10 Wis. 423 ; Clymer 
V. Be Young, 54 Penn. St. 118; 'Wolf 
v. Koppel, 2 Den. (N. Y.) 368; Bar- 
ringer V. Warden, 12 Cal. 311 ; Theras- 
son V. MeSpeedon, 2 Hilt. (N. Y. C. P.) 
1; KolUnson v. Hope, 18 Tex. 446; 
Stoddard v. Graham, 23 How. Pr. 
(N. Y.) 518 ; Phillips v. Gray, 3 E. D. 
S. (K Y. C. P.) 69; Mount Olivet 
Cemetery v. Shubert, 2 Head (Tenn.) 
116 ; Weyland v. Crichfield, 3 Grant's 
(Penn.) Gas. 113; Rhodes c. Leeds, 3 
S. & P. (Ala.) 212; Nelson v. Hardy, 
7 Ind. 364 ; Briggs v. Evans, 1 E. D. 
S. (N. Y. C. P.) 192; Porter v. Lang- 
horn, 2 Bibb. (Ky.) 63; Brown v. 
George, 17 N. H. 128; Arbuckle v. 
Hawks, 20 Vt. 538; Backus v. Clark, 
1 Kan. 303 ; Hodges v. Hall, 29 Vt. 
209 ; Prentice u. Wilkinson, 5 Abb. 
(N. Y.) Pr. 49; Tompkins v. Smith, 
3 S. & P. (Ala.) 54 ; Brittain v. Thrai- 
kill, 5 Jones (N: C.) L. 329; Noyes v. 
Humphries,' 11 Gratt. (Va.) 636; 
Waggoner b. Gray, 2 H. & M. (Va.) 
603 ; Stone v. Symmes, 18 Pick. (Mass. ) 
367; Gunnels v. Stewart, 3 Brev. 
(S. C.) 52; Shoemaker v. King, 40 
Penn. St. 107; Brown u. Hazen, 11 
Mich. 219. In Rogers v. Rogers, 6 
Jones (N. C.) L. 300, a father prom- 
ised a creditor of his son that if he 
would go to a distant place and go 
bail for his son, he (the father) would 



pay him the debt which his son owed 
him. The creditor did so, but the 
court held that this did not render 
the father liable, because the debt against 
the son was still in force, and therefore 
the promise was merely collateral and 
within the statute. White v. Solo- 
monsky, 30 Md. 585. In Birchell i;. 
Neaster, 36 Ohio St. 331, A let a con- 
tract to B for furnishing materials and 
building a house for a stipulated sum, 
B employed C to furnish materials 
and to perform the labor of plaster- 
ing. When the building was com- 
pleted, except a small part of the 
plastering, C, in the absence of B, 
informed A that he would not finish 
the plastering unless A would agree 
to pay him; and A replied, "Finish 
the plastering and I will see you paid." 
The obligation of B to complete the 
house and pay C not being released, 
it was held : — 

1. That the verbal promise of A to 
see C paid was within the statute, 
and the fact that there was due from 
A to B, at the time the promise was 
made, a sum sufficient to pay the bal- 
ance to C, did not take it out of the 
statute. 

2. That, in suit on such promise, A 
might rely upon the statute, under 
the general denial. 

1 Gordon v. Martin, Fitzg. 302. 



212 STATUTE OP PEAUDS. [CHAP. IV. 

bill to him, fqr he was answerable, it was held that the statute 
of frauds did not apply, and that it was proper to leave it to 
the jury to say under the circumstances whether the original 
credit was given to the uncle or not.^ Where the defendant 
gave the following guaranty : " I hereby undertake to Mr. 
T. Edge to see him paid for the gas apparatus he has put up 
and furnished for Mr. J. Brunton according to the work, to 
be performed in a scientific manner, as shall be thought 
necessary and approved by Mr. Evans, the superintendent 
of the gas works in Peter Street," and the defendant had 
given orders about the work before and after the guaranty 
was given, Abbott, C. J., left it to the jury to determine 
whether the defendant, although he had no interest in the 
theatre in which the apparatus was to be put up at the 
period in question, was not one of the persons who had 
originally given orders for the gas apparatus ; for if he was, 
a verdict might be recovered upon his own personal liability, 
without regard to the guaranty.^ 

Where the defendant employed a builder to erect some 
houses, and gave a guaranty for a supply of materials to the 
builder to a certain amount, and afterwards an order for a 
further supply to a certain amount, and more materials were 
supplied on the order of the builder, the defendant being 
constantly on the premises, it Avas held that it was for the 
jury to say whether he had so acted as to lead the plaintiff 
to believe that the latter supply was to be on his credit.^ 

In Simpson v. Penton,* one Simpson introduced Penton to 
Ovenston, an upholsterer, and in Penton's presence asked 
Ovenston if he had any objection to supply Penton with 
some furniture, and that if he would, "he would be answera- 
ble." Ovenston asked Simpson how long credit he wanted, 
and Simpson replied " he would see it paid at the end of six 
months." Ovenston agreed to this, and Simpson gave him 
the order; and the goods were supplied accordingly. At 
the end of six months, Penton not having paid the amount, 
Ovenston applied to Simpson for payment, and he paid the 

1 DarneU v. Trott, 2 C. & P. 82. » Smith ,;. Rudhall, 3 Fos. & Fin. 

2 Edge V. Frost, 4 D. & R. 243 ; and 143 ; see also Taylor v. Hilary, 1 C. 
see Scholes v. Hampson, cited De M. & R. 741. 

Colyar on Guaranties, 94 ; Fell on * 2 C. & M. 430. 
Guaranties, 2d ed. 27. 



SEC. 128.] GUAEANTIES. 213 

money. The entry in Ovenston's books was: "Mr. Penton 
per Mr. Simpson." It was held that the jury were warranted 
in finding that the undertaking on the part of Simpson was 
not a collateral undertaking.^ 

In the recent case of Mountstephen v. Lakeman,^ the 
question as to whether credit was given to the guarantor 
personally was fully discussed. There the plaintiff had been 
employed to constriict a main sewer by a local board of 
health, of which the defendant was chairman. "When the 
sewer was nearly completed the board gave notice, under 
the statute, to the occupiers of the adjoining houses to con- 
nect their drainage within twenty-one days, or the board 
would do it at their expense. Before the twenty-one days 
had expired the plaintiff, having completed the sewer, was 
about to leave the place with his carts, etc., when the de- 
fendant sent after him, and the following conversation took 
place. The defendant said, "What objection have you to 
making the connections?" • The plaintiff replied, "I have 
none, if you or the board will order the work, or become 
responsible for the payment." The defendant replied, " Go 
on and do the work, and I will see you ijaid." The plaintiff 
accordingly did the work under the superintendence of the 
surveyor of the board, and sent in his account to the board, 
debiting them with the amount. The board refused to pay, 
on the ground that they had not authorized the order. The 
Court of Queen's Bench held that the conversation did not 
amount to an undertaking by the defendant to be primarily 
liable for the work, but only to a promise that if the plaintiff 
should do the work on the credit of the board, the defendant 
would pay, if the board did not, and that this was a promise 
to be answerable for the debt of another person, which, not 
being in writing, could not be enforced. The Court of 
Exchequer Chamber, however, held that there was evidence 
on which the jury might have found that the defendant 
agreed to be primarily liable, and this decision was affirmed 
by the House of Lords.^ 

1 And see Austen v. Baker, 12 2 Ad. & El. 473 ; Hargrcavcs ti. Par- 
Mod. 250; Bateman ;;. Phillips, 15 sons, l^K. & W. 561. 
East. 272; Dixon v. Hatfield, 2 Bing. " ^^B^ *^' ^' ^^' ^*'^' ^' ^' ^ 
439 ; 10 Moo. 42 ; Clancy «. Piggott, H. L. ^^B^K 

» L.MWl"24. 



214 



STATUTE OP FRAUDS. 



[chap. IV". 



Sec. 129. Rule when Original Debtor is Discharged.-^ 
When by the agreement of the parties the original debtor is dis- 
charged, the promise is treated as original, and not within the 
statute, and the promisor is substituted as debtor,^ and this 
rule applies to an executor's promise to pay a debt of the 
testator. If the estate is discharged, his promise is not within 
the statute,^ nor is a promise to pay a debt, where a debtor 
has been taken upon a ca sa, if the creditor will discharge 
him, where such discharge operates as a discharge of the 
debt,^ and the same is also held where the promise is made 
in consideration that the creditor will discharge the debtor,* 



^ Stone V. Symmes, 18 Pick. 
(Mass.) 467 ; Watson v. Jacobs, 29 
Vt. 169 ; Booth v. Eighmie, 60 N. T. 
238; Gleason „. Briggs, 28 Vt. 135; 
Curtis V. Brown, 5 Gush. (Mass.) 492 ; 
Anderson v. Davis, 9 "Vt. 136 ; "White 
17. Solomonsky, 30 Md. 585; Andre 
V. Badman, 13 id. 241 ; "V7atson v. 
Randall, 20 "Wend. (N. Y.) 201 ; Cooper 
V. Chambers, 4 Dct. (N. C.) 261 ; Yale 
V. Edgerton, 14 Minn. 194; Griswold 
.,. Griswold, 7 Lans. (N. Y.) 72; Mead 
V. Nuges, 4 E. D. S. (N. Y. C. P.) 510; 
Armstrong v. Flora, 3 T. B. Mon. 
(Ky.) 43; AUhouse v. Eamsay, 6 
"Whart. (Penn.) 331; Haggerty u. 
Johnson, 48 Ind. 41 ; "Wood v. Corco- 
ran, 1 Allen (Mass.) 406; Lord v. 
Davison, 3 id. 131 ; Click v. McAffee, 
7 Port. (Ala.) 63; Parker o. Heaton, 
55 Ind. 1; Eddy v. Roberts, 17 III. 
505; Quintard v. De"Wolf, 34 Barb. 
(N. Y.) 97 ; "Watson v. Jacobs, 29 "Vt. 
169; Gleason v. Briggs, 28 id. 135; 
Day V. Cloe,4 Bush. (Ky.) 563; "War- 
ren V. Smith, 24 Tex. 484; Corbett v. 
Cochran, 3 Hill (S. C.) 41 ; Shaver v. 
Adams, 10 Ired. (N. C.) L. 261. But 
while the original debtor remains lia- 
ble unless the promise is founded on 
an independent consideration, the 
promise is within the statute. Newell 
V. Ingraham, 15 "Vt. 422 ; Britain v. 
Thrackill, 5 Jones (N. C.) 329; Noyes 
V. Humphries, 11 Gratt. (Va.) 636; 
Brown v. Hazen, 11 Mich. 219 ; Shoe- 
maker V. King, 40 Penn. St. 107 ; Gun- 
nels V. Stewart, 3 Brev. (S. C.) 52; 
Butcher v. Stuart, 11 M. & W. 557. 



2 Harrington v. Rich, 6 Vt. 666; 
Mosley t). Taylor, 4 Dana (Ky.) 542; 
Robinson v. Lane, 17 Miss. IGl. 

8 Lane v. Burghart, 1 Q. B. 033 ; 
Goodman v. Chase, 1 B. & Aid. 297. 

* Cooper V. Chambers, 4 Dcv. (S. 
C.) 261 ; Butcher v. Stewart, 11 M. & 
"W. 857. In Griswold v. Griswold, 7 
Lans. (N. Y.) 72, the owner of a 
mortgage made a verbal agreement 
with the mortgagor to satisfy it if he 
would discharge a disputed claim of 
an estate of which the mortgagor was 
the sole beneficiary by will, against 
one Parley. The mortgagor, with the 
approval of the executor of the es- 
tate, gave a receipt for the claim and 
released the executor from, and in- 
demnified him against, all liabilities of 
the estate. The court held that the 
promise was not within the statute, 
and that the mortgage was discharged. 
MuLLiN, P. J., said : " The undertaking 
of Manly was not to assume or pay 
the debt of any person, but it was to 
satisfy the mortgage held by himself 
against the defendant upon a new and 
sufficient consideration moving between 
him and the defendant, upon the faith 
of his promise to satisfy the mortgage. 
The executor at the request of the 
defendant discharged the claim wliieh 
he and his wife owned as legatees 
against Parley. It is true that the 
executor never executed any technical 
discharge, and the legatees entitled to 
the debts, did, witli his assent and ap- 
prpval, agree to release Parley and 
Parley, and the other heirs released 



SEC. 129.] _ GUARANTIES. 215 

or to convert a separate into a joint debt, because thereby a 
new debt is created, and the former extinguished ; ^ and if the 
original debtor is discharged, by an entry to that eifect upon 
'the books of the creditor, or by giving up the evidence of 
the debt, the promisor is substituted as debtor, and becomes 
liable as such, notwithstanding the statute ; ® but a promise 
made to pay the debt if the creditor will submit it to arbi- 
tration is within the statute, as the agreement to arbitrate 
does not extinguish the debt.^ Instances may exist where 
the promise is not within the statute, even though the debtor 
is not discharged ; but this condition can only arise when the 
promise is based upon a new and independent consideration mov- 
ing between the parties, and from which the promisor derives a 
direct benefit, in which case the promisor becomes the debtor, 
and there is no debt of another to which his promise can be 
collateral.* The question whether each particular case comes 
within the statute or not depends on the fact of the original 
party remaining liable, coupled with the absence of any lia- 
bility on the part of the defendant or his property, except 
such as arises from his express promise.^ If no liability ex- 
ists against the person promised for, when the promise is 
made, and credit is given solely to the promisor, the under- 
taking is not collateral, but original; but if another has 
already become liable, although the liability is not com- 
pleted, the undertaking is collateral.^ 

the executor from any claim they or an undertaking is in no sense coUat- 

either of them might have against eral. The substance and effect of tlie 

him for the property of tlie estate, arrangement was, that Manly prom- 

This was done because it ivas understood ised to cancel and discharge his hond 

that Parley was released. This was an and mortgage in consideration that 

accord and satisfaction. Palmerton the defendant would discharge the 

u. Huxford, 4 Den. (N. Y.) 166 ; Parm- debt due Parley. This was a sufficient 

er's Bank of Amsterdam v. Blair, 44 consideration in law to sustain the 

Barb. (N. Y.) 641 ; Neary t;. Bostwick, proriiise." 

2 Hilt. (N. Y. C. P.) 514. In view of i Z;x ;;arte Lane, 1 De Gex, 300. 
these facts, no court would permit ^ Langdon v. Hughes, 107 Mass, 

either the executor or legatee tore- 272; Corbettr. Cochran, 3 Hill (S. C.) 

covei^ against Parley. This being so, 41 ; Harris v. Young, 40 Ga. 65. 
there was no debt remaining due from * Harrington v. Rich, Vt. 666. 
Parley to which the undertaking of * McCaffli v. Kadcliffe, 3 Eob. 

Manly could be collateral. If the (N. Y.) 445. 

plaintiff can be said to have anything ^ Porth v. Stanton, 1 \Vms. Saund. 

to do with that debt, he assumed an 211 b. 

amount of its equal to his bond and ° BQokerv.Tally,2 Humph.(Tenn.) 

mortgage, and agreed to pay it. Such 308 ; Ehodes v. Leeds, 3 S. & P. (Ala.) 



216 STATTJTE OF FEATTDS. [CHAP. IT. 

Sec. 130, Question to Whom Credit Given is for the Jury. '■ — 
It is very often the subject of inquiry to whom the credit 
was given, and such nice distinctions have been taken on the 
wording of the promise, as to make it impossible to lay down 
any precise rule of construction, but the jury must deter- 
mine to whom the credit was given,i in view of all the cir- 
cumstances of the case as the extent of the undertaking, the 
expressions used, the situation of the parties, and all the cir- 
cumstances of the transaction.^ The form in which the prom- 
ise is given, as " I will see you paid," or " I will pay you," ^ 
are of importance in determining the question; but, even 
though the promise is absolute, the question after all recurs. 
To whom was the credit given ? and if not given entirely to 
the promisor, then he is not liable upon his promise.* The 
circumstance that the goods were charged to the promisor or 
the debtor upon the plaintiffs books is material in determining 
the question, but by no means conclusive, as it may be shown 
that they were so charged for convenience,^ or by mistake. 
Nor is the fact that the bill was made out in the name of 
the debtor,^ and presented to him for payment,^ conclusive 
evidence that credit was given to him, although, if unex- 



212 ; Antonio v. CUpey, 3 Eieh. (S. C.) » Bates v. Starr, 6 Ala. 697 ; Briggs 

L. 201 ; Arbuckle v. Hawks, 20 Vt. v. Evans, 1 E. D. S. (N. Y. C. P.) 192; 

538 ; Tileston v. Nettleton, 6 Pick. Thwaits v. Curl, 6 B. Mon. (Ky.) 172. 

(Mass.) 509. * Blake v. Parlin, 22 Me. 395; 

1 1 Wms. Saund. 230. See Ander- Moses v. Norton, 36 id. 113. 

son V. Hayman, 1 H. El. 120. ^ Barrett v. McHugh, 128 Mass. 

2 Elder v. Warfield, 7 H. & J. (Md.) 165 ; Swift v. Pierce, 13 Allen (Mass.) 
397; Warwick v. Grashalz, 3 Grant's 136; Walker v. Hill, 119 Mass. 249; 
Cas. (Penn.) 234; Blodgett v. Lowell, Burkhatter v. Farmer, 5 Kan. 477; 
33 Vt. 174; Sinclair v. Richardson, 12 Ruggles v. Gatton, 50 111. 412; Myer 
id. 33; Billingsley v. Dempewolf, 11 v. GriiSn, 31 Md. 350; Champion v. 
Ind. 414 ; Hazen v. Bearden, 4 Sneed. Doty, 31 Wis. 190. 

(Tenn.) 48 ; Turton v. Burky, 4 Wis. « Houlditch v. Milne, 3 Esp. 86. 

119 ; Payne v. Baldwin, 14 Barb. (N. But see Leland v. Crayon, 1 McCord 

Y.) 570; Chase v. Day, 17 John. (N. (S. C.) 100; Dixon v. Frazer, 1 E. D. 

Y.) 114; Smith v. Hyde, 19 Vt. 54; S. (N. Y. C. P.) 32; Connally v. Ket- 

Hetfleld v. Dow, 27 N. J. L. 119; Pros- tlewell, 1 Gill (Md.) 260 ; where the 

ser V. Allen, Gow. 117; Simpson v. fact that the goods were charged to 

Peuton, 2 C. & M. 436; Keate v. Tem- the debtor was held sufficient to show 

pie, 1 B. & P. 158 ; GUI v. Herrick, the promise to be collateral. 

Ill Mass. 501 ; Jefferson Co. v. Hogle, ' Pennell v. Pentz, 4 E. D. S. (N. 

08 Penn. St. 202; Haverly v. Mercur, Y. C. P.) 639; Larson v. Wyman, 14 

76 id. 97; CliflEord v. Luhring, 69 HI. Wend. (N. Y.) 246. 
401 ; Eawson v. Springstein, 6 T. & C. 
(N. Y.) 611. 



SEC. 130.] GUAEANTIBS. 217 

plained, such facts are sufficient to make the promise col- 
lateral. The fact that the plaintiff charged the goods to the 
promisor, or presented the bill made out in his name to him 
for payment, is not conclusive evidence that he gave credit 
solely to him,^ and the jury, in spite of that circumstance, may, 
where the circumstances warrant it, find that the whole credit 
was given to the debtor.^ The fact that the goods were 
bought for and used by the promisor, does not necessarily fix 
his liability for the debt,^ but, as previously stated, the ques- 
tion is for the jury in view of all the circumstances, and if 
there is any evidence to sustain their finding, it is conclu- 
sive.* Where the plaintiff, who carried on the trade of a 
tailor, being applied to by one Foster to be supplied with 
certain clothes made by the plaintiff, and still in his posses- 
sion, was unwilling, and refused to deliver them to Foster 
upon his credit, but delivered them at the special request of 
the defendant, who undertook and promised to pay, it was 
held that the case was not within the statute, that the whole 
credit was given to the defendant, and that he was liable.^ 

In Rains v. Story,® A applied to B for goods ; B asked for 
a reference ; A referred him to C ; C on being applied to in- 
quired the amount of the order, and on what terms the goods 
were to be furnished, and, on being told, said : " You may send 
them, and I'll take care they are paid for at the time." He 
was afterwards written to to accept a bill for the amount, to 
which he replied that he was not in the habit of accepting 
bills, but that the money would be paid when due. After 
this, B (the seller) wrote to C about the goods, and spoke of 
them in his letter as goods which C had " guaranteed," and 
the attorney of B's assignees (when he had become bank- 
rupt) wrote to A for the money ; but this letter was a circu- 



1 Hardraan v. Bradley, 85 III. 162 ; * Petitt v. Braden, 55 Ind. 201 
Cutter !>. Hinton, Rand. (Va.) 509; Dean u. Tallman, 105 Mass. 443 
Poultney v. Koes, 1 Dall. (Penn.) 238 ; Bloom u. McGrath, 53 Miss. 249 
Walker v. Richards, 41 N. H. 383 ; Cowdin v. Gottgetreau, 55 N. Y. 656 
Kinloch i/. Brown, 1 Rich. (S. C.) L. Glenn t-. Lehman, 54 Mo. 45 ; Moshier 
223 ; Noyes- v. Humphrey, 11 Gratt. v. Kitchell, 87 111. 18 ; Eshleman v. 
(Va.) 636; Eshleman v. Hamish, 76 Hamish, 76 Penn. St. 97. 

Penn. St. 97. ^ Croft v. Smallwood, 1 Esp. 121 ; 

2 Scudder v. Wade, 4 N. J. L. 249. and see Keate u. Temple, 1 B. & P. 

3 Hendricks v. Robinson, 56 Miss. 158. 

694. ■ 6 3 c. & P. 130. 



2l8 STATUTE OF TEATIDS. [CHAP. IV. 

lar, written in pursuance of a list made out for him by B, 
and without any knowledge of the circumstances under which 
the debt was contracted. It was held that on this evidence 
C was not primarily liable, but only as a guarantor of the 
debt of A.i 

Sec. 131. Evidence as to "Whom Credit Given. — Tlie 
tradesmen's hooks should he produced, in order to show to whom 
credit was given. In Austen v. Baker,^ Holt, C. J., said that 
if B desires A to deliver goods to C, and promises to see him 
paid, there assumpsit lies against B ; , though, in that case, he 
said, at Guildhall he always required the tradesman to pro- 
duce his books, to see whom credit was given to. But if, 
after goods deliYered to C by A, B says to A, " You shall be 
paid for the goods," it will be hard to saddle him with the 
debt. And in Storr v. Scott,^ it was held that when a trades- 
man makes out an account for goods in the name of a partic- 
ular person, it must be taken that they were furnished on the 
credit of such person, unless it can he shown by unequivocal evi- 
dence that the credit was in fact given to another. 

Sec. 132. Must be Principal Debtor. — In order to bring a 
case within the statute, it must he shovm that the parties to the 
transaction intended that there sho^dd he a principal debtor, either 
at the time the promise was made, or at some future time. The 
leading case upon this point is Birkmyr v. Darnall.* There 
the declaration stated as follows : That iin consideration the 
plaintiff would' deliver his gelding to A, the defendant prom- 
ised that A should redeliver him safe, and evidence was given 
that the defendant undertook that A should redeliver him 
safe ; and this was held a collateral undertaking for another, 
for where the undertaker comes in aid only to procure a 

1 See also Darnall v. Tratt, 2 C. & Doty, 31 Wis. 190. But the fact 
P. 82 ; Simpson o. Penton, 2 C. & M. that the creditor charged the goods 
430 ; Andrews v. Smith, 2 C. M. & R. to the ' defendant is not conclusire 
627 ; Cross v. Williams, 7 H. & N. 675. evidence that he gave credit to him 

2 12 Mod. 250 ; Dixon v. Frazer, 1 alone : Scudder v. Wade, 4 N. J. L. 
E. D. S. (N. Y. C. P.) 32; Leland o. 249; Poultneyu. Ross, 1 Dall.(Penn.) 
Creyon, 1 McCord (S. C.) 100; Rug- 238; Walker u. Richards, 41 N. H. 388 ; 
gles V. Gallon, 50 111. 412; Swift v. Noyes v. Humphrey, 11 Gratt. (Va.) 
Pierce, 13 Allen ( Mass. ) 136 ; Conally 636 ; nor is the circumstance that he 
v.Kettlewell, 1 Gill. (Md.) 260; Walker charged the goods to the debtor: 
V. Hill, 119 Mass. 249; Burkhalter v. Swift v. Pierce, 13 Allen (Mass.) 136; 
Farmer, 5 Kan. 477 ; Myer v. Griffin, Champion v. Doty, ante. 

31 Md. 350 ; Larson u. Wyman, 14 s g q. & P. 241. 
Wend. (N. Y.) 246; Champion v. « 1 Salt. 27. 



SEC. 132.] 



GUARANTIES. 



219 



credit to the party, in that case there is a remedy against 
both, and both are answerable according to their distinct 
engagements; but where the whole credit is given to the 
undertaker, so that the other party is but as his servant, and 
there is no remedy against him, this is not a collateral under- 
taking. But it is otherwise in the principal case, for the 
plaintiff may maintain detinue upon the bailment against 
the original hirer, as well as assumpsit upon the promise 
against this defendant. M per cur. " If two come to a shop, 
and one buys, and the other, to give him credit, promises the 
seller, ' If he does not pay you, I will,' this is a collateral 
undertaking, and void, without writing, by the statute. But 
if he says, ' Let him have the goods, I will be your paymas- 
ter,' or, ' I will see you paid,' this is an undertaking as for 
himself, and he shall be intended to be the very buyer and 
the other to act but as his servant." ^ The case of Watkuis 



1 And see the judgment given at 
greater length, Ld. Raym. 1087. Hall 
B.Wood, 4 Chand. (Wis.) 36; Ware 
V. Stephenson, 10 Leigh. (Va.) 155; 
Doyle V. White, 26 Me. 341 ; Homans 
V. Lombard, 21 id. 308; Williams v. 
Corbett, 28 HI. 262 ; Kurtz v. Adams, 
12 Ark. 174; Kinloch v. Brown, 1 
Rich. (S. C.) 223; Taylor v. Drake, 
4 Strobh. (S. C.) 431; Olmstead o. 
Greenly, 18 John. (N. Y.) 12 ; Weyand 
V. Critchett, 3 Grant's Gas. (Penn. 
113; Nelson v. Hardy, 7 Ind. 364 
Cahill v. Bigelow, 18 Pick. (Mass. 
369; Flanders B.Crolius, 1 Duer (N. Y. 
206 ; Cropper v. Pitman, 13 Md. 190 
Cutter V. Hinton, 6 Rand. (Va.)'509 
Hill V. Raymond, 3 Allen (Mass.) 540 
Swift V. Pierce, 13 id. 138 ; Rhodes v. 
Leeds, 3 S. & P. (Ala.) 212 ; Briggs v. 
Evans, 1 E. D. S. (N. Y. C. P.) 192 
Dunning v. Roberts, 35 Barb. (N. Y. 
463 ; Carville v. Crane, 3 Hill (N. Y. 
483; Walker v. Richards, 39 N. H. 
259 ; Hetfield v. Dow, 27 N. J. L. 440 
In Gardiner v. Hopkins, 5 Wend. (N. Y. 
23, where a printer had printed a book 
for a bookseller, and delivered all the 
work, except a, few signatures (eight 
sheets) when the bookseller having 
failed, and the printer assigned the 
book to the defendant, who promised 
the printer that if he would deliver 



the balance of the work to him he 
would pay him the balance of his bill, 
the promise was held to be original. ■ 
But in Payne v. Baldwin, 14 Barb. 
(N. Y.) 579, where the Star Insurance 
Company had entered into a contract 
with E S to do the mason work on 
some houses which the company was 
building, and E S made a contract 
with the plaintiff to furnish plaster 
and marble, but E S refusing to make 
a payment when demanded, the plain- 
tiffs declined to furnish such mate- 
rials, and the president of the com- 
pany told him to go on and furnish 
the stuff and he would see him paid, 
it was held that the promise was col- 
lateral and within the statute. In 
Pennell v. Pentz, 4 E. D. S. (N. Y. 
C. P.) 639, the defendant agreed to 
become surety, provided the principal 
debtor would assign to him the con- 
tract about which the materials to be 
purchased were to be used. This 
having been done, the defendant di- 
rected the vendor to furnish the mate- 
rials, and promised to pay him, " as 
no other person could draw the money 
on the contract but himself," assuring 
him that a written agreement was not 
necessary. It was held that the credit 
was given to the defendant, and that 
the contract was not within the stat- 



220 STATUTE OF PEAUDS. [CHAF. IV. 

V. Vince ^ is to the same effect. There it was said that if A 
promises B (being a surgeon) that if B will cure D of a 
woimd, he will see him paid, this is only a promise to pay if 
D does not, and it ought, therefore, to be in writing by the 
statute. But if A promises in such case that he will be B's 
paymaster, whatever he shall deserve, it is immediately the 
debt of A, and he is liable without writing.^ 

Unless there was, at the time when the promise was made, 
a principal debtor, there is no debt to which the promise could 
be collateral. " There could be no suretyship," says Loed 
Selboene,^ "unless there be a principal debtor, who, of 
course, may be constituted in the course of the transaction 
by matters ex post facto, and need not be so at the time ; hut 
until there is a principal debtor, there can be no suretyship. 

Sec. 133. To Constitute Guaranty, must be Debt to Guar- 
antee. — Nor can a person guarantee anj'^body else's debt, un- 
less there is a debt of some other person to be guaranteed ; * 
and this rule applies in all cases where the debt was created 
upon the sole credit of the promisor. Thus, wherfe a land-owner, 
whose land had been taken for the construction of a railroad, 
and who had presented a petition to the county commissioners 
for his damages therefor, had afterwards iixed by a written 
agreement with the railroad company the sum to be assessed 
on his petition, with a provision that, if satisfactory to the 
comissioners,,this sum might be entered upon their records, 
without a view, and other proceedings had thereon, as if 

ute. See also Fallmer v. Dale, 9 Penn. lips, 1 KoU. Abr. 20, pi. 14 ; and the 
St. 83, where a promise to pay for judgment of Willes, J., in Mount- 
land if the grantor would convey it to Stephen v. Lakeman, L. E. 7 Q. B. 196. 
another, which he did, was not within ' In Mountstopheu v. Lakeman, L. 
the statute. So in Kelson v. Dubois, E. 7 H. L. 24. 

13 John. (N. Y.) 175, where a horse * Thompson v. Blanchard, 2 N. Y. 

was sold to another at the request of 335 ; Sanborn v. Merrill, 41 Me. 467 ; 

the defendant, and on his promise to Peck v. Thompson, 15 Vt. 637 ; Chi- 

guarantee the payment of such per- cago &c. Coal Co. u. Liddell, 69 111. 

son's note therefor, the promise was 639 ; Griffin v. Derby, 5 Me. 476 ; Mer- 

held not to be within the statute ; and rill v. Englesby, 28 Vt. 150 ; Samp- 

the defendant having indorsed the son i. Swift, 11 id. 315 ; Walker v. 

note in blank, it was held that the Norton, 29 id. 226 ; Douglass v. Jones, 

plaintiff might write a guaranty over 3 E. D. S. (N. Y. C. P.) 551 ; Jepher- 

it. son V. Hunt, 2 Allen (Mass.) 417 ; 

1 Ld. Eaym. 224. Eead v. Nash, 1 Wils. 305 ; DuflEy v. 

2 And see Seaman v. Price, 1 C. & "Wunsch, 42 N. Y. 243. 
P. 586; 10 Moo. 34; Turner v. Phil- 



SEC. 133.] 



GUAKANTIBS. 



221 



there had been a view, an oral promise, for a sufficient con- 
sideration, by a third person, to pay to him the interest on 
that sum until the circumstances of the railroad company 
shall enable thein to pay the amount, was held not within the 
statute, if in fact the sum so fixed had not been adopted or 
acted on by the commissioners, and the promise is made with 
knowledge of that fact, because there was no debt to wliich 
the promise could be collateral.^ This is also the case where 
the original debtor is discharged, and the promisor is substi- 
tuted as debtor.^ Thus, where the defendant took his nephew 
to the house of another, and requested him to provide clothing, 
board, and other necessaries for the nephew, and promised to 
pay for the same ; it was held an original undertaking upon 
which a recovery could be had iipon the common counts 
for goods furnished and services rendered.^ So where a per- 



1 Jephersonu. Hunt,2 Allen(Mass.) 
417. 

2 In Jolley v. Walker. 26 Ala. 690, 
the plaintiff having agreed with S and 
P, who were mail contractors, to keep 
their drivers and horses at a stipulated 
sum per annum, payable quarterly, 
and during the last quarter, on their 
becoming insolvent, having refused to 
keep their drivers and horses without 
security, thereupon, defendant, at the 
request of S and P, wrote to plaintiff, 
saying : " I will see you paid for this 
quarter, as their time then expires, 
payable when due, in Alabama bank- 
notes " ; plaintiff kept the drivers and 
horses until the expiration of the 
quarter, and the agent of S and P 
afterwards closed their account by 
giving the note of the surviving part- 
ner, payable one day after date, which 
was filed as a claim against the estate 
of the deceased partner ; it was held 
that defendant's promise was an orig- 
inal undertaking, upon a new and 
sufficient consideration, which, upon 
its acceptance by plaintiff, discharged 
the debt of S and P, and bound de- 
fendant to pay, at the expiration of 
the quarter, m Alabama bank-notes. 
In Hill r. Wells, 17 HI. 88, the dec- 
laration alleged that A had been in 
the employment of B, and that money 
was due him from B on that account ; 



that B being in failing circumstances, 
A refused to work longer for him, and 
that C, thereupon, in consideration 
that A would go on, promised to pay 
A what was due him, by reason of 
such employment, from B. The stat- 
ute was held a good plea to this, be- 
cause A was bound to perform his 
contract, and there was no considera- 
tion for C's promise. But where a 
contractor is discharged from his con- 
tract because of the failure of the other 
party to perform a promise made by 
& third person will not bo within the 
statute. Thus, A contracted to do 
certain work for B, but suspended la^ 
bor because of B'b failure to pay accord- 
ing to the contract. C told A to finish 
the contract, and he would pay him 
in full. A did so, relying upon C's 
promise. Held that A could recover 
of C for the work performed after 
such promise, but not for that before. 
Hand v. Mather, 11 Cush. (Mass.) 1. 
But see Bresler u. Pendell, 12 Mich. 
224, where a contrary doctrine was 
held. A request to one to work for 
the benefit of a third party, and u 
promise to pay, form an original, not 
a collateral promise. Brown v. George, 
17 N. H. 128 ; Backus v. Clark, 1 Kan. 
303 ; Arbuckle v. Hawks, 20 Vt. 538. 
8 Ford V. Kockwell, 2 Gal. 73. 
Where A sold goods to B on credit. 



