
    Charles C. Mease vs. Ann Wagner.
    Where no action will lie against the person undertaken for, it is an original undertaking, and not within the Statute of Frauds.
    Where the wife whose husband died and left his estate to her for life, remainder to his nephew, died leaving a separate estate of her own, the court 1hid that the estate of her husband was not liable for her funeral expenses ; but that her aim estate was bound for them.
    ims was an action for the articles furnished the funeral of Mrs. Bradley, at the request and by order of the defendant. Mrs. Bradley was the widow of Dr. Bradley, who left her his estate during life, remainder to his ne - phew John Bradley. Mrs. Bradley, prior to her death, expressed a wish tobo bnvb-d in a particular manner. A*: soon as she expired, the defendant was sent for as a friend of the family, and she undertook to procure the articles necessary to such a funeral as the deceased' had desired. She proceeded to the shop of the plaintiff, where she selected the articles required, saying they were for Mrs. Bradley’s funeral. She was asked “ by whom, they were to be paid for.” She replied, “charge them to the estate of Dr. Bradley, and as soon as his nephew comes to town he will pay for them, or I will.” The articles furnished were such as were suitable to the condition in which Mrs, Bradley had lived.
    On the arrival of the nephew in the city, the account was presented to him,'and he refused to pay it, saying that the defendant had no authority to procure the articles at his expense. The defendant was then applied to, and s,he refused payment. Some time after this refusal, one of the witnesses remonstrated with the nephew on the impropriety of his conduct, when he said he would pay it, but did not. It appeared that a Miss Tcabout administered upon the éstate-of Mrs. Bradley.
    ■The council for the defendant contended that she was not responsible, as it was a collateral and not an original undertaking.
    The court charged the jury that it was an original, and not a collateral undertaking, and that the defendant was liable.
    . A verdict was accordingly rendered for the plaintiff. A motion was now made for a new trial, on the ground, that the court misdirected the jury.
   Mr.Justice Huge

delivered the opinion of the court.

It has beetvregarded as settled doctrine ever since the ca*s'e‘ Buckmyr vs. Darnall, (2 Lord Raymond, 1085.) Robt. on Frauds, 218,) that when no action will lie sígá'inst'Vn'e “party undertaken for, it is an orignal promise,. If A. promise- B. that in consideration of,his doing a par-íiculáf-act, C. shall pay him such a sum, and if C. do not nay him, he, bA. will pay the same; this is said to be no collateral undertaking on the part of A. unless C. was privy to the contract, and recognized himself as a debtor also. (Fitzgibbon, 302. Robt. on Frauds, 223.) In the case before me, the defendant undertook for the representative of Dr. Bradley, against whom no action could lie for the articles furnished for. the funeral of Mrs. Bradley. And there was no privity of contract between the plaintiff and the nephew of Dr. Bradley. But it has been urged, that the subsequent promise of the nephew had a retro-active operation, and rendered him liable ; but if he were not liable before the promise was made, he could not be so af-terwards. It was'not in writing, and was nudum pactum. Had the defendant undertaken for the estate or legal representative of Mrs. Bradley, who was legally bound to pay the expenses of her funeral, it would have been a different question : but she unfortunately undertook for one who was not responsible, and who was so far from being privy t'o the contract, or acknowledging himself a debtor, refused payment and denied the authority of the defendant to render him responsible.

King, for the motion.

Sunt, contra.

I am of opinion therefore that the motion must be re- ' fused.

Justices PTott, .Johnson., Richardson and Colcock, concurred.

Mr, Justice Gañil dissented.  