222 STATUTE OF PUAXIDS. [CHAP. IV. 

son promised to pay the debt of another, and requested the 
creditor to charge the amount to him, it was held that the 
debt thereby became his own.^ Where an indorser of a note 
payable to a bank, who was discharged from payment by a 
failure of the bank, to properly protest the note, promised 
the bank that if they would continue to discount his paper 
as before, he would pay the note, which the bank did, it was 
held that this was not a promise to pay the debt of another, 
and was not within the statute.^ A writing executed by A 
to B, which, after reciting that B was about to appoint C his 
agent for the purchase of grain, and to furnish him money 
for that purpose, contained a provision as follows : " I hereby 
become responsible to said B, and agree to pay him all money 
that he may so advance to C, and that may be due him from 
C from time to time, by reason of such advances," was held, 
to create an absolute liability against A, and not collateral.^ 
Where a contract was let to a contractor to erect a court- 
house for a county, and the contractor being unable to obtain 
brick therefor on Ids own credit, the commissioners of the 
county told the plaintiff to furnish the brick and they would 
see him paid, it was held that the undertaking was original 
and not within the statute.* A land-owner, who had made 
arrangements with a cropper upon his land to make him cer- 
tain advances, promised a third person that if he would make 
advances to the cropper, he (the defendant) would be respon- 
sible for them, and it was held that his undertaking was orig- 
inal and not within the statute.^ If a person who is bene- 
fitted by the consideration of a note signed by other parties 
promises them to join in the note, but does not, it is held 
that his promise is an original undertaking, and not within 
the statute.'' So is a promise made upon consideration that 
if another will sign a note for another, the person promising 
win pay it.'^ An agreement made before work is performed 

and charged them to him, and after- ^ Graham v. O'Neil, 2 Hall (N. Y.) 

wards C called upon A with B, and 474. 

told A, in B's hearing, that he (C) ^ XJhler v. Farmers' Nat. Bank, 64 

was in debt to B, and that if A -yould Peun. St. 400. 

release B, and charge the amount to ^ Dickinson v. Colter, 45 Ind. 445. 

him (C), he would pay it, which A * Jefferson County v. Slagle, 60 

did, it was held that C's undertaking Penn. St. 202. 

was original and not within the stat- ^ Neal v, Bellamy, 73 N. C. 384. 

ute. Harris v. Young, 40 Ga. 65. ^ Doe v. Downs, 50 Iowa, 310. 

^ Godden v. Pierson, 42 Ala. 370. 



SEC. 133.] GUARANTIES. 223 

for another, that if the person to whom the promise is made 
will render the service, the promisor will see that he is paid 
therefor, is not within the statute, being an original under- 
taking.^ But a promise made to one who has performed cer- 
tain work fdr another, that if he will complete it, the prom- 
isor will pay him not only for the services which he shall 
thereafter render, but also for those which he has rendered, 
the statute applies as to the amount due for the services 
which had been rendered hefore the promise was made, but 
not to those to be thereafter rendered.^ But where a gross 
sum is to be paid to a person for certain services at their com- 
pletion, and the contract is not divisible, the rule has been 
held to be otherwise ; and the promisor, if a beneficiary under 
the contract, would be treated as the original debtor for the 
entire sum accruing under the contract. Thus, where a 
mechanic who had been employed by a contractor was about 
to quit work, because he was afraid that he would not get 
his pay, and the owner told him to go on and complete the 
work, and he would see him paid, it was held that the debt 
was thereby made his own, and the statute did not apply .^ 
But whUe this was formerly the rule in New York,* it is now 
held that such a promise is collateral, as to services already 
rendered, unless the original debtor is discharged.^ Where, 
in the usual course of business between banks, promissory 

1 Sinclair v. Bradly, 52 Mo. 180 ; funds of B retained in H's hands to 
Hodges- V. Hall, 29 Vt. 209 ; Prentice pay for llie work to he done by S, and 
«. Wilkinson, 5 Abb. Pr. (N. Y.) N. L. also gave his verbal promise that if S 
49. would go on and do the work, H him- 

2 Hite V. Wells, 17 Dl. 88 ; Rand self would pay for it if B did not. S, 
ti. Mather, 11 Cush. (Mass.) 1. thereupon, went on and did the plas- 

' Warwick v. Groshalz, 3 Grant's tering ; but when he called on H for 

Cas. (Penn.) 234; Quintard v. De- the money, H denied that he had any 

Wolf, 34 Barb. (N. Y.) 97; Devlin v. money of B under the contract. It 

Woodgate, 34 id. 252 ; Benedict v. was held that H was estopped to deny 

Dunning, 1 Daly (N. Y. C. P.) 241; that he had funds to pay for the work, 

Stilwell V. Otis, 2 Hilt. (K Y. C. P.) and that the promise was an original 

148 ; Darlington v. McCann, 2 E. D. S. contract with S, not void under the 

(N. Y. C. P.) 414. Thus, B contracted statute of frauds, as a verbal promise 

with H to build a house for the latter, to pay the debt of another. Hiltz v. 

and employed S to do the plastering. Scully, 1 Cine. (Ohio) 555. 
When the work was ready for the * King v. Depard, 5 Wend. (IS. Y.) 

plastering, B had become of doubtful 277 ; Chesterman v. McCosttin, 6 N. Y. 

credit, and S applied to H to know Leg. Obs. 212 ; Quintard c. DeWolf, 

whether he had funds of B under the 34 Barb. (N. Y.) 97. 
contract to pay for the plastering, and 6 Brown v. Weber, 38 N. Y. 187. 
was assured by H that there would be 



224 sa?ATtrTE op peatjds. [chap. iv. 

notes of customers -who are in funds on presentment, instead 
of being actually paid, are certified as good and settled for 
in the exchanges of the next day, such certificate is an origi- 
nal promise, and not within the statute.^ So where a bank 
guaranteed, to a trust company the final collection of certain 
instalments, to become due upon a bond and mortgage as- 
signed by a debtor of the bank to the trust company by him, 
and upon which the trust company advanced money, to be 
applied by the debtor in the payment of his debt to the bank, 
and he did so apply it, it was held that the undertaking was 
original, and that the bank was bound by its guaranty .^ 

Sec. 134. Rule when there is a New and Independent Con- 
sideration. — In California and Dakota a verbal promise to 
pay the debt of another, predicated upon a new consideration, 
is excepted from the operation of the statute,^ and in nearly 
all the states, such promises are held not to be within the 
statute, where there is a new, valuable, and independent consid- 
eration moving between the creditor and the promisor, upon 
which the promise is predicated, from which the promisor de- 
rives any benefit or advantage, so that, instead of being a prom- 
ise to be responsible for, it amounts to a purchase of, the debts 
by the promisor.^ Where a surviving partner, holding a pol- 
icy of insurance upon the life of the deceased partner, in 
pledge for his partnership indebtedness to him, surrenders 
such policy tipon the promise of the widow of the decedent 
to pay the debt of her deceased husband, whereby she is 
enabled to collect money to be applied upon her specific 
allowance as widow, her promise, though not in writing, is 
not within the statute of frauds, but is an original undertak- 
ing.^ Where the plaintifP, in consideration of the promise, 
has relinquished some lien, benefit, or advantage for securing 
or recovering his debt, and where, hy means of such relinquishment, 

1 Mead v. Merchants' Bank, 25 and from whicli the benefit accrues 
N. T. 143. chiefly .to the new party, amounts to a 

2 Talman v. Rochester City Bank, sale of the debt, and is not within the 
18 Barb. (N. Y.) 123. statute. 

* See Appendix "California, Dar ^ "Wilson v. Bevans, 58 111. 232; 
kota." Meyer v. Hartman, 72 id. 442; Clif- 

* In Sampson v. Hobart, 28 Vt. 697, ford v. Luhring, 69 id. 401 ; Emerson 
it was held that an absolute contract, v. Slater, 22 How. (U. S.) 28. 

in which the debtor is not interested, 



SEC. 134,] GXTAEANTIES. 225 

the same interest or advantage has inured to the benefit of the defendant, 
— 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 s^ibstance of the contract is the purchase by the 
defendant of the plaintiff, of the lien, right, or benefit in question. 
But where the original debt still subsists, and where the plaintiff has 
relinquished no interest or advantage which has inured to the benefit 
of the defendant, it is not an original contract, but a contract 
to pay another's debt, and must be in writing.^ In cases of 
this character the debt is kept on foot after payment, by the 
party promising, and is transferred to him as purchaser. In 
other words, he becomes assignee of the debt. This doctrine 
is ■well illastrated in an early English case,^ in which the 
declaration alleged a breach of a promise in not replacing 
certain stock which had been sold out by the plaintiff for the 
defendant, and the produce whereof had been paid to the 
defendant. The defendant pleaded the general issue, also 
specially, that the plaintiff ought not recover more than 
£525, because the defendant was on a certain day indebted 
to the plaintiff, by virtue of the said several promises and 
undertakings in the said declaration mentioned, in the sum 
of £976 2s. 6d., and no more, and that the defendant after- 
wards, and before the commencement of the suit, was also 
indebted to several other persons, to wit, James Greenwood, 
etc., in certain large sums respectively, and the defendant 
being so indebted, the defendant was unable to pay his cred- 
itors the full amount of the several debts, whereof the plain- 
tiff and the several other creditors of the defendant then 
and there had notice ; and that it was thereupon computed 
and agreed, upon an investigation had by the plaintiff and 
the several other creditors of the defendant, that the estate 
and effects of the defendant would not extend to pay 10s. in 
the pound, on the amount of the debts due and owing by the 
defendant, whereupon it was then and there proposed and 
agreed, between and amongst the plaintiff and the several 
other creditors of the defendant, and also by Thomas Wes- 
ton, by the procurement of the defendant, and at the request 
of the plaintiff, that Thomas "Weston should and would pay 

1 Curtis t). Brown, 6 Cu&h. (Mas&.) ^^ Anstey w. Marden, 1 B. & P. 
497 ; Borchsensius v. Canutson, 100 130. 
111. 82. 



226 STATUTE OF TEAUDS. ' [CHAP. IV. 

out of Ms own moneys to the plaintiff, and the several other 
creditors of the defendant, a sum of money equivalent to 
10s. in the pound, on the amount of their respective debts, 
in full satisfaction and discharge thereof ; which sum the plaintiff 
and the several other creditors of the defendant would accept 
and receive in full satisfaction and discharge of their respec- 
tive debts. The plea then states the mutual promise to per- 
form the agreement, and that Weston, before the commence- 
ment of the suit, tendered and offered to pay, for and on the 
behalf- of the defendant, to the plaintiff, the sum of £525 
being so much as amounted to lOs. in the pound, upon the 
sum of £976 2s. Qd., the amount of the debt, which sum 
the plaintiff refused to accept. 

On the trial of the cause, the Chief Justice expressed a 
doubt whether that could be properly said to be a promise 
within the statute, by the very terms of which the debt was 
supposed to be discharged, and that he did not seem to 
adhere to this doubt in the sequel. In the opinion of 
Chambee, J., as delivered by him in the same case, great 
stress was laid upon the circumstance, that the intent of the 
contract was not to discharge the party indebted, hut to Iceep 
the debts on foot; which, indeed, was the feature of the ease 
which gave to it the character of a purchase. And he stated 
that it appeared to him to be perfectly clear, that the trans- 
action in substance was a contract to purchase the debts of 
the several creditors, instead of being a contract to pay or 
discharge the debts owing by Harden, and that if the con- 
tract had been that which it was represented to have been, 
on the special pleas, he should have it a case within the 
statute of frauds. 

Upon "tlie same principle of considering the transaction in 
the light of a purchase, the case of Castling v. Aubert ^ was 
determined by the Court of King's Bench to be entirely 
clear of the statute. In that case the plaintiff, who was the 
policy broker for one Grayson, had policies of insurance in 
his hands, belonging to his principal, which were securities 
on which he had a lien for the balance of his account, and on 
the faith of those he agreed to accept bills for the accommoda- 
tion of his principal. One of these bills became due, and 

1 Castling v. Aubert, 2 East, 325. 



SEC. 134.] GUAKANTIES. 227 

actions were brought against the plaintiff as acceptor, and 
against Grayson as drawer. It was desirable that the 
policies should be given up by the plaintiff to the defendant, 
to whom Grayson had at that time transferred the manage- 
ment of his insurance concerns, in order to enable him to 
recover the money for the losses incurred from the under- 
writers ; and the defendant undertook, upon condition that 
the policies were made over to him, to settle the acceptances 
due, and to lodge money in a banker's hands for the satisfac- 
tion of the remainder, as they became due. This transaction 
was considered in the light of a purchase by the defendant 
of the plaintiffs interest in the policies. And not in that of 
a m^ere promise to the creditor to pay the debt of another 
due to him ; for it was in truth a promise by the defendant 
to pay what the plaintiff would be liable to pay, on condition 
of having the securities put into his, the defendant's, hands, 
as the means of enabling him to indemnify the plaintiff ; or, 
as Le Blanc, J., put the case : " One man having a fund in 
his hands, which was adequate to the discharge of certain 
incumbrances ; another person undertook that, if the fund 
was delivered up to him, he would take it with the incum- 
brances." 

In the case of Casthng v. Aubert, ante, the Chief Justice 
laid considerable stress upon the circumstance that the de- 
fendant had not the discharge of Grayson principally in his 
contemplation, but the discharge of himself. That was his 
moving consideration, though the discharge of Grayson 
would eventually follow; which is an illustration of Mr. 
Justice Chambee's reasoning, in the case of Antsey v. Mar- 
den, except that the contract there was not only not made 
in contemplation of the discharge of the original debtor, but 
with the direct purpose of keeping his debt on foot. In Antsey 
V. Marden, the contract was a purchase of debts, or rather of 
the right of recovering debts for the promisor's own benefit ; 
in Castling v. Aubert, the promisor took upon himself to 
answer for the payment of money, to which the promisee 
was liable, in consideration of having the fund transferred to 
him, out of which was to come his indemnity. The object of 
the promise was in neither case the discharge of the original 
debtor, though in the one case that discharge would follow 



228 



STATUTE OF FRAUDS. 



[chap. it. 



eventually from the undertaking. The principle of the 
transactions in both cases was the same, though the conse- 
quences were dissimilar.^ Lord Ellenborough, in Castling 
V. Aubert, ante, illustrated the distinction between a discharge 
which arises collaterally, and eventually, and that which fol- 
lows as the direct purpose of the undertaking, by the case of 
a bill of exchange upon which several persons are liable. " In 
such a case," said he, " if it be agreed to be taken up by one, 
eventually others may be discharged; but the moving con- 
sideration is the discharge of the party himself, and not of the 
rest, although that also ensues." And he treated such an 
undertaking Sy a party ■ already liable, as not being within 
the statute.^ The statute does not apply to a promise to 



1 See Allen v. Thompson, 10 N. H. 
32 ; Doolittle v. Taylor, 2 Bos. (N. Y.) 
306; French v. Thompson, 6 Vt. 54; 
Hindman v. Langford, 3 Strobh. (S. 
C.) L. 207; Gardner v. Hopkins, 5 
"Wend.- (N. Y.) 23; Olmstead v. 
Greenly, 18 John. (N. Y.) 12. In 
Allen V. Thompson, supra, the plaintiff 
had procm-ed the account hooks as a 
pledge to secure a debt, and the' de- 
fendant, in consideration that the 
plaintiff would deliver the books to a 
person designated by him for collec- 
tion, promised to pay the plaintiff's 
debt in case enough should not be col- 
lected for that purpose. The court 
held that the promise was not within 
the statute as the delivery of the 
books to the third person was the 
same as a delivery to the defendant 
himself. 

^ In Stephens v. Squire, 5 Mod. 205, 
this rule was adopted. In that case 
an action had been brought against 
Squire, an attorney, and two others, 
for appearing for the plaintiff without 
a warrant; and that the defendant 
promised, that in consideration the 
plaintiff would not prosecute the ac- 
tion, he would pay .£10 and the costs 
of suit. An action was brought 
against the defendant upon this prom- 
ise; but the court were of opinion, 
that it could not be said to be a prom- 
ise for another person, but for his own 
debt, and, therefore, not within the 



statute. According to the report of 
the same case in Comberbach, 362, 
the Chief Justice observed, that it 
was an original promise, and the party 
himself liable. Upon which. Sir 
Baktholomew Showek asked his 
LoEDSHiP whether it wonld not have 
been plainly within the statute, if the 
promisor had not been a party. But 
Holt desired him to put that case 
when it came. Here, said he, he ap- 
pears to be a party concerned in the 
former action. It is to be observed, 
that the defendant in the case just 
mentioned was not only liable, but 
had actually been sued, and that his 
promise therefore had a direct view to 
his own discharge, though it would 
operate eventually in discharge of 
third persons ; which brings it within 
the doctrine so satisfactorily stated in 
Castling v. Aubert, ante. "Watson v. 
Turner, B. N. P. 281, seems to be 
grounded on the same doctrine. 

In this case the ilO undertaken for 
was not the debt of any other person, 
but offered by the defendant as a 
compensation for damages.; therefore, 
that part of his undertaking which re- 
lated to the costs came more properly 
into question upon the statute ; as to 
which, upon the ground of his being 
a party, and liable himself, according 
to the doctrine just stated, the ease 
seemed to be out of the statute. But 
suppose the defendant had expressly 



SEC. 135.] 



GUARANTIES . 



229 



pay the debt of a third person, where by the receipt of an 
adequate consideration the debt has become also the party's 
own debt,^ nor to a promise made in consideration that the 
promisee incurs a liability to a third person.^ 

■ Sec. 135. Promise to Pay Broker. — A promise by a third 
party to pay a broker put in possession of goods on which a 
distress for rent has been levied, his charges must be in writ- 



said to the plaintifi, Go to J S (being 
one of the other persons concerned in 
doing that which was the subject of 
tlie action) and ask him to pay the 
costs, and if he will not, I will be 
personally and wholly responsible for 
the amount; perhaps a promise ex- 
pressed in these terms, though made 
under those circumstances, would be 
considered as falling within the stat- 
ute. Such appears to be the doctrine 
of Winckworth v. Mills, 2 Esp. 484, 
in which it was held by Lord Kenyon, 
at nisi prius, that a promise by the in- 
dorser of an unpaid note, to indemnify 
the holder, if he would proceed to en- 
force payment against the other par- 
ties to the note, must be in writing, or 
it would be void under the statute of 
frauds. In the case of Anstey v. Mar- 
den, ante, the Chief Justice in his 
opinion stated, that it had rather 
struck him at the trial, that the prom- 
ise being only to pay 10s. in the pound, 
and not to pay the whole debt, it was 
an original agreement, and, therefore, 
not witliin the statute. But he after- 
wards admitted, that Chater v. Beck- 
ett 7 T. R. 201 (and see Lexington v. 
Clark, 2 Vent. 223) was a decisive au- 
thority the other way. 

1 Robinson v. Gilraan, 43 N. H. 
485. In Shook o. Vanmater, 22 Wis. 
532, where the defendant in consider- 
ation that C and S would surrender to 
B certain securities wliich they held 
to indemnify them as accommodation 
makers of a note with B, gave his 
written guaranty against such liability 
" if they would permit B to manage the 
matter himself," it was held that his 
promise was an original undertaking 
and not within the statute. In Win- 
field V. Potter, 10 Bos. (IST. Y.) 226, 



where persons holding a contract for 
the supply of certain merchandise to 
the government which was to be sub- 
ject to inspection, delivered a part of 
the goods, and pledged the govern- 
ment receipts therefor, to the plaintiff, 
as security for a debt due to him, and 
subsequently assigned the contract to 
the defendant, in consideration, among 
other things, of his assuming to pay 
all their debts, and the defendant, in 
order to obtain the receipts pledged, 
so that he might effect a settlement 
with the government, gave to the 
plaintiff a written promise that he 
would pay the amount of the debt 
whenever he received certificates from 
thegovernment for the payment of so 
much upon the contract, in considera- 
tion that the plaintiff should aid in 
procuring the inspection and accept- 
ance of the goods, without charge, and 
the plaintiff at the same time gave to 
the defendant a written promise to 
assist him accordingly without charge, 
it was held that the promise to pay 
the plaintiff was not void under tlie 
statute of frauds. In Beatty v. Grim, 
18 Ind. 131, it was held that a verbal 
contemporaneous agreement made by 
the sellers of a contract to deliver 
hogs, to the effect that they will per- 
form its stipulation if the original 
contracting parties fail to do so, is not 
within the statute. And in Hunting- 
ton V. Wellington, 12 Mich. 10, it was 
held that the statute did not apply to 
a verbal warranty of certain notes and 
a mortgage that the makers of the 
notes were good, and that the land 
was ample security for the debt, and 
the title unencumbered. 

2 Underbill v. Gibson, 2 N. H. 352; 
Doane v. Newman, 10 Mo. 69. 



230 STATUTE OF . FEAUDS, [CHAP. IV. 

ing, as the landlord who has authorized the distress is liable 
for the necessary expenses.^ 

Sec. 136. To Pay a Debt to be Transferred. — A promise in 
writing to pay a debt to be transferred from the promisor's 
account to that of a third party (his agent) is valid, as a 
guaranty.^ 

Sec. 137. Promise by Execution Creditor. — Where, in an 
action against the sheriff for taking the plaintiff's goods in a 
fieri facias against a third party, the sheriff failed on the trial, 
and the execution creditor then employed an attorney to 
apply for a new trial, and on obtaining a rule for a new trial, 
to act as attorney on the second trial, it was held that the 
attornej' might recoTer his bill against the execution creditor, 
although there was no memorandum in writing, as the execu- 
tion creditor was the person primarily liable to him ; but if 
the attorney had in the first place been employed by the 
sheriff, it would be otherwise.^ 

Sec. 138. Promise in Consideration of Percentage. — A and 
Co. bought certain wools of B and Co., payable by bearers, 
acceptance at eight months; but before the sale was com- 
pleted B and Co., requiring some security, in consideration 
of £1 per cent, obtained the following instrument from C, 
signed by him: "Gentlemen, — In consideration of £1 per 
cent, I hereby guarantee the due and correct payment of 
one-haK the amount of 186 bales of wool sold to Messrs. A 
and Co., as per contract ; " — it was held that the instrument 
was a guaranty.* 

Sec. 139. Promise to Pay out of the Funds of Another. — 
If the defendant contracts not to pay A's debt out of his own 
funds, but only faithfully to apply A's funds for that purpose, 
when they shall come to his hands, that contract will not be 
within the operation of the statute. Thus, where the defend- 
ant promised the plaintiff, in consideration that he would 

1 Colman v. Eyles, 2 Stark, 62. But see Sharp v. Emmet, 5 Whart. 

2 Brunton v. DuUens, 1 F. & F. fPenn.) 288, where it was held that 
450. tlie receipt of such percentage does 

8 Noel V. Hart, 8 C. & P. 230. not create u, guaranty of a bill pur- 

* In re Willis, 4 Exch. 630 ; Row- chased bona fide in the usual course of 

land V. Bull, 5 B. Mon. (Ky.) 146 business and remitted to the principal. 



SEC. 139.] GUARANTIES. 231 

deliver such materials as Hill (a workman employed to do 
certain work) should require, that he would pay him for 
them out of such moneys received by him as should become 
due to Hill ; the promise was considered to be original and 
not within the statute.^ In Dixon v. Hatfield,^ W undertook 
to complete the carpenter's work in H's house, and find all 
the materials : W being delayed for want of credit or funds 
to procure timber, it was supplied by M on H's signing the 
following guaranty : " I agree to pay M for timber to house 
in A C out of the money that I have to pay W, provided W's 
work is completed ; " and it was held that this was not a guar- 
anty to pay if W should fail, but a direct undertaking to pay 
when the work should be completed. So where the defendants 
promised the plaintiffs that, if they would deliver goods to a 
value named to A, which goods were required for the building 
of a church, and were to be paid for by a bill of exchange to be 
drawn by the plaintiffs on- A, the said bill should be paid at 
maturity out of money to be received from the church ; it 
was held that the promise was within the statute.^ This 
principle applies to the case of a verbal acceptance of a bill 
of exchange or a verbal promise to accept, when the person 
promising has funds of the drawer out of which to pay it.* 
But in an English case ^ Loed Mansfield said : " The true 
reason why the acceptance of a bill of exchange shall bind is 

1 Andrews ... Smith, 2 C. M. & R. = Morley v. Boothby, 3 Bing. 107 ; 
631. Where notes or other securities and see Sweeting v. Asplin, 7 M. & W. 
are placed in the hands of ^ person 165 ; Gerish o. Chartier, 1 C. B. 13 ; 
for collection and the person receiv- Walker v. Eostron, 9 M. & W. 411. 
ing them prbmises the debtor to pay * Spaulding v. Andrews, 48 Penn. 
the proceeds to the creditor of such St. 411 ; Nelson v. Krst National 
person, the promise is not within the Bank of Chicago, 48 111. 36 ; Eaberg 
statute, and the creditor may sue the v. Peyton, 2 Wheat. (U. S.) 385 ; Grant 
promisor therefor in his own name. v. Shaw, 16 Mass. 341; Lawnsley v. 
Clarku. Hall, llN.J.L.78;McCrary Sunwall, 2 Pet. (N. S.) 170; Shields 
V. Madden, 1 McCord (S. C.) 486; v. Middleton, 2 Cr. (U. S. C. C.) 205; 
Prather v. Vineyard, 9 111. 40 ; Parley Leonard v. Mason, 1 Wend. (N. Y.) 
V. Cleaveland, 4 Cow. (N. Y.) 432. 522; Pike v. Irrin, 1 Sandf. (N. Y.) 
In Antonio v. Clissey, 3 Rich. (S. C.) 14; Strabecker v. Cohen, 1 Speers 
201, A being indebted to B, and B (S. C.) L. 349; O'Donnell v. Smith, 2 
being indebted to C, by agreement E. D. S. fN. Y. Ci P.) 124; Wakefield 
between the three A sold C a gig and v. Greenwood, 29 Cal. 597 ; Quin u. 
B was to give a credit for the price Hanford, 1 Hill (N. Y.) 82; Morse v. 
on his note. It was held that the National Bank, 1 Holmes (U.S. C. C.) 
promise was not within the statute. 209. 

2 2 Bing. 439; 10 Moo. 42. ^ puiows v. Microp, 3 Bunj 1672. 



232 STATUTE OP PBATJDS. [CHAP. IV. 

not on account of the acceptors having or being supposed 
to have effects in hand, but for the convenience of trade and 
commerce. Fides est servanda. An acceptance for the honor 
of the drawer shall bind the acceptor ; so shall a verbal accept- 
ance. But upon a previous hearing of this case ^ that learned 
judge expressed views quite inconsistent with those given 
above, and in accordance with the statement in the text. 

Sec. 140. Property Deposited with Promisor Charged ■with 
the Payment of the Debt. — A parol promise to pay the debt 
of another out of property placed by the debtor in the hands 
of the promisor, who converts the same into money, is not 
within the statute of frauds. It is an original and independ- 
ent promise founded upon a new consideration, and the 
property is treated, as a fund in the hands of the promisor 
charged with the payment of the debt, and the promisor is 
trustee for the creditor.^ In construing this statute it may 
be laid down as a general rule that a promise to answer for the 
debt, default, or miscarriage of another, for which that other 
remains liable, must be in writing ; but the rule is otherwise 
where the other does not remain liable. There are numerous 
exceptions to this rule. In cases where the promise to pay 
the debt of another arises out of some new and original con- 
sideration of benefit or harm moving between the original 
contracting parties, the statute does not apply .^ The reason 

1 3 Burr. 1666. placing of this fund in M's hands 

2 Exchange Bank v. Eice, 107 amounted to a new consideration, and 
Mass. 45 ; Townsend v. Long, 77 was not within the statute. Gilbert, 
Penn. St. 143 ; Fullam o. Adams, 37 J., said : " The defendant did not un- 
Vt. 391 ; Urquhart «. Brayton, 12 dertake or promise for Stansbury, but 
R. I. 169 ; Perry v. Swasey, 12 Cush. for himself. Nor was the promise 
(^ass.) 36; Lawrence v. Pox, 20 N. one that Stansbury should pay out of 
Y. 268 ; Warren u. Batchelder, 16 the money due to him from the de- 
N. H. 580 ; Connor o. Williams, 2 f endant, but that the defendant would 
Eob. (N. Y.) 46; Brewer v. Dyer, do so. Consequently Stansbury never 
7 Cush. (Mass.) 337. had assumed, nor had he put himself 

8 Leonard v. Vredenburgh, 6 John, in a position to become liable in the 
(N. Y.) 29. In Cook u. Moore, 18 first instance to do that which the 
Ilun (N. Y.) 31, S, after employing defendant undertook and promised to 
C to work upon a liouse which S was do. Stansbury left in the defendant's 
building for M, abandoned the work hands suflScient funds to pay the 
with M's consent, leaving in M's plaintiff's claim, and directed the de- 
hands sufficient money to pay C's fendant to make such application, 
claim, which M promised both S and The defendant promised Stansbury 
C to pay. It was held that the that he would do so. Subsequently 



SEC. 140.] 



GT7AEANTIES. 



233 



is that the promise is made upon a new and independent 
consideration, and it matters not whether the original debt 



the same promise was made to the 
plaintifE. The case, I think, is not 
within tlie statute of frauds, hut 
ratlier falls under the third class of 
promises stated by Comstock, J., in 
Mallory v. Gillett, 21 N. Y. 433, 
namely, 'Where, although the debt 
remains, the promise is founded on a, 
new consideration which moves to the 
promisor. This consideration may 
come from the debtor, as where he 
puts a fund in the hands of the 
promisee, either by absolute transfer 
or upon a trust to pay the debt,' etc. 
Lippincott v. Ashfield, 4 Sand. (N. Y.) 
611. From the facts proved in this 
case the law would imply a liability 
to apply the fund in the defendant's 
hands in the manner Stansbury di- 
rected him, and he undertook to do. 
Barker v. Bucklin, 2 Den. (N. Y.) 45 ; 
Lawrence u. Fox, 20 N. Y. 268; Bar- 
low o. Myers, 64 id. 41. When the 
law will imply a debt or duty against 
any man, his express promise to pay 
the same debt or perform the same 
duty must in its nature be original." 
Justin V. Tallman, 86 Penn. St. 147 ; 
Xee V. Newman, 55 Miss. 365; Wil- 
liams V. Rogers, 14 Bush. (Ky.) 776; 
Beardslee v. Morgner, 4 Mo. App. 139 ; 
Estabrook v. Gebhart, 32 Ohio St. 
415; Thacher v. Rockwell, 4 Cal. 
375. In Price v. Trusdale, 28 N. J. 
Eq. 200, a promise to a debtor to 
apply to the payment of a particu- 
lar debt funds of the debtor received 
or to be received by the promisor 
amounts to a purchase of the debt, 
and is not within the statute. In 
Calkins v. Chandler, 36 Mich. 320, it 
was held that the promise of an em- 
ployer to pay the wages of an em- 
ployee, earned and to be earned, to a 
creditor of the employee is not within 
the statute. In that case the plain- 
tiffs having a chattel mortgage upon 
a new mill owned by M, it was ver- 
bally agreed between them and M 
and the defendants, M being then 
engaged in sawing lumber for the 



defendants, that if the plaintiffs would 
extend the time for the payment of 
the mortgage, M should allow the de- 
fendants to retain fifty cents per thou- 
sand feet of all lumber sawed by M 
for them, and that they would pay 
such sums to them. It was held that 
the promise was not within the stat- 
ute, and that they were liable for such 
sum whether they did or did not re- 
tain it. Contractors to build a rail- 
road agreed with merchants to pay 
orders and time-checks issued by a 
subcontractor to his employees. Upon 
the faith of this agreement, and giv- 
ing credit exclusively to the contrac- 
tors, the merchants accepted and re- 
ceived such orders and time-checks 
in exchange for goods. It was held 
that the promise of the contractors 
was not within tlie statute of frauds. 
Doyle V. White, 26 Me. 341 ; Walker 
V. Penniman, 8 Gray (Mass.) 233; 
Billingsley v. Dempewolf, 11 Ind. 414 ; 
Hanford v. Higgins, 1 Bosw. (N. Y.) 
441 ; Williams v. Corbett, 28 111. 202 ; 
Chase v. Day, 17 Johns. (N. Y.) 114; 
Brown v. George, 17 N. H. 128 ; Hall 
V. Wood, 3 Pin. (Wis.) 308; Birchard 
V. Booth, 4 Wis. 419 ; Thayer v. Gal- 
lup, 13 id. 411 ; Champion ii. Doty, 
31 id. 190 ; Vogel v. Melms, id. 306 ; 
West V. O'Hara, Wis. S. C. In Laidlow 
u. Hatch, 75 111. 11, it was held that a 
promise by a person to pay to a sub- 
contractor what might become due to 
the contractor for work to be done 
for him, is a promise to pay the debt 
of another and within the statute. 
Where A, who was indebted to B, 
gave him an order oil C for certain 
goods, and C having the goods in his 
possession, and also a claim against A, 
agreed with B by parol that he would 
sell the goods and apply the proceeds 
to the payment of their respective 
claims, it was held that the promise 
was not within the statute. Clark v. 
Hall, 11 N. J. L. 78. In an action by 
E against P, the complaint recited 
substantially that E held a, mortgage 



234 



STATUTE OP FEAUDS. 



[CHAP. IV. 



continues to subsist or not. But in such cases the promisor 
must have authority to apply the proceeds of the property in 
payment of the debt, or his promise is within the statute. 
Thus, where the assignee of a note for collection promised, 
without authority from the assignor to apply it in payment of 
a debt due from such assignor to the plaintiff, it was held to be 
within the statute.^ In an Illinois case ^ A bought lumber on 
the credit of B, and 'paid B therefor, and B promised the cred- 
itor that he would pay him for the lumber. It was held that 
this was an original undertaking on the part of B, and that he 
thereupon became the debtor. The same rule was adopted in 
lowa,^ and it was held that neither an agreement by the 
vendee of real estate to pay a note of the grantor as a part of 
the consideration for the land, nor an agreement to pay a note 



on E's leasehold of a coal-mine to 
secure payment of certain notes, not 
including one for $327 ; that F, desir- 
ing security for R's indebtedness to 
himself, promised to pay E this note, 
and E consented to R's executing to 
F a mortgage on the same leasehold, 
to secure said indebtedness of R to F, 
and in such mortgage said note was 
included; that R became insolvent 
and F took possession ; that by rea- 
son of such promises E was induced 
to, and did, release R. It was held 
that F's promise was on a sufficient 
consideration, not to be within the 
statute of frauds ; and under the issue 
made by the general denial, evidence 
was admissible to determine whether 
F's mortgage became a prior lien 
over E's and also the extent of E's 
loss of security. Fleming v. Easter, 
60 Ind. 399. See Olmstead v. Greenly, 
18 John. {N. Y.) 12; "Wait v. Wait, 28 
Vt. 350 ; Draughan v. Bunting, 9 Ired. 
10 ; Hall V. Robinson, 8 id. 56 ; Hicks 
V. Critcher, Phil. 353; Threadgill v. 
McLendon, 70 N. C. 24; Stanly v. 
Hendricks, 13 Ired. 86; Mason v. Wil- 
son, 84 N. C. 51. 

1 France v. August, 88 111. 561; 
Gower v. Stuart, 40 Mich. 747 ; Mur- 
phy w.Renkert, 12 Heisk (Tenn.) 397. 

2 Watkins v. Sands, 4 111. App. 
207. 

' Morrison v. Hogue, 49 Iowa, 



574. In Barker v. Bucklln, 2 Den. 
(N. Y.) 61, the defendant's brother 
owed the plaintiff, and delivered to 
the defendant a pair of horses, worth 
less than the debt, and the defendant 
agreed to pay the price to the plain- 
tiff on account of his demand against 
his brother. The plaintiff declared 
upon the promise as made to himself, 
and upon that ground was non-suited, 
but the opinion of Jewett, J., shows 
that, had the declaration been prop- 
erly framed, a recovery could have 
been had. He said : " It was not a 
promise to answer for the debt of 
another, but merely to pay the debt of 
the party making the promise, to a par- 
ticular person designated by him to 
whom the debt belonged, and who had 
a right to make such payment a part of 
the contract of sale." See also Meriden 
Brittania Co. v. Zingsen, 48 N. Y. 247 ; 
Barker v. Bradley, 42 id. 316; Ell- 
wood V. Monk, 5 Wend. (N. Y.) 235; 
Farley e^. Cleaveland, 4 Cow. (N. Y.) 
432. In Skelton v. Brewster, 8 John. 
(N. Y.) 376, a debtor who had been 
taken in execution delivered to the 
defendant all his household goods, 
upon the promise of the latter to pay 
the debt. The promise was held not 
to be within the statute. Westfall v. 
Parsons, 16 Barb. (N. Y.) 645; Gold 
V. Phillips, 10 John. (N. Y.) 414. 



SEC. 141.] 



GTJAEANTIES. 



235 



of tlie grantor in consideration of the release of an attach- 
ment by a surety on the note, is within the statute.^ 

Sec. 141. Promise made to the Debtor. — Where a promise 
predicated upon, a good and sufficient consideration is made 
hy a third person to a debtor to pay a debt owed by him to 
another, the promise is not within the statute, and in many 
of the States, under such circumstances, tlie creditor is treated 
as standing in such a relation to the contract, — being the 
person beneficially interested therein, — that he may maintain 
an action thereon against the promisor in his own name.^ 

But this is not in accordance with the rule as adopted 
in Connecticut.^ In that case it appeared that William 

1 In Green v. Randall, 51 Vt. 67, 523; Beaman v. Russell, 20 Vt. 205; 
it was held that a parol agreement 
hy the vendor of real estate, to remove 
a mortgage thereon given to secure 
the debt of another, is not within the 
statute, it being an original undertak- 
ing and a promise to pay his own 
debt. In Prince v. Kochler, 77 N. Y. 
91, it was held that a promise made 
by the vendee of land to a mortgagee 
who was about to foreclose for over- 
due interest, that if he would not 
foreclose, he would pay the arrears 
when the next instalment fell due, 
was an original undertaldng.^ Moore 
V. Stovall, 2 Lea (Tenn.) 543, over- 
ruling Campbell v. Findley, 3 Humph. 
(Tenn.) 330. A mere promise, by a 
mortgagee of goods engaged in selling 
the mortgaged chattels for the pur- 
pose of obtaining payment of the 
mortgage debt, to a third person hold- 
ing a note of the mortgagor, that, if 
he should realize enough, after pay- 
ing his own demand, he would pay 
each note, cannot be enforced, for 
want of consideration, even if evi- 
denced by his indorsing his name on 
the note. A mere naked promise to 
pay an existing debt of another, with- 
out a new consideration, is void. So 
held, where, in fact, the mortgagee 
did not realize more than enough to 
pay his own demand. Starr v. Earle, 
43 Ind. 478; Hayler v. Atwood, 26 
N. J. L. 504. 

2 Vogel V. Melms, 31 Wis. 306 ; 
Harrison v. Sawtelle, 10 John. (N. Y.) 
242; Dunn u. "West, 5 B. Mon. (Ky.) 
376 ; De Merrett v. Biekf ord, 58 N. H. 



Pike V. Brown, 7 Cush. (Mass.) 133; 
Barry w. Ransom, 12 N. Y. 462 ; Smith 
V. Sayward, 5 Me. 504 ; Eeed v. Hol- 
comb, 31 Conn. 360. 

' Clapp V. Lawton, 31 Conn. 95. In 
a recent case, Meech v. Ensign, 49 
Conn. 191; 44 Am. Rep. 225, the 
question as to the right of a creditor 
to sue upon a promise made by a third 
person to Ms debtor to pay the debt, 
was before the court under the follow- 
ing state of facts : The plaintiffs had 
a mortgage on real estate, and the 
defendant purchased the mortgagee's 
equity of redemption, agreeing with him 
to pay the mortgage debt to the plaintiffs. 
Tliis he did not do, and the court held 
that the plaintiffs could not maintain 
an action against him upon tlie prom- 
ise, upon the ground that although 
the promise was incidentally made 
for their benefit, it was not made to 
them, nor were they privy thereto, 
thus ignoring the doctrine of a large 
class of cases in our courts, which 
hold that where a promise is made 
for the benefit of a third person, that 
person may maintain an action there- 
for. Lawrence v. Fox, 20 N. Y. 268 ; 
Thorp V. Keokuk Coal Co., 48 id. 253 ; 
Burr V. Beers, 24 id. 178 ; Davis v. 
Calloway, 30 Ind. 112; Croswell v. 
Currie, 27 N. J. Eq. 152; Blyer v. 
Mulholland, 2 Sandf . Ch. (N. Y.) 478 ; 
Urquliart v. Brayton, 12 R. I. 169; 
Vroman ,;. Turner, 69 N. Y. 280; 25 
Am. Rep. 195 ; Hendrick u. Lindsey, 
93 U. S. 143 ; Exchange Bank v. Rice, 
107 Mass. 39 ; 9 Am. Rep. 1 ; Merrit 



236 STATUTE OP PEAXJDS. [CHAP. IV. 

Faulkner and Robert Wright were partners under the 
name of Faulkner & Wright, and as such partners were 
the owners of a newspaper called the New Haven Morn- 
ing News, which they had been conducting for several 
months previously. They had contracted debts in the 
business to the amount of about |1,300, among which 
were the notes of the plaintiffs described in the declaration, 
amounting to the sum of $632.70. They had, besides their 
press, type, engine, and fixtures belonging to their estab- 
lishment, debts due them amounting to about $1,600. 
On the 3d of September, 1859, Faulkner sold to Thomas 
Lawton, the defendant, his interest in the establishment, 
and conveyed the same to him by a written instrument. 
At the time of this sale the parties had a schedule of the 
balances due the firm of Faulkner & Wright, and the gross 
amount of their indebtedness. The books of the firm were 
also present and contained an accoT:ynt of the debts due the 
plaintiffs, the notes of the plaintiffs being correctly described 
in their account of bills payable. Faulkner & Wright dis- 
solved their co-partnership on the same day. Lawton & 
Wright entered into co-partnership for the purpose of con- 
ducting the same newspaper under the name of Lawton & 
Wright. The new firm of Lawton & Wright took possession 
of all the material, presses, types, cases, forms, engine and 
its fixtures, and all other property belonging to the firm of 
Faulkner & Wright, and Lawton on the same day paid the 
persons who had been the operatives in the establishment, 
and who had claims against Faulkner & Wright. He subse- 
quently paid a debt contracted by Faulkner & Wright for 
paper, amounting to about $100; and also $83.37 for rent 
due for the quarter ending on the 1st day of October. 

The accounts due Faulkner & Wright, estimated at about 
$1,600, and the books on which they were entered, went into 
the hands of Lawton & Wright and were collected by them 

V. Green, 55 N. Y. 270 ; Gumsey v. Connecticut court is most consistent 
Rogers, 47 id. 233 ; 7 Am. Rep. 440 ; with principle, and that the courts 
Simson v. Brown, 68 id. 361 ; Dean v, which have opened the door to this 
"Walker (111. S. C); 44 Am. Rep. 232 n. ; new flood of litigation will ultimately 
Campbell v. Smith, 71 N. Y. 26 ; 27 find it necessary to curtail and' cir- 
Am. Rep. 5. Without attempting to cumscrihe the application of the doc- 
point out the reasons, we are inclined trine if they do not recede from it 
to believe that the doctrine of the altogether. 



SEC. 141.J GUARANTIES. 237 

SO far as they could be collected. Lawton & Wright opened 
new accounts with persons on their books in all new transac- 
tions, but they did not open any account with Faulkner, nor 
did they have any account in which they credited the firm 
of Faulkner & Wright with the money they collected on the 
accounts of Faulkner & Wright, but the money so collected 
was used by them as their own. The amount collected by 
thera was about $1,000. 

The plaintiffs claimed that at the time of the sale of 
Faulkner's interest in the establishment to Lawton, and as a 
part of the same transaction, Faulkner & Wright assigned 
their accounts to Lawton & Wright, and that Lawton & 
Wright then promised to pay the debts due from Faulkner 
& Wright, among which debts were the notes due the plain- 
tiffs; and thereupon the plaintiffs offered in evidence the 
deposition of Faulkner, and the testimony of Wright, to 
prove that at the time of the disposition of Faulkner's 
interest in the establishment to Lawton, Faulkner & Wright 
assigned to Lawton & Wright their interest in the debts due 
the firm of Faulkner & Wright, in consideration of the parol 
agreement of Lawton & Wright with him, Faulkner, that 
they would assume and pay all the liabilities outstanding 
against the co-partnership of Faulkner & Wright, and that 
Lawton & Wright received and accepted the claims so 
assigned upon such promise to pay the liabilities of Faulkner 
& Wright, and that Lawton had no interest in the claims so 
assigned except by his promise to pay such outstanding 
liabilities ; and that there was exhibited to Lawton & Wright 
at the time a written schedule of the debts due to Faulkner 
& Wright on the Ist of August, 1859, amounting on their 
face to about $1,600, and a statement in gross of the liabilities 
of the firm, amounting to about $1,300. To the admission 
of this evidence the defendants objected, on the grounds 
that the promise claimed, being a promise to pay the debt of 
another, could not be proved" by parol, and the court held 
that this objection was well taken. Dutton, J., in deliver- 
ing the opinion of the court, says : " Many of the numerous 
cases on this subject appear to treat this clause as if it read 
'a special promise to pay,' instead of, 'to answer for the debt 
of another.' ^ The term ' answer for ' clearly implies an 
1 In Florida the words are " answer or pay.'' 



238 STATUTE OP FRAUDS. [CHAP. IV. 

attempt to hold another as surety. The object of the statute 
is expressed to be, 'for the prevention of many fraudulent 
practices, which are commonly endeavored to be upheld by 
perjury and subordination of perjury.' The danger is, that 
creditors will endeavor by false parol testimony to save 
debts which they will otherwise lose by the failure of the 
original debtor to pay. Why are the present plaintiffs suing 
Lawton & "Wright instead of Faulkner & Wright? In a 
suit against the latter no objection could be raised to a 
recovery. We can conceive of no reason except that they 
are endeavoring to make Lawton & Wright answerable for a 
debt which cannot be recovered from Faulkner & Wright. 
It is therefore precisely the case which the legislature had in 
view. We are far from supposing that these creditors would 
resort to the fraudulent practices spoken of in the statute. 
But we could not in another case refuse to dishonest credi- 
tors a privilege which we have once granted to those who 
are honest. 

It cannot be denied, however, that in many of the cases 
doctrines are sanctioned which would permit a recovery in 
this case. In some of them the court seem to have been 
influenced very much by the fear, that if the plaintiff was 
not allowed to recover, the defendant would use the statute 
as an instrument of fraud. They do not seem to have been 
conscious of their inconsistency, in drawing inferences in a 
case as proved, when the only question in the case is, whether 
the law will permit it to be proved in the way attempted. 
The statute is based upon the conviction of the legislature 
that it is not safe to allow a contract to be proved in this 
way. What propriety then can there be in drawing inferences 
of fraud from facts which are not proved ? But the danger 
of fraud has been overrated. It does not follow at all that a 
defendant who denies the validity of an agreement on this 
ground can retain the consideration. Frauds are not in fact 
perpetrated by taking advantage of this statute, to near the 
same extent to which they are by objections to evidence of a 
parol contract made in connection with a written contract 
but not included in it. Yet this has never been con- 
sidered a sufficient reason for not applying the rule strictly. 
Courts have also frequently been misled by not adverting 



SEC. 141.] GUARANTIES. 239 

to the distinction between an attempt to hold a person as 
surety for another, and merely compelling him to pay a sum 
of money, which may happen to be the debt of another. If 
A sells a house to B for one himdred dollars, it is clearly 
immaterial to B whether he is to pay the money to A or to 
one of A's creditors. As a contract between A and B, there 
is no more danger that the fraud mentioned in the statute 
will be perpetrated than in any other contract. But the 
moment you allow the creditor of A to have an interest in 
this contract, and to have the right, either expressly or by 
implication, to sue upon it, as the plaintiffs claim to have in 
this case, the agreement is brought directly within both the 
letter and spirit of the statute. ^ Some of the cases seem to 
turn upon the question whether the defendant has actually 
received a full consideration or not. But it is obvious that 
the statute has no reference to the consideration. It implies 
that there is a sufficient consideration, otherwise the statute 
would be unnecessary, as the agreement would be void of 
itself. Some of the recoveries seem to have been allowed 
on the ground that it appeared that some new and distinct 
consideration passed from the plaintiff to the defendant. 
Here again it is plain that unless there was a new considera- 
tion, to which the defendant is in some way privy, the agree- 
ment would be void without the statute. These cases have 
grown out of, but in many instances are an extension of, the 
doctrine contained in an English case,^ and which has been 
very properly applied in many subsequent cases, that where 
a creditor has in his hands or subject to his control, property 
of his debtor which he has a right to apply to the payment 
of his debt, he may transfer his right in that property to a 
stranger and take his parol promise to pay the debt. In such 
cases there is, in the language of Judge SwrFT,^ ' a pur- 
chase of the property at a price equivalent to the debt for 
which it was holden.' " But the doctrine expressed in this 
case, as we have seen,* is not generally adopted, and it may be 
said to be a general rule, that a promise made either to the 
debtor or the creditor, to pay the debt of another, because of 

1 See Meech v. Ensign, ante. See ^ 'WiUiams v. Leper, 3 Burr. 1886. 

Parker v. Benton, 35 Conn. 343, where » Swift's Dig. 255. 

a different rule was adopted where the * See ante, § 125. 
creditor accepted the substitution. 



240 STATUTE OP FRAUDS. [CHAP. IV. 

property deposited with him by the debtor, or of assets in his 
hands, is founded upon a new and independent consideration, 
and is not within the statute, and that the creditor may main- 
tain an action thereon in his own name. In a recent case in 
Pennsylvania,^ involving a similar state of facts with those 
existing in Clapp v. Lawton, ante, it was held that the statute 
did not apply, because the promise was not to pay the debt of 
another, but rather to pay the promisor's own debt, and the 
soundness of this doctrine cannot be questioned. 

Sec. 142. Promise of G-rantee to pay Mortgage Debt. — In 
Minnesota 2 it is held that a verbal promise made by the 
grantee of lands, to pay the grantor's debts, is not within 
the statute; and a similar doctrine is held in Nebraska,^ 
Illinois,* North Carolina,* New Jersey,® Kentucky,'' Nevada,^ 
California,^ Alabama,^" Maine," Ehode Island,i2 Vermont,!^ 
New York,i* South Carolina,^^ and, indeed, in all the States 
except Connecticut, this rule prevails without queStion.^® 

Sec. 143. when Promisor Estopped from Denying that he 
has Funds. — If the promise is made directly to the creditor, 

1 Wynn v. Wood, 97 Penn. St. 216 ; 399 ; Clark v. Hall, 11 id. 78 ; Laing 
Standt V. Hine, 45 id. 30. v. Lee, 19 id. 337. 

2 Stariha u. Greenwood, 28 Minn. ^ Jennings v. Crider, 2 Bush. (Ky.) 
521. But a Terbal promise to pay a 322. 

mortgage debt made by the purchaser ^ Eushliug v. Hackett, 1 Nev. 360. 

of the equity of redemption in land ' McLaren v. Hutchinson, 22 Cal. 

ajler the purchase and not connected with 187 ; Lucas u. Payne, 7 id. 92. 

the consideration to be paid therefor is l" McKenzie v. .Jackson, 4 Ala. 

within the statute. Berkshire v. 230; Cameron v. Clark, 11 id. 209; 

Young, 45 Ind. 461. Lee v. Fontaine, 10 id. 755. 

8 Clopper V. Poland, 12 Neb. 63. " Hilton v. Dinsmoor, 21 Me. 410. 

* Mathers v. Carter, 7 lU. App. i^ Thurston v. James, 6 R. 1. 103. 

225. In this case the original debtor ^^ Merrill v. Englesby, 28 Vt. 150 ; 

surrendered a bond for a deed which Wait v. Wait, 28 id. 350. 

he held against A, in consideration ^^ Seaman v. Whitney, 24 Wend, 

that A would pay to C the amount of (N. Y.) 360 ; Wyman v. Smith, 2 

a note due from such debtor, and it Sandf . (N. Y.) 33 ; Budd v. Thurber, 
was held that A's promise was an in- , 61 How. Pr. (N. Y.) 206; Winfield v. 

dependent undertaking. Prather v. Potter, 10 Bos. (N. Y.) 226; Farley w. 

Vineyard, 9 111. 40. Cleaveland, 9 Cow. (N. Y.) 639. 

6 Mason u. Wilson, 84 N. C. 51 ; i^ McCrary v. Madden, 1 McCord 

37 Am. Eep. 612; Threadgill v. Mc- (S. C.) 486; Antonio „. Clissey, 3 

Lendon, 76 N. C. 24. Rich. (S. C.) 201. 

8 Berry v. Doremus, 30 N. J. L. ^^ Stanley v. Hendricks, 13 Ired. 

(N. C.) 86. 



SBC. 143.] 



GTJAEANTIES. 



241 



the promisor representing to the creditor that he has property 
or assets of the debtor in his hands, and the creditor there- 
upon discharges the debtor, the promise is not within the stat- 
ute, even though the promisor has no such property in his pos- 
session belonging to the debtor, out of which to pay the debt. By 
inducing the creditor to act upon such representations he is 
estopped from denying their truth,^ and the same rule prevails, 
even though the original debtor is not discharged, where the 
representations and promise are made upon consideration that 
the creditor will refrain from enforcing the collection of the 
debt. Thus in the Pennsylvania case cited supra, the defend- 
ant represented to the plaintiff that he was owing a person 
who was indebted to the plaintiff, and promised to see him 



' In Dock V. Boyd, 93 Penn. St. 92, 
the plaintiff having a claim against 
M, which they were pressing, and had 
threatened to institute legal proceed- 
ings upon, D, a. third party, said to 
them that if they would give time, he 
would see the claim paid, as he had 
property of M in his hands, and that 
plaintiffs were secure. The plaintiffs 
then agreed not to push M without 
notifying D. M thereafterwards ab- 
sconded, and plaintiff sued M and re- 
covered judgment. In an action against 
D to enforce the promise, it was held 
that whether or not D had in his hands 
means belonging to M, he was es- 
topped by his own declaration, upon 
the faith of which his verbal promise 
to pay the debt was accepted. Such 
being the case, it was clearly not with- 
in the statute of frauds. When the 
promise is to apply the funds or prop- 
erty of the debtor in the hands of the 
party, it is not necessary that the 
creditor should give up his recourse 
against the debtcw upon the original 
claim. The promise is not a collateral, 
but an original one, founded on suffi- 
cient consideration. In McKenzie v. 
Jackson, 4 Ala. 230, A agreed with B 
to take his stock of goods and pay 
his debts, and afterwards A verbally 
promised one of B's creditors to pay 
him. It was held that the promise 
was not within the statute, and that 
the creditor could recover thereon. 



In Lucas v. Payne, 7 Cal. 92, A con- 
veyed to B to be disposed of for his 
benefit, and B accepted an order of A, 
and this was held to be an original 
undertaking. In Hite v. Wells, 17 
111. 88, the declaration alleged that A 
was indebted to B in $208.75 ; that C, 
in consideration that B would procure 
from A an order on C for the money 
so due, promised to pay to B the money 
due from A to B; that B procured 
the order and presented it to C who 
refused to pay it. To this the statute 
was pleaded, and held to be a good 
answer. See also, adopting tlie same 
rule, Lippincott ti. Aspfield, 4 Sandf. 
(N. Y.) 611; Edinfield v. Cunaday, 
60 Ga. 456. In a South Carolina 
case a doctrine inconsistent with this 
was held, where A received from B 
an assignment of his mills, to secure 
him against his liabilities for B. Two 
or three months after this assignment, 
A called upon C to obtain his indorse- 
ment to B's paper, to he discounted at 
a bank, saying that he had in his hands 
a quantity of lumber, and verbally 
promising to indemnify C, on account 
of such indorsement, as soon as he, 
A, got a return from his factor: C 
indorsed the note upon this represen- 
tation, and having been compelled to 
pay it, sued A upon his guaranty. It 
was held that A's contract was within 
statute. Simpson r. Nance, 1 Spears, 
(S. C.) 4. 



242 STATUTE OF FKAXJDS. [CHAP. IV. 

paid if he wpuld give such debtor time. The plaintiff, relying 
upon this promise, refrained from enforcing the claim, but did 
not surrender it, and afterwards prosecuted it to judgment. 
It was held that the promise was an original undertaking not 
within the statute, and that the defendant was estopped from 
denying his obligation. In the New York case cited above, 
the facts were quite similar, and the same doctrine was held 
and its accuracy cannot be questioned. In a Wisconsin case 
the defendant purchased of C a wagon, etc., and as part of 
the contract of purchase, promised C to pay portions of the 
purchase-money to F and G, C being indebted to those par- 
ties respectively in the stipulated sums. Soon after the pur- 
chase, and before the service of garnishee process upon him, 
the defendant notified F and G of his promise to C to pay 
them such sums, and they each accepted such promise. He 
paid them according to promise, but not until after process 
of garnishment was served upon him. It was held that such 
promise was not within the statute. The ground upon which 
this doctrine is pleaded is, that although it was collateral to 
C's own liability or promise to pay, and may be said inciden- 
tally to have guaranteed liis debts, yet it was a guaranty in 
form only, and not in substance or effect within the meaning 
of the statute of frauds. It was not a mere promise by the 
defendant to be responsible for the debts of C and to pay 
those debts, but a promise by him to pay his own debt in that 
particular way. It was a promise founded upon a new and 
sufficient consideration, moving to the promisor from the 
debtor, at the time the promise was made. After notice to 
them, and their assent, the liability of the defendant to F and 
G was absolutely fixed, and they each could have maintained 
an action against him to compel payment. After such notice 
and assent, it was no longer in the power of C to forbid such 
payment, or to withdraw his assent, or to require payment to 
be made to himself, without the consent of F and G. The 
defendant's liability being thus fixed, his voluntary payment 
after service of process upon him, was not unlawful or un- 
authorized. Indeed, it was immaterial whether he had paid 
at all or not. He was not liable as the garnishee of C. He 
was not C's debtor, but the ' debtor of F and G, at the time 



SBC. 143.] 



GUARANTIES. 



243 



the proceedings were commenced.^ In a Michigan case,^ the 
plaintiff having a mortgage against M on a mill owned by 



' Putney V. rarnhara, 27 "Wis. 187. 
A doctrine inconsistent with this was 
held in Emerick v. Sanders, 1 Wis. 77. 

2 Calkins t>. Chandler, 36 Mich. 
320 ; 24 Am. Eep. 593. Coolet, J., 
in delivering the opinion of the court, 
said : " Three principal objections are 
taken to the recovery which has been 
had in this case : First, that the agree- 
ment proved was void for want of 
consideration ; second, that it was void 
under the statute of frauds, because 
not reduced to writing; and third, 
that, conceding the agreement to be 
valid, defendants could only be re- 
sponsible under it for such moneys 
due the Medlar Brothers as they should 
retain in their hands ; and in this case 
they ofEered, but were not allowed, to 
show that they retained nothing. 
These objections will be considered 
in their order. 

The defect in the consideration is 
supposed to be, that there was no 
agreement to extend payment for any 
definite time. In EoUe's Abridgment, 
27, pi. 45, it is laid down that ' If A 
be indebted to B in one hundred 
pounds, and B is about to commence 
a suit for the recovery thereof, but C, 
a stranger, comes to him and says that 
if he will forbear him, he himself will 
pay it, this is a good consideration for 
the promise ; B averring that he had 
abstained and forebore to sue A,et ad 
Jiunc did abstain and forbear ; though 
no certain time be appointed for the 
forbearance ; for it seems a perpetual 
forbearance shall be intended, the 
which he hath performed. So if he 
will forbear paululum temporis, this is 
good ; plaintiff averring a certain 
time of forbearance.' In Payne v. 
Wilson, 7 B. & C. 426, the agreement 
counted upon was to suspend proceed- 
ings in consideration that defendant 
would pay a certain sum on account 
of the debt on April 1, following ; and 
after verdict for the plaintiff, objec- 
tion being taken that no consideration 
appeared, Tentekden, C. J., said: 



' The promise made by the defendant 
was to pay .€30 on the first of April, 
in consideration of the plaintiff's con- 
senting to suspend proceedings. That 
imports that the proceedings were at 
all events to be suspended until that 
period ; and I think that the averment 
that the plaintiH did suspend the pro- 
ceedings is sufficient after verdict; 
because it must be taken that it was 
proved at the trial that the plaintiff 
had suspended the proceedings, either 
for a time required by law, or for a 
definite or reasonable time.' In Sid- 
well I. Evans, 1 P. & W. (Penn.) 383, 
the evidence showed an agreement in 
consideration of a promise of the 
creditor to 'wait a while and not 
push' the debtor. The plaintiff had 
counted on an agreement to forbear 
to sue for a reasonable time ; and the 
jury having found for the plaintiff on 
this evidence, the verdict was upheld. 
In King o. Upton, 4 Me. 387, the 
promise counted on was to pay the 
debt of another in consideration that 
the creditor would ' forbear and give 
further time for the payment of the 
debt,' naming no time. The plaintiff 
averred that he did thereupon forbear, 
and the consideration was held suffi- 
cient. Elting V. Vanderlyn, 4 Johns. 
(N. Y.) 237, is to the same effect. 
Reference is also made to Allen i;. 
Prior, 3 A. K. Marsh (Ky.) 305; and 
Hakes v. Hotchkiss, 23 Vt. 231. The 
averments in the declaration in this 
case are similar to those in King v. 
Upton, and we think the court was 
correct in holding them sufficient. 

The second objection seems to be 
more relied upon. Our statute of 
frauds declares that 'in the following 
cases, specified in this section, every 
agreement, contract, or promise shall 
be void, unless such agreement, con- 
tract, or promise, or some note or 
memorandum thereof, be in writing 
and signed by the party to be charged 
therewith, or by some person by him 
thereunto lawfully authorized;' and 



244 



STATUTE OP PEAXJDS. 



[chap. IV. 



him, who was then engaged in sawing lumber at such mill 
under a contract with the defendants, the defendants, in con- 



it enumerates among other cases, 
■ every special promise to answer for 
the debt, default, or misdoings of an- 
other person.' It is claimed that the 
promise counted upon in this suit is 
of this nature ; it being a, promise 
by the defendants to answer for the 
debt and default of Medlar Brothers 
to the extent promised. It is true 
that the promise of defendants was 
to make payments on the debt of 
Medlar Brothers, but it is also 
true that every payment they prom- 
ised was to apply on an indebted- 
ness that was to accrue against them- 
selves for the sawing that should 
be done for them by the Medlar 
Brothers from time to time. Their 
promise was consequently a promise 
to answer for their own debt, and they 
took upon themselves no new oblige^ 
tion whatever. It has already been 
determined that the promise was made 
on a sufficient consideration, namely, 
the agreement to forbear foreclosure. 
But while in most cases of similar 
promises to be found in the books the 
benefit of the forbearance was ex- 
pected to accrue to the debtor himself, 
in this case it is very evident the de- 
fendants entered into the arrange- 
ment for their own advantage, and 
that they promised to pay nothing for 
which they should not receive an 
equivalent in services performed for 
them. In other words, there was a 
consideration moving to them, which 
was the inducement to their making 
the promise. In many cases the test 
whether a promise is or is not within 
the statute of frauds is to be found in 
the fact that the original debtor does 
or does not remain liable on his un- 
dertaking; if he is discharged by a 
new arrangement made on sufficient 
consideration, with a third party, this 
third party may be held on his prom- 
ise though not in writing ; but if the 
original debtor remains liable and the 
promise of the third party is only col- 
lateral to his, it will in strictness be 



nothing more than a promise to answer 
for the other's debt. But where the 
third party is himself to receive the 
benefit for which his promise is ex- 
changed, it is not usually material 
whether the original debtor remains 
liable or not. This subject has been 
so fully considered in the New York 
courts that a reference to the leading 
cases of Farley v. Cleveland, 4 Cow. 
(N. Y.) 432; s. u. on appeal, 9 id. 
639, and Mallory v. Gillett, 21 N. Y. 
412, in which the other cases are col- 
lected, will be all we shall make here. 
In Nelson v. Boynton, 3 Met. (Mass.) 
396, 402, Shaw, C. J., on an examina- 
tion of the authorities, says : ' The 
rule to be derived from the decisions 
seems to be this : that cases are not 
considered as coming within the stat- 
ute when the party promising has for 
his object a benefit wliich he did not 
before enjoy, accruing immediately to 
himself ; but where the object of the 
promise is to obtain the release of the 
person or property of the debtor, or 
other forbearance or benefit to him, it 
is within the statute.' There are 
many cases in Maine to the same 
effect, which are collected in Stewart 
V. Campbell, 58 Me. 439. In Putney 
V. Parnham, 27 "Wis. 187, 189, Dixon, 
C. J., in c(insidering a promise by the 
defendant to pay to the creditors of 
one Corbett, debts owing by himself _ 
to Corbett, says : ' The question is 
whether such promise was within the 
statute of frauds, and we believe it 
to be well settled that it was not, al- 
though it was collateral to Corbett's 
own liability or promise to pay the 
same debts, and may be said incident- 
ally to have guaranteed such payment. 
It was a guaranty in form, but not in 
substance or effect, within the mean- 
ing of the statute of frauds. It was 
not a mere promise by the defendant 
to be responsible for the debts of Cor- 
bett to those parties, and to pay those 
debts, but a promise by him to pay 
his own debt in that particular way. 



SEC. 144.] 



GUAEAKTIKS. 



245 



sideration that the plaintiff would give further time for the pay- 
ment of the mortgage, promised to retain out of the money to 
become due to M the sum of fifty cents for each thousand feet 
of lumber sawed by him for them, and to pay the same to the 
plaintiff. It was held that this promise was not within the 
statute. But a promise made by a person who is indebted 
to another, without any consideration therefor, or the assent 
of the debtor, that he will retain the money due to enable a 
creditor of such person to secure his debt, is within the 
statute and void ;^ but a promise made to a debtor to pay his 
debt to a third person, or based upon any good consideration, 
is not within the statute.'^ 

Sec. 144. when Debt has become Debt of the Promisor. 

— The statute does not apply to a promise to pay the debt 
of a third person, where by the receipt of an adequate con- 
sideration, such debt has become also the party's own debt,^ 



It was a promise founded upon a new 
and sufficient consideration moving to 
the promisor from the debtor at tlie 
time the promise was made. Such a 
promise or agreement is not within 
the statute of frauds." In further 
illustration of the same doctrine ref- 
erence is made to Brown v. Weber, 38 
N. T. 187; Clymer v. De Young, 54 
Penn. St. 118 ; Eddy v. Roberts, 17 111. 
505; Wilson v. Bevans, 58 id. 232; 
Rimde v. Eunde, 59 id. 98; Ford v. 
Finney, 35 Ga. 258 ; Davis v. Banks, 
45 id. 138 ; EuUam v. Adams, 37 Vt. 
391, 396; Andre v. Bodman, 13 Md. 
241, 255 ; Britton v. Angler, 48 N. H. 
420 ; Johnson v. Knapp, 36 Iowa, 616 ; 
Besshears v. Rowe, 46 Mo. 501. 

The exact point has not hitherto 
been presented for adjudication in 
this State. In Brown v. Hazen, 11 
Mich. 219, a verbal promise by the 
defendant to pay to the plaintiff a 
debt owing to him from a third person 
was held to be within the statute, 
there being no consideration moving 
from the plaintifE to the defendant. 
There is some discussion of the gen- 
eral subject in Gibbs v. Blanchard, 15 
Mich. 292, but it has no very direct 
bearing. We think the authorities 
support the judgment. 



The question which remains is, 
whether if the defendants, before suit 
was brought, had paid over to Medlar 
Brothers all that was due for the saw- 
ing, this would discharge them from 
their promise to the plaintifEs. If it 
would, it must be on the ground that 
they were liable only while they were 
the debtors of Medlar Brothers, and 
because of their indebtedness, which 
in connection with their promise would 
in effect make them the custodians of 
a fund set apart for application to the 
plaintiff's demand. But we think it 
became their duty under their promise 
to observe it by withholding from 
Medlar Brothers the proportion of 
their bill which they had agreed to 
pay to the plaintifEs ; and that they 
could not discharge themselves by a 
disregard of their promise. It is a 
paradox to say that a promise is valid, 
but that the promisor may relieve 
himself from its obligations by violat- 
ing it." 

1 Milcote V. Kile, 47 111. 88. 

2 Goetz V. Foss, 14 Minn. 265; 
Brown v. Brown, 47 Mo. 130. 

5 Robinson u. Gilman, 43 N. H. 
485. 



246 STATUTE OF FEAIJDS. [CHAP. IV. 

nor where the promisor derives a direct benefit therefrom. 
Tlius, the plaintiff subscribed for $2,000 worth of stock iu a 
railroad corporation payable in ten years, secured by bond 
and mortgage. The company subsequently offered to allow 
all such subscriptions to be reduced one-half, provided that 
when so reduced, they should be payable in cash on call, as 
other cash subscriptions. The defendant being largely 
indebted to the company, and interested in raising funds for 
its immediate use, to relieve himself as far as possible from 
responsibility, agreed and promised that if the plaintiff would 
accept this proposition, he would hold him harmless, and be 
answerable to the corporation for all liability on his subscrip- 
tion, and plaintiff accepted it in consequence of this promise, 
it was held that the promise was founded on a sufficient con- 
sideration, and was not within the statute of frauds.^ 

Where the promisor has funds in his hands belonging ' to 
the debtor, from which he has authority to pay a certain debt, 
the promise is not within the statute, because it is a promise 
merely to pay to the creditor what he would otherwise be 
bound to pay to the debtor in satisfaction of his own debt ; 
and the same is true where the promise is conditional, as, to 
pay, if he receives funds of the debtor to the amount of the 
debt. In such case, while there is no obligation to pay 
unless the condition is fulfilled, yet if the condition is ful- 
filled the promise is operative and not within the statute, 
because the debtor's own funds are relied upon for payment.^ 

1 North V. Eobinson 1 Duv. (Ky.) by applying the amount of their sub- 
71. scriptions thereto ; and in case the 

2 Clymer u. De Young, 54 Penn. amount so furnished should exceed 
St. 118 ; May v. Nat. Bk. of Malone, their subscriptions, such excess should 
9 Hun (N. T.) 108; Wyman v. Smith, be paid iu cash by the society, which 
2 Sandf. (N. Y.) 331 ; Calkins u. cash and subscriptions cancelled were 
Chandler, 35 Mich. 320 ; McKeenan to be charged by the society to such 
V. Thissel, 33 Me. 368; McLaren v. contractor as payment upon such 
Hutchinson, 22 Cal. 187 ; Nelson v. contract. The agreement was made 
Hardy, 7 Ind. 364 ; Corbin v. McChes- known to the society, and assented to 
ney, 26 111. 231. In the Consociated by the building committee ; aiid rely- 
&c. Society v. Staples, 23 Conn. 543, a ing upon their promise, the parties 
contractor for the erection of a meet- aforesaid furnished the material and 
ing-house for an ecclesiastical society labor. The court held that the prom- 
applied to C, D, and E for materials ise was not within the statute nor void 
and labor, each of whom had pre- for want of a consideration. Hin- 
viousbj subscribed certain sums towards man, J., said : " This was not a, prom- 
the cost of said house, and agreed that ise to pay the debt of another; it was 
the society might pay them therefor a promise by the society to paij their own 



SEC. 144.] 



GUAEANTIES. 



247 



But a promise to pay out of funds of the debtor without his 
assent is within the statute. Thus, A being, indebted to B, 
C verbally promised to B to pay him the sum, and charged 



debt to Hawley and Wheeler, or a por- 
tion of it to the several claimants, and 
it was made in consideration of the 
extinguishment of the claimants' de- 
mands against Hawley and Wheeler. 
The agreement between Hawley and 
Wheeler and the claimants, assented 
to by the society, operated to extin- 
guish the claimants' demands against 
Hawley and Wheeler, and as an assign- 
ment of them to the society." Standi 
V. Hine, 45 Penn. St. 187 ; Ladd v. 
Tobey, 29 Me. 219 ; Lucas v. Payne, 
7 Cal. 92 ; Hitchcock v. Lukens, 8 
Port. (Ala.) 333; Loomis v. Newhall, 
15 Pick. (Mass.) 159; Andrews v. 
Smith, Tr. & G. 173. A promise by 
the purchaser of real estate or per- 
sonal property to pay a part or the 
whole of the price to certain cred- 
itors of the vendor, is a promise to 
pay his own debt, and not within the 
statute. Blair &c. Land Co. v. Walker, 
39 Iowa, 406 ; Lester v. Bowman, 39 
id. 611 ; Chamberlain v. Ingalls, 38 
id. 300. In Davis v. Banks, 45 Ga. 
138, A, a merchant indebted to B and 
C, sold his goods to B for more than 
his indebtedness to him. While B 
was removing them from the county, 
C threatened to attach them, and, 
thereupon, B orally promised C that 
if he would not attach the goods, he 
would pay to him the surplus arising 
from the sale of the goods over and 
above his debt. It was held that this 
was an original undertaking, and not 
within the statute. Where one as- 
signee for the benefit of creditors, 
having collected money for the estate, 
in compliance with a previous agree- 
ment with his co-assignee, conveys 
property to a third person, upon the 
condition that the latter shall pay 
the co-assignee the sum collected, 
and such person afterwards promises 
the co-assignee to pay it to him, such 
promise is founded upon a sufficient 
consideration, and is not within the 
statute of frauds. Perkins v. Hitch- 



cock, 49 Me. 468. In McCartney v. 
Hubbell, 54 Wis. 360, by the terms of 
the contract, C was to sell chattels to 
B, and B was to pay him therefor by 
an order for goods on A, and a note 
to be executed by A to C. It was 
held that as the contract on its face 
appeared to have been made for A's 
benefit, his mere approval of it created 
no liability on his part ; but the ques- 
tion still was whether, before such con- 
tract was made between B and C, he 
promised to pay C, and whether the 
contract was made and the property 
delivered to B in reliance upon such 
promise. But if A sells goods to C 
in part payment of such claim, this 
circumstance is evidence for the jury 
upon the question whether he did not 
originally promise to pay the debt. 
An entire stranger to a contract can- 
not make himself liable thereon by a 
subsequent " ratification and adop- 
tion," but only by some new contract 
upon a new consideration, such as a. 
a guaranty of performance upon con- 
sideration or an assignment, and that 
new contract is within the statute of 
frauds. Ellison v. Jackson &c. Co., 12 
Cal. 542. Where the owner of nego- 
tiable paper sells it, and accompanies 
the sale by a guaranty of collection 
thereon, it is not necessary to the 
validity of such guaranty that the 
name of the guarantee should appear 
in it. A guaranty so given is not 
within the statute of frauds. Thomas 
V. Dodge, 8 Mich. 51. A assigned a 
bond against B to C, to enable him to 
obtain goods on the credit of the as- 
signment, and guaranteed the pay- 
ment of the bond by an indorsement 
on the back thereof signed by his 
name, and goods were obtained on the 
credit of the indorsement and guar- 
anty. It was held that this was not 
an undertaking for the debt of another 
within the statute of frauds. Hopkins 
V. Richardson, 9 Gratt. (Va.) 485. 



248 STATUTE OF FKAtTDS. [OHAP. IV. 

it to A -without his consent. It was held that the promise 
was within the statute, and must be in writing, to be binding.^ 

Sec. 145. when Promise Cannot be Revoked. — Where a 
valid promise is made by one having property in his 
hands left with him by the debtor for that purpose to pay 
his debt to another, the promisor is not relieved therefrom by 
instructions subsequently given to him by the person prom- 
ised for, not to pay the debt. Thus in May v. the National 
Bank of'Malone^ it appeared that the firm of Townsend & 
Hyde were indebted to the firm of May & Co. in the sum of 
$2,738.78, for which the latter firm held the note of Town- 
send & Hyde, payable at the defendant bank. Tliis note 
became due Feb. 23, 1876, and on that day was presented 
there by the National Hide and Leather Bank of Boston for 
payment, which was refused ; whereupon the note was pro- 
tested and returned to the Boston bank by George Hawkins, 
the cashier of the defendant, by mail, with notice of protest 
attached thereto. On the 6th of March, 1876, Townsend & 
Hyde wrote to said George Hawkins as follows : . 

" Dear Sm, — We send by this mail our note to Mr. A. 
White, for him to indorse and hand to you, for f 2,879. 

" We want you to discount it for us to pay the May & Co. 
note, due February twenty-third, which amounts to $2,777.40, 
and interest from the twenty-third day of February, and hand 
Mr. White the notes we sent you, 1 3,000, for him to hold as 
collateral ... It will be a very great accommodation to us 
if you will discount this note, and send draft to May & Co. 
for the note due them February 23, 1876. 

" Very truly yours, 

"Townsend & Hyde." 

On the 8th of March, 1876, said White presented the note 
at said National Bank of Malone, and after he had indorsed 
it delivered it to Hawkins to be' discounted by said bank to 
pay May & Co.'s note. Thereafter, on the 10th of March, 
1876, a communication was forwarded by Hawkins to said 
May & Co., at Boston, as follows : 

1 Eichardson v. "Williams, 49 Me. = 9 H\m (N. Y.) 108. 
568. 



SEO. 145.] GUARANTIES. 249 

" Messrs. May & Co.: 

" Forward to me the past due note of Townsend & Hyde, and I 
will pay it. 

"George Hawkins, 

" Cashier." 

On the same day a communication was forwarded by 
Hawkins to Townsend & Hyde as follows : 

^^ Messrs. Townsend & Hyde : 

" Dear Sirs, — Your favor of the is received. I have 

written to May & Co. to return your note to me for payment, 
we having done as requested in yours of the sixth. 

" Yours, etc., 

".George Hawkins, 

" Cashier." 

In obedience to the directions contained in the communica- 
tions of Hawkins, on the 13th day of March, 1876, at 1 o'clock 
in the afternoon, that being the same day upon which the 
communication from Hawkins was received by May & Co., 
they returned the protested note of $2,743.78 of Townsend & 
Hyde to the National Bank of Malone, by depositing the same 
in the post-office at Boston, addressed to George Hawkins, 
cashier of said National Bank of Malone, postage paid, with 
the following letter of instructions : 

"Boston, March 13, 1876. 
" George Hawkins, Esq., Cashier National Bank of Malone: 

" Dear Sir, — In obedience to your pc. of tenth March, 
we inclose note Townsend & Hyde, $2,743.78, and interest 
from 20th October, 1875. Protest fees $1.14, for which 
please send us check on New York or Boston, and oblige, 

" Yours truly, 

"May & Co." 

On the 13th day of March, 1876, at seven and a-half o'clock 
in the evening, and after the closing of said National Bank 
of Malone for that day, but before the protested note sent by 
May & Co. had reached the bank in return, a telegram sent 
by said Townsend & Hyde from Cortland, N. Y., at 5.16 
o'clock of the afternoon of that day, was delivered to Hawkins, 
addressed to him, which read as follows : 



250 STATUTE OF FRAUDS. [CHAP. IV. 

"CoETLAND, N. Y., March 13, 1876. 
" To Qeorge Hawkins, Cashier, Malone: 

" Do not pay the May note. I will be at home to-morrow. 
(Signed.) "W. H. Hyde." 

On the 15th day of March, 18T6, Townsend & Hyde 
personally instructed Hawkins not to pay the May & Co.'s 
note, and on the 16th day of March, 1876, payment of the 
note was again refused at the defendant bank, and the same 
was returned to May & Co. unpaid. The note of |2,789, 
made by Townsend & Hyde, and indorsed by Abram S. 
White, and by him delivered to the defendant to pay the 
May & Co.'s note of |2,743.78, remained in the possession of 
the bank up to the tinje this action was brought, and no 
entries in relation thereto were ever made in the books 
thereof. Boardman, J., in delivering the opinion of the 
court, said : " If the contract of defendant could be consid- 
ered as governed by the statute of fraiids, it would still be 
good and binding. It is in writing, and signed by the party 
to be charged. The signature by the cashier of the defendant 
is sufQcient under this statute.^ But the contract was not 
within the statute of frauds. It was an original undertaking 
by the defendant, founded upon an adequate consideration 
moving from Townsend and Hyde to it, to pay the debt of 
Townsend & Hyde to the plaintiffs. The proceeds of the 
note discounted by defendant for Townsend & Hyde were 
held for plaintiff — were put in defendant's hand to pay 
plaintiff with, and defendant had assumed and promised to 
pay such debt therewith. The discounting of the note is 
admitted by defendant. This takes the case out of the statute 
of frauds. The distinction between original and collateral 
promises is fully considered and explained in the following 
leading cases in this State : Leonard v. Vredenburg ^ and 
Mallory v. Gillett.^ From the distinctions therein pointed 
out, it is apparent that this is an original undertaking, and 
can be enforced by the plaintiffs. Many of the cases cited and 
commented upon by the learned judges in those cases are ap- 
plicable here. I shall cite but one or two. In Barker v. Buck- 
lin * it is held that an action may be maintained on promise 

1 Dykers v. Townsend, 24 N. Y. 57. = 21 N. Y. 412. 

2 8 Johns. 39. * 2 Den. (N. Y.) 45. 



SBC. 146.] GUAEANTIES. 251 

made by the defendant to a third person for the benefit of the 
plaintiff, upon a consideration moving from sucli tliird person 
to tlie defendant, and without any consideration moving from 
the plaintiff. So in Lawrence v. Fox ^ it is held that an action 
lies on a promise made by the defendant upon valid consider- 
ation, to a third person for the benefit of the plaintiff, although 
the plaintiff was not privy to the consideration. Such prom- 
ise is to be deemed made to the plaintiff if adopted by him, 
though he was not a party nor cognizant of it when made.^ In 
the present case Townsend & Hyde had put the defendant in 
funds to pay plaintiff's debt, requesting it to pay the same. 
The defendant acloiowledges to Townsend & Hyde that it 
had done as requested, and had sent for the note to be returned 
for payment. It had also, in consideration of such provisions 
made, promised the plaintiffs to pay their debt upon the note 
being returned to defendant ; but upon its return refused to 
do so at the instance of Townsend & Hyde. I think the 
means, derived by the bank from Townsend & Hyde's note 
discounted by it, were put there for the payment of plaintiffs' 
debt, and upon a mutual understanding between the bank 
and Townsend & Hyde, to which each agreed, that plaintiffs' 
debt should be paid therefrom. By such act the liability of 
the defendant was fixed. The bank, however, is still in 
possession of the note discounted, and of the funds derived 
therefrom. It will not be the loser if compelled to pay. The 
assets of Townsend & Hyde will pay the debt." 

Sec. 146. Wlien Payable if no Time is Agreed Upon. — 
The ground upon which this doctrine rests is that the prom- 
ise in such a case is based upon a new and independent 
consideration, distinct and apart from the original debt. The 
rule, however, is modified by the promise. If the promise is 
made in consequence of a debt due from the promisor to the 
debtor, or of money placed in his hands by the debtor, and 
nothing is said as to the time of payment, the promise is 
enforceable instanter ; but if the promise is to pay the debt 
out of the proceeds of property placed in the promisor's hands 
for that purpose, and is to pay out of the avails of the prop- 
erty, liability does not attach until the property has been sold, 

1 20 N. Y. 268. 

2 See also Barker v. Bradley, 42 N. Y. 316. 



252 



STATUTE OP FEAUDS. 



[chap. rv. 



or the promisor by his conduct has made himself the pur- 
chaser.i But if he promises to pay out of the property, and 
guarantees that it will he sufficient to pay the debt, the promise 
is not within the statute, even though the avails thereof prove 
insufScient.2 The mere fact that the promisor has funds or 
property in his hands belonging to the debtor is not sufficient 
to take the case out of the statute, but it must also appear 
that they were deposited with him for that purpose, or that he 
had authority to so apply them^ and it must he an absolute 
promise to pay the debt, and not merely to see it paid if the 
debtor does not pay it, or to stand as security for its payment.* 



1 Draughan v. Biinting, 9 Ired. 
(N. C.) 10. Threadgill v. McLendon, 
76 N. C. 24 ; Stanley v. Hendricks, 13 
Ired. (N. C.) 86; Hall v. Robinson, 8 
Ired. (N. C.) 56; Hicks v. Criteher, 
PhilUps (N. C.) Eq. 353. 

' Lippincott v. Ashfield, 4 Sandl. 
(N. Y.) 611. 

» Dilts «. Parke, 4 N. J. L.219; 
State Bank v. Mattler, 2 Bos. (N. Y.) 
392. 

* In Weyer v. Beach, 14 Hun 
(N. Y.) 235, Bakkes, J., states the 
facts of the case and the law applica- 
ble thereto as follows : " It appears 
that Beach, the owner, entered into a, 
written agreement with the contrac- 
tors, Stone & Bassett, by which the 
latter agreed to erect a building for 
the former on his premises, the con- 
tractor to furnish the material there- 
for. There was a clause in the agree- 
ment which permitted Beach to re- 
tain moneys due thereon to Stone and 
Bassett for the purpose of paying for 
material used by them, and he was 
authorized to make such payments 
and have them applied as payments 
on the contract. Stone & Bassett 
then contracted with the plaintiffs for 
the brick necessary to erect the build- 
ing at a stipulated price per thousand. 
After the plaintiffs had made delivery 
to Stone & Bassett of a small portion 
of the brick they became distrustful 
of the latter's responsibility and there- 
upon, on meeting Beach, they en- 
quired if he would retain moneys on 
his contract with Stone & Bassett for 



the building of the house, sufficient to 
pay for such brick as they should 
deliver to S. & B. and pay them there- 
for, in case they would keep him in- 
formed from time to time of the 
amount remaining unpaid. Accord- 
ing to the testimony of one of the 
plaintiffs. Beach replied that he would 
do so ; this, however. Beach flatly de- 
nied. Now, in the first place, it be- 
comes important to see precisely what 
the arrangement was between the 
parties, if any was in fact made ; and 
in determining this fact we are not 
concluded by the decision of the 
referee, though there was a conflict 
of evidence, but it becomes our duty 
on the appeal to examine the case 
de novo on the proof submitted. Such 
seems now to be the rule laid down 
by the Court of Appeals. Godfrey v. 
Moser, 66 N. Y. 250. We must there- 
fore examine the evidence and deter- 
mine the nature and extent of the 
alleged contract between the parties 
for ourselves. 

The plaintiff Weyer alone testified 
to the arrangement on the part of the 
plaintiffs. He gave the conversation 
between himself and the defendant, 
Beach, as follows : ' I asked him if I 
should keep him posted as to what 
they (S. & B.) owed me, whether he 
would keep money enough back out 
of his contract to pay me. Mr. Beach 
said he would. I said I would com- 
mence drawing, and he said all right.' 
This occurred after some of the brick 
had been delivered. On his cross- 



SEC. 146.] 



GUARANTIES. 



253 



But in this class of cases it is immaterial whether the original 
debtor is discharged or not, because the promise is based upon 



examination, tlie witness gave tlie 
conyersation as follows : ' I asked 
him if he would retain money if I 
would keep him posted, and he said 
he would see me through. I think that 
was it ; and I replied, then I can com- 
mence delivering brick, and he said 
all right ; this was all there was said. 
... I am sure that the remark of 
Beach was, " I will see you through." 
The witness also testified to various 
facts, showing that the plaintiffs made 
the delivery to Stone & Bassett on 
their contract. He (Weyer) called 
on them for payment, and obtained 
payment of part from or through 
them; and on one occasion he told 
Beach that he 'would not have drawn 
the brick if he (Beach) had not agreed 
to be security.' Besides in the notice 
which stands as a pleading, the plain- 
tiffs state that the brick were fiirnished 
to Stone & Bassett. Thus it is made 
entirely certain that there was no 
surrender or abandonment of the first 
contract for the brick, made between 
the plaintiffs and Stone & Bassett. This 
contract was not terminated or super- 
seded by the alleged agreement be- 
tween the plaintiffs and Beach. It 
continued in force, and the brick was 
delivered under that contract. It must 
follow then that the alleged arrange- 
ment between the plaintiffs and Beach 
was collateral to it, and was in the na- 
ture of a guaranty of its performance 
by Stone & Bassett as to payment. 
And so the plaintiff, Weyer, who made 
the arrangement understood it. He 
testified that he told Beach that he 
would not have drawn the brick if he 
(Beach) had not agreed to be 'se- 
curity.' Such is the plain import of 
his evidence. He says, 'I asked him 
if I should keep him posted as to 
what they owed me' — (that is, as to 
the amount Stone & Bassett should 
become indebted on the brick con- 
tract from time to time) ' whether he 
would keep money enough back out 
of his contract to pay me ; ' and when 



afterwards he called the defendant's 
attention to the conversation, he said 
he should not have drawn the brick 
had he (Beach) not agreed to be 
' security.' It is very manifest that 
the plaintiff, Weyer, understood the 
arrangement as one of security on the 
part of Beach ; that is, that he (Beach) 
would be responsible for whatever 
amount Stone & Bassett should fail 
or omit to pay. Tlierefore, accepting 
the arrangement or promise to be as 
proved by the plaintiffs, it was a 
promise to answer for the debt or 
default of Stone & Bassett; hence, 
having been oral merely, it was void 
by the statute of frauds. The statute 
declares that every special promise to 
answer for the debt, default, or mis- 
carriage of another person shall be 
void, unless such agreement, or some 
note or memorandum thereof, be in 
writing, and subscribed by the party 
to be charged therewith. It is said 
in Brown v. Weber, 38 N. Y. 187, that 
the language employed in the statute 
shows that the test to be applied to 
every case is, whether the party 
sought to be charged is the principal 
debtor, primarily liable ; or whether 
he is only liable in case of the default 
of a third person. In Cowdin v. 
Gottgetreau, 55 N. Y. 650, it is laid 
down, that while a person may be- 
come liable upon a parol promise for 
goods purchased which are delivered 
to and are intended for the use of 
another, in order to make him so, the 
debt must be his only; he must be 
exclusively liable therefor. In Duffy 
V. Wunsch, 42 N. Y. 243, A promised 
to pay the debt of B, if C would dis- 
continue a suit for its recovery, then 
pending against B. The promise was 
held to be within the statute of frauds 
and void. Lott, J., in this case, re- 
marked, that the promise was not 
made or accepted in the place or as a 
substitute of the original debt, or in 
its extinguishment; on the contrary, 
B continued liable for the amount or 



254 STATUTE OF PKATJDS. [CHAP. IV. 

a consideration entirely independent of it.^ The distinction 
between promises of this character and those having no 
independent consideration is illustrated by Pearson, C. J.,^ 
as follows : " The principle," says he, " is this, when in consid- 
eration of the promise to pay the debt of another the promisor 
receives property and realizes the proceeds, the promise is not 
within the mischief provided against, and the promisee may 
recover on the, promise or in an action for money had and 
received. For although the promise is in words, to pay the 
debt of another and the performance of it discharges the debt, 
still the consideration was not for the benefit or ease of the original 
debtor, but for a purpose entirely collateral, so as to create an origi- 
nal and distinct cause of action." In Threadgill v. McLendon, 
ante, the question as to whether liability upon a promise to 
pay the debt of another attaches where property is placed in 
the hands of the promisor for the purpose of paying a debt, 
until the property is converted into money, was considered, 
and a distinction was made in this respect between what is 
denominated " a cash article " and one which is not. In that 
case the plaintiff furnished supplies to a cropper of the 
defendant upon a promise of the defendant to pay for the 

balance thereof which the defendant for the default of Stone ^ Bassett 
agreed to pay. So here the promise by in making payment as they had agreed. 
Beach, as testified to by the witness, was Not haying been made in writing, it 
not made or accepted in place of, or as a was void by the statute of frauds. 
substitute for, the original contract be- Nor does the clause in the agreement 
tween the plaintiffs and Stone ^ Bas- between Stone & Bassett and Beach, 
sett, or in extinguishment thereof; on the by which the latter was at liberty to 
contrary, Stone & Bassett continued retain money which should become 
liable for the amount or balance due the former thereon, and apply it 
which Beach agreed to pay. See also in payment for materials • used by 
Mallory v. Gillett, 21 N. Y. 412 ; Loonie them in erecting the building, aid the 
u. Hogan, 9 N. Y. 435 ; Larson v. Wy- plaintiffs' case. This was merely per- 
man, 14 Wend. (N. Y.)246; Payne w. missive as to Beach, not obligatory 
Baldwin, 14Barb. (N.Y.) 570. No new on him; and this clause in no way 
terms of payment or conditions of de- validated his otherwise invalid prom- 
livery were agreed upon, or even con- ise." 

sidered, between the plaintiffs and de- i Fitzgerald v. Dressier, 7 C. B. 

fendant. The contract with Stone & (N. S.) 374; "Wait ». Wait, 28 Vt. 350 ; 

Bassett determined all that, and it was Olmstead v. Greenly, 18 John. (N. Y.) 

to continue in force. Delivery of the 12; Mitchell v. Griffin, 58 Ind. 559; 

brick and payment therefor was to be Burr v. Wilcox, 13 Allen (Mass.) 269 ; 

made according to its terms, and the Young v. French, 35 Wis. Ill ; Fish 

promise of the defendant, according v. Thomas, 5 Gray (Mass.) 45; Wells 

to the proof, was this, in legal effect : v. Brown, 118 Mass. 137. 

That he would answer to the plaintiffs ^ Stanley v. Hendricks, ante. 



SEC. 147.] GUARANTIES. 255 

same. Afterwards the promisor took into his possession 
cotton belonging to the cropper, and sufficient to pay the 
plaintiff's account, and thereafter promised to pay the same. 
In an action to recover the debt of the promisor it was held 
that the promise was not within the statute, and that the 
defendant was liable for the reason that the promise was not 
made as surety for the cropper, but for himself, because the fund 
out of which the debt was to be paid was in his hands. It was 
insisted by the defendant's counsel that the case did not come 
within the principle involved in the rule stated supra, because 
the cotton had not been sold, but the court held that a distinc- 
tion existed in this case because cotton was a cash article, and 
could readily be converted into money, and had a fixed and 
standard money value. But we cannot believe that the rule 
adopted in this case can be sustained, except the jury find, 
as a fact, that the promisor was a purchaser of the cotton, 
or agreed to pay absolutely without reference to its sale, or 
that he unreasonably delayed- making the sale. The court 
must enforce the contract made by the parties, and has no 
power to make one for them. 

Sec. 147. Parting with Security or Giving up a Lien. — 

In an English case ^ it was held that where a person parts 
with securities or gives up a lien which he has for a debt, 
upon the strength of a verbal promise by a third person, 
the promise is not within the statute whether such prom- 
ise inures to the benefit of the promisor or not. In that case 
certain carriages belonging to one Copey were sent to the 
plaintiffs by the defendant to be repaired, and the defendant 
gave the orders respecting them. The bill for the repairs was 
made out in the name of Copey. When the carriages were 
repaired the defendant sent an order to pack them and send 
them on board ship. The plaintiffs thereupon sent to him to 
know who was to pay for them. The defendant said he had 
sent them and would pay for them. In reliance upon this 
promise the carriages were packed and sent on board ship, 
and a bill made out and delivered to the defendant. After 
having called for the pay several times without avail, this 
action was brought, and Loed Eldon held that the defend- 

1 Houlditch V. Milne, 3 Esp. 86. 



256 STATUTE OF FEAUDS. [CHAP. IV. 

ant was liable irrespectiye of the question -whetlier credit was 
given solely to the defendant or not. He said : " In general 
cases, to make a person liable for goods delivered to another, 
there must be either an original undertaking by him, so that 
the credit was given solely to him, or there must be a note in 
writing. There might, however, be cases where the rule does 
not apply. If a person gets goods into his possession on 
which the 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 ; it appeared 
to apply precisely to the present case. The plaintiffs had, to 
a certain extent, a lien upon the carriages which they parted 
with on the defendant's promise to pay. That, he thought, 
took the case out of the statute, and made the defendant 
liable for the bill." In this case it will be observed that the 
defendant derived no advantage from the discharge of the 
lien, and that Copey was not discharged from his liability for 
the debt, and we believe that .the case does not express a 
correct rule of law, and it never has been adopted in England, 
and in but few of the courts of this country. The promise of 
the defendant could not in any sense be said to be predicated 
upon a new and independent consideration, unless, indeed, as 
was intimated in the case, but not shown, Copey had placed 
money in the hands of the defendant to pay the bill. It is 
intimated in a note to Forth v. Stanton ^ that the doctrine of 
this case may be reconciled with the other English cases, 

^ Forth V. Stanton, 1 Wm. Saund. lie would relinquish his right to col- 

211 b. In Gull V. Lindsay, 4 Exchq. lect the freight, they would pay him 

45, the plaintiff was a ship broker, his commission. Relying upon this 

and was employed by the owners of promise, the plaintiff relinquished 

the " Mathesis " to procure for them such right. The plaintiff had a rer- 

a charter of the ship, upon the times diet, but was set aside. Pollock, C. 

that he should be entitled to receive B., saying : " We think the def end- 

the freight, and satisfy himself out of ants' counsels were right in saying 

it for his commission. He procured that this contract was a contract made 

a charter party, and the ship sailed to pay the debt of another within the 

on her voyage, and returned to Eng- statute of frauds. It was not a case 

land. Before her return, a change in of transfer of liability as if A had 

the ovmership of some of the shares agreed to accept C, a debtor of B, 

of the ship had transpired, and the as his debtor in lieu of him. It is 

defendants, who were the brokers of plain that, although the defendants 

the new owners, — the plaintiffs being agreed to pay the plaintiff, yet the 

about to collect the freight, being debt to him still remained due from 

anxious to gain possession of the the owners by whom he was retained." 
ship, — promised the plaintiff that if 



SEC. 147.] GUARANTIES. 257 

because it appears from all the circumstances that the sole 
credit was given to the defendant, and that the real owner of 
the carriages was not at all liable. But this statement is 
forced and without support, as it appears that credit was 
given to the owner of the carriages because the bill was made 
out in his name, and the plaintiffs seem to have regarded him 
as their debtor, and not until the order for the shipment was 
given, and the defendant made the promise rehed upon, did 
they ever regard or treat him as their debtor ; and the fact that 
the bill was made out in the name of Copey shows that they 
clearly understood that the work was being done . for him, 
although performed upon the order of the defendant, and the 
court makes no mention of any such grounds for its decision, 
showing that it had no influence thereon, and while the result 
reached may have been correct upon the ground that the 
defendant, from what he said to the plaintiffs when asked' 
who was to pay the bill, may have made himself chargeable 
as original debtor. Yet this has no tendency to reconcile the 
doctrine of the case with that of other English cases, because it 
is not the ground upon which the court proceeded, and there 
can be no question but that the real doctrine of the case is 
that where a person discharges a lien upon property which he 
holds as security for a debt, upon the promise of a third 
person to pay the debt if he will do so, the promise is not 
within the statute.^ 

Upon what Lokd Eldon says in reference to the liability 
of a person who gets goods into his possession on which the 
landlord had a right to distrain for rent, who to prevent a 
distress promises to pay the rent, it is'evident that he intended 
to follow the doctrine laid down in Williams v. Leper,^ and 

' In Briggs v. Evans, 1 E. D. S. held that the defendant's promise was 

(N. T. C. P.) 192, the doctrine of an original undertaking. 
Houlditch u. Milne was followed. In ^ W'illiams v. Leper, 3 Burr. 1886;. 

that case the plaintiff manufactured In Blackford «. Plainfield Gas- Co., 43; 

some furniture for A; but before N. J. L. 438, the holder of an execu- 

delivery, presented the bill to A ; and tion levied on personal property on 

he being unable to pay it, the plaintiff which, by statute, the landlord had a 

refused to deliver the furniture. But lien for rent, promised the landlord 

at A's request, he went with him to that if he would waive his rights un- 

see the defendant, who took the bill der the statute, and: allow the property 

and promised to pay it, thereupon the to be sold', he would pay the rent; 

plaintiff delivered the furniture, and and it was heM. that tlie promise was- 

charged it to the defendant. It was not withini the- statute. In Coquard 



258 STATUTE OP FKAtTDS. [CHAP. IV. 

that his ruling resulted from a misapprehension o£ the doctrine 
of that case. But the points of distinction between the two 
cases are marked. It will not be advisable to give that case 
in full here, as the gist of it is given in another section ; and 
from the facts as there stated, it will be seen that the defend- 
ant Leper held the goods of the original debtor in his posses- 
sion under a bill of sale from the debtor, who was a tenant 
to the plaintifP, and largely in arrears for rent, to be sold for 
the benefit of his creditors. While Leper so held the goods 
the plaintiff was about to distrain them for the rent, where- 
upon the defendant promised him that if he would not 
distrain he would pay him the £45 due for rent, and upon 
the faith of that promise the plaintiff did not make the 
distress. Loed Mansfield, C. J., said : " The res gestae 
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 were the funds. The question was not between 
Taylor, the tenant, and the plaintiff, the landlord. The plain- 
tiff had a lien on the goods, Leper was a trustee for all the creditors, 
and was obliged to pay the landlord who had a prior lien. This has 
nothing to do with the statute of frauds." Wilmot, J., 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." It was not even intimated in this case that the sur- 
render of the lien by the plaintiff gave validity to the defend- 
ant's promise, or that a recovery could be had upon that 
ground, but the defendant's liability was placed upon the 
ground that the defendant, being a trustee for all the cred- 
itors, was obliged to pay the plaintiff who had the prior lien, 
and Aston, J., regarded the goods as the debtor, as a fund 
between both, and thought that the defendant was not bound 

V. Union Depot' Co., 10 Mo. App. 261, if it was sent to him C. O. X). The 

the plaintiff's wife, while travelling, trunk was so sent, when, instead of 

pledged her trunk to the conductor settling the claim, the plaintiff re- 

f or the fare of a child travelling with plevied it. The court held that the 

her; and the plaintiff — her husband promise to pay the claim was not 

— afterwards agreed with the baggage- within the statute, and that he could 

master to settle the claim for the trunk not recover in the action. 



SEC. 148.J GtJAEAOTIES. 259 

to pay the landlord more than the goods sold for. In this 
case the defendant had the custody of the goods, coupled with 
an interest and a right to sell them, while in the case of 
Houlditch V. Milne the defendant neither had an interest in, 
or the possession of the goods, or the right to sell them. 

Sec. 148. Rule in Maine. Stewart v. Campbell. — There 
are several early American cases in which the doctrine of 
Houlditch V. Milne was adopted,^ but that doctrine is not 
generally held by our courts, and the relinquishment of a lien 
upon the verbal promise of a third person to pay the debt, is 
held not to be operative unless the person making the promise 
has an interest therein, and derives some benefit and advan- 
tage therefrom, and in some of the cases it is held that the 
promise is collateral, notwithstanding the promisor derives an 
advantage therefrom, unless the lien is extinguished, and the 
original debtor is discharged from the debt. Thus in a Maine 
case,^ in which the plaintiff had a debt against D, and a lien 
therefor upon the defendant's vessel, S, being pressed for 
money by the plaintiff, told him that he should have his lien- 
claim on the vessel, to be enforced if D did not pay it. The 
defendant hearing of this, and not desiring that his vessel 
should be stopped, verbally promised the plaintiff that he 
would pay S's claim if D did not. The plaintiff did not 
discharge S, nor did S release D or his lien on the vessel, 
although he did not enforce it as he would have done but for 
the expectation raised by the defendant's promise that the 
claim woidd be paid to the plaintiff. D afterward collected of 
the defendant, but did not pay the plaintiff. It was held that 
the promise was within the statute, and the ground upon 
which the coiirt based the doctrine was that the plaintiff did 

1 Tindal v. Touchberry, 3 Strobh. he had a lien for repairs, and upon 

(S. C.) L. 177; Dunlap v. Thome, 1 B's oral promise to pay for the repairs, 

Rich. (S. C.) L. 213; Adkinson w.Bar- delivered it to A, it was held that the 

field, 1 McCord (S. C.) L. 575; Sian v. promise was within the statute. Mal- 

Pigott,lN.&McCord(S.C.)124; Slin- lory v. Gillett, 21 N. Y. 412; over- 

gerland v. Morse, 7 John. (N. T.) 463 ; ruling Watson v. Parker, 1 Hun CS. Y.) 

Merceiu v. Andrus, 10 Wend. (If. Y.) 618 ; and Fay v. Bell, Lalor's Sup. 

461; Stewart v. Hinkle, 1 Bond (U. (N..Y.)251. 

S. C. C.) 506. But in New York this « Stewart v. Campbell, 58 Me. 439 ; 

doctrine is now repudiated ; and where 4 Am. Kep. 296. See also Brightman 

the plaintiff had in his possession a v. Hicks, 108 Mass. 246. 
canal-boat belonging to A, upon which 



260 STATUTE OF FRAUDS. [CHAP. IV. 

not release the lien or his claim against the principal debtor, so 
that the promise of the defendant was merely collateral, and 
not binding unless in writing.^ 

Sec. 149. General Rule. — In Massachusetts a difFerent 
rule is adopted, and when the owne? of a vessel, sub- 
ject to a lien for a debt incurred, agreed verbally with 
the holder of the lien that if he would forbear enforcing 
it, he would pay the debt, the court held that the promise 
was an original undertaking, and that whether the lien was 
absolutely abandoned or not. "By permitting the vessel 
to go to sea," said Soulb, J., "and forbearing to enforce 
their lien, the plaintiffs abandoned /or the time being, at least, 
the advantage which their lien gave them for securing their 
Aehts, for the benefit of the defendant, who thereby gained the 
opportunity to send his vessel to sea, and put her beyond the 
jurisdiction of the courts of this Commonwealth, so that they 
could not enforce their lien." ^ In this case,while the defendant 
had a direct interest in having the lien discharged, yet it does 
not appear that the lien was absolutely discharged, or that the 
original debtor was released from the debt. Therefore the doc- 
trine announced in it is directly opposed to that adopted in the 
Maine case, ante, but comes clearly within the rule stated in the 
text as well as in accord with the doctrine generally held in the 
several- States of this country,^ and as announced by Shaw, 



1 In Spooner v. Dunn, 7 Ind. 81, ^ Hodgkins v. Henney, 15 Minn, 
it was held that where a creditor re- 185; Arnold v. Stedman, 45 Penn. St. 
leases a specific lien which he has 186 ; Corkins v. Collins, 16 Mich. 478 ; 
upon property upon the faith of a Smith v. Sayward, 6 Me. 504 ; King v. 
third person to pay the debt, the Despard, 5 Wend. (N. Y.) 277 ; Whit- 
promise is not within the statute, field v. Potter, 10 Bos. (N. Y.) 226; 
See also, to same effect, Dunlap v. Young v. French, 35 Wis. Ill ; Cross 
Thome, 1 Rich. (S. C.) L. 213 ; Plum- v. Richardson, 30 Vt. 641; Lampson 
mer v. Lyman, 49 Me. 229 ; Arnold v. v. Heartt, 28 id. 697 ; Boyce v. Owens, 
Stedman, 45 Penn. St. 186; Fay v. 2 McCord (S. C.) L. 208; Krutz v. 
Bell, H. & D. Suppt. (N. Y.) 251. Stewart, 54 Ind. 178; Scott i'. Thomas, 

2 Fears v. Story, 131 Mass. 47. But 2 111. 58 ; Crawford v. King, 54 Ind. 
see Brightman v. Hicks, 108 id. 246, 6 ; Spooner v. Drum, 7 Ind. 81 ; Luark 
where it was held that an oral promise v. Malone, 34 id. 444 ; Scott v. White, 
made to a creditor by whom property 71 III. 287 ; Mallory v. Gillett, 23 
subject to a lien for the debt is trans- Barb. (N. Y.) 610; Stem v. Drinker, 
ferred by the iebtoT- without any re- 2 E. D. S. (N. Y. C. P.) 401; Fay u. 
lease of the creditor's claim, either on Bell, H. & D. Suppt. (N. Y.) 251 ; Van 
the debtor or the property, is within the Slyck v. Pulver, id. 47 ; Alger v. Sco- 
statute. ville, 1 Gray (Mass.) 391; Burr v. 



SEC. 150.J GUARANTIES. 261 

C. J.,^ that where the plaintiff, in consideration of the defend- 
ant's promise, has relinquished some lien, benefit, or advan- 
tage for securing or recovering his debt,- and where by means 
of such relinquishment the same interest or advantage has 
inured to Ihe benefit of the defendant, the defendant's promise 
to pay the debt is an original undertaking and not within the 
statute ; and in that case this rule was applied to uphold an 
action against the owner of a building who, in consideration 
that the builder would release him from the further perform- 
ance of a building contract, and assign to him the materials 
procured for the completion of the contract, verbally prom- 
ised to pay the outstanding bills due from the builder for 
labor and material. In another case ^ one of the owners of a 
ship orally promised to pay a claim for labor and materials 
furnished for her construction, and charged to the builder in 
case a libel to enforce a lien upon a similar claim should be 
enforced in admiralty, if the plaintiff would forbear to enforce 
his claim, and it was held that the promise was not within 
the statute whether the plaintiff actually had a lien or not.* 
It is not enough that a benefit or advantage may incidentally 
inure to the promisor from the release of a lien, but it must 
appear that such advantage was the object or consideration 
of the promise.* 

Sec. 150. Promisor must Derive Benefit Therefrom. — In 

cases of this character, in order to take a verbal promise 
out of the statute, the person making the promise must not only 

Wilcox, 13 Allen (Mass.) 269; Fish interest of the other part owners, was 

V. Thomas, 5 Gray (Mass.) 45; Dexter within the statute. 
V. Blanchard, 11 Allen (Mass.) 400; * Clapp v. Webb, 52 Wis. 638 In 

FuUam v. Adams, 37 Vt. 391 ; Kelsey Mallory v. Gillett, 21 N. Y. 412, the 

V. Hibbs, 13 Ohio St. 340 ; Maule v. plaintiff had a lien for repairs upon a 

Bucknell, 60 Penn. St. 340 ; Small v. boat belonging to one A, which he 

Schaefer, 24 Md. 143. would not release without payment of 

' In Curtis K.Brown, 5 Cush.(Mass.) the debt. The defendant verbally 

491. promised, in consideration that the 

2 Msh u. Thomas, 5 Gray (Mass.) lien should be released, to pay the 

45. plaintiff the amount of the debt, part 

^ But see Ames v. Foster, 106 Mass. in hand, and the remainder in two 
400, where it was held that an oral equal instalments. The lien was re- 
promise made by the mortgagee of a leased, and the part stipulated for 
vessel to persons who had furnished paid. But in an action to recover 
her with supplies, for which they had the instalments, the court held that 
no Uen, If they would not attach the no recovery could be had, as the con- 
tract was clearly within the statute. 



262 



STATUTE OF PEAUDS. 



[chap. IV. 



liave an interest in having the lien discharged, but the promisee must 
release the lien, and accept the promisor as debtor in the place of the 
original debtor.^ In. an Indiana case this rule was applied 
where the plaintiffs had a statutory lien upon a house for an 
amount due them by the defendant, who also had' a lien on 
the house for work done on it. The owner of the house, to 
prevent a mechanic's lien being filed against it, agreed to pay 



1 In Conradt v. Sullivan, 45 Ind. 
401, the mortgagee of a chattel verbally 
promised the plaintifE — a mechanic 
— to pay him for repairs which he 
had made upon the chattel after the 
mortgage was executed, in conse- 
quence of which the plaintifE gave 
up his lien upon the chattel, and it 
was held that the statute did not ap- 
ply. If there is any liability on the 
part of the original debtor, it is con- 
clusive that the promise is collateral. 
Ware v. Stephenson, 10 Leigh. (Va.) 
155; Read v. Ladd, 1 Edm. (N. Y.) 
Sel. Cas. 100; Cutter v. Hinton, 6 
Band. (Va.) 509; Kurtz v. Adams, 
12 Ark. 174; Kinloch u. Brown, 
1 Rich. (S. C.) 223; Taylor v. Dralce, 
4 Strobh. (S. C.) 431; Cropper k. Pit- 
man, 13 Md. 190; Knox v. Nutt, 1 
Daly (N. Y. C. P.) 213; Walker v. 
Eichardson, 39 N. H. 259; Dixon v. 
Prazer, 1 E. D. S. (N. Y. C. P.) 32; 
Cahill V. Bigelow, 18 Pick. (Mass.) 
369 ; Hill v. Raymond, 3 Allen (Mass.) 
540; Allen v. ScarfC, 1 Hilt. (N. Y. C. 
P.) 209; Hetfield v. Dow, 29 N. J. L. 
440 ; Swift v. Pierce, 13 Allen (Mass.) 
136; Brown v. Bradshaw, 1 Duer 
(N. Y.) 199; Carvilleo. Crane, 5 Hill 
(N. Y.) 483; Brady <;. Stackrider, 1 
Sandf. (N. Y.) 514. In Eichardson 
V. Bobbins, 124 Mass. 105, the de- 
fendant, to whom E was indebted, re- 
quested a chattel mortgagee of E to 
consent to a sale of the chattels to 
S, subject to the mortgage, S agreeing 
to pay the mortgage debt ; and the 
defendant promised the plaintifE that if 
he would consent to such sale, he would 
pay such part of the debt as S did 
not ; and it was held that the promise 
was within the statute. In Goelet v. 
Farley, 57 How. Pr. (N. Y.) 174, a 
verbal agreement by the assignee of 



a lease to pay a mortgage on the 
premises, was held to be void. But 
in Prime v. Koehler, 7 Daly (N. 
Y. C. P.), where the defendant pur- 
chased premises subject to a mort- 
gage, without assuming its payment, 
promised the plaintiffs, who were about 
to foreclose the mortgage, that if they 
would extend the time of payment, he 
would pay the interest then due, and 
thereafter to become due under the 
mortgage, it was held that the prom- 
ise was not within the statute. The 
distinction bewecn this case and the 
two former is that in this case the 
defendant had a direct interest in the 
subject-matter of the promise, and 
derived an immediate benefit there- 
from ; while in those cases the prom- 
isors had no direct interest, and de- 
rived no benefit from the promise. 
In Waether v. Merrell, 6 Mo. App. 
370, the defendant, who was president 
of a bank, promised the plaintifE, who 
had money deposited there, that if he 
would not draw it out, but allow it to 
remain there, he would pay him the 
total deposit if the bank should fail. 
The plaintiff did not draw out liis 
money, and the bank did fail ; but the 
court held that the defendant's prom- 
ise was within the statute. The officers 
of a bank agreed with the payee of a 
check, on its presentment, — the bank 
then having no funds on deposit to 
pay the check, — that if he would de- 
posit it in another bank, so tliat it 
should be presented for payment 
through the clearing house, the banlc 
would pay it ; and it was held to be 
a propiise to pay the debt of another, 
and within the statute. Morse v. 
Mass. Nat. Bank, 1 Holmes (U. S. 
C. C.) 209. 



SEC. ISO.] 



GUARANTIES. 



263 



the plaintiffs; and they, in reliance upon his promise, abandoned 
their lien, and the court held that the owner of the house could 
not avoid his promise on the ground that it was not in 
writing because he derived a benefit and advantage from the 
discharge of the lien.^ In a New Jersey case ^ a United States 
commissioner, who had taken certain depositions for the son of 
the promisor, sent them off upon the promise of the defendant 
to pay his fees, and thus lost liis lien thereon ; but the court 
held that the detriment from thus losing his security did not 
take the case out of the statute, because the promisor derived 
no benefit or advantage from the discharge of the lien, and 
could not in any sense be said to be a purchaser of the debt. 
The fact that there is a good consideration at common law 
for the verbal promise, so that it could be enforced if in 
writing, does not take the case out of the statute unless the 
creditor accepts the promisor as debtor in place of the person on 
whose belialf the promise is made,^ or the promise is predicated upon 



1 Luark v. Malone, 34 Ind. 444. 

2 Cowenhaven v. Howell, .36 N. J. 
L. 323. In Hall v. Woodln, 35 Mich. 
67, the defendant promised the plain- 
tiff, in behalf of several lumbermen 
whose logs required the aid of more 
water, that if he would raise and let 
go the floods, the lumbermen would 
pay him, and that he would see him 
paid ; and it was held to he a collateral 
promise, and within the statute. In 
Searight v. Payne, 2 Tenn. Ch. 175, it 
was held that the promise of an officer 
of a corporation who promised to see 
that a bill for goods sold to the corpora- 
tion is paid, is within the statute. See 
also Whitman v. Bryant, 49 Vt. 512 ; 
Gridley !>. Capen, 72 HI. 11. In Durant 
V. Allen, 48 Vt. 58, the defendant ver- 
bally promised the plaintiff that if he 
would not present his bill for doctor- 
ing her deceased husband in his last 
sickness for allowance by the com- 
missioners, she would pay it, to which 
he agreed, and did not present the bill. 
The deceased had no minor cliildren, 
and his real estate was worth less than 
$500, and his personal estate less than 
$100, and the Probate Court assigned 
the whole of the estate to her, she 
being entitled thereto as widow under 



the statute. It was held that the 
promise was within the statute, and 
not binding upon her. But such a 
promise made by a widow to a cred- 
itor of her husband's estate, where 
there are assets with which to pay 
his debts, is held to be valid, and 
not within the statute. Crawford v. 
King, 54 Ind. 6. A promise by the 
payee of a note to the maker that if 
he will delay issuing an execution he 
has obtained against a third person, 
he will pay the judgment by allow- 
ing him credit for the amount on the 
note, is within the statute unless in 
writing. Krutz v. Stewart, 54 Ind. 
178. But in Tennessee it has been 
held that a written promise to pay 
the debt of another, if the creditor 
will for a time delay the issue of an 
execution, is valid. Abel v. Wilder, 
9 Lea (Tenn.) 453. In Haynes i;. 
Burkam, 51 Ind. 130, it was held that 
a promise by A to C to sign a bond 
as surety for B for the return of cer- 
tain United States bonds if C would 
loan them to B, which C did, relying 
upon such promise, is within the stat- 
ute unless in writing. 

8 Gill V. Herrick, 111 Mass. 501 ; 
Purbush V. Goodnow, 98 id. 296. 



264 



STATUTE OP FRAUDS. 



[chap. rv. 



a new and independent consideration moving between the original 
contracting parties, so that the promisor can be said to be a 
purchaser of the debt, because otherwise the promise is 
merely collateral. Thus it has been held that a promise to 
pay the debt of a third person against 'vsrhom an action is 
pending, and whose property had been attached therein, in 
consideration that the promisee will discontinue the suit, the 
promisor not being shown to have derived any immediate 
benefit therefrom, is within the statute, although the suit is 
discontinued, and the creditor thereby loses the benefit of the 
attachment.^ The rule in such cases is that when the party 
promising has for his object a benefit or advantage which he did not 
before enjoy, accruing immediately to himself, and assumes the 
debtor' s place as to the payment of the debt, the promise is not 
within the statute ; but where the object of the promise is solely for 
the benefit or advantage of the person in whose behalf it was made, 
as to secure the release of his person or property, or other 
forbearance to him, the debtor still remaining liable, it is 
within the statute, and void unless in writing.^ In a Ken- 



^ Nelsonr.Boynton, 3 Met. (Mass.) 
396. 

^ Curtis V. Brown, 5 Cush. (Mass.) 
488 ; Alger v. Scoville, 1 Gray (Mass.) 
391 ; Nelson v. Boynton, ante ; Stone 
V. Symmes, 18 Pick. (Mass.) 467; 
Harrington u. Rich, 6 Vt. 666 ; Clop- 
per V. Poland, 12 Neb. 69. In such 
case the promisor assumes the debt 
and makes it his own. The promise 
is a direct undertaking on the part 
of the person promising to pay, not 
upon the failure of the debtor to pay, 
but to pay the debt. Such a contract 
rests upon the same grounds as a con- 
tract for property sold and delivered, 
andis not collateral. Pitzgeraldw.Mor- 
rissey, Neb. S. C. 1883. In Reed v. Hol- 
comb, 31 Conn. 330, the defendant, in 
taking a note from a firm that was in- 
debted to him, had it made payable to 
the order of the plaintifE. This was 
done for the purpose of getting the 
plaintiff's indorsement, and that he 
might get the paper discounted at a 
bank, but was done without consulting 
the plaintiff. lie then carried it to the 
plaintiff, and requested him to indorse 



it, which the plaintiff declined to do, 
but did so eventually upon the verbal 
promise of the defendant to see the 
note paid, and save him harmless. In 
making the indorsement the plaintiff 
relied solely upon the defendant's 
promise and responsibility, and for 
his accommodation. The defendant 
indorsed the note and took it to the 
bank, and procured it to be discounted. 
Before it became due, the makers 
failed, and the plaintiff had to take 
it up. In an action brought by him 
to recover the amount of the defend- 
ant upon his promise, the court held 
that the defendant's promise was not 
within the statute. Hinman, J., in 
delivering the opinion of the court, 
said : " It appears to us that the stat- 
ute of frauds does not apply to this 
case. We think the defendant never 
intended to become the surety of 
Prazier, Mills, & Co. in making the 
promise that he did make, and that 
the plaintiff never intended to accept 
of his undertaking as. that of a surety, 
or as at all collateral to their liability. 
It is often diflBlcult from the mere words 



SEC. ISO.] 



GTTAEANTIES. 



265 



tucky case ^ it was held that if the debtor is discharged from 
the debt in consequence of the promise of a third person to 

1 Jones V. Walker, IS B.Mon. (Ky.) 857. 



in which a promise is made to deter- 
mine whether any credit was given to 
a third person, and the undertaking 
therefore collateral to the engage- 
ment or liability of such person, or 
whether it was a wholly independent 
and originally undertaking. In such 
cases courts must rely upon the cir- 
cumstances of each particular case, 
and its general features, in order to 
ascertain the intention of the parties, 
and how they viewed it, where it is 
doubtful whether it was a contract of 
suretyship or guaranty, or an original 
undertaking. Now in this case the 
defendant wished to borrow money 
which he could obtain upon the plain- 
tiffs indorsement, but could not upon 
the note of Frazier, Mills, & Co. with- 
out such indorsement, and as he had 
their note he preferred that the plain- 
tiff should indorse it rather than to 
make a new note of his own to be in- 
dorsed. But on requesting the plain- 
tiff to indorse their note he declined 
to do it, on the ground of their want 
of responsibility, until the defendant 
promised that if he would do it, he, 
the defendant, would pay it when due, 
and, in case the plaintiff had any- 
thing to pay by reason of his indorse- 
ment, he would repay the same, and 
fully indemnify and save the plaintifE 
harmless. This in substance, we think, 
was the same as if the plaintiff had 
indorsed the defendant's own note to 
enable him to raise money upon it. 
Of course no one would doubt his 
liability on such a transaction. The 
plaintiff gave no credit whatever to 
the name of Frazier, Mills, & Co., 
but relied entirely upon the under- 
taking of the defendant. In principle 
it is very similar to the case of Brown 
V. Curtiss, 2 N. Y. 226, which, though 
in form a promise to answer for the 
debt or default of another, was yet 
held to be in substance an engage- 
ment to pay the guarantor's own debt 
in a particular way, and therefore not 



within the statute. The section of the 
statute, which is supposed to be ap- 
plicable to the case, was not intended 
to protect parties from any other con- 
tracts than those of suretyship, or 
guarantee for the payment of some 
debt, or the performance of some 
duty by a third person. But if no 
credit is given to such third person, 
and the consideration of the promise 
does not move from him, and he is 
not to be benefited by it, the statute 
did not intend to make void the prom- 
ise, because such third person migfat 
also be primarily liable for the same 
debtor duty. 'If,' says Judge Beon- 
SON, in Jolmson v. Gilbert, 4 Hill. (N. 
Y.) 178, 'A promise B, upon a suffi- 
cient consideration moving wholly be- 
tween them, that a stranger will pay 
a sum of money, or do any other act, 
this is an original undertaking, and 
not within the statute ; and it makes 
no difference whether the stranger is 
under an obligation to do the act or 
not' The same principle was stated 
in Alger v. Scoville, 1 Gray (Mass.) 
391, where it is laid down that ' a 
promise, the leading object of which 
is a benefit to the promisor, which he 
did not before enjoy, is not within the 
statute of frauds, although its effect 
be to discharge another from an obli- 
gation.' If the promise is on a suffi- 
cient consideration, moving between 
the immediate parties to it, and from 
which the promisor is to derive a ben- 
efit, in view of which the promise is 
made, it then becomes a new and in- 
dependent contract existing entirely 
between the immediate parties to it. 
The benefit which the original debtor 
may derive from it is incidental, and 
in no respect the object of the parties, 
and ought not therefore to affect the 
validity of their contract. Cross i/. 
Richardson, 30 Vt. 641 ; Leonard v. 
Vredenburgh, 8 Johns. (N. Y.) 23. But 
in this case there was no benefit what- 
ever to the original debtors arising 



266 



STATUTE OP FRAUDS. 



[chap. IV. 



pay it, the promise is not within the statute, but when the 
person in whose behalf it is made is not discharged, but the 
habihty assumed is contingent upon the failure of the original 
debtor to pay, the promise is collateral, and within the statute.^ 

Sec. 151. Discharge of Attachment or Forbearance to Sue, 
etc., not Enough, Unless. — A verbal promise to pay the debt of 
another, if the creditor will forbear to sue,^ or discontinue a 
suit already brought,^ or release an attachment,* or if he will 



1 Waggoner v. Gray, 2 H. & M. 
(Va.) 603; Noyes v. Humphries, 11 
Gratt. (Va.) 643; Ware v. Stephenson, 
19 Leigh (Va.) 155. 

2 Forth!;. Stanton, 20 Wend. (N.Y.) 
201 ; Thomas v. Delphy, 33 Md. 373 ; 
Hilton V. Dinsmoor, 21 Me. 410. In 
Peabody v. Harvey, 4 Conn. 119, a, 
promise made by the indorser of a 
note that if the payee would forbear 
suing the maker he would pay the 
debt, was held to be within the stat- 
ute. " A promise on a new considera- 
tion," said HosMEK, J., " rests on dif- 
ferent principles, and has never been 
sustained on the forbearance of a 
debtor." Huntington v. Harvey, 4 
id. 124; Turner t. Hubbell, 2 Day 
(Conn.) 457; Jones v. Walker, 13 B. 
Mon. (Ky.) 356; Ellison v. Wisehart, 
29 Ind. 32. 

° Nelson v. Boynton, ante ; Duffy v. 
Wunseh, 42 N. Y. 243 ; Thomas v. Del- 
phy, 33 Md. 373. A mere oral promise 
by a stranger to an action that he will 
pay the debt and costs if the plaintiff 
will cease to prosecute the action, is 
not an original undertaking, and is 
within the statute. Hearing v. Detti- 
nan, 8 Phila. (Penn.) 307; AUwin v. 
Garbenick, 8 id. 637. 

from the plaintiff's indorsement of 
their note. Their liability to pay it 
was not altered except in respect to 
the party to whom it was payable. 
It was not discounted by the bank for 
their benefit, but for the defendant, 
and they obtained nothing in conse- 
quence of it. In this respect it is 
very distinguishable from the case of 
Green v. Cresswell, 10 Ad. & El. 453, 
which was principally relied upon by 



" Nelson v. Boynton, ante ; Licher 
V. Levy, 3 Met. (Ky.) 292. In Russell 
V. Babcock, 14 Me. 139, it was held 
that a promise to pay the debt of an 
execution debtor if the creditor would 
delay the collection of the execution, 
was not within the statute. But this 
doctrine was overruled in Hilton v. 
Dinsmoor, 21 id. 410. Shepley, J., 
saying in reference to that rule : " If 
this was in reality the ground of deci- 
sion in that case, and the abstract of 
the reporter is to that effect, we are 
constrained to say it is unsupported 
by the authorities. And in a later 
case, in the same State, Stewart v. 
Campbell, 58 Me. 439, Appleton, J., 
in referring to the doctrine adopted in 
Russell u. Babcock, ante, said : " This 
decision would repeal the statute, and 
it has been overruled." In Ames v. Fos- 
ter, 106 Mass. 400, it was held that an 
oral promise made by a mortgagee of a 
part of a vessel to persons who had fur- 
nished her with supplies, that he would 
pay tlie debt if they wodld not attach 
theinterestof the other owners, was col- 
lateral, and within the statute. A pro- 
mise to pay a tax, if the collector will 
not levy, is not within the statute. Al- 
len, J., in Goodwin v. Bond, 59 N. H. 

the defendant. In that case the bail- 
bond, though given at the defendant's 
request, was still given for the sole 
benefit of the arrested debtor, and the 
only object of it was to procure his 
liberation from imprisonment. But 
in this case the indorsement was for 
the entire benefit of the defendant, to 
enable him to obtain money upon the 
note. The plaintiff had no dealings 
with the makers of the note, and re- 



SEC. 151.] 



GTJAEANTIES. 



267 



forbear making an attachment,^ unless the promisor derives 
a benefit or advantage therefrom peculiar to himself, are 
clearly collateral undertakings, and within the statute unless 
in writing. A promise in writing to guarantee the debt of 
another, in consideration that the creditor will forbear attach- 
ing the debtor's property, will not support an action if, at the 
time when it was made, the creditor had in fact no right to make 
such attachment,^ and the same is true as to a guaranty given 
to induce a creditor to forbear proceedings against the debtor 
in bankruptcy, because in such cases the consideration fails.^ 
Where the plaintiff, a broker, had a lien on certain policies of 
insurance effected for his principal, for whom he had given 
his acceptances, and the defendant promised that he would 
provide for the payment of those acceptances as they became 
due, upon the plaintiff's giving up to him such policies, in 
order that he might collect the money due on them for the 
principal ; it was held that this promise was not within the 
statute.* 



fused to rely on their responsibility at 
all; and the sole consideration for the 
indorsement being the defendant's prom- 
ise to pay, or see that the note was paid 
at maturity, it seems very ungracious 
now, after he has obtained the money 
upon the indorsement, which the plain- 
tiff was under no obligation to maJce, to 
attempt to protect himself, because 
the promise was not in writing." See 
also Dyer c. Gibson, 16 Wis. 557; 
Meech v. Smith, 7 Wend. (N.Y.) 315; 
Danver v. Blackney, 38 Barb. (N. Y.) 
432; Mason v. Hall, 30 Ala. 599; 
Cross t>. Richardson, 30 Vt. 641 ; 
Spann v. Baltzell, 1 Fla. 301; Allen 
V. Thompson, 10 N. H. 32 ; Scott v. 
Thomas, 2 HI. 59; Lemmon v. Box, 
20 Tex. 329; Huber v. Ely, 45 Barb. 
(N. Y.) 169; Todd v. Tobey, 29 Me. 
219; Small v. Shaeffer, 24 Md. 143; 
Hindman u. Langf ord, 3 Strobh. (S. C.) 
207. In Talman v. Eochester City 
Bank, 18 Barb. (N. Y.) 123, where a 
bank guaranteed to a trust company 
the final collection of certain instal- 
ments, to become due upon a bond 
and mortgage assigned by a debtor of 
the bank to the trust company, and 



upon which the trust company ad- 
vanced money to be applied by the 
debtor to the payment of his debt to 
the defendant bank, and which was 
so applied, it was held that the de- 
fendant was liable upon its guaranty. 

1 Waldo V. Simonson, 18 Mich. 345. 

2 Smith V. Easton, 54 Md. 138; 39 
Am. Rep. 355. In Ecker v. Bohn, 45 
Md. 278, it was held that while for- 
bearance to proceed against a person 
in bankruptcy is a good considera- 
tion for the promise of a third per- 
son to pay the debt, yet, if the cred- 
itor had in fact no right to take such 
proceedings, the consideration failed, 
and no action could be maintained 
upon the promise. 

s Ecker v. Bohn, 45 Md. 278. A 
parol promise by the payee of a note 
to the payor that if the latter will for- 
bear to attach property in the hands of 
the former, and in which he is interested, 
belonging to an absconding debtor, he 
will credit the indebtedness of such 
debtor to the maker of the note upon 
the note, is not within the statute. 
Mitchell V. GrifSn, 58 Ind. 559. 
* Castling v. Aubert, 2 East, 325. 



268 STATUTE OF FRAUDS. [CHAP. IV. 

Sec. 152. Purchase of Debt. — Where a person promises 
to pay the debt of another in consideration of its assign- 
ment to him, the promise is not within the statute, because 
lie purchases the debt. Thus, where A being insolvent, 
a verbal agreement was entered into between several of 
his creditors, whereby B agreed to pay the creditors 10a. 
in the pound, in satisfaction of their debts, which they 
agreed to accept and to assign their debt to B ; it was 
held that this agreement was not within the statute, as 
it was not a collateral promise to pay the debt of another, 
but an original contract to purchase the debts.^ But 
where W D by indenture agreed to grant a certain composi- 
tion deed to aU the creditors of J D who should before a 
fixed day execute a release of their debts, and each creditor 
on executing the release received the joint note of J D and 
W D ; it was held the agreement was one which must be in 
writing, and that any variation in its terms must have been 
evidenced in writing.^ 

So where a written agreement, signed by the defendants, 
the plaintiffs, and the charterers, after reciting that the ship 
had arrived in port, and a stop had been put on the freight by 
the owners,' and that a difficulty had arisen as to the settle- 
ment of the charterers' accounts, stated that the stop was to 
be immediately taken off, and that the commission on the 
charter-party, payable to the plaintiff, was to be paid by the 
defendants, and that no person signing that agreement was 
to put any stop on the freight ; it was held that this was an 
agreement to be answerable for the debt of another.^ 

Sec. 153. Refraining from Distress. — A parol promise made 
by a third person to a landlord to pay rent in arrear, in con- 
sideration of the landlord's refraining from making a distress 
of goods in the promisor's possession, is held to be an origi- 
nal and not a collateral promise, and valid whether the goods 
have been actually distrained upon or not, because in such 
a case the promisor derives an immediate advantage from 

^ Anstey v. Harden, 1 Bos. & P. ^ Emmet v. Dewhurst, 3 Mac. & G. 

(N. R.) 124; Barrett v. Hyndman, 3 587. 

Ir. L. R. 109; Macrory v. Scott, 5 Ex. " Gull v. Lindsay, 4 Ex. 45; 18 L. 

907 ; Fitzgerald v. Dressier, 7 C. B. J. Ex. 354 ; and see Clancy v. Piggott, 

(K S.) 395; 29 L: J. (C. P.) 119. 2 Ad. & El. 473. 



SEC. 153.J GUAEAiTTIES. 269 

tlie retention of the property. The leading case upon 
this point is "Williams v. Leper.^ There one Taylor was in- 
debted to the plaintiff Williams in £45 for three-quarters 
of a year's rent, and Taylor becoming insolvent, made a bill 
of sale to the defendant Leper of all his goods in the house, 
to be sold for the use of his creditors. While the defendant 
was in possession of the goods upon the premises the plaintiff came 
there to distrain for his rent, whereupon the defendant, in 
consideration that he would not distrain, promised to pay the 
£i5. It was held that this was not a promise to pay the 
debt of another, that the goods were debtor,'^ and the defendant 
was in the nature' of a bailiff for the landlord, and that if the 
defendant had sold the goods and received money for them, 
an action for money had and received for the plaintiff's use 
would have been laid. And Aston, J., said that the defend- 
ant was not bound to pay the landlord more than the goods 
sold for, in case they had not sold for £45. 

So where the plaintiff, having distrained for rent upon the 
tenant's goods, agreed with the defendants to deliver up the 
goods, and to permit them to be sold by one of the defendants for 
the tenant, upon the defendants first undertaking to pay to the 
plaintiff all such rent as should appear to be due to him from 
the tenant, it was held that the undertaking was not within 
the statute.^ Again, where an auctioneer employed to sell 
goods on certain premises for which rent was in arrears, was 
applied to by the landlord for the rent, the landlord saying 
it was better to apply so than to distrain, and the auctioneer 
answered, " you shall be paid ; my clerk shall bring you the 
money ; " it was held that an action lay on this promise with- 
out a note in writing.* 

Where J A made a bill of sale of goods to the plaintiff in 
consideration of a debt of £129 19s. due from him to the 
plaintiff, and the plaintiff being about to sell the goods in 
satisfaction of his debt, the defendant undertook to pay him 
£129 19s. if he would forbear to sell, it was held that this 

1 3 Burr. 1887 ; 2 Wils. 308. have been in writing. Forth v. Stan- 

^ It is submitted that this is the ton, 1 Wms. Saund. 211 d. 
true ground of the decision, and that ^ Edwards v. Kelly, 6 M. & Sel. 
if the defendant had not been the 204; Love's Case, Salk. 28; Slinger- 
owner of the goods, the promise must land v. Morse, 7 John. (N. Y.) 403. 

* Bampton v. Paulin, 4 Bing. 264. 



270 STATTJTK OP FKATJDS. [CHAP. IV. 

promise was not -within the statute, and Mansfield, C. J., 
said : " What is this but the case of a man who, having the 
absolute, uncontrolled power of selling goods, refrains from 
the request of another ? " ^ 

In Thomas v. "Williams,^ Loift) Tenteeden, ' C. J., said: 
" In Williams v. Leper there was no actual distress, but there 
was a power of immediate distress, and an intention to enforce 
it ; and I think the judges must be understood to have con- 
sidered that power as equivalent to an actual distress." A 
promise to pay the sum due for rent out of the proceeds of a 
sale of the tenant's effects is a positive engagement to pay, if 
the goods are sufficient, and is not within the statute.* 

Sec. 154. Promise in Some Cases Original. Instances. — In cer- 
tain cases the promise may, in fact, be original, although made 
respecting the debt or default of another. Thus, where H, 
who was the agent for the plaintiff, being desirous of retiring, 
the defendant applied for the agency. H was indebted to the 
plaintiff, and also claimed a commission for introducing cus- 
tomers. It was agreed that the plaintiff should allow H £52 
on that account, and that the defendant, on taking the agency, 
should allow the plaintiff to retain six months' salary, which 
amounted to £52. In an action by the plaintiff for money 
had and received by the defendant as such agent, the defend- 
ant pleaded a set-ofE for six months' salary; it was held that 
this was not an undertaking to answer for the debt of another 
within the statute.* In the case last cited. Pollock, C. B., 
said : " The question is, whether an agreement of this kind is 
required by the statute of frauds to be in writing, and I am 
of opinion that it is not. If a person agrees that whatever 
shall hereafter beteome due to him shall be disposed of in a 
particular way, such an agreement need not be in writing. 
It is true that, if a person agrees to serve another for nothing, 
the latter cannot compel the former to serve, because the 
agreement is without consideration ; but if he does serve, he 
cannot claim any compensation in respect of the service 
which he agreed to do for nothing. He could not say at 



1 Barrel! v. Trussell, 4 Taunt. 117 
and see Meredith v. Short, Salk. 25 
Walker v. Taylor, 6 C. & P. 752 
Barker v. Blrt, 10 M. & W. 61. 



2 10 B. & C. 664. 

» Stephens v. Pell, 2 Cr. & M. 710. 

* Walker v. Hill, 5 H. & N. 419. 



SEC. 155.] GUABANTIES. 271 

first, 'I -will serve for nothing,' and afterwards, 'I will have 
a salary.' If a person has done work without a consideration, 
it is a good answer to any claim in respect of it that he agreed 
to do so ; but if he merely agrees to do something without 
consideration, that agreement is void. So, if a person says 
to another, ' I will give you X20,' the latter could not compel 
payment of it because there is no consideration for the 
promise ; but if the money were actually given, it could not 
be recovered back. Such being the true principle, it follows 
that if a person may, without writing, agree to serve for 
nothing, so that when the work is done he cannot enforce 
payment, it cannot be that an agreement in writing is required 
that the money shall be applied in a particular way, as, for 
instance, giving it to an hospital or the poor of a parish. I 
therefore think that no writing was requisite in this case." 

Chai^nel, B., said : " I am also of opinion that the rule ought 
to be discharged. The case is the same as if the defendant 
was suing the plaintiff for services rendered. If a person 
enters into the service of another, and there is nothiug to 
explain the terms of the employment, the former is entitled 
to be paid the worth of his service. This fact should be 
borne in mind, that there was but one agreement between 
the parties. At the time the plaintiffs agreed to receive the 
defendant into their service the defendant agreed that his 
salary for twenty-six weeks should not be paid to him, but be 
applied by the plaintiffs in a certain way. If, indeed, after 
the service had been performed and the money earned, the 
defendant had agreed that twenty-six weeks' salary should be 
applied by the plaintiffs in satisfaction of the debt due from 
Hulls to them, there might be some color for contending that 
the statute of frauds applied; but whatever doubt might 
have existed in that case, this must be regarded as one 
entire contract. Upon these grounds I think the verdict 
was right." 

Sec. 155. statute Applies to FromiseB to Ans-wer for Tortious 
Acts. — The statute, it is now clearly settled, applies to 
guaranties against the tortious default or miscarriage of 
another person, as well as to guaranties against breaches 
of contract.^ It appears that at one time a distinction was 

1 1 Wms. Saund. 231 ; Add. 151. 



272 STATUTE OP PEATJDS. [CECAP. IV. 

made between cases where the debtor was chargeable in con- 
tract, and where he was answerable to an action of tort, 
where the guarantor would not have been liable. Thus, where 
the declaration stated that in consideration that the plaintiff 
would deliver his gelding to A, the defendant promised that 
A should redeliver him safe, it was held that this was a col- 
lateral undertaldng, and Powell, J., said : " The objection 
that was made was, that if English did not redeliver the 
horse, he was not chargeable in an action upon the promise, 
but in trover or detinue, which are founded upon the tort, 
and are for a matter subsequent to the agreement. But I 
answered that English may be charged on the bailment in 
detinue on the original bailment, and a detinue is the ade- 
quate remedy, and upon the delivery English is liable in 
detinue, and, consequently, this promise by the defendant is 
collateral, and is within the reason and the very words of the 
statute." 1 In Read v. Nash,^ it was held that a promise to 
pay damages by a third person in case the plaintiff would 
withdraw his record, in an action of assault and battery, was 
not within the statute.^ 

In Fish V. Hutchinson,* it was held that a promise to pay 
the debt of a third party, in consideration that the plaintiff 
would stay an action commenced, was within the statute. 
The court said: "Here is the debt of another party still 
subsisting, and a promise to pay it. It is not hke the case 

^ Birkmyr v. Darnell, Ld. Kaym. cited, where a judgment in rem was 

1085. obtained by E against a steamboat, 

2 1 Wils. 305. and while the action was pending, 

" And see Stephens u. Squire, 5 and before judgment, the defendants 

Mod. 205. bought the boat ; and where, after 

* 2 Wils. 94. A parol promise to the judgment was recovered, the de- 
an execution creditor to pay the debt fendants, in consideration that E 
if he will stay proeeedings on the would forbear to sell said boat on 
execution is within the statute, al- * said judgment, promised to pay said 
though the creditor was about to pay judgment, when requested, within a 
the same, and desisted in reliance reasonable time; and where E as- 
upon the promise. Van Slyck v. Pul- signed the judgment and the claim 
ver, H. & D. Supp. (N. Y.) 47; Dur- on which it was founded, in writing ; 
ham «. Arledge, 1 Strobh. (S. C.) 5; and where the assignee brought an 
Stern v. Drinker, 2 E. D. S. (N. Y. action in his own name, on the prom- 
C. P.) 401. Unless the promisor de- ise of defendants, — it was held, that 
rives an immediate benefit from the the promise was not one to answer 
stay of the execution or the enforce- for the debt of another, and was not 
ment of the right. Barker v. Guillard, within the statute of frauds. 
6 Iowa, 510. Thus, in the case last 



SEC. 155.] GUARANTIES. 273 

of Read v. Nash. In that case there was no debt in another, 
it being an action of battery, and it could not be known 
before trial whether the plaintiff would recover any damages or 
not. But in the present case there is the debt of another still 
subsisting, and a promise to pay it." ' In Kirkham v, Marter,^ 
A had wrongfully, and without license of the owner, ridden 
his horse, and thereby caused its death ; and it was held that 
a promise by a third person to pay the damage thereby sus- 
tained, in consideration that the owner would not bring any 
action against A, was a collateral promise, and must be in 
writing. " This case," said Holroyd, J., " is certainly within 
the mischief contemplated by the legislature, and it appears 
to me to be within the plain intelligible meaning of the words 
of the Act of Parliament." And Abbott, 0. J., said: "The 
wrongful riding the horse of another without his leave and 
licensed, and thereby causing its death, is clearly an act for 
which the party is responsible in damages, and therefore, in 
my judgment, falls within the meaning of the word ' miscar- 
riage.' " His lordship distinguished the case from Read v. 
Nash,^ saying: "The promise there was to pay a sum of 
money as an inducement to withdraw a record in an action of 
assault brought against a third person. It did not appear 
that the defendant in that action had even committed the 
assault, or that he had ever been liable in damages ; and the 
case was expressly decided on the ground that it was an orig- 
inal and not a collateral promise. Here the son had rendered 
himself liable by his wrongful act, and the promise was expressly 
made in consideration of the plaintiff's forbearing to sue the 
son." It is submitted that the effect of this decision is to over- 
rule Read v. Nash. In that case the ground on which the 
judgment was based was that as the original action had not 
been tried, it was not proved that the defendant in it had ever 
committed the assault — that is to say, that he might have 
had a defence. The same argument, however, would apply 
to the defendant in the original action for causing the death 
of the horse : he, also, might have had a defence. In both 
cases the original defendants practically admitted their 

1 And see King v. Wilson, 2 Str. Cowp. 460 ; French v. Frenoli, 2 Man.. 

873 ; Elkins v. Heart, Pitz. 202 ; Roth- & Gr. 644. 
ery v. Curry, B. N. P. 281 ; Thompson ^ 2 B. & Aid. 613. 
V. Bond, 1 Camp. 4; ex parte Adney, ' 1 Wils. 305. 



274 STATUTE OP FRAUDS. [CHAP. IV. 

liability.! But the case has never been expressly overruled, 
and the principle laid down in it was followed in Bird v. 
Gammon.2 There, the plaintiff, having issued execution 
against one Lloyd for debt, Lloyd, with the assent of the 
plaintiff, conveyed all his property to the defendant, who 
thereupon undertook to pay the plaintiff the debt due from 
Lloyd, the plaintiff withdrawing the execution. It was held 
that the defendant's undertaking was not an undertaking .to 
pay the debt of a third person, within the meaning of the 
statute, TiNDAL, C. J., saying : " This is not an agreement 
to pay the debt of a third person, but an agreement that if 
the plaintiff would forego his claim on Lloyd, the defendant 
would pay the amount of the debt due on his own account. 
The case, therefore, falls within the principle of Read v. 
Nash." ^ In Jarmain v. Algar,* it was held that a promise 
by the defendant to execute a bail bond in a suit to be com- 
menced against A B, in consideration of the plaintiff forbear- 
ing to arrest A B on a writ already issued, was not within 
the statute. 

Sec. 156. Bail in Criminal Proceedings. — Where a person, 
at the request of another, enters into a recognizance of bail 
for the appearance of a third person to answer a criminal 
charge, this is not within the statute, for there is no contract 
on the part of the person bailed to indemnify the person who 
becomes bail for him.* It has been held in England, how- 
ever, that where the plaintiff becomes bail for a stranger in 
civil proceedings, in consideration of the defendant's request 
and of the defendant promising to indemnify him against the 
consequences, no action lies upon such promise unless it be 
in writing.^ 

Sec. 157. when Liability-Guaranteed is Extinguished. — Where 
the debt or liability guaranteed against is extinguished by the prom- 
ise, the undertaking is original, and not within the statute. Thus, 

1 See 1 Wms. Saund. 231. « Green v. Cresswell, 10 Ad. & El. 

2 3 Bing. (N. C.) 883 ; 5 Scott, 213. 453; 2 P. & D. 480. See the distinc- 
' 1 Wils. 805. And see also the tion between these cases pointed out 

judgment of Lord Kenton in Chater by Williams, J., in Cripps o. Hart- 
V. Beckett, 7 T. R. 201. noil, ubi supra; and see also Batson 

4 2 C. & P. 249; Ey. & M. 348. v. King, 4 H. & N. 789. 

6 Cripps V. HartnoU, 4 B. & S. 414 ; 
32 L. J. Q. B. 381. 



SEC. 158.] GUARANTIES. 275 

where the plaintiff had taken A into custody on a ca sa, and 
released him in consideration of the defendant promising to 
pay the debt, it was held that the discharge of A out of cus- 
tody by the consent of the plaintifP extinguished the debt, 
and that therefore the promise to pay the debt was an original 
promise.^ And in Butcher v. Steuart,^ the facts of which 
were similar, Paeke, B., said: "It appears to me that this 
is an absolute promise, in consideration of the agreement of 
the plaintiff to discharge the defendant from execution. It 
is not a promise to answer for the debt, default, or miscar- 
riage of another, but is a promise to pay a debt in the event 
of the other contracting party doing a certain act. It is, 
therefore, within the decision of Goodman v. Chase, and does 
not require a memorandum in writing to satisfy the statute." 
But where a suit in Chancery was pending between A and 
B, which C conducted for A as his attorney, and an agree- 
ment was made between B and C, with the consent of A, 
purporting that in consideration of the suit being put an end 
to, B promised to pay C the costs due to him from A, it was 
held that this was an agreement by B to pay the debt of 
another, and, therefore, ought to be in writing.^ 

Sec. 158. Novation, Effect of. — There is a species of no- 
vation, called delegation in the civil law, which is effected 
by the intervention of another person, whom the debtor, in 
order to be liberated from his creditor, gives to such cred- 
itor, or to him whom the creditor appoints, and such per- 
son so given becomes obliged to the creditor in place of the 
original debtor. But it is necessary that there should be 
the concurrence of the person delegating, that is, of the origi- 
nal debtor, and of the person delegated, or the person whom 
he appoints. The intention of the creditor to discharge the 
first debtor and accept the second in his place must, in order 
to give effect to the delegation, be perfectly evident. There 
are authorities which show that the circumstances consti- 

1 Goodman v. Chase, 1 B. & Aid. rich v. Ames, 9 Gray (Mass.) 76; 

297 ; and see Browning v. Stallard, Holmes v. Knights, 10 N. H. 175. 

5 Taunt. 450 ; Bird v. Gammon, 3 See note 1, ante, p. 262. 
Bing. (N. C.) 883 ; 5 Scott, 213; Lane 2 11 M. & W. 873. 
V. Burghart, 1 Q. B. 937; Maggs v. » Tomlinson v. Gell, 1 N. & P. 588; 

Ames, 4 Bing. 470 ; 1 M. & P. 294; 6 Ad. & El. 564. 
Anderson v. Spence, 72 Ind. 315 ; Aid- 



276 



STATUTE OP PEAUDS. 



[chap. IV. 



tuting, under the Roman law, a delegation, sustain the 
promise of a third person to pay a debt of another to his 
creditor, when that debt has been extinguished, and the debt 
of the person promising has been substituted upon sufficient 
consideration therefor. But there must be the mutual assent 
of all the parties to make the substitution effectual at common 
law.i Therefore, when the transaction amounts to a novation, 



1 Butterfield v. Hartshorn, 8 N. H. 
348. In Tatlock v. Harris, 3 T. E. 
180, BuLLEE, J., says : " Suppose A 
owes B £100, and B owes C £100, 
and they meet, and it is agreed be- 
tween them that A shall pay C £100, 
B's debt is extinguished, and C may 
recover the same against A." "If," 
says Clohdman, J., in Bird u. Gam- 
mon, 3 Bing. (N. C.) 883, "a debtor, 
creditor, and a third party agree that 
the third party shall be substituted 
for the debtor, the debtor is exoner- 
ated. Fairlee v. Denton, 8 B. & C. 
395, has decided that, establishing to 
that extent an exception to the rule 
that debts cannot be assigned." Such 
promises are not within the statute. 
It was held in Plumer i/. Lyman, 49 
Me. 229, that a parol promise to ac- 
cept an order from a debtor in favor 
of his creditor, between wliom and the 
maker of the promise there had been 
no privity, was within the statute of 
frauds as a promise to pay the debt 
of another. Thus, where A had a 
claim on a vessel for materials used 
in building it, and B held the vessel 
to secure him for advances made to 
the builder, a promise by B to accept 
the order of the builder in favor of 
A, for the amount of his claim, can- 
not be enforced unless it appears to 
have been for some consideration, 
such as a discharge of A's lien on the 
vessel, or his promise to discharge it, 
or release his claim upon the builder. 
In the case at bar there was no dis- 
charge of lien or promise to discharge 
or release of the defendant of the 
amount in controversy. In Eichard- 
son V. Williams, 49 Me. 558, A being 
indebted to B, C verbally promised B 
to pay him the amount, and charged 
it to A without the consent of the 



latter. It was held that B, not hav- 
ing released or assigned his debt, the 
promise was without consideration, 
and that such promise was within the 
statute of frauds, and not binding. 
In Furbish u. Goodenow, 98 Mass. 
297, it was decided that an oral prom- 
ise to pay the debt of another is with- 
in the statute of frauds, if the original 
promisor remains liable, and no con- 
sideration moves from the creditor to 
the new promisor, although there is a 
valuable consideration moving from 
the original debtor to the new prom- 
isor. But here there is no considera- 
tion moving from anybody to the 
defendant. In Russell v. Babcock, 14 
Me. 139, it was held, that an agree- 
ment to delay the collection of an 
execution was a sufficient promise by 
a third person to pay the same, and 
that such promise need not be in 
writing. But this decision would re- 
peal the statute, and it has since been 
overruled. Eeferring to this decision 
in Hilton v. Dinsmoor, 21 Me. 410, 
Sheplet, J., uses the following lan- 
guage : " If this was in reality the 
ground of the decision in that case, 
and the abstract of the reporter is to 
that effect, we are constrained to say 
it is unsupported by the authorities." 
To the same effect was the case of 
Doyle V. "White, 26 Me. 341. In Dear- 
born V. Parks, 6 Me. 81, the debtor of 
the plaintiff left funds in the hands 
of the defendant, with which he was 
to pay his (the debtor's) debt to the 
plaintiff. The defendant receiving 
these funds, or being allowed for 
them in settlement, as if paid to the 
plaintiff, promised to pay them to the 
plaintiff. The plaintiff, therefore, had 
funds in the defendant's hands, placed 
there for his benefit, for which he 



SEC. 158.] 



GUABANTIES. 



277 



the obligation becomes primary, and the statute does not 
apply.i Thus, where the defendant had bought the interest 
of a person in a contract for the purchase of certain lumber, 
a part of which had been delivered to such person, in con- 



might well maintain a suit. In Hil- 
ton V. Dinsmoor, 21 Me. 210, the con- 
sideration of the defendfint's promise 
was forbearance to sue, and funds 
placed by the debtor in the defend- 
ant's hands with which lie was to pay 
the debt. The court held the promise 
in consideration of forbearance was 
within the statute, but the funds hav- 
ing been placed in the defendant's 
hands by the plaintiffs debtor, the 
promise of the defendant in considera- 
tion thereof was not within the stat- 
ute. In Rowe v. Whittier, 21 Me. 
545, notice was taken of the fact that 
the plaintiff had not discharged his 
debt against his debtor, which he 
sought to enforce against the defend- 
ant. " If," says Whitman, C. J., " the 
claim was a legal one against Patten 
& Co. (the debtors of the plaintiff), 
it does not appear that they were dis- 
charged from it in consideration of 
the promise made by the defendant, 
and if it had so appeared, the defend- 
ant not being otherwise liable, his 
promise would not hare been obliga- 
tory under the statute of frauds 
without a memorandum in writing." 
In Brown v. Atwood, 7 Me. 356, where 
S sold a vessel to A, who promised in 
consideration thereof to pay B a debt 
due from S, upon which promise B 
brought his action against A, it was 
held that such promise was good, 
though not in writing, for it was a 
promise to pay his own debt, though in- 
uring to the benefit of B. The plain- 
tiff had funds in the defendant's 
hands, left by his debtor, and might 
well call them out. In Maxwell v. 
Haynes, 41 Me. 559, the plaintiff's 
debtor sold out to defendant, leaving 
funds in his hands to pay his debt to 
the plaintiff. In all these the defend- 
ant held funds of the debtor in his 
hands designated and set apart for 
the payment of his debt, and held by 
the defendant for that purpose. In 



TuUam v. Adams, 37 Vt. 391, Poland, 
C. J., referring to this class of cases, 
says : " And we believe it will be 
found that in all the cases now re- 
garded as sound, where it has been 
held that a parol promise to pay the 
debt of another is binding, the prom- 
isor held in his hands funds, securi- 
ties, and property of the debtor de- 
voted to the payment of the debt, and 
his promise to pay attaches upon his 
obligation or duty, growing out of the 
receipt of the fund." There is a class 
of cases, as in Alger o. Scoville, 1 
Gray (Mass.) 391, in which it was 
held, that the promise to a debtor to 
pay his debt to a third person is not a 
promise to answer for the debt of 
another within the statute. So in 
Pike V. Brown, 7 Cush. (Mass.) 136. 
In Eastwood v. Kenyon, 11 Ad. & El. 
446, it was held, that a promise by the 
defendant to the plaintiff to pay A B 
was not within the statute. "The 
facts were," says Lord Denman, " that 
the plaintiff was liable to a Mr. Black- 
burn on a promissory note; the de- 
fendant, for a consideration which 
may, for the purpose of the argument, 
be taken to have been sufficient, prom- 
ised the plaintiff to pay and discharge 
the note to Mr. Blackburn. If the 
promise had been made to Mr. Black- 
bum, doubtless the statute would have 
been applied, and it would then have 
been strictly a promise to answer for 
the debt of another; and the argu- 
ment on the part of the defendant is, 
that it is not less the debt of another 
because the promise is made to that 
other, viz., the debtor and not the 
creditor, the statute not having in 
terms stated to whom the promise 
contemplated by it is tb be made. 
But upon consideration we are of 
opinion that the statute only applies to 
promises made to the person to whom 
another is answerable." 

1 Bowen v. Kurtz, 37 Iowa, 239. 



278 STATUTE OP FBAUDS. [CHAP. IV. 

sideration thereof, verbally agreed to pay for that which had 
been as well as that to he delivered, his undertaking was held 
to be original and not within the statute.^ But, where A, 
being indebted to B for sawing lumber at A's mill, conveyed 
his property to C who hired B to continue the running of 
the mill, telling him that he would pay him the same that A 
had, and also that he had made arrangements with A to pay 
him what A owed him, and that he would pay him the back 
pay that was coming to him, it was held that C's promise 
■was collateral and within the statute.^ The distinction 
between the two eases, and the reason for the difference in 
the rules applicable thereto, is apparent, and arises from the 
circumstance that in the first case, the defendant assumed 
the debt and was substituted as debtor in the place of the 
original debtor, while in the latter case, the ciriginal debtor 
still remained liable for the debt, notwithstanding the defend- 
ant's promise, so that no novation took place. This distinc- 
tion is illustrated by some more recent cases. Thus in a 
Michigan case,^ certain manufacturers contracted with lum- 
ber dealers to convert certain standing timber into shingles 
and siding. A logger contracted with the dealers to cut 
and haul the timber. Subsequently, the logger refused to 
go on with the contract unless he received some of the 
money due him, and the manufacturers then orally promised 
the logger to pay him on orders from the dealers, and several 
payments were so made, and then payment being refused on 
such, orders, an action was brought to enforce it. The court 
held that the agreement was collateral and within the statute, 
because the original debtors still remained liable to the plaintiff 
for the debt. 

To constitute a promise to answer for the debt, default, 
or miscarriage of another person, within the meaning of the 

' Cox V. Weller, 6 T. & C. (N. Y.) those previously rendered. In Eddy v. 

309; Lawrence v. Fox, 20 K Y. 268. Davenport, 42 Vt. 56, it was held that 

^ Belknap v. Bender, 4 Hun (N. Y.) a promise to pay a physician for pro- 

414 ; 75 N. Y. 446 ; PfeifEer v. Adier, fessional services to he rendered in 

37 N. Y. 164 ; Mallory v. Griffiths, 21 treating a third person, is an original 

id. 412. Bat see Bagley i;. Moulton, undertaking, and not a promise to an- 

42 Vt. 184, where it was held that a swer for the debt of another, which 

continuance of professional services must be in writing, 

as a physician might form a good con- ' Preston v. Young, 46 Mich. 146; 

sideration for a promise to pay not 41 Am. Eep. 148. 
only for those afierwards, but also for 



SEC. 158.] 



GTJAEANTIES. 



279 



statute of frauds, the promise must be a collateral one ; there 
must be in existence an original liability upon which the 
collateral promise is founded, and where the debt which consti- 
tutes the consideration of the agreement is entirely discharged, 
the promise is a new and original one and not collateral.^ 



1 In Belknap w. Bender, 75 N.Y. 446, 
cited ante, it appeared that, in 1872, 
the plaintiff was engaged with his men 
and teams in managing a saw-mill for 
the firm of Ward & McVicker, and 
they were indebted to him, for labor 
performed, in the sum of $1,500, and 
were also largely indebted to the de- 
fendant and other parties. The de- 
fendant then for the purpose of secur- 
ing his debt entered into the following 
agreement with the firm : 

"Agreement made 20th August, 
1872. 

"W. M. Bender hereby agrees 
with Ward & McVicker to take their 
mill, called Shed's mill, to run the 
said mill, and to saw up their logs 
now lying in their log yard, to ship 
the lumber and to sell the same, and 
to apply the proceeds thereof to the 
payment of the current expenses of 
sawing and shipping said lumber, and 
also to the payment of the judgment 
claims, amounting to $4,872.29, and the 
claim of said Bender, say $7,000, and 
the rent of mill, $1,000, now due, and 
the back wages of their hands, say 
$1,500, as stated in schedule annexed, 
and the balance, if any, to pay over 
to said Ward & McVicker, for the 
consideration of ten per cent on the 
amount of said sales; and the said 
Bender agrees, in case of any sale of 
said logs or lease of said mill, under 
any judgment, to buy the same and 
to hold them in order to carry out the 
true intent of this agreement, it being 
understood that said Bender is only 
to pay said several claims as men- 
tioned above from the proceeds of 
said lumber as aforesaid. 

"Bender, Son & Co. 
" Ward & McVicker.'' 

To this agreement was annexed a 
schedule of the debts to be paid 
under the agreement among which 
was the debt due the plaintiff. • 



In pursuance of this agreement 
the defendant took possession of the 
mill, and the stock of logs and lumber 
on hand, and at the time of the com- 
mencement of this action had disposed 
of about half of the lumber. This 
action was brought by the plaintiff, 
not for an accounting under the agree- 
ment and to recover his share of the 
proceeds of the lumber, but to recover 
the whole sum due him from Ward 
& McVicker, upon the theory that 
the defendant had absolutely prom- 
ised to pay it to him. 

Upon the trial the plaintiff testified 
that the defendant came to him and 
told him to keep on working at the 
mill, and he would pay him for his 
work at the same rate which Ward & 
McVicker had been paying him, and 
that he had bought the stock of 
Ward & McVicker, and had made an 
arrangement with them to pay him 
what was due him from them, and if 
he would keep on working for him, he 
would pay him for his work, and in a 
day or two would pay him §1,000 
upon the amount due him from Ward 
& McVicker ; and he testified that he 
went on and worked for the defend- 
ant, but that the defendant had failed 
to pay him the amount due him from 
Ward & McVicker. The plaintiff re- 
covered $1,000 and interest. 

Earl, J., said ; " The promise of 
the plaintiff to work for the defend- 
ant at what appeared to be a full 
compensation did not furnish a con- 
sideration for the defendant's promise 
to pay Ward & McVicker's debt. 
Pfeiffer v. Adler, 37 N. Y. 164. And 
the trial judge so held. But from the 
plaintiff's evidence standing alone, it 
might have been inferred that the 
defendant had purchased the saw-mill 
stock of Ward & McVicker, and had 
agreed with them to pay a portion of 
the purchase-price to him in satisfac- 



280 



STATUTE OF FEAUDS. 



[chap. IV. 



The rule is that, where a party who was not before liable under- 
takes to pay the debt of a third person, and as a part of the 



tion of the debt due him from them, 
and in that case, under the rule laid 
down in Lawrence v. Fox, 20 N. Y. 
208, and other similar cases, the plain- 
tiff could have recovered. But at a 
later stage of the case, the written 
agreement between the defendant and 
Ward & McVicker was proved, and 
that shows precisely what the de- 
fendant agreed with them to do. 
Under that agreement, he did not 
become personally liable to pay the 
plaintiff; he did not agree to pay 
the plaintiff absolutely, or with his 
own funds. He did not purchase the 
stock. He simply agreed to saw the 
logs, and market the lumber, and 
apply the net proceeds in payment 
of the debts specified. He incurred 
no personal liability for the debts, 
aild was required only to be faith- 
ful in the discharge of the trust as- 
sumed. 

The defendant could not become 
bound to pay to the plaintiff the debt 
due him from Ward & McVicker by 
any verbal promise made to him. 
Such a promise to be binding within 
the statute of frauds must be in writ- 
ing, and founded upon a sufficient 
consideration passing between the 
parties. But if Bender had purchased 
lumber of Ward ^ Mc Vicker, and thus 
become indebted to them, and in consid- 
eration thereof had agreed to pay a por- 
tion of his debt to the plaintiff in satis- 
faction of the amount due him from 
Ward Sf Mc Vicker, such a promise, as 
stated above, would not have been 
within the statute of frauds. But the 
difficulty here is that there was no 
such debt to Ward & McVicker, and 
no such promise by the defendant. 
But the trial judge held that if the 
jury were satisfied that the defendant 
agreed to pay the |1,000, as testified 
to by the plaintiff, the plaintiff could 
recover upon the theory that the 
property had been placed in the hands 
of the defendant for sale, and that he 
would be liable to pay the plaintifE 



after he had disposed of it, and hence, 
that he could waive the delay and be 
bound by his promise to pay before 
he had realized the proceeds. And it 
is upon this theory in part that the 
plaintiff now seeks to uphold the re- 
covery at the circuit. 

The case then stands thus : The 
defendant by his agreement with Ward 
& McVicker was not personally bound 
to pay this debt. He was bound only 
to pay it out of the proceeds of the 
property when realized. The prop- 
erty was placed in his hands upon the 
consideration expressed in the paper, 
and he had it at the time of the al- 
leged promise to the plaintiff. What 
consideration is there to uphold the 
promise ? Clearly none. That prom- 
ise, if valid, imposed upon him an 
entirely new obligation ; it bound him 
to pay the .f 1,000 personally, whether 
he realized sufficient to pay it from 
the sale of the lumber or not. It 
created a personal liability when none 
existed before. Such a promise to be 
valid, aside from the statute of frauds, 
must be based upon a consideration. 
The plaintiff furnished none, and the 
lumber which had been before placed 
in defendant's hands upon a different 
consideration furnished none. After 
this promise the defendant's interest 
in the lumber, and control thereof, 
were no greater than before. 

But the counsel for the plaintiff 
strenuously contends that the promise 
of the defendant is without the stat- 
ute of frauds, and founded upon a 
sufficient consideration, simply be- 
cause Ward & McVicker placed in 
defendant's hands property upon 
trust to pay this debt ; and there 
are some general expressions in re- 
ported cases which, literally taken, 
support this construction. In Mal- 
lory V. Gillett, 21 N. Y. 412, Jtjdge 
CoMSTOCK says that when the debtor 
puts a fund into the hands of the prom- 
isor, either by absolute transfer or upon 
a trust ta pay the debt, the promise to 



SEC. 158.] 



GXJAKANTIES. 



281 



agreement, the original debtor is discharged from his indebted- 
ness, the agreement is not within the statute ; but if the origi- 



pay it is not within the statute of frauds. 
This general language needs some 
limitation or explanation. If the 
promise in such case be made to the 
debtor in consideration of the trans- 
fer, it is no doubt valid. If it be 
made to the creditor after it has be- 
come the duty of the promisor under 
his arrangement with the debtor to 
pay, then it is valid; as if in this 
case. Bender had converted the prop- 
erty into money, and then promised 
the plaintifE to pay the debt, he could 
have been sued directly on such prom- 
ise. That would have been an origi- 
nal promise to discharge his own obli- 
gation to the plaintifE. As said by 
Judge Comstock in that case : ' The 
law would imply an obligation on the 
defendant's part to pay over the 
money to the plaintiff after selling 
the goods ; and when the law will im- 
ply a debt or duty against any man, 
his express promise to pay the same 
debt, or perform the same duty, must 
in its nature be original.' Poland, 
C. J., in FuUam «. Adams, 37 Vt. 
391, after laying down the rule in 
substantially the same language as 
that used by Judge Comstock, says 
the true principle why the promise to 
the creditor in such a case is valid is, 
that 'the party making the promise 
holds the funds of the debtor for the 
purpose of paying his debt, and, as 
between him and the debtor, it is his 
duty to pay the debt, so that when he 
promises the creditor to pay it, in sub- 
stance he promises to pay his own debt, 
and not that of another.' Throop, inhis 
work on Verbal Agreements, vol. 1, 
p. 535, lays down the rule as follows ; 
'When thepromisorabsolutely controls 
the fund, but his application thereof 
to the payment of the debt due to the 
promisee will acquit him of a duty 
which he owed to the person who fur- 
nished it, the promise is not within 
the statute.' Here the defendant 
owed Ward & McVicker no duty to 
pay the debt. The only duty he owed 



them was to convert the property and 
apply the proceeds upon the debts 
specified. When this action was com- 
menced he was not in any default in 
the discharge of that duty, and the 
action was not brought upon such a 
theory. 

To test this case further. Suppose 
a voluntary assignee of an insolvent 
debtor after he had taken possession 
of the property assigned, but before 
he has converted it into money, and 
before the duty to pay has arisen, 
promises without any further or new 
consideration to pay the debt of one 
of the preferred creditors, could such 
a promise be enforced? Suppose one 
takes a conveyance of real estate >om 
debtor upon the agreement with him 
that he will rent it, and accumulate 
the rent for ten years, and then pay 
the net amount to his creditors, and 
the next day without any new consid- 
eration he promises at once to pay 
the creditors, could such a promise be 
enforced^ These cases are analogous 
to the. one in hand, and no authority, 
certainly no case that would be re- 
garded as authority in this State, can 
be found which would authorize the 
enforcement of such promises. They 
would be void at common law as with- 
out any consideration, and void also 
under the statute of frauds as not in 
writing. 

But we can go one step farther in 
this case. Even if the promise had 
been made after the defendant had 
converted the proceeds, it could have 
been enforced against him only to the 
extent of the proceeds applicable to 
this debt. Ardem v. Rowney, 5 Esp. 
254. If the amount applicable to 
this debt had been less than the 
$1,000, then for the excess of the debt 
the promise would have been without 
consideration. Defendant in such a 
case would have owed the duty to pay 
the plaintifE his share of the proceeds, 
and his promise to that extent would 
have been valid as one to discharge 



282 



STATUTE or FRAUDS. 



[chap. IV. 



nal debtor continues liable, then the agreement is within the 
statute.^ Therefore, when one, thus undertaking, agreed " to 
pay and guarantee " the debt, it was held that the word 
" guarantee " was not to be understood in a technical sense, 
but that the agreement was an absolute agreement to pay, 
and that indebitatus assumpsit would lie.^ In an Alabama 



his own obligation. But his promise 
for more would, as to the excess, not 
have been to pay anything for which 
he was liable in any way, but to pay 
the debt of Ward & McVioker, and 
hence within the statute of frauds. 
Here the complaint was not framed, 
and the trial was not conducted, for a 
recovery upon such a theory. There 
was no proof that the property was 
sufficient to pay the .$1,000, but on 
the contrary, the proof showed that 
it was not sufficient. The plaintiff's 
counsel upon the argument claimed 
that the case of Young u. French, 
35 Wis. Ill, was very much in 
point in his favor. But in that 
case there was a new consideration 
for the promise sued on, moving 
from the plaintiff to the defendant, 
and hence that case is unlike this. 
It is difficult to perceive hpw the 
doctrine of waiver can apply in a 
case like this. A person may waive 
some act or condition which another 
is to perform to or for him. He may 
choose to pay a debt before due ; but 
in a legal sense he waives nothing by 
so doing. Here, however, there was 
no debt of the defendant, and he 
could not by such a waiver, if we call 
it such, based upon no consideration, 
impose upon himself an entirely new 
obligation." 

1 In Yale v. Edgerton, 14 Minn. 
194, the defendant loaned plaintiff 
$300, which the latter promised to 
repay with interest, and at the same 
time assigned and delivered to the 
defendant a chattel mortgage made 
by another party before that time, 
and also the debt which the chattel 
mortgage was given to secure, amount- 
ing to $1,600. At the time agreed 
upon for the payment, $50 was paid 
and the time for the payment of the 



balance was extended, interest 
to be paid thereon at the rate of one 
per cent per month. Afterwards, the 
defendant still holding the chattel 
mortgage and debt as collateral se- 
curity, for the balance due him, it 
was agreed between plaintiff, defend- 
ant, and mortgagor, that the defend- 
ant, for a good and valid considera- 
tion, should discharge and satisfy the 
chattel mortgage and the original 
debt secured by it then due with in- 
terest, amounting to $1,700, and that 
he should pay to the plaintiff out of 
the first issue of a bank specified, the 
balance of said $1,700 remaining after 
deducting therefrom the unpaid bal- 
ance of the loan to plaintiff and in- 
terest. In pursuance of this agree- 
ment the defendant did satisfy and 
discharge the chattel mortgage and 
the debt secured by it. The promise 
of the defendant to paj' the plaintiff 
the balance of the debt due him was 
the only consideration for the latter's 
consent to the discharge and satisfac- 
tion of the mortgage ■ and the debt 
secured by it. It was held that an 
action would lie upon the promise of 
the defendant to pay the plaintiff the 
balance of the debt . secured by the 
mortgage after deducting the amount 
loaned by the former to the latter. 
The consideration of the defendant's 
promise, being the consent of the 
plaintiff to the release and discharge 
absolutely of the mortgage and the 
mortgage debt by the defendant, was 
a sufficient consideration; and the 
promise was an original one and not 
within the statute of frauds. 

2 Parker v. Benton, 35 Conn. 343. 
In this case Butler, J., said : " We 
think that by the contract as claimed 
by the plaintiffs, and which we must 
presume to have been found by the 



SEC. 158.J 



GUARANTIES. 



283 



case,^ it was held that where, by an arrangement between a 
creditor and the promisor, the original debtor is discharged, 



jury, the defendant became indebted 
to the plaintiffs by an assumption of 
the debt of TiUey & Co. to the extent 
of seventy-five cents on the dollar of 
that debt, and it is elementary law 
that, where a' sum certain is due on a 
simple contract, indebitatus assumpsit 
will be to recover it. It is true that the 
language of the motion in respect to 
the assumption claimed is that ' the 
defendant then and there agreed to 
pay and guarantee the debt of the 
plaintiffs,' but it is clear from the 
whole statement of the contract that 
it was intended to be an absolute con- 
tract to pay the debt, and that the 
word 'guarantee' as used in that 
construction, is not to be understood 
in its technical sense. We have no 
disposition to relax the rules of con- 
struction applicable to the statute of 
frauds, or in any manner to weaken 
that statute. Our views on that sub- 
ject are fully expressed by Judge 
Button, in Clapp v. Lawton, 31 Conn. 
95; and if this case was as claimed, 
analogous to that, we should come to 
the same conclusion in respect to it. 
But this case differs essentially from 
that. There a third party received 
the property of the debtor and prom- 
ised him generally to pay his debts. 
None of the creditors were parties to 
the arrangement, and the original in- 
debtedness continued as before. Here 
the contract was tripartite, between 
the debtor, a creditor, and a third per- 
son; and it contemplated the dis- 
charge of tlie original debtor, and a 
new obligation, by the third party, to 
the particular creditor. Such new 
obligation and indebtedness is not 
within the statute of frauds. In 
Turner v. Hubbell, 2 Day (Conn.) 
457, the distinguished counsel for 
the defendant in error deduced from 
the cases which had then occurred 
imder this branch of the statute, 
the following definition of the prom- 
ise intended by it, to wit ; ' An un- 
dertaking by a person, not be/ore lia- 



ble, for the purpose of securing or per- 
forming the same duty for which the 
party for whom the undertaking is 
made, is, at the same time, liable,' and 
it was adopted by the court. With a 
single modification that definition fur- 
nishes as perfect a test as lias ever 
been, or, we think, can be devised. 
The modification required is this : In 
the case of Williams v. Leper, 3 Burr. 
1886, the promise to pay the debt was 
made after the original debtor had 
been discharged by reason of a dis- 
tress, and the counsel in Turner u. 
Hubbell seem to have assumed that a 
contract to pay the debt of another 
would be within the statute 'of frauds 
if the original debtor was liable at 
the time the promise was made. But 
it is now well settled that if the origi- 
nal debtor is discharged by the new 
contract, it is not within ^the statute. 
See the cases cited by Judge Dutton 
in his revision of Swift's Digest, 
p. 248. The foregoing definition may 
be modified therefore, so as to read : 
'An undertaking by a person not be/ore 
liable, for the purpose of securing or 
performing the same duty for which 
the party for whom the undertaking 
is made continues liable.' Applying 
this test to the case in hand, it is ob- 
vious that the objection of the de- 
fendant ought not to prevail. It was 
the purpose and effect of the tripartite 
contract in question to discharge the 
original debtors in consideration of 
their giving up their property to the 
defendant, as well as to onerate the 
defendant, in consideration of that 
discharge, the assent of the plaintiff 
to the delivery of the property to the 
defendant, and of his agreement to 
loan the funds necessary to enable the 
defendant to purchase the debts and 
carry out his speculation. As the 
original debtors did not continue liable, 
an essential element of the test was want- 
ing, and the contract was not within the 
statute." 

1 Underwood v. Lovelace, 61 Ala. 



284 



STATUTE OF TEAXTDS. 



[chap. IV. 



and a new debt is created binding on the promisor alone, the 
promise, whether verbal or written, is supported by a valuable 
consideration, the detriment to the promisee in the extin- 
guishment of the original debt, and will support an action, 
although no consideration moved from the original debtor 
to the promisor, and even though there was no request from 
the original debtor, or subsequent assent on his part. A 
promise to pay a certain sum which is due from A to B to 
B's creditors is only binding as to the amount named, and 
even though the creditors are specifically named, a creditor 



155. Where contractors to furnish 
materials and build a house for an- 
other to furnish a certain part of the 
materials, and the latter after furnish- 
ing a small part of the materials 
abandons the contract because of the 
insolvency of the principal contractors, 
and the owner of the premises ver- 
bally promises to pay for the balance, 
and other materials are furnished on 
the faith of such promise, it is not 
within the statute. Schoenfleld v. 
Brown, 78 111. 487. But where A 
contracted to do certain work on B's 
premises, having partially completed 
it, he refused to go on, alleging that B 
was insolvent, C, a mortgagee, told 
him to go on and he would see him 
paid. It was held that there was no 
consideration for this promise, as A 
was bound to go on under the original 
contract, and that it was a mere prom- 
ise to answer for the default of B, 
and being verbal and without consid- 
eration, could not be enforced. Elli- 
son V. Jackson &c. Co., 12 Cal. 542. 
A promise by a landlord to a person 
from whose service he has enticed 
away the tenant, and to whom the 
tenant was indebted, to subordinate 
his lien on the tenant's crops as land- 
lord to the other's statutory lien for 
advances, in consideration that the 
latter would forbear to sue him for 
damages, is not within the statute, 
unless the landlord also agreed to 
answer for any default of the tenant 
to the other. Wejls v, Thompson, 50 
Ala. 84. And quere ? whether the un- 
dertaking in the latter event would 
not, in view of the consideration, be 



original? The plaintifE furnished lum- 
ber to erect certain houses; the de- 
fendant advanced the money to M to 
erect them. The lumber was deliv- 
ered to M, but charged to the defend- 
ant. The plaintifE said to the defend- 
ant, " I am furnishing this lumber and 
charging it to you, and if it is not all 
right, I want you to say so." TI.c 
defendant said it was all right if he 
got a certain deed of one of the 
houses that had been built. The de- 
fendant informed M of this conversar 
tion, and continued to furnish the 
lumber. M testified that the deed 
was delivered to the defendant, and 
that he left money in his hands to 
pay for the lumber, and it was held 
that the defendant's Undertaking was 
original. Booth v. Heist, 94 Penn. 
St. 177. In Bailey v. Rutjes, 86 N. C. 
517, the plaintiff delivered lumber on 
the order of A, the lessee, which was 
used on the premises of B and C, the 
lessors, and then sued them for the 
price. It was held that although it 
was not error to charge that if the 
plaintiff believed he was furnishing 
the lumber on their credit, they were 
liable ; yet if the lessors, knowing 
that he expected them to payfor the 
lumber, acted in such a manner as to 
create a belief on his part that they 
would do so, and thereby induced him 
to deliver it, a, promise on their part 
to pay for it might be inferred. But 
that, if the defendants were not origi- 
nally liable by reason of some con- 
tract, an oral promise to pay for the 
lumber after it was furnished and used 
would not bind them. 



SEC. 158.] GUAEANTIES. 286 

SO named has no remedy against the promisor for his debt, 
if A has previously paid the sum named to other creditors 
designated by B.-^ Where the defendant, in order to get rid 
of an incumbrance on his own property, or to obtain some direct 
personal advantage to himself, or because of his indebtedness to such 
person to an amount equal thereto, promises to pay the debt of 
another, the promise is not within the statute. And if the 
original debt is discharged and extinguished by the substitu- 
tion in lieu thereof of a new contract by a third person, to 
pay the amount of that debt, such new contract is not a col- 
lateral promise to answer for the debt or default of another.^ 
Thus, where A was indebted to B & Co. for goods sold, 
and, upon being released from his liability, assigned to the 
latter a debt, which was due to him from C & Co., and 
notice of the assignment was given to a partner in the house 
of C & Co., who, by parol, promised in the name of the firm 
to pay the debt of B & Co. out of the partnership fimds; 
it was held, in an action by B & Co. against C & Co. for 
money had and received, that the promise Avas not within the 
statute.^ So where A sold goods to B, who, being unable to 
pay, transferred them to C, who promised to pay for them, it 
was held that this was a new sale to C, and not a mere promise 
by C to pay the debt of B.* If A be a creditor of B, and B 
and C propose to enter into, or have entered into partner- 
ship, and say to A, " We wish this debt to be a debt from 
us both, and we will pay it," and A accedes to that, although 
there is no writing, the agreement is valid and effectual, 
and is not impeached or affected by the statute. The effect 
of such an agreement is to extinguish the first debt, and 
for a valuable consideration to substitute the second debt.* 
So where there is a defined and ascertained debt due from A 
to B, and a debt to the same or a larger amount due from C 
to A, and the three agree that C shall be B's debtor instead 
of A, and C promises to pay B, the latter may maintain an 
action against C.^ But it is incumbent on the plaintiff to show 

1 Odell V. Mulry, 9 Daly (N. Y. * Browning v. Stallard, 5 Taunt. 
C. P.) 381. 450; see also De Colyar on Guaran- 

2 Add. on Contrs. 153. ties, 83-87 ; 1 Wms. Saund. 224. 
8 Lacy p. McNelle, 4 D. & E. 7 ; ^ Ex parte Lane, De G. 300. 

and see Hodgson v. Anderson, 3 B. & " Eairlie v. Denton, 8 B. &. C. 395 ; 

C. 842 ; 5 D. & K. 735 ; Taylor v. 2 M. & R. 353 j Wilson v. Coupland, 
Hilary, 1 C. M. & R. 741. 5 B. & Aid. 228; Crowfoot «. Guer- 



286 STATUTE OP PKAtTDS. [CHAP. IT. 

that at the time when C promised to pay B, there was an ascertained 
debt due from A to B A It is also necessary that the original 
debt from A to B should be extinguished ; for B cannot sue 
C if he retains the right to sue A.^ So that if the creditor 
" were to sue or issue execution against the original debtor, 
the latter might show that the plaintiff, on good considera- 
tion, gave up his remedy against him, and took the liability 
of the other instead, which though not properly accord and 
satisfaction, would be a complete defence." ^ 

Where the plaintiffs were creditors, and the defendants 
debtors, to T & Co., and by consent of all parties an 
arrangement was made that the defendants should pay to 
the plaintiffs the debt due from them to T & Co., it was 
held that as the demand of T & Co. on the defendants 
was for money had and received, the plaintiffs were entitled 
to recover on a count for money had and received against 
the defendants.* In Parkins v. Moravia,^ the defendant un- 
dertook to pay the plaintiff the amount due from him to B 
for work to be done by B, in consideration that the plaintiff 
would advance money to B, Wilson v. Coupland ® was cited, 
and it was argued that this was an assignment of a chose in 
action. Abbott, C. J., said : " It is an assignment of a thing 
not in esse; Wilson v. Coupland is not like this case." A ver- 
dict was taken for the plaintiff subject to this and another 
point of law for the consideration of the court above, but it 
does not appear that any motion was made. Much impor- 
tance cannot, therefore, be attached to the case.'^ 

Sec. 159. indemnities, Whether -within the Statute. — There 
appears to be some doubt in the English courts as to whether 
or not promises to indemnify are within the statute. In 

ney, 2 M. & Sc. 482 ; Hodgson v. An- « Wilson v. Coupland, 5 B. & Aid. 

dereon, 3 B. & C. 855 ; 5 D. & R. 735. 228 ; Thompson v. Percival, 5 B. & 

1 Pairlie v. Denton, 8 B. & C. 395; Aid. 925; see also Roe v. Haugh, 3 
2 M. & E. 353. Salk. 14 ; Israel v. Douglas, 1 H. Bl. 

2 Wms. Saund. 224, citing Cuxon 239 ; Tatlock v. Harris, 3 T. E. 174. 
V. Chadley, 3 B. & C. 591 ; 5 D. & E. M C. & P. 376. 

417 ; Wharton v. Walker, 4 B. & C. ^ 5 b. & Aid. 228. 

163 ; 6 D. & E. 288 ; Parker v. Wise, ' See De Colyar on Guaranties, 

6 M. & Sel. 239 ; Liversidge v. Broad- 86. Smith's Merch. Law, 8th ed. 457. 

bent, 4 H. & N. 603. And see as to assignments of debts 

' Bird V. Gammon, 5 Sc. 220 ; 3 and choses in action 36 & 37 Vict. c. 

Bing. (N. C.) 883, per Tindal, C. J. 66, § 25, subs. 6. 



SEC. 159.] GUARANTIES. 287 

Thomas v, Cook,^ it was laid down that a promise to in- 
demnify does not fall within the words or policy of the act. 
On the other hand, in Green v. Cresswell,^ Denman, C. J., 
referring to Thomas v. Cook, said : " The reasoning in that 
case does not appear to us satisfactory in support of the 
doctrine there laid down : wliich, taken in its full extent, 
would repeal the statute. For every promise to become 
answerable for the debt or default of another may be shaped 
as an indemnity, but even in that shape we cannot see why 
it may not be within the words of the statute. Within 
the mischief of the statute it most certainly falls." Green 
V. Cresswell, however, was dissented from in Cripps v. Hart- 
noU,* and Batson v. King.* In the former of these cases 
Pollock, C. B., said : " Now it has been laid down that a 
mere promise of indemnity is not within the statute of 
frauds, and there are many cases which would exemplify 
the correctness of that decision. On the other hand, an 
undertaking to answer for the debt or default of another 
is within, the statute, and no doubt some cases might be 
put where it is both the one and the other, that is to say, 
where the promise to answer for the debt or default of 
another would involve what might very properly and legally 
be called an indemnity." In the latter case the same learned 
judge said : " If a man says to another, ' If you will at my 
request put your name to a bill of exchange, I will save you 
harmless,' that is not within the statute. It is not a responsi- 
bility for the debt of another. It amounts to a contract by 
one, that, if the other will put himself in a certain situa- 
tion, the first will indemnify him against the consequences. 
In Green v. Cresswell, Lord Dbnman" pointed out a dis- 
tinction between that case and one where the defendant is 
a co-surety. F don't tliink that the case itself was rightly decided." 
In a later English case ^ the doctrine of Green v. Cresswell, 
ante, was directly overruled, and the doctrine of Reader v. 

1 8 B. & C. 728; 3 Man. & R. 444. 374; 29 L. J. C. P. 119; Reader v. 

2 10 Ad. & El. 453 ; 2 P. & D. 430. Kingham, 13 C. B. (N. S.) 344 ; Wildes 
8 4 B. & S. 414 ; 32 L. J. Q. B. 381. ... Dudlow, L. R. 19 Eq 198. 

* 4 H. & N. 739. It appears, therefore, that promises 

5 Readerti.Kingham,13C.B.(N.S.) to indemnify may or may not be with- 

344. See also Mallett v, Bateman, 16 in the statute, according to circum- 

C. B. (N. S.) 537, ;)cr Btles, J. ; and stances. See Smith's Mercantile Law, 

Fitzgerald v. Dressier, 7 C. B. (N. S.) 462, n. (i), 7th ed. 



288 STATUTE OP EEAUDS. [CHAP. IV. 

Kingham has quite recently been confirmed.^ In this case 
the Vice Chancellok said : " I am surprised to find that 
there has been so much conflict ; " and added : " I am happy 
to find that, the matter having been most carefully and 
elaborately considered in the case of Reader v. Kingham, 
when the full number of judges was present, the case of 
Green v. Cresswell was overruled, and the doctrine of 
Thomas v. Cook restored." Thus practically, although 
perhaps not decisively, the doctrine of Green v. Cresswell 
has no authoritative force in England, and has but little 
force in our courts. In a recent case in Indiana,^ after a 
careful review of the cases, the doctrine of this case was 
directly repudiated, and the distinction between a contract 
of, guaranty and one of indemnity was well illustrated by 
Elliott, J. He said: "There is, in principle, an obvious 
and important • difference between a contract of guaranty 
and one of indemnity. The former is a collateral -under- 
taking, and presupposes some contract or transaction to 
which it is collateral.^ The contract, though in form a 
guaranty, may be so framed as to constitute an absolute 
and original undertaking, as was the case in Frash v. Polk,* 
but even in that class of cases there is an obligation from 
the party whose act or contract is guaranteed, and there is 
also a debt, aiid may be default, toward the promisee. 
It is impossible to conceive a guaranty as existing without 
some act or contract guaranteed. A contract of indemnity is 
essentially an original one. Between the promisor and promisee 
tJiere is a direct privity. Between the person to whom the 
promise of indemnity is given, and the person for whom 
the latter undertakes as surety or bail, there is no privit)'- 
at all. No matter what may be done by the person for 
whom bail is entered, at the request of a third, he who 
becomes bail cannot have any action, because as to the 
person bailed the undertaking was purely voluntary.^ The 



1 Wildes V. Dudlow, L. R. 19 Eq. Ind. 11 ; 2 Am. Rep. 323 ; Gofe v. 
138. Sims, 45 Ind. 262 ; Dickinson v. Colter, 

2 Anderson v. Spence, 72 Ind. 315; id. 445; Taylor v. Taylor, 64 id. 356, 
37 Am. Rep. 162. 359. 

8 Dole V. Toung, 24 Pick. (Mass.) * 67 Ind. 55. 

250; Story on Prom. Notes, §457; ^ -White's Ex'rs v. White, 30 Vt. 

McMillan v. Bull's Head Bank, 32 338; McPherson u. Meek, 30 Mo. 345. 



SEC. 159.] GUARANTIES. 289 

contract is an original and independent one, in which there 
is no debt or default toward the promisee, to which there 
are no collateral contracts, and in which there is no remedy 
against the third party. A contract of this character has 
long been held not to be within the statute.^ The general 
rule running through almost all the cases is, that if the tliird 
person is not liable, then the undertaking is not within the 
statute. This doctrine is exemplified in the great number of 
cases which hold that a promise to answer for the debt or 
default of an infant ovfemme covert is not witliin the statute, 
because there is no third person bound.^ It must be held, 
both upon principle and authority, that the cases which eon- 
fuse the contracts of guaranty and indemnity, and place 
both upon the same footing, were erroneously decided, and 
that they are not to be accepted as true interpreters of the 
law." 3 

The plaintiff having promised to indemnify G against the 
consequences of a bail bond into which E had entered at 
plaintiff's request, and E being forced to make a payment 
in consequence, it was agreed between the plaintiff and 
defendant that the plaintiff should obtain the money hy 
discounting a bill drawn by the plaintiff and accepted by 
the defendant ; it was held that the plaintiff was not liable 
on his promise to indemnify, it not being in writing.* 

In this country it is generally held that a verbal contract 
of indemnity made upon a good consideration is not within 
the statute. Thus, where A, in consideration of twenty-five 
dollars, verbally agreed to indemnify B against any claim 
made upon him for a certain subscription he had made, and 
a judgment for the amount thereof was afterwards obtained 
by him, it was held that A was liable upon his promise for the 
amount of the judgment;^ and it has been held that a verbal 
promise to indemnify a person against loss from becoming 

1 Read v. Nash, 1 Wils. 305; Tom- (S. C.) 395; Drake «. Meurellen, 33 
linson v. Gill, Amb. 330; Loomis v. Ala. 106; Boche v. Chaplin, 1 Bail. 
Newhall, 15 Pick. 159; Harrison v. (S. C.) 419. 

Sawtel, 10 Johns. (N. Y.) 242 ; Toplis " Ovemllmg Brush v. Carpenter, 

V. Grane, 5 Bing. (N. C. ) 636 ; Marcy v. Ind. 78. 

Crawford, 16 Conn. 549. « Cresswell v. Wood, 10 Ad. & El. 

2 Harris v. Huntback, 1 Burr. 373; 460. 

Chapin v. Lapham, 20 Pick. (Mass.) ^ Conkey v. Hopkins, 17 John. 

467 ; Mease v. "Wagner, 1 MoCord (N. Y.) 113. 



290 



STATUTE OF FRAUDS. 



[chap. IV. 



surety for anotlier, upon tlie faith of which the promisee 
assumes the responsibility, is an original undertaking and 
supported by a sufficient consideration.^ In a recent case 
in Indiana ^ this doctrine was carefully and ably considered, 



1 Chapin v. Merrill, 4 Wend. (N. 
Y.) 657 ; Lucas v. Chamberlain, 8 B. 
Mon. (Ky.) 276; Harris «. Sawtelle, 

10 John. (N. Y.) 242; Dunn v. West, 
5 B. Mon. (Ky.) 376; Holmes <,. 
Knights, 10 N. H. 175 ; Mills v. Brown, 

11 Iowa, 315 ; Chapin v. Lapham, 20 
Pick. (Mass.) 467; Jones v. Shorter, 
1 Ga. 294; Perley v. Spring, 12 Mass. 
297 ; Lucas v. Chamberlain, 8 B. Mon. 
(Ky.) 276. In Bohannon v. Jones, 30 
Ga. 488, the defendant verbally prom- 
ised the plaintiff, who was a sheriff 
and about to sell the horse of another 
upon an execution that he held against 
such person, that if he would not sell 
the horse he would pay the amount of 
the execution, and the defendant did 
not sell the horse, and was subsequently 
obliged to pay the debt, and it was 
held that the promise was not within 
the statute, and a similar doctrine was 
held in Tindall v. Touchberry, 3 
Strobh. (S. C.) 177, and these cases 
seem sustainable upon the ground 
that as the promise is made to a pub- 
lic oflScer for doing or not doing an 
act, from which a direct liability is 
incurred by him, and has no immediate 
relation to the debt, it is an original 
promise of indemnity which is not 
within either the letter or spirit of the 
statute. 

2 Anderson v. Spence, 72 Ind. 315 ; 
37 Am. Rep. 162. In this case the 
opinion of Elljott, J., is such a care- 
ful and masterly review of the cases 
that I give the main portion of it. He 
said : " The appellant contends that 
the contract upon which the action is 
founded creates no liability, and in 
support of his contention states and 
argues these two general propositions : 
1st. There was no consideration to 
support the promise made to appellee ; 
2d. That as the agreement was not in 
writing, it is void, because it is a con- 
tract to answer for the default of an- 



other, and therefore within the statute 
of frauds. 

There is nothing in the first propo- 
sition deserving discussion, and we 
put it aside witli the remark that ap- 
pellant got all the consideration he 
stipulated for ; and he is not now in a 
position to make a complaint (as least 
with much prospect of having . it 
heeded) of lack of consideration. 

The second proposition involves an 
inquiry into the nature of the oral 
agreement upon which appellee relies. 
If it is an original agreement, it is 
not within the statute ; if a collateral 
one, it is : the great weight of author- 
ity is, that an original agreement is 
not within the statute, although it 
may directly concern a third person, 
or relate to the performance of some 
act by one not a party to the contract. 
Thacher v. Rockwell, 4 Col. 375; 
Edenfield v. Canady, 60 Ga. 456; 
Hartley w. Varner, 88 111. 561; John- 
son V. Knapp, 36 Iowa, 616 ; Smith v. 
Cramer, 39 id. 413 ; Lester v. Bowman, 
id. 611 ; Emerson v. Slater, 22 How. (U. 
S.) 28 ; DeWolf ti.Eabaud, 1 Pet.(U. S.) 
476; Morrison v. Baker, 81 N. C. 76; 
Spooner v. Dunn, 7 Ind. 81 ; Crawford 
V. King, 54 id. 6 ; Billingsley v. Dempe- 
wolf, 11 id. 414; Nelson v. Hardy, 7 
Ind. 367; Beaty v. Grim, 18 id. 131. 
The general rule, as we have stated it, 
is in its terms clear, and is well sup- 
ported by the authorities, but there is 
much difficulty in determining what 
are original or what collateral agree- 
ments. The cases upon this point are 
much in conflict, and it is by no 
means an easy task to determine from 
them what are to be deemed original 
contracts. The first case in our own 
reports, which directly bears upon the 
question under discussion is that of 
Brush V. Carpenter, 6 Ind. 78, where 
it was held, ' An oral promise by A 
to B to indemnify B against loss, if he 



SEC. 1S9.J 



GXJAEANTIES. 



291 



and the doctrine stated in the text announced. In that case 
it appeared that one Mary SuUenger had been indicted for 



will become replevin bail for C, is void 
under the statute of frauds.' The 
case was not very carefully considered, 
and very few of the adjudged cases 
seem to have been brought to the at- 
tention of the court. The case of 
Brush V. Carpenter, 6 Ind. 78, did not 
receive any direct notice from the 
time it was decided except a bare ref- 
erence in two cases, until the decision 
in Horn v. Bray, 51 Ind. 555, where it 
was cited and commented upon at 
much length, and declared to lay down 
an erroneous rule, the court saying : 
' The ruling in Brush v. Carpenter is 
against the current of American ad- 
judications, and has been, in effect, 
though not expressly, overruled by 
the subsequent decisions of this 
State.' The question in Horn o. 
Bray, 51 Ind. 556, was whether a ver- 
bal contract of indemnity as between 
sureties was valid, and it was not 
there necessary to expressly approve 
or directly overrule Brush v. Carpen- 
ter. Here we must approve or con- 
demn. There is not a little confusion 
in our own cases upon the subject of 
what is an original and what a collat- 
eral contract, but the weight is decid- 
edly against the doctrine of Brush v. 
Carpenter. 

The English cases have not been at 
all harmonious. The old case of 
Winckworth v. Mills, 2 Esp. 484, held 
that a promise of indemnity was with- 
in the statute, but in Thomas v. Cook, 
8 B. & C. . 728, the contrary doctrine 
was declared. Thomas t. Cook was, 
in turn, overruled in Green v. Cress- 
well, 10 Ad. & El. 453. For a long 
time the doctrine of Green v. Cress- 
well has been viewed with disfavor, 
and it was, long before its overthrow, 
often severely censured, notably so in 
the cases of Batson v. King, 4 H. & 
N. 739, and Cripps v. HartnoU, 4 B. & 
S. 414. After a long struggle the 
doctrine of Green v. Cresswell was 
directly overthrown in Header v. 
Kingham, 13 C. B. (N. S.) 344. In 



the later case of Wildes v. Dudlow, 
L. E. 19 Eq. Cas. 198, Reader v. King- 
ham is expressly approved, the court 
saying that the case of Thomas it. 
Cook, 8 B. & C. 728, was decided 
' upon the plainest principles of com- 
mon sense and justice.' While the 
doctrine of Green v. Cresswell, supra, 
was still recognized as the law of 
England, the courts declared that 
there was an important and broad 
distinction between the undertaking 
as- surety in civil cases and that as 
bail in criminal proceedings. This 
doctrine is stated with clearness and 
force by Pollock, C. B., in Cripps 
V. HartnoU, 4 B. & S. 414. This 
learned judge, after speaking of 
Green v. Cresswell, supra, said : ' But 
there is a great distinction between 
that case and the present. Here the 
bail was given in a criminal proceed- 
ing ; and where bail is given in such 
a proceeding, there is no contract on 
the part of the person bailed to in- 
demnify the person who became bail 
for him. There is no debt, and with 
respect to the person who bails, there 
is hardly a duty; and it may very 
well be that the promise to indemnify 
the bail in a criminal matter should 
be considered purely as an indemnity, 
which it has been decided to be. Now 
it has been laid down that a mere 
promise of indemnity is not within 
the statute of frauds, and there are 
many cases which would exemplify 
the correctness of that decision.' 
The English cases therefore establish 
a rule which would take the present 
case out of the statute, even though 
it be conceded that the doctrine of 
Green v. Cresswell should be deemed 
the correct one. We confess, however, 
that it seems to us that there was a real 
conflict between the doctrine of Green v. 
Cresswell and that of Cripps v. Hart- 
noU, and that the distinction attempted 
to be made by the later case was' simply 
an effort to get rid of an unsound doc- 
trine without expressly overruling it. 



292 



STATTTTB OF FEAUDS. 



L[CHAt. IV. 



assault and battery with intent to kill, and was in custody 
upon that charge. The defendant, being desirous to secure 



Green v. Cresswell was always in con- 
flict with the English cases, and there 
are many of them holding, to horrow 
the language of the cases, 'that the 
debt or default must be toward the 
promisee.' Eastwood v. Kenyon, 11 
Ad. & El. 438; Fitzgerald v. Dressier, 
7 C. B. (N. S.) 374. There is no 
' debt or default towatd the promisee ' 
in cases where one person becomes 
bail for another at the request of a 
third. In such a case, it is impossible 
to conceive a debt or default as exist- 
ing toward the promisee. 

Long before the final overthrow of 
Green v. Cresswell, many, indeed 
most, of the American courts had ac- 
cepted the doctrine, which indeed had 
never been directly challenged, either 
in England or America, that the debt 
or default must be toward the promi- 
see, and had carried it to its logical 
conclusion. There are however many 
American cases holding to the doc- 
trine of Green v. Cresswell, some of 
them somewhat extending it. With 
the downfall of the original case, the 
doctrine which it declared, always 
plainly erroneous upon principle, must, 
in time, be repudiated by all the 
courts of the land. The doctrine of 
Green v. Cresswell has "been repudiated 
and that of Thomas v. Cooke adopted 
in Michigan. Potter v. Brown, 35 Mich. 
274 ; Comstock v. Morton, 36 id. 277. 
Massachusetts : Blake v. Cole, 22 
Pick. (Mass.) 97; Chapin v. Laphain, 
20 id. 467. Ma:ine: Smith u. Say- 
ward, 5 Me. 604. Minnesota : Gaetz 
V. Foos, 14 Minn. 265. New York: 
Sanders v. Gillespie, 59 K. Y. 250. 
New Jersey : Apgar v. Hilers, 24 N. J. 
H. 812. New Hampshire: Cutter v. 
Emery, 37 N. H. 567; Holmes v 
Knights, 10 id. 175. Kentucky; 
Jones V. Letcher, 13 B. Mon. (Ky.) 
363 ; Dunn v. West, 5 id. 376 ; Lucas 
V. Chamberlain, 8 id. 276. Connecti- 
cut ; Eeed v. Holcombe, 31 Conn. 
360; Iowa Mills v. Brown, 11 Iowa, 
314. Vermont: Beaman i/. Eussell, 



20 Vt. 205. . Indiana : Anderson v. 
Spence, ante. Georgia: Jones v. 
Shorter, 1 Kelly (Ga.)' 294, and "Wis- 
consin : Vogel V. Melms, 31 Wis. 306. 
In North Carolina, DraUghan v. 
Bunting, 9 Ired. (N. C.) 10, the doc- 
trine of Green v. Cresswell is adopted, 
while in the other States the question 
is an open one. Ferrett v. Maxwell, 
28 Ohio St. 383 ; Simpson v. Nance, 1 
Speera (S. C.) 4; Bissig v. Britton, 59 
Mo. 204 ; Garner v. Hodgkrns, 46 id, 
399 ; Macy v. Childress, 2 Tenn. Ch. 
438 ; Gadden v. Pierson, 42 Ala. 370. 
In Aldrich v. Ames, 9 Gray (Mass.) 
76, Shaw, C. J., spestking for tlie 
court, held an oral promise of indem- 
nity made to one to induce him to be- 
come bail for another to be good. In 
Holmes v. Knights, 10 N. H. 175, an 
oral promise to indemnify a plaintiff, 
if he would become baU for a third 
person, was held not to be within the 
statute. Cases are cited in Horn v. 
Bray, from the reports of Massachu- 
setts, Pennsylvania, Iowa, Maine, 
New Hampshire, Vermont, Maryland, 
Georgia, and Kentucky, showing that 
a contract to indemnity is not within 
the statute ; and to these may be 
added Vogel v. Melms, 31 Wis. 306; 
s. V. 11 Am. Rep. 608; Shook u. Van- 
mater, 22 Wis. 532; Keedw. Holcomb, 
31 Conn. 360; Sanders v. Gillespie, 
59 N. Y. 250; Green v. Brookins, 23 
Mich. 48; 9 Am. Eep. 74 ; Stocking v. 
Sage, 1 Conn. 519. The general doc- 
trine, that a promise to indemnify the 
promisee for becoming surety for a 
person other than the promisor is hot 
within the statute, is approved by 
many of the text-writers. 3 Pars. 
Cont. (6th ed.) 21, n.; Roberts on 
Frauds, 223; 1 HiUiard Cont. 384, § 
11, 385, § 12 ; Throop, Verbal Agree- 
ments, § 361. Our own cases have de- 
clared the same general doctrine. In 
Downey v. Hinchmau, 25 Ind. 453, it 
was said that, ' to make the promise 
collateral the pirty for whom the 
promise is made must be liable to 



SBC. 159.] 



GUABANTEES. 



293 



her release, procured th© plaintiff to enter into a recogni- 
zance for her appearance to answer to the charge, promising 
him oraUy that he would indemnify him against all loss, and 
save him harmless from all liabilities, costs, charges, and ex- 
penses by reason of so becoming bail for her. The plaintiff, 
having been damnified by reason of his having entered into 
such recogiiizance, in an action to recover the same from the 
defendant, he set up the statute of frauds in bar of the claim. 
The court held that the statute had no application to con- 
tracts for indemnity.^ So it is held that an agreement to 
indemnify a person against the consequences of an act which 
may amount to a trespass, are valid, unless a wiKul tres- 
pass is contemplated*^ Thus, an agreement to indemnify an 



the party to whom it is made.' In 
Palmer v. Blain, 55 Ind. 11, it was held 
that a Terbal promise by one person to 
the creditor of an execution issued on 
a judgment against a third, that if he 
will satisfy such execution, the prom- 
isor will make payment, of the judg- 
ment in property and money, was not 
within the statute. Green u. Cress- 
well is cited with approval in Crosby 
V. Jeroloman, 37 Ind. 264; but the 
point involved in that case was very 
different from that here under discusr 
sion. The question in Crosby v. Jerol- 
oman was whether there had been a 
novation, not whether t^ie contract 
was an original or collateral one ; and 
it was rightly held, that unless the 
original debt was extinguished by the 
new promise, the case was not taken 
out of the statute. In Ellison v. 
Wishart, 29 Ind. 32, the question and 
the holding were the same as in Cros- 
by V. Jeroloman. The question in 
Druly V. Hunt, 35 Ind. 507, was pre- 
sented by the refusal to give the jury 
the following instruction: 'If Druly 
promised to guarantee or warrant the 
pay to plaintiff which had been prom- 
ised to be paid by a public meeting, 
his promise was only collateral, and 
not binding on Druly unless in writ- 
ing.' It is very plain that no such 
question as the one involved In the 
present could have arisen in that case. 
It may be safely affirmed, without 



further citation, that there is no case 
in our own reports directly supporting 
the doctrine of Brush v. Carpenter, 
and that there are several indirectly 
condemning, and one, at least, censur- 
ing it in express words, and in effect 
overthrowing it." Horn v. Bray, ante. 
In Easter v. White, 12 Ohio St. 219, 
the same doctrine was held as in 
Brush V. Carpenter, ante. 

1 Conkey v. Hopkins, 17 John. (N. 
Y.) 113 ; Staats v. Hewlett, 2 Den. (N. 
Y.) 559. In Barry «. Ransom, 12 N. Y. 
462, it was held that a parol agree- 
ment between two sureties that one of 
them would indemnify the other from 
loss, was held not to be within the 
statute. But in Michigan it is held 
that an engagement to indemnify 
sureties against loss is within the stat- 
ute, and when made in writing in the 
name of one party and purporting 
upon its face to bind no other, it can 
no more be shown by parol to be in 
fact the undertaking of a different 
party than could such a liability be 
originally created by parol. First 
Nat. Bank v. Bennett, 33 Mich. 520. 
In Bjssig V. Britton, 59 Mo. 204, a 
verbal promise to hold a surety upon 
a replevin bond harmless was held to 
come within the statute as being a 
promise to answer for the default of 
another. 

2 Stone V. Hooker, 9 Cow. 154; 
Avery v. Halsey, 14 Pick. (Mass,) 174. 



294 STATUTE OP FRAUDS. [CHAP. IV. 

officer to induce him to execute process by attaching prop- 
erty where the title is in dispute, is valid, although by parol.^ 
In Connecticut^ it was held that a parol promise to indemnify 
a person against a trespass, where the act to be done was 
under a claim of right, is valid, and not within the statute. 
In that case the facts were, that it was agreed between A 
and B that if C would enter upon the- land of D and fish in 
D's mill-pond, that, if C should be prosecuted therefor by 
D, B would pay A one-half of the amount recovered and the 
expenses of defending the suit. C did the acts specified, 
and D sued him in tresspass therefor and recovered judg- 
ment, the amount of which was paid by A, together with 
the expenses of defending the suit. In an action to recover 
of B one-half of such disbursements it was held that the 
contract was an original undertaking, and not within the 
statute. "The promise of the defendant," said Hinmak, J., 
" to pay one-half of the damages which might be recovered 
against Samuel P. Crawford for fishing in the mill-pond, and 
one-half of the expenses of defending against such a suit as 
might be brought against him for such fishing, was in no 
sense a promise to answer for the debt or default of Samuel 
P. Crawford, but was an original undertaking, and, of course, 
not within the statute of frauds. It could not be for the 
debt of Crawford, for he owed none. It was not for his 
default ; but was, rather, a promise of indemnity, to a certain 
extent, for doing a particular act, like the promise of indem- 
nity to an officer for taking property, which it may be doubted 
whether the creditor can hold." 

If a surety upon an obligation promises a third person that 
if he will become a surety with him, he will indemnify him 
against loss thereby, his promise is an original one because 
it is a promise to answer, not for another's default, but his 
own ; * and it is held that a promise to indemnify another, 

' Stark V. Raney, 18 Cal. 622; groundless suits brought against him 

Marsh v. Gould, 2 Pick. (Mass.) 284; by the crewfor chastisements inflicted 

Train v. Gold, 5 id. 380 ; Wright v. within reasonable limits for the main- 

Vemey, 3 Doug. 240. It has been tenance of the discipline of the sliip, 

held that an agreement to indemnify but not for expenses incurred in a 

the captain of a vessel against all prosecution where he was convicted, 

legal expenses which may arise from Babcock v. Terry, 97 Mass. 482. 

his chastisement of the crew, is valid ^ Jiarcy v. Crawford, 16 Conn. 548. 

and binding as to expenses incurred in ' Tarrell v. Maxwell, 28 Ohio St. 383. 



SEC. 159.] GUARANTIES. 295 

if he will become surety for a third person, is not within 
the statute,^ nor to indemnify a person if he will become a 
guarantor for another.^ And, generally, a mere promise of 
indemnity is not within the statute. Thus, where a person 
promises to repay to another a share of the expenses of a 
suit brought at the instance of the promisor, and in reliance 
upon his promise, and for the mutual interest of the parties, 
the promise is not within the statute, being a contract for 
indemnity rather than guaranty .3 So where A agreed with 
B to. assist in getting up an exhibition of the school of which 
B was the master, upon the understanding that he should 
lose nothing, but should be indemnified for his expenses and 
services, it was held that the promise of indemnity was an 
original one, and not within the statute.* In a Massachusetts 
case, the plaintiff transferred his stock in a corporation, and 
a note he held against the corporation, to the defendant in 
exchange for a farm, the defendant agreeing to indemnify 
the plaintiff against his indorsements on certain notes of the 
corporation. It was held that the defendant's promise of 
indemnity w^s founded on a good consideration, and was not 
within the statute.^ In Maine,^ a parol promise by a fro 
chien ami to pay counsel for services afterwards to be ren- 
dered in a suit, for an infant, and to indemnify him for 
indorsing the writ, was held not to be within the statute. 
So, where the plaintiff at the request of the defendant, who 
verbally agreed with the plaintiff, who had been trusted in 
a suit against A, that if he would pay A the amount he owed 
him, he would pay any judgment which should be recovered 
against him. In reliance upon this promise, and upon no 
other consideration, the plaintiff paid to A the amount of 
his indebtedness, and it was held that the promise was 
an original undertaking, and not within the statute.'' 

1 Dunn u. West, 5 B. Mon. (Ky.) = Dorwin v. Smith, 35 Vt. 69; 

376; Lucas v. Chamberlin, 8 id. 276; Goodspeed v. Fuller, 46 Me. 141. 
Mills ;;. Brown, 11 Iowa, 315 ; Harrison * Walker v. Norton, 29 Vt. 226. 
V. Sawtel, 10 John. (N. Y.) 242 ; Jones ^ Alger v. Scoville, 1 Gray (Mass.) 

V. Shorter, 1 Ga. 294; Holmes v. 391. See also Aldrich r. Ames, 9 id. 

Knights, 10 N. H. 175 ; Perley v. 76, where it was held that a promise to 

Spring, 12 Mass. 297 ; Chapin v. Lap- indemnify a person for hecoming hail 

ham, 20 Pick. (Mass.) 467. for another is not within the statute. 

" Chapin v. Merrill, 4 Wend. (N. « Sanborn v. Merrill, 41 Me. 467. 
y.) 657. ' Soule v. Albee, 31 Vt. 142. 



296 STATUTE OF FKATJDS. [CHAP. IV. 

SeO. 160. Promise to Indemnify Against Costs of Suits.— ^ 
A promise to indemnify a third person against the costs of 
a suit commenced or defended by him at the request of the 
promisor, is not within the statute Thus, in Howes v. 
Martin,^ the plaintiff had accepted several bills of exchange 
from the defendant. These bills had all been regularly taken 
up, except the last, which was for .£20. This bUl had come 
into the hands of one Greensill, and the defendant, being 
unable to take it up when due, had prevailed upon Greensill 
to accept £16 in part, and the plaintiff's acceptance for six 
guineas, being the balance of the bill, with the interest then 
due for the remainder. This bill for six guineas not being 
paid when due, Greensill brought his action on it against; 
Howes as the acceptor. On the action being brought, the 
plaintiff acquainted Martin with the circumstance, and he 
desired the present plaintiff to defend the action. In con- 
sequence of this advice the plaintiff defended the action, 
and Greensill obtained a verdict for the amount of the bill, 
which, with costs, amounted to £S2. The present action 
was brought to recover this sum. Lord Kenyqn held that 
the case was not within the statute, saying that it appeared 
that the plaintiff never had any consideration whatever for 
the acceptances, which were given merely on the defendant's 
account and for his use ; that the defence to the action on 
the note was on his account, and from whence he could have 
derived a benefit ; that as he therefore was personally inter- 
ested and directed the defence to be made, by which he might 
have been benefitted, the money must be considered to have 
been laid out by the plaintiff on his account and to his use, 
and that he, therefore, was entitled to recover it. So, in 
Bullock V. Lloyd,^ it was held that the promise of the in^ 
dorser of a dishonored bill to pay the indorsee the costs 
of an action against the acceptor, need not be in writing.^ 

1 1 Esp. 162; Dorwin v. Smith, 35 forbearance to sue the maker. It was 
Vt. 69 ; Goodspeed v. Fuller, 46 Me. held that such promise was within the 
141. statute, there being no new considera- 

2 2 C. & P. 119. tion therefor. Peabody v. Harvey, 4 
' But see AVinckworth v. Mills, 2 Conn. 119; Huntington v. Harvey, 4 

Esp. 484. The indorser of -., promis- Conn. 124. See also Jones v. Walker, 
sory note, who was discharged by the 13 B. Mon. (Ky.) 356 ; Turner v. Hub- 
laches of the holder, promised him to bel, 2 Day (Conn.) 457 ; Ellison v. 
pay the note in consideration of his Wisehart, 29 Ind. 32. So a promise 



SEC. 160.] 



GUAEANTIES. 



297 



In Adams v. Dansey,^ the plaintiff, an occupier of land, at 
the request of the defendant, and upon a promise of indem- 
nity, resisted a suit of the Vicar for tithes ; it was held that 
this was not a promise required by the statute to be in 
writing. "Here," said Tdsdal, C. J., '*as between Adams 
and Dansey, what promise is there as to the debt, default, 
or miscarriage of another ? It is a direct promise , to repay 
Adams any money which might be paid by him for costs in 
the suit between the Vicar and Adams. It has been urged 
that at all events the promise would not be available for 
costs antecedently incurred. But it was competent to the 
plaintiff to make any bargain he pleased as the price of Ins 
resisting the tithe suit for the benefit of the defendant." * 



by the holder to extend the time of 
payment of a note, made in consider- 
ation of a promise by a third person 
to pay additional interest, and a ver- 
bal release of the maker in considera- 
tion of a promise by a third person to 
pay the amount, is not binding, nor a 
bar to an action on the note, the 
promises which were the consideration 
being void. Evans v. Lohr, 3 111. 511, 
But the promise of one creditor to 
pay the claim of another against their 
mutual debtor, in consideration of the 
forbearance of the latter to contest 
the validity of a judgment obtained 
by the former against the debtor, is 
an original undertaking, and not with- 
in the statute of frauds. Smith v. 
Rogers, 35 Vt. 140. See also Tem- 
pleton V. Bascom, 33 Vt. 132 ; Pratt «. 
Humphrey, 22 Conn. 317; Fish v. 
Thomas, 5 Gray (Mass.) 45; Ferris v. 
Barlow, 2 Aik. (Vt.) 106. 

1.6 Bing. 506; 4 Moo. & P. 245. 

^ And see Spark v, Heslop, 1 E & 
E. 563; 28 L. J. Q. B. 197. In Peck 
V. Thompson, 15 Vt. 637, A owed B, 
and sent him with a verbal order, to 
procure the money from C on A's 
account. C refused to pay on a 
verbal order, and required B to bring 
a written, order from A, or else to give 
his own accountable receipt for the 
money. B received the money, and 
gave his receipt to account to C for 
it, on demand. Afterwards C called 
on B, ami threatened to commence a 



suit upon his receipt. Of this B 
notified ^, relying upon him to settle 
the demand of C. In order to induce 
B to submit to a suit in favor of C, 
and thereby afford A an opportunity 
to prove such payment, A and D 
promised B to indemnify him against 
any judgment which C might recover, 
and also against the expense of de- 
fending C's suit. It was held, that 
the promise of A and D was not 
affected by the statute of frauds. In 
Rowe V. Whittier, 21 Me. 545, it was 
agreed between the plaintiff and de- 
fendant in an action to settle the 
same in a certain manner, if the de- 
fendant would "pay the expenses," 
and he verbally promised the plain- 
tiff's attorney to pay the same to him. 
It was held that the promise was not 
within the statute of frauds, as to the 
taxable costs, he being liable to pay 
the same to . the plaintiff, but that it 
was within the statute as to the charge 
for commissions, he not being liable to 
the plaintiff for them. In Eagland v, 
Wynn, 37 Ala. 32, it was held that a 
verbal promise by the sureties on the 
official bond of a sheriff, after a de- 
cree against them all has been ren- 
dered, to pay an item of costs which 
had been omitted in the taxation of 
costs, on condition that the plaintiff 
would allow a credit on the decree 
for a sum which it was alleged had 
been paid, is not within the statute. 



298 



STATTTTB OP FRAUDS. 



[chap. it. 



Generally it may be said that, if a promise of indemnity is 
not collateral to the liability of some other person to the 
same party to whom the promise is made, it is not within 
the statute, and, in the absence of all evidence that there 
was a liability of any other person to the plaintiff to which 
the promise of indemnity could be collateral, it will be 
treated as an original promise.^ 

Sec. 161. Parol Guaranty of Note Turned Out to Pay Debt. 

— Under the rule as previously stated, that a promise which is 
in effect to pay the debt of the promisor, although in form to pay 
the debt of another, is not within the statute, it is held that 
a parol guaranty of a note of a third person, which a debtor 
transfers to a creditor in payment of his debt, either in whole 
or in part, is not within the statute,^ and the creditor may 



1 Beaman v, Russell, 20 Vt. 205. 

2 Hassinger v. Newman, 83 Ind. 
124 ; 43 Am. Kep. 64. But it was held 
in this ease that an oral promise to 
pay what the maker did not, is within 
the statute. In Milks v. Rich, 80 N. Y. 
269, the defendant recovered money 
from plaintiff for his own benefit, and 
delivered at the time to the plaintiff 
a note of one Marsh, for the amoimt, 
verbally promising that the note was 
good and that it would be paid at ma- 
turity. It was held that the defend- 
ant was liable for the amount on the 
note, and the promise to pay was not 
within the statute of frauds. The 
defendant delivered the note, and the 
plaintiff received it as a mode of pay- 
ing for the money, and the defendant's 
promise was regarded in effect, not as 
a collateral promise to answer for the 
default of Marsh, but as a promise to 
pay the plaintiff for the money the 
defendant had, in case Marsh did not 
pay him. It was the promise of one 
to pay his own debt in case a third 
person does not pay it. "Within the 
principles laid down in the authori- 
ties, such a promise is not within the 
statute. Fowler v. Clearwater, 35 
Barb. (N. Y.) 143; Dauber jj. Black- 
ney, 38 id. 432 ; Losee v. Williams, 6 
Lans. (N. Y.) 228; Johnson v. Gilbert, 
4 Hill (N. Y.) 178; Brown v. Curtis, 2 



N. Y. 225; Cardell v. McNiel, 21 id. 
336; Bruce v. Burr, 67 id. 237; Dun- 
ham V. Morrow, 2 N. Y. 533 ; Mobile 
&c. R. R. Co. V. Jones, 57 Ga. 198. In 
the case of Milks v. Rich, ante, Eakl, 
J., while doubting the soundness of 
the doctrine that such a parol con- 
tract is not within the statute, yet 
said that the court yielded its assent 
to it because he thought the authori- 
ties last cited should control. In Row- 
land V. Rourke, 4 Jones (N. C.) L. 387, 
it was held that a contract to make 
good certain notes which a debtor 
gave to his creditor in payment of a 
debt, in case the maker was not good 
for the amount on a certain day, was 
not within the statute. See also .lones 
V. Palmer, 1 Doug. (Mich.) 379. In 
Eagle Mowing and Reaping Machine 
Co. V. Shattuck, 53 "Wis. 455; 40 Am. 
Rep. 78, it was held that where a 
debtor induces his creditor to take in 
settlement of the indebtedness the 
note of a third person, with such 
debtor's guaranty of its payment, not 
stating the consideration, this is, in 
effect, a promise by such debtor to 
pay his own debt in a particular man- 
ner, and is not within the statute of 
frauds. Cassodat, J., said : " At the 
time of the accounting and settle- 
ment of the defendants with the 
agent, the maker of the note in ques- 



SEC. 161.J GITAEAKTIBS. 299 

maintain an action against the promisor upon such guaranty 
to recover the amount of the note, or such part thereof as he 



tion was not indebted to the plaintiff, 
but to the defendants. The note was 
not given for property belonging to, 
or furnished by, the plaintiff, but for 
property belonging to and furnished 
by the defendants. The note at the 
time was the property of the defend- 
ants. The defendants being indebted 
to the plaintiff for money or notes 
taken for the plaintiff's machines, and 
by them converted to their own use, 
turned out the note in question, with 
the guaranty upon it, as their own 
property, in payment of their own 
debt. Are they to be discharged of 
their debt without being held liable 
on their guaranty? Does the case 
come within the language or meaning 
of the statute 1 Was the promise of 
the defendants anything more than 
a promise to pay their own debt in the 
manner stated ? We think it was not, 
and the case therefore comes clearly 
within the rule of Wyman v. Good- 
rich, 26 Wis. 21, where it was held 
that 'where the owner of a note, as 
part of the terms of sale thereof, 
guarantees its payment, his contract 
is not within the statute of frauds.' 
It was not the consideration of the 
note which was the basis of the prom- 
ise of the defendants to the plaintiff, 
but the money or property of the 
plaintiff, which the defendants had 
converted to their own use, and which 
they undertook to pay by the transfer 
of the note with their guaranty upon 
it. It was in form a guaranty of the 
payment of the note, but the guar- 
anty was in fact made in payment of 
their own debt. Such a case is neither 
within the letter nor spirit of the stat- 
ute, as abundantly appears from the 
decisions of this court, and cases there- 
in cited." In Putnam v. Famham, 27 
Wis. 187 ; 9 Am. Eep. 459, a debtor 
orally promised to pay part of his 
debt by paying the debt of the credi- 
tor to a third person, to which arrange- 
ment the latter assented. Held, a 
valid promise. The principal case is 



sustained by Barker v. Scudder, 56 
Mo. 272; Allen v. Eighmie, 9 Ilun 
(N. Y.) 201 ; Mobile and Girard R. Co. 
V. Jones, 57 Ga. 198 ; Malone i . Kee- 
ver, 44 Penn. St. 107 ; Milks v. Rich, 
80 N. Y. 269 ; 36 Am. Eep. 615. A 
recent Massachusetts case, Dows v. 
Swett, 120 Mass. 322, however, ad- 
vances a doctrine which is apparently 
opposed to this, and holds that a parol 
guaranty of a note of a third person 
given in payment of the debts of the 
promisor is within the statute ; and in 
New York, Draper v. Snow, 20 N. Y. 
331 ; Brewster v. Silence, 8 id. 207 ; 
Wood 0. Wheelock, 25 Barb. (N. Y.) 
625, such a guaranty was held to be 
within the statute, upon the ground 
that the consideration was not suffi- 
ciently connected with the considera^ 
tion in the principal contract. In 
Bruce v. Burr, 67 N. Y. 237, the defend- 
ant contracted to sell and deliver to 
the plaintiff a quantity of books, and 
to accept in payment therefor the note 
of one Lund, the plaintiff at the same 
time orally guaranteeing its payment at 
maturity. The court held that the 
guaranty was not within the statute. 
In Johnson v. Gilbert, 4 Hilt. (N. Y. C. 
P.) 178, the plaintiff paid a debt which 
the defendant owed, and in considera- 
tion of such payment, the defendant 
transferred to him a note against one 
Eastman, and guaranteed its payment, 
and the guaranty was held to be valid. 
In Garden v. McNiel, 21 N. Y. 336, in 
which the defendant delivered the 
plaintiff a chattel note in part pay- 
ment for a horse, verbally guarantee- 
ing its payment, a similar doctrine 
was held, Comstock, J., saying : " In 
mere form it was certainly a collateral 
undertaking, because it was a promise 
that another person should perform 
his obligation. But looking at the 
substance of the transaction, we see 
that the defendant paid in this man- 
ner a part of the price of a horse sold 
to himself. In a sense merely formal 
he agreed to answer for the debt of 



300 



STATUTE 05' PEAUBS. 



[chap. IV. 



has failed to obtain from the maker* Whatever may; b© said 
as to the soundness of this rulej its justice cannot be doubted; 
and there can be no doubt that ^t comes fairly within the 
rule that, where l^e promise is in effect a promise to pay the 
debt of the promisor it is not within the statute, because, 
unless the note was accepted in. payment of the promisor's 
debt, he would gtOl remain liable upon the original debt for 
any deficiency which might arise from the creditor being 
unable to collect the full amount thereof, and his guaranty, 
therefore, creates no new obligation, but is in reality merely 
a promise to pay a debt from which he was never released; 
A different doctrine , might be held where the legal effect of 
the transaction is to release the debtor from the debt, there 
being nothing in the transaction, which shows that the original 
claim is to be kept on foot, because, while in the former case 
there is a mere change in the form of liability, in the latter 
there is a creation of a new liability, in place of one which is 
extinguished. It is upon this ground that the doctrine of a 
recent Massachusetts case ^ previously referred tOj , which is ap- 



Cprnell. In reality he undertoqk to pay 
his own vendor so much of the price of 
the chattel, unless a third person should, 
make the payment for him, and thereby 
discharge Hpi."- In Dauber ». BUqIct 
ney, 38 Barb. (N. T.) 432, under a 
similar state of facts, Hoyi^, J., said : 
'< Wherever the holder of a note 
against a third person turns it out in 
payment of his own debt, or in pay- 
ment of property purchased, or far 
money received. by him from the per- 
son to whom he transfers it, and at 
the same time agrees that the note is 
good; or will be paid at maturity, or 
that it will be collected, by due pro- 
cess of law against the maker, this is 
an undertaking in substance, entirely 
for his own benefit and advantage, and 
the contract is valid, although it rests 
entirely in parol, and is not within the 
statute of frauds." In California and 
Dakota the statute in express terms 
except? this class of promises from 
the operation of the statute. 

1 Dqws I). Swett, 120 Mass. 322.